In addition to the Carroll County arrest for DUI and child endangerment, and the March 18, 2000 public 1

intoxication arrest, which led to Moody’s enrollment in the drug and alcohol program at St. Francis (both discussed

infra), there have been numerous complaints and arrests involving Moody and Argo. On September 24, 2000, Moody

(continued...)

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 20, 2004 Session

IN RE: M.E.A. BY: ELIZABETH JOY ARGO EXUM, ET AL. v.

KIMBERLY DARLENE MOODY, ET AL.

A Direct Appeal from the Juvenile Court for Madison County

No. 37-31,926 The Honorable Larry McKenzie, Judge

No. W2003-01669-COA-R3-PT - Filed February 19, 2004

This is an appeal of a termination of parental rights case. Appellant mother contends that the

petitioners have no standing to bring the petition and also that the petitioners failed to prove by clear

and convincing evidence the groundsfor termination and that the termination was in the best interest

of the child. We affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,

J. and HOLLY M. KIRBY, J., joined.

David W. Camp, Jackson, For Appellant, Kimberly Moody

Catherine B. Clayton, Jackson, For Appellees, Elizabeth Joy Argo Exum and James L.Exum

OPINION

This is a termination of parental rights case. On December 13, 1999, M.E.A. (the “Child”)

was born to Kimberly Darlene Moody (“Moody,” “Mother,” or “Appellant”) and her boyfriend,

David Thomas Argo (“Argo,” or “Father”). At the time of M.E.A.’s birth, Moody was married to

Randy Thomas Moody. Randy Thomas Moody was incarcerated at the time of M.E.A.’s birth and

he remained so at the time of trial. M.E.A.’s birth certificate specifically lists Argo as the father.

Both Moody and Argo have a long history of arrests and other problems associated with alcohol and

drug abuse. 

1
(...continued) 1

signed a domestic assault warrant in Madison County, Tennessee against Argo. On November 10, 2000, Moody

requested that the charge be dismissed, explaining that “both parties had been drinking heavily and that she [didn’t] have

a clear recollection of the events.” On May 23, 2001, the day before she was scheduled to appear in court for a custody

hearing, Moody and Argo were involved in another altercation in Madison County, which resulted in Argo pleading

guilty to aggravated assault. Again, Moody signed a statement that she and Argo had been drinking heavily at the time

of the incident and did not recall any threat with a knife. On March 25, 2002, Moody was arrested again in Carroll

County for public intoxication at the Hitching Post and Paul’s Pool Room. She failed to appear in court for this charge.

On May 28, 2002, Moody was arrested in Henderson County for public intoxication. She pled guilty and paid a fine.

On June 24, 2002, Moody was arrested in Carroll County for public intoxication, for which she pled guilty. A criminal

warrant was issued against Moody on June 24, 2002 for assault on a Ms. Teresa Small. Moody failed to appear in court

for this charge. On July 30, 2002, Moody was arrested in Henderson County on three charges: possession of a weapon

while under the influence, public intoxication, and reckless endangerment for shooting a gun in the city over an inhabited

area. These charges were pending at the time of the hearing in this matter. 

-2-

Upon the birth of M.E.A., she was in the physical custody of Moody and Argo. Since Moody

and Argo had no place to live or means to provide for the child, Argo’s sister, Elizabeth Joy Argo

Exum, and her husband, James F. Exum (“Exums,” or “Appellees”) helped with housing and other

needs. Moody and Argo moved, with M.E.A., into a mobile home at Rolling Acres Estates in

Jackson, Tennessee. Shortly thereafter, Moody’s sister, Carolyn Cunningham, and her husband,

David Cunningham, also moved into the trailer. When the Child was less than one month old,

Moody was arrested in Carroll County, Tennessee for driving under the influence. She was also

cited with child endangerment because M.E.A. was with her in the vehicle and was unrestrained.

Moody appeared in court on March 3, 2000 and was convicted on both offenses. On March 18,

2000, Moody was again arrested in Carroll County for public intoxication. Moody subsequently pled

guilty to the offense and paid a fine. Moody then enrolled in an inpatient drug and alcohol program

at St. Francis Hospital in Memphis.

