                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                       Assigned on Briefs March 16, 2005 Session

 STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES,
                        v. S.A.M.H.

                     Appeal from the Juvenile Court for Sullivan County
                           No. J28,871   Steven H. Jones, Judge



                   No. E2004-02543-COA-R3-PT - FILED APRIL 13, 2005


On May 27, 2004, the Juvenile Court Referee entered an order terminating the parental rights of
S.A.M.H. (“Mother”) to her two minor daughters. The Referee concluded that the State of
Tennessee, Department of Children’s Services (“DCS”) had proven by clear and convincing
evidence that grounds to terminate Mother’s parental rights existed and that doing so was in the best
interests of the children. Pursuant to Tenn. R. Juv. P. 4(c)(2), the Referee was required to inform
Mother of her right to request a rehearing before the Juvenile Court Judge as well as the manner and
time limits within which to perfect such a request. The Referee inadvertently failed to inform
Mother than she had only five judicial days in which to file her request for a rehearing. Mother filed
her request for a rehearing one day late. The Juvenile Court Judge dismissed Mother’s appeal after
concluding that it was untimely and the Referee’s decision had become final after five judicial days.
We vacate the judgment.


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
SHARON G. LEE, J., joined.


Murry C. Groseclose, III, Kingsport, Tennessee, for the Appellant S.A.M.H.


Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney
General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children’s
Services.
                                                      OPINION

                                                    Background

               This is an appeal from the termination of Mother’s parental rights to her two
daughters who are currently six and thirteen years old. This case began in October of 2001 when
DCS filed a petition for temporary custody claiming the children were dependent and neglected.
More specifically, DCS alleged that Mother and Father were using illegal drugs not only in their
home but also in the presence of the minor children.1 DCS claimed the older child was aware of the
drug use and that her parents were injecting illegal drugs intravenously. The Juvenile Court Judge
granted the petition and temporary custody of the children was placed with DCS.

                The record contains only one complete permanency plan (“Plan”). The Plan pertains
only to the younger child and was signed by Mother and Father on November 20, 2002, over one
year after temporary custody of both children was placed with DCS.2 The Plan required Mother to
accomplish several objectives including, but not limited to: 1) obtain employment and have a stable
and suitable income to care properly for the children; 2) participate in appropriate drug and alcohol
treatment; 3) participate in support group meetings; 4) stop all use of alcohol, illegal drugs, and
prescription drugs for which Mother did not have a valid prescription; 5) submitt to periodic random
drug and alcohol tests; and 6) attend counseling.

                DCS filed a petition in October of 2003 to terminate Mother’s parental rights. As
grounds for terminating Mother’s parental rights, DCS alleged that: 1) the children had been
removed from the home for at least six months and the conditions which led to their removal
persisted; 2) there was little likelihood that these conditions would be remedied at an early date
which would permit a safe return of the children to Mother; and 3) continuation of the parent/child
relationship would greatly diminish the children’s chances of early integration into a safe, stable and
permanent home. DCS also alleged there had not been substantial compliance by Mother with the
terms of the permanency plans. Finally, DCS alleged it would be in the children’s best interests for
Mother’s parental rights to be terminated.



         1
           W hen the petition for temporary custody was filed, Mother was married to C.K.H., the biological father of
the younger child and stepfather of the older child. C.K.H.’s parental rights to his daughter also were terminated. C.K.H.
has not appealed that determination and it is not at issue on appeal. The biological father of the older child is C.W .,
whose parental rights likewise were terminated with no appeal being taken from that order. For ease of reference only,
in this Opinion we will refer to C.K.H. as “Father.”

         2
           Documents in the record suggest that permanency plans for both children initially were developed in
November of 2001. W e are at a loss as to why these plans are not in the record on appeal. There also is no explanation
why the record contains no complete permanency plan(s) regarding the older child. W e call DCS’s attention to State
of Tennessee, Department of Children’s Services v. B.B.M., No. E2004-00491-COA-R3-PT, 2004 Tenn. App. LEXIS
767 (Tenn. Ct. App. Nov. 17, 2004), no appl. perm. appeal filed, where we reversed the trial court’s termination of the
mother’s parental rights for failing to substantially comply with the terms of a permanency plan when that plan or plans
were not contained in the record on appeal.

                                                           -2-
                A trial was conducted before the Juvenile Court Referee on May 19, 2004. At the
conclusion of the trial, the Referee orally announced that DCS had proven by clear and convincing
evidence that grounds existed to terminate Mother’s parental rights and that doing so was in the best
interests of the children. The Referee then stated that he was “hearing the case as referee. Any
appeal would be to Judge Jones. You have to do it within the appropriate time period. After that,
any appeal would be to the Court of Appeals.” The Referee did not inform Mother of the specific
time limit, five judicial days, she had in which to perfect an appeal to the Juvenile Court Judge.

