### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Submitted on Briefs November 16, 2001 Se ssion

STATE OF TENN ESSEE, DEPARTMENT OF CHILDR EN'S SERVICES v. D. G.S.L.

IN THE MATTER OF : D.L.L. and L .L.L.
Appeal from the Juvenile Court for Knox County No. L-3955 Carey E. Garrett, Judge

No. E-2001-00742-COA-R3-JV Filed December 28, 2001

In this appeal, D.G.S.L. (“Mother”) challenges the termination of her parental rights, claiming there
was insufficient proof to establish grounds for termination or that it was in the best interest of the children to terminate the parent-child relationship. Mother also claims her due processrights were violated when she did not receive notice of the initial hearings in this matter and, therefore, was not present or represented at those hearings. We a ffirm the decision of

the Juvenile Court terminating Mother’ s parent

al rights.

Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Juvenile C ourt Aff

irmed; C ase Rem anded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined.

Julie Anne Foster, Knoxville, Tennessee, for the Appellant D.G.S.L.

Paul G. Summers, Attorney General and Reporter, a nd D ouglas Earl Dimond, Assistant Attorney General , Nashvi lle, Tennessee, for the Appellee State of Tenne ssee, Department of Children’s Service s.-2- OPINION
Background

This appeal i s from an

Order o f the Juve

nile Co urt for Knox County terminating Mother’s parenta

l rights to h

er two son s, L.L.L. (age 8) and D.L.L. (age 7). The children’s father , V.L.L. (“Fathe

r”) also had his parental right terminated, but hehas not appealed that determination.

The record in this case beg ins with a Temporary Bench Order of Lega l Custody entered by the Juve

nile Cou rt Referee in May of 1998. Mother was not present a t this hearing because she was in jail. The Tempo rary Bench Orde r was based upon a petition filed by the Department

of Children’s Services (“DCS”), but neither the petition nor the proof relied upon by the Refereeare contained in the record on app eal. In the Temporary Bench Order, the Referee found that p robable cause existed to believe Mother’s two sons wer e dependent and neglected. Th e Refereealso found that con tinuing to a

llow the child ren to live in the home was contrary to the children’s best inter

ests and w elfare , and that

a less dra stic alte

rnative was not a vailable . Due tothe apparent emergency nature

of the situat ion, the Re

feree transfe rred cu stody of the two chil dren to DCS pending an interim hearing two days later.

The Referee entered an Inter im Order after the

interim hearing transferring custody of the child ren to DCS. The Order was based on evidence and testimony of

the children’s Guardian ad Litem, a r

eport fil ed by DCS, an incident report filed by the law enforcement off icers who removedthe children from the home, as well as testimony by a DCS representative. Mother was not present at this hearing since she was still in jail for a violation of probation and shoplifting.

The Refere e’s Inte

rim Orde r detaile d the eve

nts giving rise

to the initial removal of the children from

the custody of

Mother and Father. Law enforcement off icers were summoned by Father to his house to remove Father’s brother and some friends who wer e drinking a l cohol and refused to leave. Before the police arrived, Father apparently left the childre n with his brother and his brother’s friends and went to the store to purchase c igarettes. When Father returned, there was
a pit bull in the bath tub , the chil dren we re asle ep on th e floo r, and Father’s brother and brother’s friends were still consuming alcohol. When the law enforcement of ficers arri ved, they ob served roaches crawling over the sleeping children. The Refer ee also noted that an eviction notice hadbeen served stemming from complaints by neighbors and “excessive 911 involvement with the family.” The childre

n appare ntly were sleeping on th

e floor b ecause

the bedr ooms were

not heate d and only
one bed in the house had a mattress. The Guardian ad Litem expressed conc erns about the children’s personal hygiene, the inabi lity of Head Start to locate Mother and Father on one occasion when the children were being returned home, as well as complaints by neighbors that the children were being left unattended.