On March 30, 2000, Carolyn Cunningham filed a Sworn Petition in the Madison County

Juvenile Court alleging that the then three-month-old Child was dependent, and requesting

temporary custody of M.E.A. because “the mother is in detox at St. Francis Hospital for drugs and

alcohol.” On or about September 11, 2000, Joy Exum received a call at her home and was advised

that Moody and her family had no money for food and necessities for the Child. Joy Exum bought

those items and met Moody’s mother, Judy Dunning, and her sister, Carolyn Cunningham, at Milan,

Tennessee to give them those items. According to Joy Exum’s testimony, the Child appeared to be

unkempt and unclean at that meeting and Moody was not present.

On September 19, 2000, the Exums filed a Petition for Custody and obtained an emergency

Order granting them temporary custody. On December 5, 2000, a full preliminary hearing was held,

at which time the Madison County Juvenile Court continued custody with the Exums. On September

21, 2001, a Custody Order was entered, which continued custody with the Exums following a full

adjudicatory and dispositional hearing on May 23, 2001. At the hearing, the court ordered a

Permanent Parenting Plan, which was filed on September 21, 2001. The Parenting Plan allowed
-3-

Moody and Argo visitation with M.E.A. under the supervision of Moody’s mother, Judy Dunning.

The Parenting Plan also indicated that Moody and Argo were to complete the following:

1. Within 30 days of the date of the entry of the Order on the

Adjudicatory and Dispositional Hearing in this case (The Order)

which was heard on May 23, 2001, the Parents, David Thomas Argo

and Kim Moody will begin to attend parenting classes at the Carl

Perkins Center for Child Abuse and complete 40 hours of classes

within 90 days after the date of the entry of The Order. They will

provide the Court or CASA a certificate of attendance or other

evidence of completion of this requirement.

2. David Thomas Argo and Kim Moody will contract for and begin

alcohol and drug abuse weekly counseling sessions with a licensed

counselor trained in this field, within 30 days from the date of the

entry of The Order. They will continue to attend and participate in

said sessions until the counselor decides that counseling is no longer

necessary. They will provide the Court or CASA a certificate of

attendance or other evidence of completion of this requirement.

3. David Thomas Argo and Kim Moody will not consume alcohol of

any kind, or drugs (other than over the counter medications and

properly prescribed medications) at any time.

4. Neither Parents, Mrs.Judy Dunning, nor Mr. and Mrs. Exum shall

smoke or allow others to smoke in the presence of the child, or in

manner [a] where the child is subjected to second hand smoke.

* * *

[12]. David Thomas Argo and Kim Moody will attend at least three

AA meetings per week beginning by October 1, 2001 and provide

evidence of attendance to the Court or CASA.

* * *

III. FINANCIAL SUPPORT FOR CHILD

A. CHILD SUPPORT PER CHILD SUPPORT

GUIDELINES OR DEVIATIONS:

...The mother, Kim Moody shall pay child support to Mr. and Mrs.

Exum, when she becomes employed, in the amount of 21% of her net

income, beginning with the first paycheck she receives until further
-4-

order of the Court. Mrs. Moody will provide the Court with evidence

of her earnings at the time she becomes employed.

 On January 10, 2002, the Exums filed a “Petition for Termination of Parental Rights” (the

“Petition”) against Moody, Argo, and Randy Thomas Moody. The Petition reads, in relevant part,

as follows:

29. Termination of Respondent’s parental rights is sought based

upon, as alternatives to one another, the following grounds which

petitioners are prepared to prove by clear and convincing evidence.

30. As to KIMBERLY DARLENE MOODY;

a. Abandonment by KIMBERLY DARLENE MOODY,

as defined in TCA 36-1-102, has occurred.

b. MOODY is able bodied, mentally competent and well

able to secure at lease minimum wage employment

and provide support for the Child. On information

and belief, MOODY has been employed and is

currently employed. MOODY is under a Court Order

to provide support for the Child, but has willfully

failed to make reasonable payments for the Child’s

support for more than four (4) months immediately

preceding the filing of this Petition. The Child has

been in the custody of the Petitioners since September

19, 2000.... MOODY has at all times since September

19, 2000, been able to provide support for the Child,

but has willfully failed to do so, or in the alternative,

any support provided was token support and

insignificant given her means or ability to support.

