In Re: Yariel S.

12/29/2016

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 22, 2016 Session

IN RE: YARIEL S., ET AL.

Appeal from the Juvenile Court for Knox County

No. 53466 Timothy E. Irwin, Judge

No. E2016-00939-COA-R3-PT

This appeal arises from a termination of parental rights. The Tennessee Department of

Children’s Services (“DCS”) filed a petition in the Juvenile Court for Knox County (“the

Juvenile Court”) seeking to terminate the parental rights of Yaron L. (“Father”) to his

four minor children Yariel, Yaron, Yariyana, and YariAsia (“the Children”). After a trial,

the Juvenile Court terminated Father’s parental rights on the grounds of persistent

conditions and substantial noncompliance with the permanency plan. The Juvenile Court

also found that termination of Father’s parental rights was in the Children’s best interest.

Father appeals to this Court. Father argues that he was not properly notified of the trial,

that counsel should have been appointed, and that termination of his parental rights is not

in the Children’s best interest. We hold that that the evidence in the record on appeal

shows, as found by the Juvenile Court, that Father was notified of trial, that Father failed

to appear at trial, and that the Juvenile Court did not err in declining to appoint Father

counsel when he failed to appear. We also find and hold that the Juvenile Court’s

determinations regarding grounds for termination and the Children’s best interest are

supported by clear and convincing evidence. We affirm the judgment of the Juvenile

Court.

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

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR., and JOHN W. MCCLARTY, JJ., joined.

Robert Lewis Straight, III, Knoxville, Tennessee, for the appellant, Yaron L.

Herbert H. Slatery, III, Attorney General and Reporter, and, W. Derek Green, Assistant

Attorney General, for the appellee, the Tennessee Department of Children’s Services.

OPINION

Background

In October 2014, DCS became involved with the Children when their

mother admitted to an opiate addiction. Both parents acknowledged using marijuana as

well. DCS removed the Children from the home of the parents in June 2015 pursuant to a

protective custody order. DCS created a permanency plan for the parents. The

permanency plan required the parents, in part, to complete drug and alcohol assessments;

follow recommendations; refrain from illegal activities; submit to and pass random drug

screens; obtain legal sources of income; and, obtain safe and stable housing.

Additionally, Father was required to complete an anger management program and

provide proof of completion to DCS. In August 2015, the Children were adjudicated

dependent and neglected. The Court found that the parents were not in compliance with

the permanency plan. Meanwhile, Father tested positive for cocaine and THC and failed

to complete two drug screens. Father did eventually complete mental health, drug and

alcohol assessments. Father acknowledged a long history of drug abuse. Health Connect

diagnosed Father as having severe cannabis disorder and post-traumatic stress disorder.

In March 2016, DCS filed a petition seeking to terminate Father’s parental

rights to the Children. A summons was issued to Father on March 15, 2016 notifying

him that the hearing on the petition would take place on May 3, 2016. The return

indicated Father was served personally on March 26, 2016. Father neither responded to

the petition in any way nor appeared at the May 3, 2016 hearing. At trial, DCS worker

Sarah Brock and the Foster Father testified. Ms. Brock testified:

Q. [Father] was supposed to participate in some intensive outpatient

treatment?

A. Yes.

Q. Did he actually participate in any outpatient treatment?

A. He did. He started the outpatient treatment at Health Connect after

completing the assessment, a couple weeks after that. He missed almost as

many sessions as he attended.

Q. What happened?

A. He was discharged on February the 22nd for non-compliance.

***

Q. You asked him to participate in some anger management?

A. Yes; that’s correct.

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Q. And what did he tell you?

A. He reported that he intended to participate in the anger management

sessions at Health Connect.

Q. Said he was going to be starting a group in early December?

A. Yes.

Q. Described the curriculum to you?

A. Yes.

Q. Did he ever actually start it?

A. No, he did not.

Q. When you checked with Health Connect, did you determine whether or

not there was such a program and whether or not he made any arrangements

to start one?

A. They do have a program, but they had not actually spoken to him about

starting the anger management services, and they didn’t have those plans in

place.

Q. So if he had continued and completed the intensive outpatient program

that he started, he could have received anger management -

A.Yes.

