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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs December 4, 2003 IN RE: D. D. K., D. M. M., and T. J. M., JR.
Appeal from the Juvenile Court for Montgomery County No. 64-169 L. Raymond Grimes, Judge

No. M2003-01016-COA-R3-PT - Filed December 30, 2003

This appeal involves a petition filed by the Department of Children's Services to terminate the parental rights of Father to his two minor children. The trial court granted the petition and Father appeals the decision. Because we find the petition was improperly granted, we vacate and remand. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated and Remanded PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S., and FRANK G. CLEMENT , JR., J., joined. Adrian R. Bohnenberger, Clarksville, Tennessee, for the appellant, T. J. M., Sr. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services. OPINION At issue is the trial court's granting the petition to terminate the parental rights of Father in regard to his two (2) minor children, D.M.M., a son born October 7, 1989, and T.J.M., Jr., a son born January 6, 1992.1 On September 4, 1998, the Department of Children Services ("DCS") petitioned the Montgomery County juvenile court for temporary custody of six-year old T.J.M., Jr. and his older brother, nine year old D.M.M. The petition alleged that the children's mother, T.W., was using crack cocaine on a regular basis and was not providing adequate care to the children. The petition identified Father by name and stated his address was unknown. By order entered the same day, the

At the trial level, the case also involved termination of the parental rights of a third child of Mother, D.D.K. That child had a different father, and issues regarding termination of parental rights to D.D.K. are not involved in this appeal by Father.

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juvenile judge found probable cause that the children were dependent and neglected and placed them in DCS custody. After working with Mother for a year, DCS determined that the children were "ready to return home," and a trial home visit was attempted in November, 1999. However, Mother subsequently tested positive for cocaine, and on January 4, 2000, the children were again removed from the home, placed briefly in foster care, and then placed with their maternal aunt G.W. At the time of the removals, the children were living with Mother. Father spent a great deal of time at the apartment, but denies he was living there. He testified he had daily visited or checked on the children during the trial period when the children were returned to their mother's custody. He was aware DCS removed the children. Father testified he went to the DCS office two days after the removal. He testified he was not given any paperwork to fill out and was not told to call or return to the DCS office. He never made another attempt to contact DCS about his children. He also testified he once telephoned the maternal aunt with whom the children were living. He testified she told him he was not allowed to visit the children or come around them. He did not make any effort to see or contact the children because he did not want to cause any trouble. He saw the children at a family funeral but did not visit with them because, he testified, he did not want to cause any problems. During this time, Father lived in a shed behind his parents' house. His mailing address was his parents' house, and he received mail there. He stated he had told DCS his address when the children were removed. The children's caseworker testified the children knew where Father lived and gave her general directions to the place. She also testified she looked for the parents' house and found it once. She did not testify that she tried to go in or that she talked, or tried to talk, to Father or his parents at that time. Father testified he wanted the children to live with him, but it was his understanding he could not get his children back because he did not have a suitable place for them to live. As of the date of trial, he still did not have suitable housing, but testified he knew that it would be necessary to have a suitable place to live in order to get the children. He also testified, however, that a representative of the Department of Human Services had told him only six months earlier that he would have to establish a suitable residence and he had then filed applications for government subsidized housing and was on two waiting lists. Apparently, Father had been under a prior order to pay child support to Mother. In January of 2001, a year after the children were returned to DCS custody, a new support order was entered. The Assistant District Attorney in charge of child support enforcement in the county testified that an order was entered by default because Father did not appear at the hearing. Consequently, child support was set using a presumptive salary of $25,761 according to the child support guidelines. Regular payments had been made more or less weekly since July of 2001 by Father's employer

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pursuant to a wage assignment.2 The amount paid was less than the amount ordered. Father was employed by the City of Clarksville in its recreation department. Nothing in the record indicates how long he had been so employed. He was not asked if his job was full time or part time, as had been indicated through hearsay testimony earlier in the trial, or how much money he earned. The Assistant D.A. testified his office would have provided DCS information on Father's place of employment if DCS had asked for it. Father testified he could receive telephone calls at work. DCS never attempted to contact him there and never asked the child support office for information about Father.3 II. DCS filed a petition to terminate the parental rights of Mother and Father on February 20, 2002. The petition alleged Father had abandoned the children by not visiting and not paying support for the four months immediately preceding the petition. An affidavit accompanied the petition in which Ms. Hall, the DCS caseworker, testified regarding her unsuccessful attempts to locate Mother, concluding Mother's whereabouts were unknown and could not be ascertained. No such affidavit regarding Father accompanied the petition. Indeed, Father appeared at the hearing on the petition held May 23, 2002, and requested appointment of counsel. The hearing was continued as to Father's parental rights and an attorney was appointed for him.4 The hearing on the petition to terminate Father's rights was held October 17, 2002. The only order in the record before us, entitled Final Decree of Guardianship, that appears to grant termination of Father's parental rights was entered March 25, 2003, stating it was entered nunc pro tunc, but failing to state the date it should have been entered. The order begins with a recital that the matter "came on to be heard October 17, 2002."5 The order terminated Father's parental rights on the ground of abandonment, Tenn. Code Ann.

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