MOODY has willfully failed to visit said Child more

than token visitations, defined as nothing more than

perfunctory visitations or visitations of such an

infrequent nature or of such short duration as to

merely establish minimal or insubstantial contact with

the Child.

c. The Child has been removed from the home of the

parent or guardian by Order of the Court for a period

of six months and the conditions which led to the

Child’s removal, or other conditions, which in all

reasonable probability would cause the Child to be
-5-

subjected to further abuse or neglect and which,

therefore, pre[vent] the Child’s safe return to the care

of the parents or guardians, still persists; further, there

is little likelihood that these conditions will be

remedied at an early date so that the Child can be

safely returned to the parents in the near future; and

the continuation of the parent and child relationship

greatly diminishes the Child’s chances of early

integration into a safe,stable and permanent home. In

support of this allegation, Petitioners state the

following:

(1) MOODY has no suitable residence available to

properly care for and nurture this Child.

(2) MOODY has no employment or income of any

substantial nature with which to properly support the

Child and see to her daily physical and medical needs

under the current circumstances.

(3) MOODY has not acquired, nor does it appear she

will acquire, requisite parenting skills necessary to

properly care for a young child and to provide

fundamental care, which constitutes a condition which

prevents safe return of the Child to her care.

(4) MOODY continues to consume and abuse alcohol

and/or other drugs in violation of the Court Ordered

Parenting Plan.

(5) MOODY has failed to comply with the Court

Ordered Parenting Plan, in that she has not contacted

or begun weekly alcohol and drug abuse counseling

sessions with a licensed counselor trained in that field,

within thirty days of the entry of the Order on

September 21, 2001. Such counseling was to

continue until the counselor decided counseling was

no longer necessary. MOODY has not provided the

Court or CASA a Certificate of Attendance or other

evidence of completion of this requirement.
 On March 5, 2002, the Madison County Juvenile Court entered Orders terminating Argo and Randy Thomas 2

Moody's parental rights and they are not parties to this appeal.

-6-

(6) MOODY has violated the Court Ordered Parenting

Plan by smoking in the presence where the Child is

subjected to second hand smoke.

* * *

(8) MOODY has violated the Court Ordered Parenting

Plan by failing or refusing to attend at lease three

Alcoholics Anonymous meetings per week, beginning

October 1, 2001 and provide evidence of attendance

to the Court or CASA.

(9) MOODY’S lifestyle and living circumstances

were, and continue to be such that the Child would be

in a very unstable household, and would have little

likelihood of living in the same household for any

length of time, thereby negating any possibility that

the Child can achieve any continuity in her life.

* * *

(11) MOODY has no stable relationship with the

Child’s biological father, DAVID THOMAS ARGO,

and the parties no longer reside in the same

household, and there has been little, if any, effort on

MOODY’S part to reunite with the father in an

attempt to establish and maintain for any length of

time, a nuclear household.

On January 10, 2002, the Exums also filed a Motion to Suspend Visitations, which asserts,

inter alia, that Moody was still abusing alcohol, had failed to show any stability in her lifestyle, and

that, if visitation was not suspended, irreparable harm would come to the Child. On January 10,

2002, an Order was entered suspending Moody and Argo’s visitation with M.E.A.

On January 29, 2002, a hearing to determine eligibility for appointed counsel was held upon

notice to all Defendants of their rightsto be represented by appointed counsel if they were indigent.

Argo did not appear at the hearing. Randy Thomas Moody did not appear because he was in prison,

but he did correspond with the court in writing that the child “was not his child and that he was

satisfied to allow the court to do whatever was best for the child.” He did not request counsel. 2
 The Order appointing the Guardian Ad Litem was filed on September 23, 2002. 3

 From our review of the record, it appears than none of the parties pursued further discovery or sought to tender 4

more proof, pursuant to this Order.

-7-

Moody appeared and requested counsel. By Order of March 25, 2002, counsel was appointed to

represent Moody.

The hearing on the termination of Moody’s parental rights was scheduled for June 4, 2002.

Moody filed her Answer to the Petition to Terminate Parental Rights on June 3, 2002. A hearing on

the merits was held over three days: June 4, 2002, August 15, 2002, and September 10, 2002. After

the first witness had finished, the attorneys notified the court of the need for a Guardian Ad Litem.