After the hearing, Ms. Cynthia Templin ( “Templin ”) from D CS attempte d to locat e Mother and Fathe r to discuss the situation, but had trouble finding them. Templin finally located bothof themat the Penal Farm. Templin then met with Mother and Father separately and revie wed eachof the responsibilities outlined in the Foster Care Plan or Permanency Plan (“Plan”) which had-3-

been developed to correct the situation and enable Mother a n d Father to proper

ly care for their children. Both Mother and Father expressed their agreement by signing the Plan.

Another hearing was held on July 7, 1998, at which time theReferee entered an Orde r placing the child

ren into protective custody. Mother was not present at this hearing because she was still incarc erated . Mother c laims she did not receive notice of this hearing. Once again, the Referee found the child

ren to be dependent and neglected and that it was contra ry to the best interests of

the children to remain in the care or custody of either parent. The Referee also adopted the terms of the Plan after concluding that it was reasonably related to the goa l of reuniting the family.

Another hearing was held in March of 1999, a

t which time

the Refe ree con tinued to keep the children in the care of foster pare nts due to Mother’s and Father’s lack of progress and noncompliance with the terms of the Plan. Mother was stil l in jail an d claims th at notice of this hearing was sent to her

home instead of the jail and was, therefore, def ective. She does not state that she did not receive notice or that she was not made aware of the hear ing, only that the notice should not have been mailed to her home address.

On Novembe

r 19, 1999 , DCS filed

a Petition t

o Terminate P arenta

l Rights. As i

t p ertains to Mother, the Petition alleged she had willfully failed to visit or to engage in more than token visitation with the children for a period of four consecutive months. DCS acknowledged that Mother was in jai l for the majority of the rele vant time. DCS asserted, howe ver, that she was incarcerated

based on her willful acts of shoplifting and violating probation, and as a r esu lt, her incarceration

constituted wil l ful abandonment of the child ren bec ause she

knew her criminal acts would result in the suspen sion o f her ability of visit with the children. It also was alleged that Mother willfully abandoned the children by not paying a ny child support for a period of four consecutive months. DCS asserted it had made re asonable

effortsto assist Mother in establishing
a suitable home for her children, but she had not made a re as onable effort to a ccomplish

this objective. DCS claimed Mother demonstrated such a lack

of concern that it appeared unlikely she would be able to provide a suitable home for her children. I t also wasalleged there wa s little likelihood that the conditions leading to the removal of the children from the home would be remedied an d that these c onditions had persisted for a period of six months. According to the Petition, continuin g the par ent-chi ld relati onship would greatly diminish the children’s chances of early integration into a stable and permanent home. The one-bedroom apartment where the parents lived had fungus growing on the walls, and apparently Mother and Father a dmitted the apartment should be conde mned and t

he childr en could not l ive there. While the parents claimed they were “working on” obtaining suitable housing, no real progress had been made. DCS asserted tha t neither Mother nor Father were

in compliance with the Plan which they had agreed to previously. Finally, DC S maintained that termination of the parent-child relationship was in the best interests of t h e children.

On Februar y 17, 2000, Mother wa s appointe d counsel to represent her. The hearing
on the petition to terminate Mother’s parent al rights was held in October 2000. At the hearing, Mother testified she lived in Oklahoma prior to moving to Tennessee. She served eighteen months in jail in Oklahoma for prostitution and possession of marijuan a. She wa s in jail for thre e days in-4-

Denver, Colorado, for “solicitation for a ride”. When this occurr ed, she was pregnant with her oldest child. Af ter moving

to Tennessee, she was arrested on May 6, 1998, for shoplifting from Kroger. She remained in jail from May 6 through August 10, at which time she was released on probation and ordered to go to a halfway house. Approximately three months later, on November 15, 1998, Mother was arrested for violation of probation. There also were new charges brought against her. Mother claimed s he could n ot rememb er exactly what th ose new charges were, but “there was a gun involved and there was drugs involved.” She remained in jail until April 22, 1999. Less than two months later, on June 16, 1999, Mother again was arrested f or violating her p robation after being charged with theft from Kroger. She remained in jail until August 11, 1999. She was arrested yet again on March 18, 2000, for stealing cigarettes from Kroger and was released on proba tion after being in jail for

three hours. About a month and a half later, on May 1, 2000, Mother was arrested for possession of a gun and possession of crack cocaine with intent to distribute. She remaine d in jail until May 4 , 2000. On June 1, 2000, she was arrested for domestic violence on Father a nd was in jail until Au gust 13, 20 00. Mother testified she was in jail for theft when she learned tha t her children had been taken into protective custody.