Q. - - at that facility?

A. Yes.

Q. He just didn’t do it?

A. That’s correct; he didn’t.

***

Q. Have you attempted to drug screen him since he was released from

Health Connect for non-compliance?

A. Yes, I have.

Q. What happened?

A. He has failed the drug screens, but he has also refused to take drug

screens.

Q. Said he wasn’t putting that cotton under his tongue?

A. Yes; that’s correct.

Q. How are the children doing?

A. The children are doing really well.

In May 2016, the Juvenile Court entered an order terminating Father’s

parental rights to the Children on the grounds of persistent conditions and substantial

noncompliance with the permanency plan after having found that termination of Father’s

parental rights was in the Children’s best interest. The Juvenile Court also made a

specific finding that Father was properly served and notified of the hearing. Father filed

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a pro se notice of appeal on a fill-in-the-blank form, asserting “improper service” and that

he became of the aware of the May 3, 2016, hearing on April 27, 2016.

The Juvenile Court’s order terminating Father’s parental rights stated in

relevant part:

3. The temporary custody of these children was awarded to the State

of Tennessee, Department of Children’s Services, on June 4, 2015, by order

of the Juvenile Court of Knox County, Tennessee; they have been in foster

care continuously since that date. An order finding the children dependent

and neglected was issued by this Court following a hearing on August 24,

2015. The termination petition was filed against Respondent on March 15,

2016. He was served with a summons and copy of the petition by personal

service on March 26, 2016, at . . . Knoxville, Tennessee. The summons

clearly stated the date of this hearing and advised Respondent that he could

either file an answer before this hearing or personally appear. It also stated

that failure to answer or appear could result in the hearing going forward

without Respondent’s participation and in termination of his parental rights.

The Court specifically finds that Respondent was properly served, that he

had actual notice of this hearing and of the consequences of failure to

appear, and that he has nevertheless failed to answer, appear, or otherwise

defend the petition filed against [him]. To the extent that the Rules of Civil

Procedure and the Rules of Juvenile Procedure are inconsistent with regard

to service of process, the Court finds that the Rules of Civil Procedure

should be suspended and that this matter should proceed to adjudication on

the date set without any further notice to Respondent, the interests of justice

so requiring.

***

1. These children were removed from their parents’ custody due to

substance abuse and mental health issues and failure to cooperate with

intervention services. In October 2014, at her first prenatal visit during her

pregnancy with YariAsia, the children’s mother admitted to taking three to

four Xanax per day for her nerves. She reported that she was opiate

dependent and taking “street” Suboxone. She was referred to CenterPointe

and completed detox there in November 2014.

2. Mother and baby were clean when YariAsia was born. Both

parents admitted regular marijuana use. At a Child & Family Team

Meeting on January 5, 2015, the parents agreed to complete mental health

assessments and alcohol and drug assessments, to follow resulting

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recommendations, to submit to random drug screens, and to cooperate with

the Department of Children’s Services. Family Support Services were

placed in the home and the children returned to their parents’ care.

3. Over the next several months the parents failed to cooperate at all,

coming up with one excuse after another. On March 26, 2015, Respondent

was positive for marijuana and cocaine. The children’s mother was

positive for benzodiazepines, buprenorphine, and marijuana. They were

warned that they risked losing their children if they did not stop using illicit

drugs. The children’s mother repeatedly rescheduled appointments at

Bradford for an assessment. New Beginnings tried unsuccessfully to

schedule a telephone screening on several different occasions. After

multiple attempts to contact the family the case manager was finally able to

meet with the parents on May 27, 2015. During the meeting, the case

manager called Peninsula and was advised that the mother could be seen

the next day due to a cancellation; she did not go. An oral swab obtained

from her during that meeting was positive for benzodiazepines, cocaine and

marijuana. Respondent’s screen was positive for marijuana; he insisted that

he was never going to quit smoking marijuana. Based on those drug screens

and the parents’ failure to cooperate with assessments and services for the

previous six months, the Department no longer had any confidence that the

parents would successfully comply and cooperate with services; their

continuing substance abuse issues placed the children at risk and resulted in

the children’s removal.

