Assigned on Briefs November 1, 2016
from the Juvenile Court for Knox County No. 78279 Timothy E.
appeal involves the termination of a mother's parental
rights to her four minor children. Following a bench trial,
the trial court found that clear and convincing evidence
existed to support the termination of her rights to all four
children on the statutory grounds of abandonment for failure
to provide a suitable home, the persistence of conditions
which led to removal, and substantial noncompliance with the
requirements of the permanency plan. The court also found
that clear and convincing evidence existed to support the
termination of her rights to the youngest child on the
statutory ground of severe child abuse. The court further
found that termination was in the best interest of the
children. The mother appeals. We reverse the trial court on
its finding of abandonment for failure to provide a suitable
home. On all other findings, we affirm the trial court's
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed; Case Remanded
Gregory E. Bennett, Seymour, Tennessee, for the appellant,
Kayla N. S.
Herbert H. Slatery, III, Attorney General and Reporter, and
W. Derek Green, Assistant Attorney General, Nashville,
Tennessee, for the appellee, State of Tennessee, Department
of Children's Services.
W. McClarty, J., delivered the opinion of the Court, in which
Frank G. Clement, P.J., M.S., and Kenny Armstrong, J.,
W. McCLARTY, JUDGE.
S., Yaron S., Yariyana L., and YariAsia L. were born out of
wedlock to Kayla N. S. ("Mother") and Yaron D. L.
("Father") in July 2011, January 2010, February
2013, and December 2014, respectively. Father was not listed
on Yariel or Yaron's birth certificate; however, he held
himself out in the community as the father. Mother also
confirmed his identity as the father. The Tennessee
Department of Children's Services ("DCS") first
met with Mother after she tested positive for benzodiazepines
and marijuana while pregnant with YariAsia in October 2014.
Despite Mother's drug use while pregnant, both YariAsia
and Mother were negative for drugs on the day of
YariAsia's birth. At that time, Mother and Father
(collectively "the Parents") agreed to cooperate
with services and receive treatment for substance abuse.
Mother self-reported drug use in January 2015 and tested
positive for drug use in February, March, and June 2015.
While at a child and family team meeting in May 2015, Mother
agreed to attend an appointment at a drug treatment center
the next day. Mother failed to attend the scheduled
appointment. DCS petitioned for temporary legal custody of
the Children on June 4, 2015. The Children were removed and
placed into foster care, where they have remained since that
time. They were later adjudicated as dependent and neglected
by agreed order due to Mother's substance abuse issues
and mental health issues, Father's substance abuse
issues, and the Parents' failure to provide appropriate
care and supervision of the Children.
initial permanency plan, dated June 25, 2015, was crafted by
DCS without Mother's participation. Mother, who refused
to discuss the requirements or sign the plan, was given a
copy of the plan. Pursuant to the plan, Mother was required
to (1) complete a mental health assessment and follow
recommendations; (2) complete an alcohol and drug assessment,
follow recommendations, and submit to drug screens; (3)
obtain and maintain suitable housing free from environmental
hazards, domestic violence, drug abuse, or other risks; (4)
maintain regular visitation; (5) participate in parent
education through therapeutic visitation; (6) obtain and
maintain a legal source of income; (7) remit child support;
and (8) maintain contact with DCS. Mother later signed a
Criteria and Procedure for Termination of Parental Rights on
July 10, 2015, indicating that she had received a copy of the
form and had been given an explanation of its contents.