Proof was postponed until a Guardian Ad Litem was appointed and allowed reasonable opportunity

to review the case.3

During the course of the trial, Joy Exum testified that it was not her intent to adopt M.E.A.

At that time, counsel for Moody moved the court to dismiss the case for lack of standing pursuant

to T.C.A. 36-1-113(b). The court denied the motion, which was renewed at the close of the

Petitioners’ proof and again at the close of all proof. On September 26, 2002, the Exums filed a

Motion to Amend Pleadings, seeking to add as Petitioners either the Guardian Ad Litem or the

“perspective [sic] adoptive parents,” who were not named in that Motion or at the hearing. A

hearing on this Motion was held on October 22, 2002. On October 25, 2002, the trial court signed

an “Order on Motion to Amend Pleadings,” which reads, in pertinent part, as follows:

After review of the Motion to Amend the Pleadings, and the

statements of counsel, the Court is of the opinion that the Motion

should be granted.

It is therefore, Ordered, Adjudged, and Decreed by the Court

that the Motion to Amend the Pleadings be and the same [is] hereby

granted. The Petitioners may add as additional Peitioners the

prospective adoptive parents of [M.E.A.], and will file the appropriate

pleadings to do so.

It is further Ordered that the proof in the case is hereby

reopened to all parties, as to any issue in this case with full rights of

participation by the parties.

It is further Ordered that the parties may continue their

discovery efforts and that any discoverywhich is desired by either the

Petitioners or the Respondent shall proceed as soon as possible in

order not to delay the resetting of the case for additional proof.4
 On November 12, 2002, Moody and her cousin, Janet Lynn Scott (who has Moody’s power of attorney), along

5

with Mrs. Scott’s husband, Jeffrey Dale Scott, filed an “Intervening Petition for Adoption and Termination of Parental

Rights.” Paragraph 6 of this Petition reads: “...the Co-Petitioner, Kimberly Darlene Moody, the natural mother of the

Child joins in this Petition for the purpose of voluntarily surrendering all parental rights to [M.E.A.] and to consent to

the adoption of said child by the Petitioners pursuant to Tennessee Code Annotated §36-1-113.” The Petition was signed

by Moody and her signature was sworn to and subscribed. The Exums filed a trial brief in answer to the Petition filed

by Moody and the Scotts. The final Order entered by the trial court on January 21, 2003 dismisses the portion of the

Intervening Petition for lack of jurisdiction in the Juvenile Court to process an adoption.

-8-

On November 6, 2002, an “Order for Amendment of Pleadings” was entered, which added

Barry Gregg and Susan Gregg as Petitioners in the case.5

On January 21, 2003, the trial court entered its “Findings of Fact, Conclusions of Law, and

Order for Termination of Parental Rights” (the “Final Order”). The Final Order reads, in pertinent

part, as follows:

FINDINGS OF FACT

1. This Court, after hearing proof, reviewing the exhibits and the

entire file, has determined by clear and convincing evidence that the

Respondent, KIMBERLY DARLENE MOODY, has:

A. Engaged in an extensive pattern of long standing alcohol abuse,

resulting in several convictions for public intoxication, driving under

the influence of intoxicants, and that this pattern existed prior to the

filing ofthe Petition for custody, and has continued while the custody

Petition was pending, through its completion, and has continued after

the filing of the Petition for termination up through the date of the

final hearing.

B. That the extent and the severity of Respondent’s alcohol abuse has

rendered her incapable of maintaining a parent/child relationship

between her and the child, and that she is incapable of parenting the

child.

C. That on at least one occasion, during a scheduled weekend

visitation of Respondent with the child, she left the visitation after

about one and one-half hours with the child, traveled with an

unknown male to a nearby grocery store, and they purchased two

twelve-packs of beer. This was verified not only by the testimony of

the investigator, but was clearly shown on the video taken at the time,

and admitted to by the Respondent.

D. That for a short period of time, the Respondent was provided

housing, utilities, and other amenities relatively free of charge
-9-

through a government program, but that she was evicted from those

living quarters after complaints from her neighbors over loud noise,

parties at late hours of the evening, and not keeping the premises

clean among other things. There was testimony that the manager

went into the apartment when Respondent was present and saw 30 to

40 empty beer cans present in the apartment. That this incident took

place while the Petition for termination was pending in this Court.

