IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

FILED

September 15, 1999

STATE OF TENNESSEE, DEPT. OF ) C/A NO. 03A01-9810-JV-00341

CHILDREN’S SERVICES, ) 

) HAMILTON JUVENILE

Petitioner-Appellee, )

) HON. SUZANNE BAILEY,

v. ) JUDGE

)

LEON WILKERSON, )

)

Respondent-Appellant, )

) AFFIRMED 

IN THE MATTER OF: ) AND

KUBRA SATTERFIELD. ) REMANDED

PAUL G. SUMMERS, Attorney General and Reporter, and

ELIZABETH C. DRIVER, Assistant Attorney General, Nashville, for PetitionerAppellee.

JAY KU, Chattanooga, for Respondent-Appellant.

O P I N I O N

Franks, J.

This is an appeal from the Trial Court’s terminating any parenta l rights

of Leon Wilkerson to Kubra Satterfield.

The Trial Judge, in terminating Wilkerson’s parental rights, said in the

judgment:
1

Kubra was born testing positive for Valium and crack cocaine, and with serious medical

problems. His mother, Anice, tested positive for crack cocaine, syphilis, and was homeless

at the time of delivery.

2

That Leon Wilkerson’s connection to the subject child is only that of his

marriage to the natural mother, that he is not the biological father by his

own admission and has never seen the subject child and, therefore, the

petition filed by the State of Tenne ssee, Department of Children’s

Services, is well taken and should be sustained and relief granted

thereunder for the causes as therein stated in that the subject child has

been in the custody of Petitioner for at least six (6) months; that the

continuation of the legal parent and child relationship greatly diminishes

the child’s chances of early integration into a stable and permanent

home; that the Defendant, Leon Wilkerson, has been confined in a

correction or detention facility by order of a court as a result of a

criminal act under a sentence of 10 or more years and the subject child

was under eight years of age at the time the sentence was entered by the

court. Specifically, Leon Wilkerson, was sentenced in 1995 to eight (8)

years for drugs and two (2) years for reckless killing; it is therefore, for

the best interest of the said child and the public that all of the parental

rights of the De fendant to the s aid child be forever terminated . . . 

Kubra was taken into State custody for dependency and neglect,

pursuant to Tennessee Code Annotated §37-1-128 on May 16, 1996. Kubra was

placed in a foster home shortly thereafter, where he has remained. Kubra requires

intensive, round-the-clock care, due to his medical conditions.1 The Department has

identified a family interested in adopting Kubra, and that family has already has some

contact with the child, due to the ir friendship with his foster parents. 

Parents have a fundamental right to the care, custody and control of their

children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct.1208 (1972). However, that right

is not absolute, and parental rights may be terminated if there is clear and convincing

evidence justifying termination under the applic able statute. 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 child”. Tennessee Department of Human Services v. Riley, 689 S.W.2d 164-

169 (Tenn. App. 1984). 

Parental rights may be terminated in a limited number of statutorily
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defined circumstances, and then only if the court determines the termination is in the

child’s best intere st. In the Matter of M .W.A. Jr., 980 S.W.2d 620 (Tenn. App. 1998). 

Parental rights may also be te rminated when continuing the pa rent-child relationship

poses a substantial threat of harm to the child. Id. The Court terminated Wilkerson’s

parental rights under T.C.A. §36-1-113(g). Section (g)(6) provides for termination in

the following situation:

The parent has been confined in a correctional or detention facility of

any type by the order of a court as a result of a criminal act, under a

sentence of ten or more years, and the child is under eight years of age at

the time the sentence is entered by the court.

Wilkerson admitted that he was incarcerated for a sentence of ten years

for reckless killing and drug offences. The child was under the age of eight at the

time of sentencing. Thus, the requirements of the section are met for terminating

parenta l rights. 