4. The initial permanency plan was developed at a Child & Family

Team Meeting on June 25, 2015, Respondent did not appear although he

had been invited; the plan was reviewed with him a few days later. Among

other things the plan required that he (a) complete a mental health

assessment and follow resulting recommendations; (b) complete an alcohol

and drug assessment, follow resulting recommendations, and pass random

drug screens to demonstrate sobriety; and (c) obtain and maintain safe,

suitable housing free from environmental hazards, domestic violence, drug

abuse or other risks to the children. He was also expected to visit regularly,

to participate in parenting education through therapeutic visitation, to pay

child support, and to maintain contact with the children’s case manager.

The plan was updated periodically but the responsibilities never changed as

Respondent made little progress in accomplishing them.

5. After repeated reminders, Respondent finally completed mental

health and alcohol and drug assessments on September 8, 2015, through

Health Connect America, when the clinician went to Respondent’s home to

get it done. He reported using cocaine occasionally, with the last use about

a month before the assessment, and smoking marijuana every day. He

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submitted to a urine drug screen that was clean for all drugs. When

confronted with the contradiction between those results and his reported

use, he explained that she had taken something from GNC to clear his

system. Based on his self-report, the clinician recommended that he “would

benefit from co-occurring Intensive Outpatient Program for his PTSD and

addiction.” He expressed a willingness to participate in treatment.

6. Respondent began intensive outpatient treatment through Health

Connect a few weeks after completing his assessments. He missed almost

as many sessions as he has attended. He was discharged on February 22,

2016, for non-compliance. Although he did produce two clean drug

screens during this time, he was not able to maintain either consistent

attendance or consistent sobriety. He never participated in anger

management treatment. He reported to the children’s case manager that he

intended to participate in an anger management group at Health Connect

America. On December 2, 2015, he stated that he would be starting such a

group the next Friday and would complete the twelve-hour curriculum by

attending four 3-hour sessions. He thought he could complete it within a

month. His first session was scheduled for the following day. He did not

appear. At the end of January 2016 he made the same claim to the

children’s case manager. He stated that he would complete intensive

outpatient treatment and then begin anger management while doing

aftercare once each week. When she checked with Health Connect

America, she learned that he had not actually spoken with anybody there

about starting anger management services and no such plans were in place.

7. Respondent has yet to establish a suitable home for the children.

Sometimes he “stays” with his mother. Otherwise, he is with the children’s

mother in the home of her grandfather, who abuses alcohol. On December

9, 2015, the children’s case manager and her supervisor made an

unannounced home visit. The grandfather opened the door and insisted that

the parents did not live there. He was already intoxicated and appeared

agitated and very angry but opened another can of beer during the visit. He

claimed the parents had stolen money from him and he wanted them out of

the house. While he was explaining this, the children’s father came out and

told the grandfather that he did not need to be talking to the visitors.

Respondent had been asleep when the case manager arrived. When she

woke up and came out on the porch, her grandfather said he was going to

shoot the children’s father. He then went inside the home and shut off the

electricity. He returned to the porch and again told the parents to leave;

they indicated that they would move out that day and go to the home of Mr.

[L.’s] mother. As the children’s case manager and her supervisor left the

residence, the grandfather pulled away in his truck.

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8. Respondent’s last urine drug screen, on March 23, 2016, was still

positive for marijuana. He has refused to submit to any drug screens since

then. He has been encouraged to resume intensive outpatient treatment, to

stop smoking marijuana, and to complete his anger management classes.

He claims he is too busy at work to do any of this. The Court notes that

during this hearing he was not at work or in the courtroom but was

somewhere in Lonsdale posting to Facebook.

9. Upon those facts, the Court finds that these children have been

removed by order of this Court for a period of six (6) months; the

conditions which led to their removal still persist; other conditions persist

which in all probability would cause the children to be subjected to further

abuse and neglect and which, therefore, prevent the children’s return to the

care of Respondent; there is little likelihood that these conditions will be

remedied at an early date so that these children can be returned to

Respondent in the near future; the continuation of the legal parent and child

relationship greatly diminishes the children’s chances of early integration

into a stable and permanent home.

10. The Court further finds that Respondent has failed to comply in a

substantial manner with those reasonable responsibilities set out in the

permanency plan related to remedying the conditions which necessitate

foster care placement. Respondent has done completed nothing other than

cooperate with a substance abuse assessment when the clinician showed up

at his door. He attended intensive outpatient treatment inconsistently until

he was discharged for non-compliance and never quit smoking marijuana.

