IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE FILED September 15, 1999

STATE OF TENNESSEE, DEPT. OF ) C/A NO. 03A01-9810-JV-00341 CHILDREN’S SERVICES, ) ) HAMILTON JUVENILE Petitioner-Appellee, ) ) HON. SUZANNE BAILEY, v. ) JUDGE ) LEON WILKERSON, ) ) Respon dent-Ap pellant, ) ) AFFIRMED IN THE MATTER O F: ) AND KUBRA SATTERFIELD. ) REMANDED

PAUL G. SUM MERS, Attorney General and Reporter, and ELIZAB ETH C . DRIVE R, Assistant Attorney Ge neral, Nashville, for Petitioner- Appellee.

JAY K U, Chatta nooga, fo r Respon dent-Ap pellant.

O P I N IO N

Franks, J.

This is an ap peal from the Trial Co urt’s terminatin g any parenta l rights of Leon Wilkerson to Kubra Satterfield.

The Trial Judge, in terminating Wilkerson’s parental rights, said in the judgmen t: That Leo n Wilkers on’s conn ection to the s ubject child is only that of his marriage to the natural m other, that he is not the biolo gical father b y his own admission and has never seen the subject child and, therefore, the petition filed by the State of Tenne ssee, Department of Children’s Services, is well taken and should be sustained and relief granted thereunder for the causes as therein stated in that the subject child has been in the custody of Petitioner for at least six (6) months; that the continuation of the legal parent and child relationship greatly diminishes the child’s chances of early integration into a stable and permanent home; that the Defendant, Leon Wilkerson, has been confined in a correction or detention facility by order of a court as a result of a criminal act u nder a sen tence of 1 0 or more years and the s ubject child was under eight years of age at the time the sentence was entered by the court. Specifically, Leon Wilkerson, was sentenced in 1995 to eight (8) years for drugs and two (2) years for reckless killing; it is therefore, for the best interest of the said child and the public that all of the parental rights of the De fenda nt to the s aid child be fore ver term inated . . .

Kubra w as taken into State custod y for depend ency and ne glect, pursuant to Tennessee Code Annotated §37-1-128 on May 16, 1996. Kubra was placed in a foster home shortly thereafter, where he has remained. Kubra requires intensive, round-the-clock care, due to his medical conditions.1 The Department has identified a family interested in adopting Kubra, and that family has already has some contac t with th e child, d ue to the ir friend ship w ith his fo ster pare nts.

Parents ha ve a fund amental righ t to the care, cu stody and co ntrol of their children . Stanley v. Illino is, 405 U.S. 645, 92 S.Ct.1208 (1972). However, that right is not absolute, and parental rights may be terminated if there is clear and convincing eviden ce justif ying term ination u nder th e applic able stat ute. T.C .A. §36 -1-113 (c)(1).

Additionally, all issues are premised on the foundation of “what is in the best interest of the c hild”. Tennessee Department of Human Services v. Riley, 689 S.W.2d 164- (T enn. A pp. 198 4).

Parental righ ts may be term inated in a lim ited numb er of statutorily

Kubra was born testing positive for Valium and crack cocaine, and with serious medical problems. His mother, Anice, tested positive for crack cocaine, syphilis, and was homeless at the time of delivery.

defined circumstances, and then only if the court determines the termination is in the child’s b est intere st. In the M atter of M .W.A. Jr ., 980 S .W.2d 620 (T enn. A pp. 199 8).

Parental righ ts may also be te rminated w hen contin uing the pa rent-child relatio nship poses a substan tial threat of harm to the ch ild. Id. The Court term inated Wilkerson’s parental righ ts under T .C.A. §36 -1-113(g). S ection (g)(6) provides f or terminatio n in the following situation: The parent has been confined in a correctional or detention facility of any type by the order of a court as a result of a crim inal act, under a sentence of ten or more years, and the child is under eight years of age at the time the s entence is e ntered by the c ourt.

Wilkerson adm itted that he was incarcerated f or a sentence of ten years for reckless killing and drug offences. The child was under the age of eight at the time of sentencing. Thus, the requirements of the section are met for terminating parenta l rights.