Mother went tolive at a h alf-wa

y house after b eing rel eased f

rom jail a fter he r most recent arrest. Mother was “kicked out” of the half-way house, although there was some dispute as to the reason why this happened. After leaving the half-way house , she lived with a male friend. The friend’s place had

only one-be droom, but Mother claims there were two beds. Mother then moved to downtown Knoxville and lived with four or five peo ple befo re loca ting her o wn apar

tment. Mother also lived at the Red Carpet Inn at some point before locating the apar tment. Mother had been in the apa

rtment fo r one we ek at the

time of the tri al. Mothe

r admits th

ere is ina dequate room in this apartment for her and her two children. M ot her admitted she w as requi red in the Plan to resolve all “legal issues” and that she had agreed to do this. Notwithstanding this agreement, she
w as arrested five times after agree ing to the terms of the Plan. Mother admitted she was a dru g addict, and at the time of trial she had been “clean” for one w eek. She

had bee n employe d at a restaurant for two weeks. Mother stated she took each day minute by minute and could not make any assurances to the Court that she could stay clean.

Mother claimed s he was un able tocomplete the drug and alcohol a ssessmen

t becaus e she didnot have any insurance. She denied being given a re ferral from DCS. She missed some of her appointments for drug and alcohol treatment. She claimed to be attending AA and NAmeetings every day, but sh

e did not bring the supporting documentation to verify this because it “slipped” her mind. Sh e began pare nting classes a little over one month before trial. She began taking GED classes two weeks before trial. Mother admitted she was orde red to pay five dollars per month in child support and that she did not pay that. Her visitation with the children w as lost because of her incarceration.

The on ly other witness at trial was Rachelle Reed (“Reed” ), who was the homecounty case ma nager f or the two

childre n. Accor ding to Reed, when th

e childr en first came into protective custody, they hadbehavioral and developmental problems and were acting out sexually. When Mother and Father were still exercising visitation privileges, the childre n’s behavioral problems increased to the po in t where one of the children had to be remove d from school. When-5-

Mother and Father were not exercising any visitation, the behavior of both children improved. In fact, at one point the children were able to cease tr eatment, at

which time it was recommended that visitation remain suspended. Reed testified that Mother wa s in no better position to care for her children than when the children were initially t aken into pro tective custody. The two primary conditions leading to the removal of the children (i.e., Mother’s drug addiction and lack of housing) had not been resolved. Reed testified that when she would try to help Mother comply with the Plan, Mother would become defensive and tell Reed it was none of her business to make referrals. Mother would hang up the telephone on Reed. Since Mother ha d lived in f

ive diffe rent pla ces sinc e the las t time she was r

elease d from jai l, Reed sta ted she di d not belie

ve there was any likel ih ood that the housing issue would be resolved. Reed stated that Mother was given ever y necess ary ref erral in order to complete the terms of the Plan. Mother would miss meetings scheduled by Reed. Had Mother shown up for these meetings, Mother would have been provi ded more information on necessary referrals. Reed stated the children ha d been released from counseling because the foster mother was cooperating fully. Both children are now making high grades in school. Reed testified the child ren wer e afra id to go bac

k to their p arents.

After t he trial, the Juvenile Court Judge entered an order terminating Mother’ s parental rights and placing custody of the children withDCS. The Trial Court held that the State had
m e tits burden of proving by clear and convincing evidence se veral issues. These conclusions, which we para phrase, are as f

ollows:

1. That

the children were

previously found to be dependent and neglected and pl aced in

the custody of DCS; that DCS had made
reasona ble efforts to prevent removal of the children or

the situation prevented reasonable efforts from being m ade; that DCS had made
reasona ble efforts to assist Mother in establishing a suitable home for
a period of four months following removal of t h e children; and that Mother had not made reasonable efforts to provide a suitable home and demonstr

ated a la ck of con cern to s uch a de gree tha

t it appeared unlikely that she w ould

be able t o provide a suitable home at an ea

rly date.

