                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-

169 (T enn. A pp. 198 4).

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


   1

        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.


                                                 2
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


                                              3
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.

                                              4
               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.




                                                5
                              __________________________
                              Herschel P. Franks, J.


CONCUR:




___________________________
Charles D. Susano, Jr., J.




___________________________
D. Michael Swiney, J.




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