In this case, Kubra has been in the Department’s custody for more than six months. Wilkerson’s incarceration is a condition that prevents Kubra from returning to th e care of a parent, and Wilkerso n is unlikely to rem edy that situation in the near future. While he expected to be released on parole, he had over six years left to serve on his sentenc e. Addition ally, continuation of the pare nt-child relation ship would greatly diminish the child’s chances of integration into a stable and permanent home, as it could be up to six years before Wilkerson could begin to provide a home for Kubra.

While Wilkerson does not dispute the statutory grounds for termination of his parental rights, he claims that he did not receive proper notice of the earlier dependency and neglect proceeding, and was thereby denied his due process. He also says that the D epartmen t failed to give him lawf ul notice w hen Ku bra was ta ken into State custody, or allow him as a legal father to make a choice or have input into the

appoin tment o f a gua rdian.

Wilkerson’s argument that he was denied due process because he was not given notice of the initial proceeding, does not establish a basis to overturn the Trial Court’s decision. It is clear, however, that Wilkerson received full procedural protection at the termination proceeding upon which this appeal is based. Wilkerson received notice of the hearing and was transported to Court to be present at the hearing. H e was inf ormed o f his right to co unsel and was app ointed cou nsel upon his reques t. The h earing w as resch eduled to allow him to m eet with his attorn ey.

Wilkerson was present and testified at the termination hearing, and had the assistance of couns el.

We have previously addressed the question of due process implications, when a parent does not receive notice of the dependency and neglect proceeding, but later participates in the termination proceeding. In State of Tennessee Department of Human Services v. Grove, 1989 WL 3137 (Tenn. App. 1989), a mother argued that she did not receive due process protection because she did not receive notice of the original DHS petition for a custodial preliminary hearing. In upholding the termination of her parental rights, the Court said that “appellant overlooks the salient fact that she later intervened in the Juvenile Court action and there asserted her plenary rights; any lack of due process initially was thereafter fully supplied.” Grove at *3.

Like the appellant in Grove, Wilkerson asserted his plenary rights at the termination hearing, an d any initial lack o f due pro cess was remedied by the full procedu ral protection s afforde d to Wilke rson at the term ination hea ring. “[E]v en if it can be said that the appellant was deprived of due process in the ‘dependency and neglect’ proceeding in the Juvenile Court, there is no claim of such deprivation in the ... action to terminate parental rights.” Grove at *3.

Wilkerson complains that the lack of notice in earlier proceedings denied him the opportunity to participate in the custody decision, and he says that “he could have aided in locating a relative placement and suggested alternative placements.” Wilkerson had no custody option for Kubra. A representative of the DCS met with Wilkerson and asked him what plans he would make for the child, and Wilkerso n suggeste d that Kub ra could live with Wilk erson’s m other wh o resides in Washin gton, D.C . Howe ver, it develop ed that W ilkerson’s m other wa s not willing to take custod y of Kubra , and Wilk erson, being incarcerated , could not c are for the c hild himself and did not offer any other viable option when consulted.

Wilkerso n also com plains that he was den ied the ability to par ticipate in a plan of care. Ho wever, a plan of c are requires the parent to take steps to ward providing a stable home for the child, which means acquiring appropriate housing, mainta ining sta ble em ploymen t, and pr ovidin g finan cially for th e child. See gene rally T.C.A. § 37-2-403 . Finally, Wilkerso n argues th at by failing to allo w him to participate in a foster care plan, the Department was given an additional reason for terminating his parental rights and p rocessing a “no con tact” order. Howe ver, Wilkerson’s inability to participate in the foster care plan or provide an alternative custod y option is entirely sep arate fro m the re asons f or term inating h is paren tal rights.

Whether or not Wilkerson was able to participate in any decisions regarding the child, an independent basis for terminating parental rights was established by clear and convin cing ev idence . See T.C.A. §36-1-113(g)(6) and §(g)(3)(A). The record also establishes that termination is in the best interest of the child.

We affirm the judgment of the Juvenile Court and remand with cost of the appea l assessed to th e appellant.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Charles D. Susano, Jr., J.

___________________________ D. Michael Swiney, J.