E. That according to the testimony from DANA WILLIAMS,

Respondent’s case worker at Pathways, which was unrebutted, the

Respondent had smoked crack, an illegal drug, and that her drinking

had increased steadily in the past five years and that the Respondent

feels out of control when drinking. That when the Respondent starts

drinking, she cannot stop. That the Respondent reported having

voices in her head and that it was getting worse. That Respondent

suffers from major depression and has a history of severe and

persistent mental illness.

F. That the Respondent has Hepatitis-C, and that although she is

aware that she cannot begin treatments for this condition until she

stops drinking alcohol, she has failed to stop drinking and has not

received her treatments.

G. That DANA WILLIAMS testified that Respondent was aware that

with her physical illness she cannot take care of the child. Further,

that Respondent was aware throughout the course of this proceeding

that if she does not change her lifestyle, she would be cut off from her

child.

H. That Respondent MOODY has not been employed since 1999,

and has no foreseeable ability to become employed in the future.

That MOODY has not provided any support for the child since the

child was removed from her home. That MOODY’S visitations with

the child prior to the filing of the termination Petition, were token

visitations, and did not serve to solidify her relationship with the

child. That on occasions the visitations were of a very short duration.

On one of the weekend visitations, MOODY testified that she and the

child’s father and paternal grandmother got drunk, and that MOODY

was driving the vehicle while intoxicated.

I. That MOODY has no sources of income other than money she

receives from her family or friends, that she has no suitable residence

available to her to properly establish a home and care for and nurture
-10-

the child. That she has no ability to properly support the child and see

to the child’s daily physical and/or emotional needs.

J. That MOODY has not acquired, nor does it appear that she will

acquire, the requisite parenting skills necessary to properly care for a

young child and to provide fundamental care, which constitutes a

condition which prevents safe return of the child to her care.

K. That MOODY did not comply with the Permanent Parenting Plan

by continuing alcohol and drug abuse weekly counseling sessions

with a licensed counselor, that she violated the Permanent Parenting

Plan by continuing to consume alcohol, and violated the Permanent

Parenting Plan by failing to attend at least three Alcoholics

Anonymous meetings per week.

L. That MOODY has given her full power of attorney to her cousin,

JANET SCOTT, who basically takes care of MOODY, and provides

for her needs.

M. That MOODY is dependent upon her family and friends for her

needs, and that she has no physical or emotional ability to provide for

her own needs, nor will she likely be able to acquire that ability in the

foreseeable future. That JANET SCOTT, MOODY’S witness at the

trial, agreed that MOODY had no ability to take care of the child and

provide the child with even the minimum physical, medical, and

emotional needs of the child.

N. That MOODY has continued to demonstrate that she has no stable

relationship with the child’s biological father, ARGO, and that their

relationship has been stormy throughout the time of the child’s life,

and that ARGO is a confirmed alcoholic with no intentions of curbing

his abuse of alcohol. That in spite of the effects that this has on her

ability to convince the Court of her desire to keep her child, MOODY

continues to abuse alcohol.

O. That Moody initially gave up custody of the child to her sister,

because of her arrest and incarceration for driving under the influence

of alcohol when the child was in the vehicle with her, unrestrained,

and child endangerment and ultimate conviction forthose offenses in

March, 2000. That the conditions which lead to the removal of the

child, and other conditions which prevent return persist, and that there

is little likelihood that these conditions will be remedied at an early

date, and continuation of parental rights greatly diminishes the child’s
-11-

chance for early integration into a stable home. That Moody has

failed to make fundamental adjustments in her lifestyle which could

make a safe return of the child possible.

P. That a change of caretakers and physical environment over to

Moody is likely to have a detrimental effect on the child’s emotional,

psychological and medical condition.

Q. That MOODY in her testimony and sworn statement, has

admitted the following:

1. That she is an alcoholic.

2. That she continues to use and abuse alcohol.

3. That she has no financial ability to care for the

child and to see to the child’s physical needs.

4. That she has no income, nor does she have the

ability to get income for her support or that of the

child.

5. That she knows that her Hepatitis-C condition is a

serious matter, and that it is life threatening if

untreated.