He has done nothing to establish a suitable home for these children. It does

not appear that he wants to get clean or to accept responsibility for his

children.

11. The Court did not hear proof as to Respondent’s ability to

support these children and that ground was conceded by counsel.

III

1. Respondent has not made such an adjustment of circumstance,

conduct, or conditions as to make it safe and in the children’s best interest

to be in his home despite reasonable efforts by available social services

agencies for such duration of time that lasting adjustment does not

reasonably appear possible. He has not maintained regular visitation or

other contact with these children. A change of caretakers and physical

environment is likely to have a detrimental effect on the children’s

emotional and psychological condition. Respondent has shown neglect

toward these children. He is without a healthy and safe physical

environment to offer the children. He continues to engage in such use of

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alcohol or controlled substances as may render Respondent consistently

unable to care for the children in a safe and stable manner.

2. The mother’s parental rights are terminated on this same date by

companion order.

3. The Department of Children’s Services has made reasonable

efforts toward achieving permanency for these children.

4. The children are entitled to a safe, secure and loving home. They

are now placed together in a prospective adoptive home where they are

thriving, behaving as typical siblings. They are all meeting their

developmental milestones with no therapy needs at this time. They have

the opportunity to achieve permanency through adoption. These children

deserve to grow up knowing where they will lay their heads at night. They

should not have to rely on somebody who is unreliable, to depend on

somebody who is undependable.

5. It is, therefore, in the best interest of [the Children] and the public

that all of Respondent’s parental rights to these children be terminated and

the complete custody, control, and full guardianship of the children be

awarded to the State of Tennessee, Department of Children’s Services, with

the right to place them for adoption and to consent to such adoption in loco

parentis.

6. Respondent is not hereafter entitled to notice of proceedings for

the adoption of these children nor has he any right to object to such

adoption or otherwise to participate in such proceedings.

Father timely filed an appeal to this Court.

Discussion

Although not stated exactly as such, Father raises the following two issues

on appeal: 1) whether the Juvenile Court erred in failing to appoint Father counsel for his

parental termination proceedings and by failing to make a determination as to whether

Father was properly served and notified of trial; and, 2) whether the Juvenile Court erred

in finding that it is in the Children’s best interest for Father’s parental rights to be

terminated.

As our Supreme Court recently instructed:

A parent’s right to the care and custody of her child is among the

oldest of the judicially recognized fundamental liberty interests protected

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by the Due Process Clauses of the federal and state constitutions.1 Troxel v.

Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley

v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re

Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female

Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d

573, 578-79 (Tenn. 1993). But parental rights, although fundamental and

constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at

250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors .

. . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae

when interference with parenting is necessary to prevent serious harm to a

child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d

425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S.

745, 747, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303

S.W.3d at 250. “When the State initiates a parental rights termination

proceeding, it seeks not merely to infringe that fundamental liberty interest,

but to end it.” Santosky, 455 U.S. at 759, 102 S.Ct. 1388. “Few

consequences of judicial action are so grave as the severance of natural

family ties.” Id. at 787, 102 S.Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S.

102, 119, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). The parental rights at

stake are “far more precious than any property right.” Santosky, 455 U.S.

at 758-59, 102 S.Ct. 1388. Termination of parental rights has the legal

effect of reducing the parent to the role of a complete stranger and of

“severing forever all legal rights and obligations of the parent or guardian

of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also Santosky, 455

U.S. at 759, 102 S.Ct. 1388 (recognizing that a decision terminating

parental rights is “final and irrevocable”). In light of the interests and

consequences at stake, parents are constitutionally entitled to

“fundamentally fair procedures” in termination proceedings. Santosky, 455

U.S. at 754, 102 S.Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of

Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640

(1981) (discussing the due process right of parents to fundamentally fair

procedures).

Among the constitutionally mandated “fundamentally fair

procedures” is a heightened standard of proof – clear and convincing

evidence. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. This standard

1

U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property,

without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states

“[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or

outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the

judgment of his peers or the law of the land.”

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minimizes the risk of unnecessary or erroneous governmental interference

with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586,

596 (Tenn. 2010). “Clear and convincing evidence enables the fact-finder

to form a firm belief or conviction regarding the truth of the facts, and

eliminates any serious or substantial doubt about the correctness of these

factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).