2. That

the children have been removed by order of the court for
a period of

si x months; tha

t the cond

itions whic

h lead to t

heir removal still persisted as did other conditions which would cause the child ren to be subjected to further abuse and neglect and w hic h prevented their return to Mother; that there was little likelihood that these conditions would be remedied at an ea rly date so the children could be returned in the n ear

future; and that continuing the legal parent an d ch ild relationship would greatly diminish the children’s chances of early integration into a stable and per manent home.-6- 3. That

Mother f ailed to c omply in

a substantial manner with the
reasona ble responsibilities setout in the Plan related to remedying the condition s which ne cessitat ed foste r care placeme nt.

4. That

Mother had abandoned the children by willfully failing to visit them and wi llful ly failing to make any contribution whatsoever

toward the s u pport of the children for four consecutive months immediately preceding the filing of the petition.

The Juve nile Cou rt also found by clear and convincing evidence tha t Mother was addictedto crack cocaine and to support her a ddiction, she had made decisions during the time the children were in foster care which showed her lack of concern and her inability to put their needs first, as demonstrated by Mother’s significant criminal record. The Juvenile Court also took s pecific noteof the fact that

Mother ha

d used dru gs just one

week be fore tri al. Althou gh DCS and t he state probation office tried to help Mother withher addiction, nothing worked. Mother had at least four different residences since being released fr om jail the most rece

nt time and

curren tly was living in
a studio apartment which she adm itted woul d not be suitable for the children. According to the Juvenile Court, Mother

refused to accept refer

rals for assistance and had yet to maintain any period of sobriety. The Juvenile Court noted that Mother admitted she was not yet able to take car e of the children and was not

sure whe n she woul d be able to do so. By her choice in committing criminal acts that resu

lted in incarceration, Mother

disrupte d her visitation with the child ren. She refuse d to make any child

support pa

yments whe

n she was not in jail, and then w as u na ble at other times because she was in jail. The J uvenile Co urt conc luded it wa s in the ch ildren’sbest inter

est to terminat e the parental rights of Mother and transfer complete custody and control of the childre n to DCS.

Mother

appeals, raising four issues: 1) whether DCS met its burden of proof at the termination hearing; 2) whether she was afforded appr opriate notice of the hearings and whether she received due proc ess at all

stages of the proc eedings; 3) whether DCS fulfilled its obligations when it failed to provide Mother with appropriate resource s to enable her to meet the goals of the Plan; and 4) whether

DCS fulfill ed its stat

utory obli gations when it fa il ed to provide relevant information regarding the requirements of the Plan.

Discussion

A review of findings of fact by a trial c ourt is de novo upon the record of the trial court, acc ompanied by a pre sumption of correctness, unless the preponderance of the evidencei s otherwise. Tenn. Rule App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). Review of questions of law is de novo, without a presumption of correctness. See Nelson v. W al-Mart St

ores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

We first address the iss ues raised by Mothe r regarding the Juvenile Court’s determination that there was clear and convincing evidence of grounds to terminate her pa rental rights. It is well established that "parents have a fundamental right to the care, custody, and control-7-

of their ch ildren." In re Drinnon , 776 S.W.2d 96, 97 (Tenn. Ct. App. 198 8) ( citing Stanley v. Illinois , 405 U.S. 645, 92 S. Ct. 1208, 31 L.Ed.2d 551 (1972)). "However, this right i s not absol ute and paren tal right s may be terminated if there is clear and convinc ing evidence justifying such termination under the

applica ble statut e." Id. (citing Santosky v. Kramer , 455 U.S. 745, 102 S. Ct. 1388, 71 L.Ed.2d 599 (1982)).

