IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE FILED

September 15, 1999
STATE OF TE

NNESSEE,DEPT. OF ) C/A NO. 03A01-9810-JV-00341 CHILDREN’S SERVICES, ) ) HAMILTON JUVENILE Petitioner

-Appellee, ) ) HON. S UZANNE BAILEY, v. ) JUDGE ) LEON WILKER SON, ) ) Respon dent-Ap pellant, ) ) AFFI RMED IN THE MATTER O F: ) AND KUBRA SATTERF

IELD. ) REMANDED

PAUL G. SUM MERS, Attorney General and Reporter , and ELIZAB ETH C . DRIVE R, Assistant Attorney Ge neral, Nashville, for PetitionerAppellee.

JAY K U, Chatta nooga, fo r Respon dent-Ap pellant.

O P I N I

O N Franks, J.

This is an ap peal from the Trial Co urt’s terminatin g any parenta l rights of Leon Wilkerson to Kubra Satt erfield. The Trial Judge, i

n terminating Wil

kerson’s parent

al rights, said in the judgmen t:1 Kubra was born testing positive for Valium and crack cocaine, and with serious m edical problems. His mother, An ice, tested positive for crack cocaine, sy philis, and was homeless at the time of de livery.
2 That Leo n Wilkers on’s conn ection to the s ubject child is only that of his marriage to the natural m other, that he is not the biolo gical father b y his own admission and has never seen t he subject chil

d and, therefore,

the petition filed by the State of Tenne ssee, Department of Children’s Services, i s well taken and shoul d be sustained and re

lief granted thereunder for t

he causes as there

in stated i

n that the subj ect child has been in the custody

of Petitioner

for at least

six (6) months;that the continuation of t

he legal parent

and child relat

ionship great

ly dimini shes the child’s

chances of early

integration into a stabl

e and permanent home; that the Defendant, Leon Wilkerson, has been confined in a correction or

detention faci

lity by order of a cour

t as a result

of a criminal act u nder a sen tence of 1 0 or more years and the s ubject child was under eight years of age at the t ime the sentence was ent ered by the court. Specifi

cally,Leon Wilkerson, was sentenced in 1995 to eight ( 8) years for dr

ugs and two (2) year

s for reckless

killing;it is the

refore, for the best int

erest of the sa

id child and the

public that a

ll of the parent

al rights of the De fenda nt to the s aid child be fore ver term inated . . . Kubra w as taken into State custod y for depend ency and ne glect, pursuant to Tennessee

Code Annotated §37-1-128 on May 16, 1996. Kubra was placed in a foste

r home shortly

thereafter,

where he has remained. Kubra re quires intensive, round-the-clock care, due to his medical condit ions. 1 The Department has ident ifi ed a fa mily inte rest ed in a dopti ng Kubra, and that

famil y has already has som

e contac t with th e child, d ue to the ir friend ship w ith his fo ster pare nts.

Parents ha ve a fund amental righ t to the care, cu stody and co ntrol of their children
. Stanley v. Illino is , 405 U.S. 645, 92 S.Ct. 1208 (1972). However, that right is not absolut

e, and parental

rights may be

terminated if there is cl ear and convincing eviden ce justif ying term ination u nder th e applic able stat ute. T.C .A. §36 -1-113 (c)(1). Additionally, all

issues are premised on the foundation of “what is in the best interest of the c hild”. Tennessee Department of Human Services v. Riley , 689 S.W.2d 164- 169 (T enn. A pp. 198 4).

Parental righ ts may be term inated in a lim ited numb er of statutorily3

defined circumsta

nces, and then only

if the court det

ermines the ter

mination is i

n the child’s b est intere st. In the M atter of M .W.A. Jr ., 980 S .W.2d 620 (T enn. A pp. 199 8). Parental righ ts may also be te rminated w hen contin uing the pa rent-child relatio nship poses a substan tial threat of harm to the ch ild. Id. The Court term inated Wilkerson’s parental righ ts under T .C.A. §36 -1-113(g). S ection (g)(6) provides f or terminatio n in the following si

tuation: The parent has been confined in a correcti onal or detenti

on facility

of any type by the order of a court as a result of a crim inal act, under a sentence of ten or more years, a nd the child is

under eight years of age at the time the s entence is e ntered by the c ourt. Wilkerson adm itted that he was incarcerated f or a sentence of ten years for reckless ki

lling and drug offences. The child was under t he age of eight at t

he time of sentenci

ng. Thus, the requi

rements of the sect

ion are met for te

rminating parenta l rights.