               An order terminating Mother’s parental rights was entered on May 27, 2004. In this
order the Referee terminated Mother’s parental rights pursuant to the provisions of Tenn. Code Ann.
§§ 36-1-113(g)(2) and (g)(3), which provide as follows:

                     (g) Initiation of termination of parental or guardianship rights
               may be based upon any of the following grounds:

                                                ***

                       (2) There has been substantial noncompliance by the parent
               or guardian with the statement of responsibilities in a permanency
               plan or a plan of care pursuant to the provisions of title 37, chapter 2,
               part 4;

                       (3)(A) 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:

                               (i) The conditions which led to the child's removal or
                       other conditions which in all reasonable probability would
                       cause the child to be subjected to further abuse or neglect and
                       which, therefore, prevent the child's safe return to the care of
                       the parent(s) or guardian(s), still persist;

                              (ii) 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(s) or guardian(s) in the near future; and

                               (iii) 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.

As noted previously, the Referee found there was clear and convincing evidence that these two
statutory grounds had been met and that there was clear and convincing evidence that termination
of Mother’s parental rights was in the children’s best interests.


                                                 -3-
                Mother appealed and filed her request for a de novo hearing on June 7, 2004, some
six judicial days after entry of the Referee’s order. The Juvenile Court Judge denied Mother’s
request for a de novo hearing as being untimely. According to the Juvenile Court Judge:

                After reviewing the record, the Court found that the appeal was not
                filed in a timely manner in that it was filed more than five (5) days
                after the Referee’s decision was made and the Referee’s decision
                becomes final after five (5) days.… [T]he appeal is hereby dismissed
                and the ruling of the Referee in this matter is final.

                Mother appeals raising three issues. The first issue is whether the Juvenile Court
Judge erred in refusing to grant Mother’s untimely request for a de novo hearing after the Referee,
in violation of Tenn. R. Juv. P. 4(c)(2), failed to advise Mother of the time limit of five judicial days
in which to perfect an appeal. The next issue involves Mother’s claim that the Referee erred in
refusing to allow certain testimony explaining the extent of Mother’s physical pain at the time she
apparently forged a prescription. Mother’s third issue is her claim that in light of her “rehabilitation
successes” the Referee erred in concluding DCS had proven by clear and convincing evidence that
Mother’s parental rights should be terminated pursuant to Tenn. Code Ann. § 36-1-113(g)(3).

                                              Discussion

                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). In In re Adoption of T.A.M., No. M2003-02247-
COA-R3-PT, 2004 Tenn. App. LEXIS 317 (Tenn. Ct. App. May 12, 2004), no appl perm appeal
filed, this Court observed that:

                        Because of the heightened burden of proof required by Tenn.
                Code Ann. § 36-1-113(c), we must adapt Tenn. R. App. P. 13(d)'s
                customary standard of review for cases of this sort. First, we must
                review the trial court's specific findings of fact de novo in accordance
                with Tenn. R. App. P. 13(d). Thus, each of the trial court's specific
                factual findings will be presumed to be correct unless the evidence
                preponderates otherwise. Second, we must determine whether the
                facts, either as found by the trial court or as supported by the
                preponderance of the evidence, clearly and convincingly establish the
                grounds for terminating the biological parent's parental rights. Jones
                v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at 546; Ray
                v. Ray, 83 S.W.3d at 733; In re L.S.W., 2001 Tenn. App. LEXIS 659,



                                                  -4-
               No. M2000-01935-COA-R3-JV, 2001 WL 1013079, at *5 (Tenn. Ct.
               App. Sept. 6, 2001), perm. app. denied (Tenn. Dec. 27, 2001).

In re Adoption of T.A.M., 2004 Tenn. App. LEXIS 317, at ** 8-9 (footnote omitted).

                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.
               § 36-1-113(c). Before a parent's rights can be terminated, it must be
               shown that the parent is unfit or substantial harm to the child will
               result if parental rights are not terminated. In re Swanson, 2 S.W.3d
               180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622
               (Tenn. Ct. App. 1998). Similarly, before the court may inquire as to
               whether termination of parental rights is in the best interests of the
               child, the court must first determine that the grounds for termination
               have been established by clear and convincing evidence. Tenn. Code
               Ann. § 36-1-113(c).…

Dep't of Children's Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App. LEXIS 941,
at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed.

                Mother’s first issue is her claim that even though her appeal to the Juvenile Court was
filed one day late, she nevertheless is entitled to a de novo hearing before the Juvenile Court Judge
because the Referee did not inform her that she had only five judicial days in which to file the
appeal. Tenn. Code Ann. §§ 37-1-107(e) and (f) provide as follows:

                      (e) Any party may, within five (5) days thereafter, excluding
               nonjudicial days, file a request with the court for a hearing by the
               judge of the juvenile court. The judge may, on the judge's own


                                                 -5-
               motion, order a rehearing of any matter heard before a referee, and
               shall allow a hearing if a request for such hearing is filed as herein
               prescribed. Unless the judge orders otherwise, the recommendation
               of the referee shall be the decree of the court pending a rehearing.