March 15, 2016, DCS sought termination of Mother's
parental rights to the Children based upon the following
grounds: (1) abandonment for failure to provide a suitable
home; (2) the persistence of conditions which led to removal;
and (3) substantial noncompliance with the requirements of
the permanency plans. DCS also pursued termination of
Mother's parental rights to YariAsia on the additional
statutory ground of severe child abuse. DCS claimed that
termination of Mother's rights was in the best interest
of the Children. The hearing on the termination petition
was held on May 3, 2016. Mother failed to appear or defend
her rights through counsel, despite receiving notice of the
Brock testified that DCS became involved when Mother tested
positive for drugs and admitted drug use while pregnant with
YariAsia in October 2014. She provided that Mother was
referred to CenterPointe for drug treatment and completed the
program in November 2014. She stated that Mother agreed to
complete several requirements set forth in a non-custodial
permanency plan but that the Children were later removed
based upon her non-compliance and failure of several drug
Brock provided that she was not appointed as the case manager
for the Children until they were removed in June 2015. She
recalled that Mother completed mental health and alcohol and
drug assessments on September 8, 2015, but failed to follow
the recommendations from the assessments. She provided that
Mother failed to attend an intensive outpatient treatment
program and later tested positive for marijuana and oxycodone
on September 28, 2015, and morphine on October 12, 2015. She
completed several referrals for treatment for Mother and
reminded her to call the different facilities, but Mother
failed to attend as agreed. She even arranged transportation
after Mother indicated that transportation was a barrier to
Brock claimed that Mother appeared intoxicated during
visitation and at meetings. She noted that Mother visited
regularly through December 2015 but had not attended a
visitation since February 3, 2016. She believed that Mother
currently lived with her grandfather in an unstable living
situation. She recalled meeting Mother's grandfather
during an unannounced visit on December 9, 2015. She
described him as "agitated" and "angry"
and stated that he slurred his words, was unsteady on his
feet, and opened a beer while speaking with her and her team
leader. She provided that he also threatened to get a gun and
kill Father because he wanted him out of the house. She
claimed that Mother had not updated her address or given any
indication that she moved from grandfather's house since
that time. She asserted that Mother also never identified any
source of income and failed to maintain contact with her.
Brock testified that the Children were doing well and had
been placed together in an adoptive home. Foster Father
confirmed his desire to adopt the Children should they become
available. He claimed that the Children had adjusted well.
the hearing, the trial court found clear and convincing
evidence to support termination of Mother's parental
rights to the Children based upon her abandonment for failure
to provide a suitable home, the persistence of conditions
which led to removal, and her substantial noncompliance with
the requirements of the permanency plan. The court also found
clear and convincing evidence to support termination of
Mother's parental rights to YariAsia based upon a finding
of severe child abuse. The court further found clear and
convincing evidence that termination of Mother's parental
rights was in the best interest of the Children. This appeal
We consolidate and restate the issues raised on appeal as
A. Whether reversal of the trial court's judgment is
required for lack of personal jurisdiction.
B. Whether reversal of the trial court's judgment is
required because the court failed to appoint counsel on
C. Whether the trial court erred by failing to comply with
the procedural rules for entry of a default judgment.
D. Whether clear and convincing evidence supports the
court's finding of statutory grounds in support of its
E. Whether clear and convincing evidence supports the
court's finding that termination was in the best interest
of the Children pursuant to Tennessee Code Annotated section
STANDARD OF REVIEW
have a fundamental right to the care, custody, and control of
their children. Stanley v. Illinois, 405 U.S. 645
(1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988). This right "is among the oldest of the
judicially recognized liberty interests protected by the Due
Process Clauses of the federal and state constitutions."
In re M.J.B., 140 S.W.3d 643, 652-53 (Tenn. Ct. App.
2004). "Termination of a person's rights as a parent
is a grave and final decision, irrevocably altering the lives
of the parent and child involved and 'severing forever
all legal rights and obligations' of the parent."
Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App.
2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)).
"'[F]ew consequences of judicial action are so grave
as the severance of natural family ties.'"
M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting
Santosky v. Kramer, 455 U.S. 745, 787 (1982)).
parental rights are superior to the claims of other persons
and the government, they are not absolute and may be
terminated upon appropriate statutory grounds. See Blair
v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due
process requires clear and convincing evidence of the
existence of the grounds for termination of the parent-child
relationship. In re Drinnon, 776 S.W.2d at 97. A
parent's rights may be terminated only upon
(1) [a] finding by the court by clear and convincing evidence
that the grounds for termination of parental or guardianship
rights have been established; and
(2) [t]hat termination of the parent's or guardian's
rights is in the best interest  of the child.
Tenn. Code Ann. § 36-1-113(c). "[A] court must
determine that clear and convincing evidence proves not only
that statutory grounds exist [for the termination] but also
that termination is in the child's best interest."
In re Valentine,79 S.W.3d 539, 546 (Tenn. 2002).
The existence of at least one statutory basis for termination
of parental rights will support the trial court's
decision to terminate those rights. In re C.W.W., 37
S.W.3d 467, 473 ...