Termination of parental or guardianship rights must be based upon a finding by the court that: (1) the grounds for termination of parental or guardianship rights have been established by clear and convincing evidence; and (2) termination of the parent’s or guardian’s rights is in the best interests of the c hild. Tenn . Code Ann. § 36-1-113(c). Before a pare nt’s rights can be terminated, it must be shown that the par ent is unfit or su bstantial harm to the

child will r

esult if parental rights are not terminated. In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1 999); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Similarly, before the court may i nquire a s to whether termination of parental rights is in the best interests of the c hild , the cour t must first determine that the grounds for termination have been established by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c). This Court discussed the “clear and convincing evidence” standard in O’Daniel v. Messier, 905 S.W.2d 182 (Ten n. Ct. App. 1995), a s follows:

The “clear and convincing evidence” standard defies precise definition. Majors v. S mith, 776 S.W.2d 538, 540 (Tenn. Ct. App. 1989). While it is m ore exacting than the preponderance of the evidence standard, Santosky v. Kramer, 455 U.S. a t 766, 102 S. Ct. at 1401; Rentenb ach Eng’ g Co. v. Ge neral Rea lty Ltd., 707 S.W.2d 524, 527 (Tenn. Ct. App. 1985), it does not require such certainty as the beyond a reasonable doubt standard. B randon v. Wright, 838 S.W.2d 532, 536 (Tenn. Ct . App. 199 2); State v. G roves, 735 S.W.2d 843, 846 (Tenn. Crim. App. 1987).

Clear and co nvincing evidence eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence. See Hodg es v. S . C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992). It shoul d produc e in the factfinder’s mind a firm belief or conviction with reg ard to t he truth of the allegations sought to be esta blished. In re Estate of Armstrong , 859 S.W.2d 323, 328 (Tenn. Ct. App. 1993); Brandon v . Wright, 838 S.W.2d at 536; Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct. App. 1985).
O’Daniel v. Messier, 905 S.W.2d at 188.

Initiation of termination of parental or guardianship r i ghts may be based upon a number of statutory grounds. The three grounds pertinent to this appeal are :1 The st atut ory d efinit ion o f “ab and onm ent” r efere nce d in th is statute h as be en d eclare d un con stitution al.

Hence, we have substit uted “prior

law” to ref

erence the law wh ich is to b e app lied u ntil the sta tute is amended by the legislatu re.
-8-

(1) Abandonment

by the parent or guardian, as defined in [prior law], has occurred; 1
(2) T here has been substantial noncompliance by the pa rent o r guardian wi th t he 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 chil d h as been removed from the home of the pare nt or guardian by or der of a court for a period of six (6) months and:
(i) The conditions which led to the child’s removal or other condit ions which in a

ll reason able pro

bability would cause the child to be

subjecte d to further abuse
or neglect and which, therefore, pre ve n t the child’s safe return to the care of the parent(s) or guardian(s), still pers ist;
(ii) There is little likelihood that these conditions will be remedied at an ea rly date so that t he ch ild can be safely returned to the parent(s) or gu ardian( s) in the near future; and
(iii) The continuation of the parent or guardian and chil d relation ship greatly diminishes the child’s chances of early integration into a safe , sta ble and permanent home.
Tenn. Code Ann. § 36-1-113(g).

The Juvenile Court

found there was clear and convincing evidence tha t Mother had met all three of these statutory grounds f

or te rmination of her pa rental r ights. In ma

king this determination, the Juvenile Court hadaccess to reports from the DCS representative a nd the reports of the Guardian ad litem. The Juvenile Court he ard the t e stimony of the DCS representative and Mother. “Unlike this Court, the [Juvenile Court] observe d the manner and demeanor of the witnesse s and wasin the best position to evaluate their credibility.” Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc. , 43 S.W.3 d 498, 502 (Tenn. Ct. App. 2000). The trial court’s determinations regarding credibility are accorde d considerable deference by this Court. Id. ; Davis
v. Liberty Mutual Ins. Co. , 38 S.W.3d 560, 563 (Tenn. 2001). “ ‘[A]ppe llate courts will not re--9-

evaluat e a trial judge’s assessment of witnes s credib ility absent clear and convincing evidence to the contrary.’” Wells v. T

ennesse e Bd. of Re

gents , 9 S.W.3d 779, 783 (Tenn. 1999).