                       (f) In case no hearing before the judge is requested, or when
               the right to a hearing is waived, the findings and recommendations of
               the referee become the decree of the court when confirmed by an
               order of the judge. The final order of the court is, in any event, proof
               of such confirmation, and also of the fact that the matter was duly
               referred to the referee. A party may appeal such order pursuant to the
               provisions of § 37-1-159.

                In addition to the foregoing statutory provisions, appeals from a Referee to a Juvenile
Court Judge also are addressed in the Rules of Juvenile Procedure. As relevant to this appeal, Tenn.
R. Juv. P. 4(c) and (d) provide:

                      (c) REQUEST FOR REHEARING BEFORE JUDGE. (1)
               Any party may, within five judicial days of the transmittal to the
               judge of the written findings and recommendations of the referee, file
               a request with the court for a hearing by the judge of the juvenile
               court. The judge may, on his or her own motion, order a rehearing of
               any matter heard before a referee, and shall allow a hearing if a
               request for such hearing is filed as herein prescribed.…

                       (2) Each party shall be informed at the hearing before the
               referee of the right to a rehearing before the juvenile court judge, of
               the time limits within which a request for a rehearing must be
               perfected, and of the manner in which to perfect such request.

                       (3) Unless the judge orders otherwise, the recommendations
               of the referee shall be the decree of the court pending a rehearing.

                       (d) CONFIRMATION OF REFEREE’S FINDINGS AND
               RECOMMENDATIONS. In case no hearing before the judge is
               requested, or when the right to a hearing is waived, the findings and
               recommendations of the referee become the decree of the court when
               confirmed by an order of the judge. The final order of the court shall,
               in any event, be proof of such confirmation, and also of the fact that
               the matter was duly referred to the referee.

              While the timeliness of Mother’s appeal was being addressed by the Juvenile Court
Judge, Mother’s counsel supplied the Juvenile Court with an affidavit explaining that he was out of


                                                 -6-
town when the Referee’s order was entered and that he never received a copy of the order in the mail.
According to Mother’s counsel, “As I was not advised by the Juvenile Court Referee that I only had
five judicial days to file a de novo appeal as required by Tennessee Rules of Juvenile Procedure
4(c)(2), I assumed I had 10 days to file [Mother’s] appeal as opposed to only 5 judicial days.”

                DCS argues that the five judicial day time period in which to file an appeal is
jurisdictional and, therefore, the Juvenile Court Judge was without subject matter jurisdiction to
entertain Mother’s appeal even if it wanted to. DCS relies on the “closely analogous situation”
involving appeals from general sessions court to circuit court and cites several cases holding that the
ten day period to file such an appeal is indeed jurisdictional. See e.g., Love v. College Level
Assessment Servs., Inc., 928 S.W.2d 36, 38 (Tenn. 1996)(the ten day period to file an appeal from
general sessions court to circuit court “is no mere technical formality: it is in fact a mandatory
requirement, and if it is not complied with the court has no jurisdiction over the case.”).

                In State ex rel. Jackson v. Russell, No. 01-A-01-9706-JV-00267, 1998 Tenn. App.
LEXIS 115 (Tenn. Ct. App. Feb. 6, 1998), no appl. perm. appeal filed, the Middle Section of this
Court was called upon to decide whether a juvenile court judge could reverse a decision by a referee
after the referee’s decision “allegedly had become final” once the five judicial days to appeal had
passed. Id., at *1. In resolving this issue, the Russell Court quoted the provisions of Tenn. Code
Ann. §§ 37-1-107(e) and (f) set forth above.3 We then stated:

                     [W]e think the Juvenile Judge had the power, on his own motion, to
                     rehear the matters decided by the Referee.… There are no time limits
                     in the statute within which the judge must act to review the Referee's
                     order. But of most significance is the provision that requires the
                     confirmation by the judge in order for the Referee's findings and
                     recommendations to become final. See Chapman v. Malone, 874
                     S.W.2d 66 (Tenn. App. 1993). There is nothing in this record
                     showing that the Juvenile Judge confirmed the Referee's order of
                     October 13, 1995; therefore, the order did not reach that stage of
                     finality that would prevent the Juvenile Judge from reviewing it.

Russell, 1998 Tenn. App. LEXIS 115, at ** 4-6.