The clear-and-convincing-evidence standard ensures that the facts are

established as highly probable, rather than as simply more probable than

not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re

M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).

Tennessee statutes governing parental termination proceedings

incorporate this constitutionally mandated standard of proof. Tennessee

Code Annotated section 36-1-113(c) provides:

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.

This statute requires the State to establish by clear and convincing proof

that at least one of the enumerated statutory grounds2 for termination exists

and that termination is in the child’s best interests. In re Angela E., 303

S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re

Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is

separate from and subsequent to the determination that there is clear and

convincing evidence of grounds for termination.” In re Angela E., 303

S.W.3d at 254. Although several factors relevant to the best interests

analysis are statutorily enumerated,3 the list is illustrative, not exclusive.

The parties are free to offer proof of other relevant factors. In re Audrey S.,

182 S.W.3d at 878. The trial court must then determine whether the

combined weight of the facts “amount[s] to clear and convincing evidence

that termination is in the child’s best interest.” In re Kaliyah S., 455

S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent

2

Tenn. Code Ann. § 36-1-113(g)(1)-(13).

3

Tenn. Code Ann. § 36-1-113(i).

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receives the constitutionally required “individualized determination that a

parent is either unfit or will cause substantial harm to his or her child before

the fundamental right to the care and custody of the child can be taken

away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).

Furthermore, other statutes impose certain requirements upon trial

courts hearing termination petitions. A trial court must “ensure that the

hearing on the petition takes place within six (6) months of the date that the

petition is filed, unless the court determines an extension is in the best

interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must

“enter an order that makes specific findings of fact and conclusions of law

within thirty (30) days of the conclusion of the hearing.” Id. This portion

of the statute requires a trial court to make “findings of fact and conclusions

of law as to whether clear and convincing evidence establishes the

existence of each of the grounds asserted for terminating [parental] rights.”

In re Angela E., 303 S.W.3d at 255. “Should the trial court conclude that

clear and convincing evidence of ground(s) for termination does exist, then

the trial court must also make a written finding whether clear and

convincing evidence establishes that termination of [parental] rights is in

the [child’s] best interests.” Id. If the trial court’s best interests analysis “is

based on additional factual findings besides the ones made in conjunction

with the grounds for termination, the trial court must also include these

findings in the written order.” Id. Appellate courts “may not conduct de

novo review of the termination decision in the absence of such findings.”

Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n.15 (Tenn.

Ct. App. 2007)).

B. Standards of Appellate Review

An appellate court reviews a trial court’s findings of fact in

termination proceedings using the standard of review in Tenn. R. App. P.

13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at

246. Under Rule 13(d), appellate courts review factual findings de novo on

the record and accord these findings a presumption of correctness unless

the evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at

596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of

A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). In light of the heightened

burden of proof in termination proceedings, however, the reviewing court

must make its own determination as to whether the facts, either as found by

the trial court or as supported by a preponderance of the evidence, amount

to clear and convincing evidence of the elements necessary to terminate

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parental rights. In re Bernard T., 319 S.W.3d at 596-97. The trial court’s

ruling that the evidence sufficiently supports termination of parental rights

is a conclusion of law, which appellate courts review de novo with no

presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re

Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions

of law in parental termination appeals, as in other appeals, are reviewed de

novo with no presumption of correctness. In re Angela E., 303 S.W.3d at

246.

In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but

renumbered).

We first address whether the Juvenile Court erred in failing to appoint

Father counsel for his parental termination proceedings and by allegedly failing to make a

determination as to whether Father was properly served and notified of trial. Our

Supreme Court recently stated:

Tennessee joined this majority in 2009. Rather than incur the time

and expense of litigating the right to appointed counsel in each case under

the Lassiter balancing test, Tennessee statutorily provides the right to

appointed counsel for indigent parents in every parental termination

proceeding. Tenn. Code Ann. § 37-1-126(a)(2)(B)(ii) (2014); Tenn. Sup.Ct.

R. 13, § 1(c), (d)(2)(B); Tenn. R. Juv. P. 39(e)(2).

In re: Carrington H., 483 S.W.3d at 527-28 (footnotes omitted).