6. That she knows she cannot start treatments until

she has been alcohol free for at least six months. That

MOODY has yet to start any treatment for this

condition.

7. That she is totally dependant upon JANET SCOTT

and other family members for her support and that this

will not change in the foreseeable future.

8. That she has no transportation.

9. That she has no home or stable place to live.

10. That she has left a visitation session with the

child after a short time and purchased alcohol for her

own consumption. That she knew she was being

watched at this time by an investigator, but that

buying beer was “Legal”.

11. That on another visitation weekend with the

child, she and the child’s father and paternal

grandmother got drunk and that she was driving the

vehicle while intoxicated.

12. That she has been convicted of driving under the

influence of [an] intoxicant while the child was in the

car with her unrestrained.
-12-

13. That it is not unusual for her to drink alcohol and

drive a vehicle.

14. That she had pled guilty to child endangerment of

the child.

15. That she has been in alcohol and drug

rehabilitation, (28 days in rehab and 12 days in St.

Francis Hospital) but that she continued to abuse

alcohol thereafter.

16. That she has hallucinations and hears her baby

crying in her head when she is not there.

17. That she suffers from major depression, has an

inability to concentrate, and has panic attacks.

18. That MOODY stated in a court document filed in

this case, under oath, that her parental rights (and

those of the father) should be terminated and that such

termination would be in the best interest of the child.

R. That the termination oftheRespondent MOODY’S parental rights

to the child is in the best interest of the child. That the foregoing

Findings of Fact support this finding by clear and convincing

evidence.

CONCLUSIONS OF LAW

* * *

10. That the proof and evidence as a whole is clear and convincing,

such as would remove all doubt, and support a finding that Moody

has abandoned the child, has not complied with the Permanent

Parenting Plan or plan of care, has failed to remedy conditions that

led to removal of the child, child abuse, and that Moody is mentally,

emotionally and physically incompetent to care for the child, and that

her inability to care for the child is continuing.

Moody appeals from this Final Order and raises two issues for review as stated in her

brief:

1. Does a party have standing to file a petition when they are not one

of the parties specifically identified and/or enumerated under T.C.A.

§ 36-1-113(b).
 This statute has since been amended. T.C.A. §36-1-113(b) (Supp. 2003) now reads:

6

The prospective adoptive parent or parents of the child, including extended family

members caring for related children, any licensed child-placing agency having

custody of the child, the child’s guardian ad litem, a court appointed special

advocate (CASA) agency, or the department shall have standing to file a petition

pursuant to this part or pursuant to title 37 to terminate parental or guardianship

rights of a person alleged to be a parent or guardian of such child. The prospective

adoptive parents, including extended family members caring for related children,

shall have standing to request termination of parental or guardianship rights in the

adoption petition filed by them pursuant to this part.

-13-

2. Can the court order the termination of parental rights when the

petitioner has failed to carry the burden of proof necessary to allow

the termination of said rights to take place.

Since this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court. 

Unless the evidence preponderates against the findings, we must affirm, absent error of law. See

Tenn. R. App. P. 13(d).

Standing

As noted above, during the course of the trial, Joy Exum testified that it was not her intent

to adopt M.E.A. At that time, counsel for Moody moved the court to dismiss the case for lack of

standing pursuant to T.C.A.§ 36-1-113(b). The court denied the motion, which was renewed at

the close of the Petitioners’ proof and again at the close of all proof.

At the time the Petition to Terminate was filed in this case, T.C.A.§ 36-1-113(b) (2001)

read as follows:

36-1-113. Termination of parental rights.– 

* * *

(b) The prospective adoptive parent(s) of the child, any licensed

child-placing agency having custody of the child, the child’s guardian

ad litem, a court appointed special advocate (CASA) agency, or the

department shall have standing to file a petition pursuant to this part

or pursuant to title 37 to terminate parental or guardianship rights of

a person alleged to be a parent or guardian of such child. The

prospective adoptive parents shall have standing to request

termination of parental or guardianship rights in the adoption petition

filed by them pursuant to this part.

6
 Tenn. R. Juv. P. 39 has not been amended to date.

7

-14-

Appellants contend that T.C.A. §36-1-113(b) is determinative in this case, that the Exums

did not have standing to file their Petition in this case, and that the amendment to the Petition,

which added the Greggs as prospective adoptive parents, was filed too late to allow proper

adjudication of the issues. We disagree.

