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IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE
Assigned on Briefs December 17, 2003 Session

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. A.W.S. and E.S. In re: R.T.S.
Appeal from the Juvenile Court for Blount County No. 8635 William T. Denton, Judge FILED JANUARY 16, 2004 No. E2002-02227-COA-R3-JV

The State of Tennessee, Department of Children's Services ("DCS") filed a petition seeking to terminate the parental rights of A.W.S. ("Mother") and E.S. ("Father"), the biological parents of the minor child, R.T.S. ("the Child"). The Juvenile Court granted DCS' petition to terminate Mother's and Father's parental rights. Both Mother and Father appeal. We affirm.

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

D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J., and HERSCHEL P. FRANKS, J., joined.

Jon A. Anderson, Maryville, Tennessee, for the Appellant, A.W.S. Wm. Lee Gribble, II, Maryville, Tennessee, for the Appellant, E.S. Paul G. Summers and John H. Bledsoe, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

OPINION Background This case involves the termination of the parental rights of Mother and Father, biological parents of the Child. In December of 1998, DCS filed a Petition for Temporary Custody of the Child, who then was less than six-weeks old. The petition alleged that the Child weighed four ounces less than at birth and that the "newborn infant is suffering neglect due to the parents' lack of parenting skills." A DCS caseworker stated that the Child's "skin was hanging on his bones. . . . He had very little subcutaneous flesh under his skin. He had big, red circles under his eyes. His fingers, the palms of his hands, the bottoms of his feet were bright, cherry red. He was very, very thin." The Petition for Temporary Custody was granted and the Child was placed with his maternal grandparents. Mother was unmarried when the Child was born. However, no one contests that Father is the Child's biological father. Mother and Father were married shortly after the Child was removed from their custody. At the time the Child came into DCS custody, Mother was living at a shelter for battered women and Father was living in a hotel. A permanency plan1 ("Plan") was created with a stated goal of returning the Child to his parents. The Plan required Mother and Father to do such things as attend marital counseling on a regular basis, maintain employment, maintain a residence with rent and utilities paid on time for a minimum of six months, and provide verification of income to the Court as required by Court order. The Plan also provided that either Mother or Father needed to obtain a driver's license in order to be able legally to use the transportation they had available to them. Mother and Father also were to attend parenting classes. Since the Child came into DCS custody, Mother has been in a battered women's shelter twice. She also has moved back in with her parents for very brief periods of time. At one point while she was in a shelter, Mother contacted DCS and told the caseworker that Father "often curses her and threatens to kill her because of the situation." Mother stated she was planning on getting a divorce and was in the process of getting an order of protection. Mother, however, returned to Father. Mother and Father have moved several times since the Child came into DCS custody and have failed to keep DCS apprised of changes in address. At one point, DCS attempted to visit and learned that Mother and Father had moved owing rent and leaving no forwarding address. Mother and Father did live at one location for approximately seven months. They have lived without

The original permanency plan is not in the record. However, the permanency plan was revised at least two times prior to DCS filing the petition to terminate parental rights and these revised plans are in the record. The Juvenile Court had before it the revised permanency plan and found that M other and Father had failed to substantially comply with the plan.

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electricity and water sometimes for a couple of months at a time. Mother and Father currently live in a trailer they claim to be making payments on. Mother stated they eventually plan on buying some land upon which to put the trailer. However, they still did not have utilities at the time. Mother has held a job as a cashier at Wal-Mart for several weeks. Father works construction jobs and has done so for many years, but his work is not steady. Mother states Father earns "[a]nywhere from 12 to 13 an hour" when he works. Mother and Father did attend parenting classes and obtained a certificate showing completion of the classes. They, however, did not attend marital counseling on a regular basis. Instead, they attended a couple of sessions and then claimed they were attending counseling, but they refused to provide DCS with any information regarding when, where, or with whom. In addition, neither Mother nor Father provided the Court with any verification of income, nor did they ever voluntarily pay any child support. Mother and Father have visited the Child sporadically, at times missing scheduled visitations for several months at a time. After losing contact with both Mother and Father for a period of approximately four months, DCS filed a petition to terminate parental rights. The maternal grandparents have expressed a desire to adopt the Child. After hearing testimony, the Juvenile Court found that Mother and Father had failed to comply with the Plan, as revised, by failing to maintain regular employment and stable housing and that neither Mother nor Father had obtained a driver's license. Mother and Father had not reported income as required by court order to allow the Court to determine their child support obligations. The Juvenile Court found that both Mother and Father failed to obligate themselves voluntarily to pay any child support and both failed to keep DCS apprised of changes in home addresses and employment. In addition, the Juvenile Court found that the parties had failed to attend anger management or substantial marital counseling as required in the Plan. Further, the Juvenile Court found that Mother and Father's visitation with the Child had been sporadic at best and that Mother had made multiple reports of physical abuse by Father. The Juvenile Court found that the Plan contained "bare bone obligations that could be accomplished within just a very few months," but despite the fact that Mother and Father had been given "over 3 and one-half years to substantially comply with [their] obligations set forth in the permanency plan . . . [they had] yet to make other than mediocre or minimal progress towards compliance." The Juvenile Court also found: That the child has been removed by order of this Court for a period of six (6) months; and the child has been placed with the maternal grandparents for over three years; that the conditions which led to his removal still persist; or other conditions persist which in all probability would cause the child to be subjected to further abuse and neglect and which, therefore, prevent the child's return to the care of [Mother and Father]; there is little likelihood that these conditions will be remedied at an early -3-