This Court, in addressing the issue of a pro se parent’s right to

representation in a parental rights termination case, stated:

“Upon finding a party indigent, the court shall enter an order

appointing counsel unless the indigent party rejects the offer of

appointment of counsel with an understanding of the legal consequences of

the rejection.” Tenn. S.Ct. R. 13 § 1(e)(3). If the indigent parties refuses to

accept the services of appointed counsel, “such refusal shall be in writing

and shall be signed by the indigent party in the presence of the court,” the

trial court shall acknowledgment the fact, and the written refusal of counsel

shall be made a part of the record. Tenn. S.Ct. R. 13 § 1(f)(1)-(2).

The record reveals the father filed a pro se Answer to the Petition, he

appeared at trial to defend the action without counsel, and the transcript of

the evidence reveals that his primary defense was his indigency. The

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record, however, provides no indication that the trial court made any

inquiry regarding the father’s indigency or his ability to retain counsel to

represent him in the proceedings, wherein his parental rights were subject

to being terminated, and the record does not contain a writing to confirm

that he knowingly waive the right to appointed counsel.

***

Here, the father appeared without counsel at trial to contest the

termination petition. Moreover, the father’s defense to the claim of

abandonment was wholly based on his alleged financial limitations. Each of

these facts, standing alone, compelled the trial court to conduct an

indigency inquiry and to inform the father of his constitutional right to

counsel as mandated by Tenn. S.Ct. R. 13. The record fails to establish that

the trial court complied with the mandatory provisions of the rule.

Lyon v. King, No. M2007-01156-COA-R3-PT, 2008 WL 490657, at **5-7 (Tenn. Ct.

App. Feb. 22, 2008), no appl. perm. appeal filed (footnotes omitted).

In the present case, however, Father did not avail himself of his right to

representation during the parental rights termination proceedings. In contrast, Father

secured counsel both in the dependency and neglect phase and now on appeal. Father

knew how to obtain counsel. Father, however, made no appearance before trial after

being served in the termination proceeding, did not show up at trial, and finally appeared

and requested counsel only after the trial was completed. Father was entitled to

representation at trial, if indigent, but he had to take the minimum steps of showing up

and proving his indigency at that time. Father did neither.

The evidence in the record on appeal shows that Father knew in advance of

the date of trial and that he was served personally. While denying that he was served on

March 26, 2016, Father admits that he knew at least by April 27, 2016 that the trial would

be on May 3, 2016. Despite this knowledge, Father still did nothing including not

showing up at the trial on May 3, 2016. The Juvenile Court made a specific finding that

Father was “properly served, that he had actual notice of this hearing and of the

consequences of failure to appear, and that he has nevertheless failed to answer, appear,

or otherwise defend the petition filed against [him].” The Juvenile Court noted further

that “during this hearing [Father] was not at work or in the courtroom but was somewhere

in Lonsdale posting to Facebook.” The evidence does not preponderate against these or

any other findings of the Juvenile Court.

Father argues further that the Juvenile Court should have treated his Notice

of Appeal as a Tenn. R. Civ. P. Rule 59 motion to amend judgment or a Rule 60 motion

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for relief from judgment. We review denials of both Rule 59 and Rule 60 motions under

an abuse of discretion standard. Smith v. Haley, No. E2000-001203-COA-R3-CV, 2001

WL 208515, at *5 (Tenn. Ct. App. March 2, 2001), no appl. perm. appeal filed. Rule

59.04, Tenn. R. Civ. P. allows a party to ask the trial court to alter or amend a judgment

within 30 days of the entry of the judgment, prior to the judgment becoming final.

Similarly, Rule 59.02, Tenn. R. Civ. P. allows a motion for a new trial if made within 30

days of the entry of judgment. After a judgment becomes final, a party may not seek

relief under Rule 59, but may seek relief under Rule 60.02. Tenn. R. Civ. P. 60.02

provides that a “court may relieve a party or the party’s legal representative from a final

judgment, order or proceeding” for any of several specific enumerated reasons, including

“mistake, inadvertence, surprise or excusable neglect.” Tenn. R. Civ. P. 60.02.