Based on our review of the record , incl udin g t he facts de tailed above, we do not believe the Juvenile Court committed any reversible er ror in its conclusion that clear and convincing evidence existed to terminate Mother’s parental rights pursuan t to Tenn. Code Ann. §§ 36-1- 113(g)(2) and (g)(3)(A)(i) throug h (iii). Mother’s last minute efforts to attempt to comply with the requirement

of the Plan andremain drug free simply cannot form

the basis for a co nclusion t hat these statutory requirement have not been met. This is especially true since Mother admittedly still is not able to proper ly c are for her chil dren or p

rovide th em a suita ble plac e to live. Becau se we affirm the termination of Mother’s parental rights pursuant to Tenn. Code Ann. § § 36-1-113(g)(2) and (g)(3 )(A)(i ) through (iii), we pretermit Mother’s argument that she had not abandoned the children or willfully failed to support them due to her incarceration.
Having affirmed that two of the three statutory grounds for termination

were proven by clear and convincing evidence, we next address Mother’s claim that it was not proven by clear and convincing evidence

that the te

rmination of Mother ’s pare

ntal rig hts was in t

he best in terests of the children. Tenn. Code Ann . § 36-1-113(i) describes the standard for dete rmining whether terminat ion is in the

best inter ests of the

child in su ch case s: (i) In determin

ing whe ther te rmin ation of parental or guard ianshiprights isin the bes t interes t of the c hild pursuant to this part, the court shall consider, but is not limited to, the follo wing:
(1) Whether

the parent or guardian has made such an adjustmentof circumstance, conduct, or conditions as to make it safe a

nd in the c

hild’s be st

interest to be in the home of the parent or guardian;
(2) Whether the parent o r guar dian has f ailed to e ffect a lasting adju stment af

ter rea sonable e

fforts b y availabl e social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;
(3) Whether

the parent or guard

ian has mai ntained regular visitation or other contact with the child;
(4) Whether

a meaning ful relation sh ip has otherwise been established bet ween the parent or guardia n and the child;-10- (5) The effect a change of caretakers and phy sical environment

is likely to ha

ve on the chi ld’s emoti onal, psychologic al and medical condition;
(6) Whether

the parent or guard

ian, or other person residing with the parent or g ua rdian, has shown br ut al it y, p hysica

l, sexual, emotional or psychologica l abuse, or neglect toward the child, or another child or adult in the family or household;
(7) Whether

the phy sical en

vir o nment of the parent’s or guardian’s home is he althy and safe , whethe

r there is criminal activity in the home, or whether there is such
use of alcohol or

controlled substances as may render the parent or

guard ian consi stently

unable to care for the child in a safe and stable manner;
(8) Whether

the pare nt’s or g uardian ’s m e ntal and/or emotional status would be detrimental to the child or prevent the pare

nt or gua

rdian fr om effe ctively providing safe and stable care and super vision for the child; or
(9) Whether

the parent or

guardian has paid child support consistent with the child support guidelines promu lg ated by the depar tment pursuant to § 36-5- 101.

Tenn. Code Ann. § 36- 1-113(i) . When taking into account these relevant considerations, as we ll as Mother’s testimony and admissions coupled with the testimony of Reed, we do n ot believe the Juvenile Court committed reversible erro r when it concluded that clear and convincing e vidence existed tha

t it was in th

e best inte

rest of th e childr en to ter minate Mot

her’s pa rental r ights.
Next, we consider Mother’s argument that she was n ot made aware of the initial hearings where th

e childr en were found to be

depende nt and neg lected a

nd was oth

erwis e n ot afforded her due p

rocess r ig hts sin ce she was in jail and no one made sure she was pr esent or represented

at these initial hearings. Tenn. R. Sup. Ct. Rule 13 § 1(d)(7) states that parents have a right to counsel at all stages of proceeding s involving dependency and neglect issues or termination of parenta l rights. There isnothing in the record to indicate that Mother raised this issue at the trial court level after an attorney

was appointed to represent her. I ssues not raised at trial may no t be raisedfor the first time on appeal. Simpson v . Frontier Community