date so that this child can be returned to his parents in the near future; the continuation of the legal parent and child relationship greatly diminishes the child's chances of early integration into a stable and permanent home . . . . The Juvenile Court entered an order August 27, 2002, terminating the parental rights of Mother and Father. Mother and Father appeal to this Court. Discussion Mother raises one broadly stated issue on appeal: whether the Juvenile Court erred in terminating her parental rights. Father raises two issues on appeal: 1) whether the Juvenile Court erred in terminating his parental rights; and 2) whether Father waived his right to counsel. The factual findings of the Juvenile Court are accorded a presumption of correctness, and we will not overturn those factual findings unless the evidence preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal issues, our review is conducted "under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts." Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). We will begin by considering whether Father waived his right to counsel. Father's brief states: The Court found that [Father] had "waived his right to counsel inasmuch as at least on 2 - and as much as 2 attorneys ha[d] been appointed to represent [him] and have withdrawn due to [his] failure to cooperate with appointed counsel." This finding was reached without any evidentiary proceeding whatsoever. No evidence supports this conclusion in the record, yet alone any clear and convincing evidence. We disagree with Father. The record includes orders wherein the Juvenile Court granted motions to withdraw made by two attorneys appointed to represent Father. The second of these orders states that the motion is granted because of Father's "failure to communicate with his attorney." Apparently, Father then chose to proceed pro se. Father made his appearance at the termination hearing pro se and was allowed an opportunity to present his case and to cross-examine the witnesses. "A defendant in a termination of parental rights case has no absolute right to be represented by counsel." Dep't of Children's Servs. v. Agbigor, No. M2000-03214-COA-R3-JV, 2002 Tenn. App. LEXIS 807, at *13 (Tenn. Ct. App. Nov. 15, 2002), appl. perm. appeal denied May 12, 2003, (holding that defendant effectively waived his right to continued representation by failing to communicate with his attorney). See In re: K.D.D., No. M2000-01554-COA-R3-JV, 2001 Tenn. App. LEXIS 141 (Tenn. Ct. App. March 7, 2001), no appl. perm. appeal filed, (holding defendant

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waived her right to appointed counsel by refusing to avail herself of the opportunities offered by the trial court). Clear and convincing evidence in the record regarding this issue supports the finding that Father failed to communicate and cooperate with his appointed counsel. We find no error by the Juvenile Court in its holding that Father waived his right to counsel by his consistent refusal to cooperate with at least two attorneys appointed to represent him. To hold otherwise would grant a parent the absolute power to prevent forever a termination hearing from proceeding simply by refusing to cooperate with appointed counsel. While the Juvenile Court did what it could to see that Father was represented by counsel, it properly refused to have the Child remain in limbo and the termination hearing held hostage by Father through his failure to cooperate with appointed counsel. We find no error by the Juvenile Court as to this issue. We next consider whether the Juvenile Court erred in terminating Mother's and Father's parental rights. In Dep't of Children's Servs. v. D.G.S.L. this Court discussed the relevant burden of proof in cases involving termination of parental rights. Specifically, we observed: It is well established that "parents have a fundamental right to the care, custody, and control of their children." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed.2d 551 (1972)). "However, this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute." 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 child. Tenn. Code Ann.

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