At the time of the filing of the Petition to Terminate in this case, Tenn. R. Juv. P. 39

(2001) read, in relevant part, as follows:

RULE 39. TERMINATION OF 

PARENTAL RIGHTS

(a) Petition. A petition to terminate the parental rights of either or

both parents to a minor child may be filed by any person who has

knowledge of the facts alleged or is informed and believes they are

true...7

Tenn. R. Juv. P. 1 clearly states that the Rules of Juvenile Procedure “shall govern the

procedure in Juvenile Court in all cases...involving the termination of parental rights.” Id.

(emphasis added). Rules of Juvenile Procedure, along with the Rules of Criminal Procedure,

Rules of Civil Procedure, and Rules of Appellate Procedure, are promulgated by the joint action

of the legislature and the Supreme Court, T.C.A. § 16-3-402 and T.C.A. § 16-3-404 (1994), and

they "have the force and effect of law." See Crosslin v. Alsup, 594 S.W.2d 379, 380 (Tenn.

1980). Although it is well settled that “[s]tatutes which conflict with the rules must be given

effect to the extent possible.” see City of Caryville v. Campbell County, 660 S.W.2d 510, 512

(Tenn. Ct. App.1983), the ultimate objective in statutory construction is to determine legislative

intent. City of Humboldt v. Morris, 579 S.W.2d 860, 863 (Tenn. Ct. App.1978). To that end,

this Court has held that “[c]onflicts between provisions of the Tennessee Rules of Civil

Procedure and provisions of the Tennessee Code which cannot be harmoniously construed will

be resolved in favor of the Tennessee Rules of Civil Procedure.” Mid-South Pavers, Inc. v.

Arnco Const., Inc., 771 S.W.2d 420, 422 (Tenn. Ct. App. 1989); Arnold v. City of Chattanooga,

19 S.W.3d 779 (Tenn. Ct. App. 1999). These decisions are in accord with the provisions of

T.C.A. § 16-3-406 (1994), which provides:

16-3-406. Laws in conflict with rules nullified.–After such rules

[those described in T.C.A. §16-3-402] shall have become effective,

all laws in conflict therewith shall be of no further force or effect.

For the foregoing reasons, the conflict on the issue of standing that exists between T.C.A.

§ 36-1-113(b) and Tenn. R. Juv. P. 39 is properly resolved in favor of the Tennessee Rules of

Juvenile Procedure. Consequently, the Exums had standing to file this Petition to Terminate

Parental Rights regardless of the amendment to add the Greggs as prospective adoptive parents.
-15-

However, even if we assume, arguendo, that Tenn. R. Juv. P. 39 is not binding in this

matter, the trial court retained jurisdiction over the case and was well within its auspices to grant

the motion to amend the Petition for Termination. We have found no rule of juvenile procedure

dealing with amendment to pleadings. Consequently an issue regarding amendments falls under

the provision of Rule of Juvenile Procedure 1 (d) which provides:

(d) SITUATIONS NOT COVERED BY RULES. Where no specific

procedure is prescribed by these rules, the court may proceed in any

lawful manner, in accordance with written local rules of court, which

shall not be inconsistent with these rules or with any other applicable

law.

Tenn.R.Civ.P. 15, which provides that amendments "shall be freely given when justice so

requires," governs amendments in the other trial courts in this state and it appears to be the

applicable law used by the juvenile judge in this instance. Rule 15.03, Tenn.R.Civ.P. provides:

Relation Back of Amendments. - Whenever the claim or defense

asserted in the amended pleadings arose out of the conduct,

transaction or occurrence set forth or attempted to be set forth in the

original pleading, the amendment relates back to the date of the

original pleading. An amendment changing the party or the naming

of the party by or against whom a claim is asserted relates back if the

foregoing provision is satisfied and if, within the period provided by

law for commencing an action or within 120 days after

commencement of the action, the party to be brought in by

amendment (1) has received such notice of the institution of the

action that the party will not be prejudiced in maintaining a defense

on the merits, and (2) knew or should have known that, but for a

mistake concerning the identity of the proper party, the action would

have been brought against the party.

We find nothing in the record to prevent the applicability of the relation back provision. 