                In Chapman v. Malone, 874 S.W.2d 66 (Tenn. Ct. App. 1993), the juvenile court
referee entered an order of legitimation establishing the defendant as the biological father of the
plaintiff’s minor child. However, the referee’s order never was confirmed by the juvenile court
judge as provided for in Tenn. R. Juv. P. 4(d). Almost three years later, the defendant filed a petition
to vacate the referee’s order. The juvenile court judge dismissed defendant’s petition. On appeal,
this Court held that because the referee’s order never had been confirmed by the juvenile court judge,


           3
               There have been no substantive changes to Tenn. Code Ann. §§ 37-1-107(e) and (f) since the decision in
Russell.

                                                           -7-
the referee’s order was not a final appealable order from which an appeal to this Court would lie as
required by Tenn. R. App. P. 3. Id. at 67.

                 Returning to the present case, we cannot fully resolve this appeal simply by deciding
whether the five day time limit to perfect an appeal is jurisdictional. If we take on the jurisdictional
issue and conclude the five day period is jurisdictional, we then would need to determine whether
the Referee’s failure to comply with Tenn. R. Juv. P. 4(c)(2) resulted in the Juvenile Court Judge
retaining jurisdiction. On the other hand, because a juvenile court judge can grant a full rehearing
on his own motion regardless of whether a timely appeal is filed, we can avoid the jurisdictional
issue altogether and decide whether the Juvenile Court Judge should have ordered a full rehearing
on his own motion as a way to remedy the effects of the Referee’s failure to comply with Tenn. R.
Juv. P. 4(c)(2).

                 Regardless of how we proceed, it is undisputed that the Referee inadvertently failed
to comply with the requirements of Tenn. R. Juv. P. 4(c)(2) by not informing Mother of “the time
limits within which a request for a rehearing must be perfected.” Although Rule 4(c)(2) is not a
statute, "the rules governing practice and procedure in the trial and appellate courts of this state are
promulgated by the joint action of the legislature and the Supreme Court. They have the force and
effect of law." See Stempa v. Walgreen Co., 70 S.W.3d 39, 42 n.2 (Tenn. Ct. App. 2001)(quoting
Richards v. Newby, 1991 WL 163541 at * 3 (Tenn. Ct. App. Aug. 27, 1991)). We also must
consider Mother’s counsel’s affidavit which indicates that the appeal would have been filed timely
had Mother been apprised of the specific time limit.4 More importantly, all of the foregoing must
be considered in light of Mother’s constitutionally protected and fundamental right to the care,
custody, and control of her children. See Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776
S.W.2d 96, 97 (Tenn. Ct. App. 1988).

                 After reading the transcript from the hearing on whether Mother was entitled to a de
novo hearing before the Juvenile Court Judge, it appears to this Court that the Juvenile Court Judge
certainly wanted to correct any potentially negative effects flowing from the Referee’s inadvertent
noncompliance with Tenn. R. Juv. P. 4(c)(2). However, the Juvenile Court Judge believed he was
without any jurisdiction to do so. This belief was mistaken because at that particular point in time
the Referee’s order had yet to be confirmed by the Juvenile Court Judge. Therefore, the Referee’s
order was not final even though the time for Mother to perfect an appeal may have passed. Absent
a final order of confirmation, the Juvenile Court Judge had the authority under Tenn. Code Ann. 37-
1-107(e) and Tenn. R. Juv. P. 4(c)(1) to order a full evidentiary rehearing regardless of whether
Mother had filed a timely appeal. After considering all relevant factors, including the Referee’s
failure to comply with Tenn. R. Juv. P. 4(c)(2) as well as Mother’s constitutionally protected rights,




         4
           This should not be interpreted as minimizing in any way the importance of an attorney’s responsibility to read
the applicable statutes and rules and ascertain for herself the various deadlines applicable to that particular case.

                                                          -8-
we hold that under these circumstances the Juvenile Court Judge erred by not granting Mother a
rehearing on his own motion.5 In light of this holding, Mother’s remaining issues are pretermitted.

                                                     Conclusion

               The Judgment of the Juvenile Court is vacated, and this cause is remanded to the
Juvenile Court for further proceeding as necessary and consistent with this Opinion. Costs on appeal
are assessed against the Appellee State of Tennessee, Department of Children’s Services.




                                                                 __________________________________
                                                                 D. MICHAEL SWINEY, JUDGE




         5
            In Kelly v. Evans, 43 S.W .3d 514 (Tenn. Ct. App. 2000), we held that the hearing contemplated in Tenn. Code
Ann. § 37-1-107(e) relative to appeals from a referee’s decision is a traditional de novo hearing and not merely a de novo
hearing based upon the record of the hearing before the referee. Kelly does not address which type of de novo hearing
is required when a juvenile court judge orders a rehearing on its own motion. Although we decline to formally decide
this issue generally, we nevertheless believe given the procedural history of this case that Mother is entitled on remand
to a “traditional” de novo hearing.



                                                           -9-