In this case,

Kubra has been in the Department ’s custody f or more than six months. Wilker

son’s incarcer

ation is a condi

tion that pr

events Kubra from returning to th e care of a parent, and Wilkerso n is unlikely to rem edy that situation in the near future.While he expected to be r eleased on parole,

he had over six years left to serve on his sentenc e. Addition ally, continuation of the pare nt-child relation ship would greatly

diminish the chi

ld’s chances of i

ntegration i

nto a stable and per

manent home, as it

could be up t o six year s befo re Wil kers on coul

d begi n to pr ovide a home for Kubra. While Wilkerson does not di spute the sta tutory gr ounds for terminat

ion of his parental

rights, he claims that he di d not receive proper

notice of the ear

lier dependency and neglect proceeding, and was thereby denied his due process. He also says that the D epartmen t failed to give him lawf ul notice w hen Ku bra was ta ken into State custody , or allow him as a l egal father t

o make a choice or have input into the4

appoin tment o f a gua rdian.

Wilkerson’s argument

that he was denied due process because he was not given notice

of the initial proceeding,does not establ ish a basis t

o overturn the Trial Court’s

decision. I

t is clear, however, that Wil kerson received ful

l procedural protection at

the terminat

ion proceeding upon which thi s appeal is based.Wilkerson received notice of the hearing and was t ransported to Court

to be present at

the hearing. H e was inf ormed o f his right to co unsel and was app ointed cou nsel upon his reques t. The h earing w as resch eduled to allow him to m eet with his attorn ey. Wilkerson was present and t estified at

the terminat

ion hearing, and ha

d the assist

ance of couns el. We have previously addressed the question of due process implications, when a parent does not rece ive notice of t

he dependency and neglect proceeding, but later part icipates i n the terminat

ion proceeding. I

n State of Tennesse e Department of Human Services v. Grove , 1989 WL 3137 (Tenn. App. 1989), a mother ar gued that she did not recei

ve due process protec

tion because she di

d not receive noti

ce of the original DHS petit

ion for a custodi al prelimina ry hearing.In upholding the termination of

her parental r

ights, the Court said that

“appellant over

looks the sali

ent fact that she l

ater inter vened in the Juvenil

e Court action and t

here asserted he

r plenary ri

ghts; any lack of due process ini tially was thereafter ful

ly suppli ed.” Grove at *3. Like the appellant in Grove , Wilkerson asser ted his plenar

y rights at the termination hearing, an d any initial lack o f due pro cess was remedied by the full procedu ral protection s afforde d to Wilke rson at the term ination hea ring. “[E]v en if it can be said that t

he appellant was depri

ved of due process in t

he ‘dependency and neglect’ proceeding in the Juveni le Court, ther

e is no claim of such depr ivation in t

he ... act ion to terminat

e parental ri

ghts.” Grove at *3.5 Wilkerson complains t

hat the lack of not

ice in earli

er proceedings denied him the opport

unity t o participat

e in the custody

decision, and he s ays that “ he could have aided in l

ocating a rela

tive placement a

nd suggested alt

ernative placements.” Wilke

rson had no custody

option for Kubra. A repre sentative of t he DCS met with Wilkerson and asked him what plans he would make for the child, and Wilkerso n suggeste d that Kub ra could live with Wilk erson’s m other wh o resides in Washin gton, D.C . Howe ver, it develop ed that W ilkerson’s m other wa s not willing to take custod y of Kubra , and Wilk erson, being incarcerated , could not c are for the c hild himself and did not off

er any other

viable option when consul ted. Wilkerso n also com plains that he was den ied the ability to par ticipate in a plan of care. Ho wever, a plan of c are requires the parent to take steps to ward providing a sta

ble home for the chil

d, which means acquiri

ng appropriate housi

ng, mainta ining sta ble em ploymen t, and pr ovidin g finan cially for th e child. See gene rally T.C.A. § 37-2-403 . Finally, Wilkerso n argues th at by failing to allo w him to participat

e in a foster car

e plan, the Depart

ment was given an additi onal reason for terminating his parental rights and p rocessing a “no con tact” order. Howe ver, Wilkerson’s inabi

lity to partici

pate in the fost

er care plan or pr

ovide an alterna

tive custod y option is entirely sep arate fro m the re asons f or term inating h is paren tal rights. Whether or not Wilkerson was abl e to partici

pate in any decisions regar ding the child, an independent basis

for terminati

ng parental rights was establi shed by clear and convin cing ev idence
. See T.C.A. §36-1-113(g)(6) and §(g)(3)(A). The record also establishe s that ter

mination is i

n the best int

erest of the chi

ld. We affirm the judgment of the J uvenile Court and remand wit h cost of the appea l assessed to th e appellant.6 __________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Charles D. Susano, Jr., J.

___________________________ D. Michael Swiney, J.