In this case, Kubra has been in the Department’s custody for more than

six months. Wilkerson’s incarceration is a condition that prevents Kubra from

returning to the care of a parent, and Wilkerson is unlikely to remedy that situation in

the near future. While he expected to be released on parole, he had over six years left

to serve on his sentence. Additionally, continuation of the parent-child relationship

would greatly diminish the child’s chances of integration into a stable and permanent

home, as it could be up to six years before Wilkerson could begin to provide a home

for Kubra.

While Wilkerson does not dispute the statutory grounds for termination

of his parental rights, he claims that he did not receive proper notice of the earlier

dependency and neglect proceeding, and was thereby denied his due process. He also

says that the Department failed to give him lawful notice when Kubra was taken into

State custody, or allow him as a legal father to make a choice or have input into the
4

appointment of a guardian. 

Wilkerson’s argument that he was denied due process because he was

not given notice of the initial proceeding, does not establish a basis to overturn the

Trial Court’s decision. It is clear, however, that Wilkerson received full procedural

protection at the termination proceeding upon which this appeal is based. Wilkerson

received notice of the hearing and was transported to Court to be present at the

hearing. He was informed of his right to counsel and was appointed counsel upon his

request. The hearing was rescheduled to allow him to meet with his attorney. 

Wilkerson was present and testified at the termination hearing, and had the assistance

of couns el.

We have previously addressed the question of due process implications,

when a parent does not receive notice of the dependency and neglect proceeding, but

later participates in the termination proceeding. In State of Tennessee Department of

Human Services v. Grove, 1989 WL 3137 (Tenn. App. 1989), a mother argued that

she did not receive due process protection because she did not receive notice of the

original DHS petition for a custodial preliminary hearing. In upholding the

termination of her parental rights, the Court said that “appellant overlooks the salient

fact that she later intervened in the Juvenile Court action and there asserted her

plenary rights; any lack of due process initially was thereafter fully supplied.” Grove

at *3.

Like the appellant in Grove, Wilkerson asserted his plenary rights at the

termination hearing, and any initial lack of due process was remedied by the full

procedural protections afforded to Wilke rson at the termination hearing. “[E]ven if it

can be said that the appellant was deprived of due process in the ‘dependency and

neglect’ proceeding in the Juvenile Court, there is no claim of such deprivation in the

... action to terminate parental rights.” Grove at *3.
5

Wilkerson complains that the lack of notice in earlier proceedings

denied him the opportunity to participate in the custody decision, and he says that “he

could have aided in locating a relative placement and suggested alternative

placements.” Wilkerson had no custody option for Kubra. A representative of the

DCS met with Wilkerson and asked him what plans he would make for the child, and

Wilkerson suggested that Kubra could live with Wilkerson’s mother who resides in

Washington, D.C. However, it developed that Wilkerson’s mother was not willing to

take custody of Kubra , and Wilkerson, being incarcerated, could not care for the child

himself and did not offer any other viable option when consulted.

Wilkerson also complains that he was denied the ability to participate in

a plan of care. However, a plan of c are requires the parent to take steps toward

providing a stable home for the child, which means acquiring appropriate housing,

maintaining stable employment, and providing financially for the child. See gene rally

T.C.A. §37-2-403. Finally, Wilkerson argues that by failing to allow him to

participate in a foster care plan, the Department was given an additional reason for

terminating his parental rights and processing a “no contact” order. However,

Wilkerson’s inability to participate in the foster care plan or provide an alternative

custody option is entirely separate from the re asons for terminating his parental rights. 

Whether or not Wilkerson was able to participate in any decisions regarding the child,

an independent basis for terminating parental rights was established by clear and

convincing evidence. See T.C.A. §36-1-113(g)(6) and §(g)(3)(A). The record also

establishes that termination is in the best interest of the child.

We affirm the judgment of the Juvenile Court and remand with cost of

the appea l assessed to the appellant.
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__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Charles D. Susano, Jr., J.

___________________________

D. Michael Swiney, J.