Father submits that the substance of his Notice of Appeal should be

prioritized over its form, keeping in mind his pro se status. Father argues the substance

of his notice of appeal was really that of a Rule 59 or 60 motion rather than a notice of

appeal. This Court has stated:

Pro se litigants should not be permitted to shift the burden of the

litigation to the courts or to their adversaries. They are, however, entitled

to at least the same liberality of construction of their pleadings that Tenn.

R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Irvin v. City of

Clarksville, 767 S.W.2d at 652. Even though the courts cannot create

claims or defenses for pro se litigants where none exist, Rampy v. ICI

Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. Ct. App. 1994), they should

give effect to the substance, rather than the form or terminology, of a pro se

litigant’s papers. Brown v. City of Manchester, 722 S.W.2d 394, 397

(Tenn. Ct. App. 1986); Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct.

App. 1977).

Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003).

Given Father’s pro se status, and the fact that he wrote “improper service”

on the Notice of Appeal which, in our judgment, arguably suggests a desire for relief

from the Juvenile Court’s judgment rather than a statement of an issue for appeal, the

Juvenile Court could have treated Father’s Notice of Appeal as a Rule 59 or Rule 60

motion. We, however, find no reversible error by the Juvenile Court’s treatment of the

document titled “Notice of Appeal” as just that. In any event, this decision by the

Juvenile Court does not impact the ultimate outcome. As already addressed, the Juvenile

Court found, as now affirmed by this Court, that Father was properly served and notified

of trial and failed to appear. We find no reversible error regarding Father’s rights in the

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parental termination proceedings, either as to appointment of counsel or as to service and

notice.

Although Father does not raise grounds for termination of parental rights as

an issue on appeal, we, as our Supreme Court has said we must, address them

nevertheless. Two grounds for termination of parental rights are at issue on appeal.

Tenn. Code Ann. § 36-1-113 (g)(2) (Supp. 2016) provides the first relevant ground of

substantial noncompliance with the permanency plan as follows: “There has been

substantial noncompliance by the parent or guardian with the statement of responsibilities

in a permanency plan pursuant to the provisions of title 37, chapter 2, part 4.” Regarding

persistent conditions, the termination statute states:

(3) 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:

(A) The conditions that led to the child’s removal or other

conditions that in all reasonable probability would cause the child to be

subjected to further abuse or neglect and that, therefore, prevent the child’s

safe return to the care of the parent or parents or the guardian or guardians,

still persist;

(B) 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 or parents or the guardian or guardians in the near future; and

(C) 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;

Tenn. Code Ann. § 36-1-113(g)(3) (Supp. 2016).

The Juvenile Court made detailed findings, quoted above, regarding

grounds for termination against Father. The evidence in the record on appeal does not

preponderate against any of these findings by the Juvenile Court. We find and hold, as

did the Juvenile Court, that the grounds of persistent conditions and substantial

noncompliance with permanency plan are established by the standard of clear and

convincing evidence.

The final issue we address is whether the Juvenile Court erred in finding

that it is in the Children’s best interest for Father’s parental rights to be terminated.

Father points to his 31 sessions of treatment and that he eventually was discharged only

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because of a transportation issue. Father points to evidence in the record describing his

participation in drug treatment as “high.” Father also states that the foster parents

acknowledged a bond between the Children and Father and that DCS’s evidence at trial

was relatively scant.

The record does show that although Father undertook certain steps toward

addressing his substance abuse issues, he never successfully addressed his substance

abuse issues. Father refused drug screens and otherwise failed to complete drug

treatment. As found by the Juvenile Court, “[Father] continues to engage in such use of

alcohol or controlled substances as may render [Father] consistently unable to care for the

children in a safe and stable manner.” Drug abuse was the basis for the Children’s

removal from Father in the first place, and Father’s failure to address his drug abuse is

not a mere detail but the central point in the case. On the other hand, the evidence in the

record is that the Children are thriving in foster care. We find and hold, as did the

Juvenile Court, that the evidence is clear and convincing that it is in the Children’s best

interest for Father’s parental rights to be terminated. We affirm the judgment of the

Juvenile Court.

Conclusion

The judgment of the Juvenile Court is affirmed, and this cause is remanded

to the Juvenile Court for collection of the costs below. The costs on appeal are assessed

against the Appellant, Yaron L., and his surety, if any.

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE

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