Credit Union , 810 S.W.2d 147, 153 (Tenn. 1 991); Dep’t Human Se rv. v. DeFriec e , 937 S.W.2d 954, 960 (Tenn. Ct. App. 1996). In addition, upon cons ideratio n of th e recor d as a whole, and since Mother was present and-11-

represented

by c ounsel at

the termi nation he aring, we hold th at if this c onstitute d error, i t did not
more probably than not af f e ct the jud

gment, n or did it re sult in pre judice to the judic ial proc ess. Tenn. R. App. P. 36 (b); see also Dep’t Children’s Serv. v. Wilkerson , No. 03A01-9810-JV-00341, 1999 WL 7757 59, at * 2 (Tenn. Ct. App. Sept. 15, 1999) (citations omitted) (holding that no due processviolation occurs where the appellant parent participates in the te rmination hearing and there asserted his or her plenary

rights; any la

ck of due process initially was therea

fter fully sup pl ied ). If
we were to accept Mother’s position on thi s issue, it would lead to the outlandish conclusion that
once a hearing was held withou t Moth er’s or her attorney ’s attendance, for whatever r eason, the Juvenile Cou

rt would be powerle ss later t

o hold any

hearing terminat ing Mothe

r’s par ental rig hts. Such is not the la

w. Acco rdingly , due to the

facts and c ircumstances presented by the record on appeal, we find no merit in Mother’s position on this issue.

Mother’s next argument cha llenge s the eff

ectiveness of DCS in p roviding Mother refer rals so that she could com ply with the te

rms of the Plan. At tr

ial, the DCS representative, Reed, testified that when

she would

try to help

Mother c omply with t

he Pla n, Moth er would

become defensive and tell Reed it was none of her business to make referrals. Mother even would hang up the telephone on Reed. Reed further stated that Mother was given every necessary r eferralin order to complete

the termsof the Plan. Mother de nied rec eiving t

hese necessary

referrals. This involves
a fact question, which the Juvenile Court obviously resolved in fa vor of DCS when it found that DC S ha d made reasonable efforts to prevent r emoval of the children or the situation prevented
reasona ble efforts from being made, and that DCS had made re asonable

effortsto assist

Mother in establishing a suitable

home for a period of four m

onths follo win g remo val of the children. As stated previo usly, “[A ]ppella te court s will not re -evalua te a tria l judge’s assessme

nt of witne ss credibi lity absent clear and convincing evidence to the c ontrary.” Wells v. Tennesse e Bd. of Re gents , 9 S.W.3d 779, 783 (Tenn. 1999). Mother presented no such evidence

.

Finally, Mother argues that because the Plan was not made a pa rt of the technical record on appea l, (1) it cannot be established that DCS fully explained its obligations to Mother; or (2) that the consequences of not complying

with the Pla

n were p roperly explaine d to Mother. The appellant has the duty "to pr

epare a record which co nveys a f

air, ac curate

and complete account of what transpir ed in th e trial court with respect to the issues which form the basis of the appeal." Nickas v. Capadal is , 954 S.W.2d 735, 742 (Tenn. Ct. App. 1997). In the abse nce of a n adequa te record on appea l, this Court w ill presume that the trial court’s rulings were supported by sufficie nt evidence. See State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Since Mother failed in her duty to make the Plan part of therecord, we presume that DCS met its obligations and Mother
was aware of the

consequ ences of

not complying with

same. Mot

her can not provid

e an inco mplete record on appeal and then challenge the termination o f her parental r ights bec ause the

record is incomplete. We note, however , that i n any event, there is clear and convincing evide nce in the record that DCS did

fully explain t

h e Plan’s obligations to Mother and the consequences of not complying with the Plan.

Conclusion-12- The judgment o f the Juve nile Court

is affir med, and t

his cause is remand

ed to th e Juvenile Court for such further proceedings as may be re quired, if any, consistent

with this Opinion, and for c ollection of t he costs b elow. The costs on a

ppeal ar e assess ed again st the Appe llant, D.G.S.L. and her surety.

___________________________________ D. MICHAEL SWINEY, JUDGE