Accordingly, under either Tenn.R.Juv.P. 39 or under Tenn.R.Civ.P. 15, the Petitioners had

standing to petition for termination of parental rights. Appellant also argues that this amendment

was filed too late to allow her sufficient opportunity to present evidence concerning the addition

of the Greggs. This argument also must fail in light of the trial court's "order on Motion to

Amend Pleadings," which specifically reopened discovery and proof of all parties. Having failed

to take advantage of that opportunity at the trial level, Moody cannot be heard to complain on

appeal.

Having determined that the Petitioners have standing to file this Petition for Termination,

we now turn to Appellant’s second issue which, in essence, is whether Petitioners carried the

burden of proof to sustain termination of parental rights.
 T.C.A. § 36-1-102(1) defines “Abandonment,” in pertinent part, as follows:

8

(1)(A) “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 immediately

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 have willfully

failed to make reasonable payments toward the support of the

child;

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Termination of Parental Rights

T.C.A. § 36-1-113 (Supp. 2001) governs termination of parental rights and reads, in

relevant part, as follows:

(c) 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 [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.

The grounds for termination of parental rights are found in T.C.A. § 36-1-113(g) (Supp.

2001):

(g) Initiation of 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;8

(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;

(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
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or neglect and which, therefore, prevent the child’s

safe return to the care of the parent(s) or guardian(s),

still persist;

(ii) There is little likelihood that these conditions will

be remedied at an early date so that the child can be

safely 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 safe, stable and

permanent home.

In the instant case, the trial court terminated Moody’s rights based on several grounds,

including abandonment, failure to comply with the parenting plan, and present and continuing

inability to care for M.E.A. We note that clear and convincing evidence of any one of these

grounds is sufficient to terminate Moody’s parental rights. See T.C.A. § 36-1-113(g). 

Having reviewed the entire record in this matter, we find that Moody has taken no

substantial strides since her initial arrest for DUI and child endangerment to get the help she

needs in order to overcome her addiction to alcohol, nor has she made any substantial attempts to

comply with the requirements outlined in the parenting plan. Additionally, Moody has been

unable to procure adequate housing for herself or for her child. Moody’s drunken partying

resulted in her eviction from the Hillcrest Place Apartments, where she had been living virtually

rent and utility free. At the time of the hearing, she was living a transient existence, staying with

a boyfriend and then with some other friends. Moody was not able to say when she would be

able to provide adequate and stable housing for this child. Moody also testified that she hears

voices, is depressed, and has panic attacks. Although Moody is supposed to take medication to

control these episodes, the record shows that, on several occasions, she has failed to take her

medication (either because the pills were stolen or because she failed to make sure that she had

her medications on hand). At those times, Moody testified that she drinks to control her anxiety. 

In addition, Moody suffers from Hepatitis-C, which she knows is a life threatening disease. 

Moody also has been told that she cannot begin treatment for this disease until she has been sober

for at least six (6) months. At the time of this hearing, Moody had not begun treatment.

The record in this case supports the trial court’s Findings of Fact as set out above. 

M.E.A. has been out of Moody’s custody for the majority of her life. The circumstances that led

to M.E.A.’s removal from Moody’s custody still persist. In short, Moody’s alcoholism has and

continues to result in behavior (i.e. arrests, inability to find employment, inability to start

treatment for Hepatitis-C, inability to manage her own affairs) that is not only detrimental to the

safety and welfare of M.E.A., but also to the safety and welfare of Moody herself. The record

reflects that Moody, even in the face of losing her child, has been unwilling or unable to avail

herself of programs that might help her to manage her disease. Furthermore, from the record, it

does not appear that Moody’s situation will be remedied at any time in the foreseeable future.
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Under T.C.A. § 36-1-113(g) and for the foregoing reasons, we find that the continuation of the

parent and child relationship greatly diminishes M.E.A.’s chances for early integration into a

safe, stable and permanent home. 

The record, by clear and convincing evidence, establishes grounds for termination and

establishes that termination of parental rights is in the best interest of this child. We, therefore,

affirm the Orders of the juvenile court, terminating the parental rights of Kimberly Darlene

Moody. Costs of this appeal are assessed to the Appellant, Kimberly Darlene Moody, and her

surety.

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.