                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                      Assigned on Briefs October 20, 2003 Session

                   STATE OF TENNESSEE, DEPARTMENT OF
                     CHILDREN’S SERVICES v. K.G., ET AL.
                               In re: K.L.H.

                    Appeal from the Juvenile Court for Hamilton County
                           No. 177,892   Suzanne Bailey, Judge

                                 FILED DECEMBER 12, 2003

                                 No. E2003-00437-COA-R3-PT


The State of Tennessee, Department of Children’s Services (“DCS”) filed a petition seeking to
terminate the parental rights of K.G. (“Mother”), and F.L.H., Jr. (“Father”), the biological parents
of the minor child, K.L.H. (“the Child”). The Trial Court granted DCS’ petition to terminate first
Father’s, and later Mother’s, parental rights. Mother appeals. We vacate the order terminating
Mother’s parental rights and remand for a new termination decision.


     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 HOUSTON M. GODDARD , P.J.,
and HERSCHEL P. FRANKS , J., joined.

Cara C. Welsh, Chattanooga, Tennessee, for the Appellant, K.G.

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


                                            OPINION

                                           Background

                This matter involves the termination of Mother’s parental rights to the Child. Father
does not appeal the decision terminating his parental rights. We will confine our discussion to those
facts relevant to the issues on appeal regarding the termination of Mother’s parental rights.
                In July of 2001, Mother took the Child to the emergency room claiming that the Child
had fallen approximately two feet off a bed onto a concrete floor. At that time, the Child was
approximately nine months old. Mother and Father both claimed they were the only persons in the
house with the Child when she fell. X-rays revealed bilateral parietal skull fractures. According to
the medical experts, Mother’s explanation for the injuries was incompatible with the physical
findings and medical evidence. DCS was notified and removed the Child from her parent’s custody.
The Child was placed initially with her maternal grandmother, but the grandmother later requested
that the Child be moved for the Child’s safety. The Child then was placed with foster parents.

               Mother filed an affidavit of indigency and was appointed counsel. Mother waived
the preliminary hearing and the Trial Court entered an order on September 18, 2001, finding, inter
alia, the Child to be “dependent and neglected within the meaning of the law and the victim of
severe abuse . . . .” The matter was set for adjudication on September 27, 2001. Evidence in the
record shows that Mother also was abused physically by Father.

                Prior to the adjudicatory hearing on September 27, 2001, Mother’s counsel filed a
motion to withdraw. The referee ordered counsel to remain on the case until the completion of this
hearing. At the end of this hearing, counsel was granted leave to withdraw and the referee
immediately appointed a new attorney to represent Mother. The order appointing Mother’s new
attorney was entered on September 27, 2001, the same day as the hearing. The referee’s report of
his findings and recommendations from the September 27th hearing was entered on October 8, 2001.
These findings and recommendations were not contested by Mother. The Trial Court’s order
effectively adopting the referee’s findings and recommendations was entered on November 5, 2001.

               In September of 2002, DCS filed a petition to terminate the parental rights of both
Mother and Father. A hearing was held on the petition for termination on January 10, 2003. The
Trial Court entered an order, inter alia, taking the matter of the termination of Mother’s parental
rights under advisement and immediately terminating Father’s parental rights.

                On January 31, 2003, the Department filed a motion for ratification of the permanency
plan. This motion was sent to Mother and her attorney, but does not state a date for the hearing. The
Trial Court held a hearing on this motion on February 12, 2003, and accepted testimony even though
neither Mother nor her attorney were present. Neither Mother nor her attorney were given prior
notice of the hearing date. Mother’s attorney was notified of the hearing at some point after it began
and she made an appearance after the testimony had been taken. Mother’s attorney made the Trial
Court aware that neither she nor Mother received prior notice of the hearing. On February 28, 2003,
the Trial Court entered an order, inter alia, terminating Mother’s parental rights. Mother appeals
to this Court.

                                             Discussion

               Although not stated exactly as such, Mother raises three issues on appeal: 1) whether
Mother effectively was denied her right to adequate counsel under Rule 39 of the Tennessee Rules


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of Juvenile Procedure and Rule 13 of the Tennessee Supreme Court; 2) whether the Trial Court
violated Mother’s due process rights by accepting uncontested testimony at an ex parte hearing; and
3) whether clear and convincing evidence supports the Trial Court’s finding that the termination of
Mother’s parental rights would be in the “best interest” of the child as is required by Tenn. Code
Ann. § 36-1-113. The State raises an addition issue which we state as: whether clear and convincing
evidence supports the Trial Court’s finding that sufficient statutory grounds were met to support a
termination of Mother’s parental rights. We will address each issue as necessary.

                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).

                 It is well established that "parents have a fundamental right to the care, custody, and
control of their children. 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."
In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988).

                 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) (2003). 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 first must
determine that grounds for termination have been established by clear and convincing evidence.


              We will begin by considering whether Mother effectively was denied her right to
adequate counsel under Rule 39 of the Tennessee Rules of Juvenile Procedure and Rule 13 of the
Tennessee Supreme Court. Mother argues that her right to counsel “was seriously hindered by
constant changes in counsel at critical times in the process.” Mother’s brief states:


              On the day before the adjudicatory hearing her counsel moved to withdraw
       and was ordered by the Referee to remain on the case through the adjudicatory
       hearing. He did so and was immediately relieved at the time of the hearing resulting
       in [Mother] having no counsel to advise or assist her in an appeal of the extremely
       prejudicial decision to waive the adjudicatory hearing and accept uncontested a



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       finding of severe abuse. Thereafter, [Mother] had five different attorneys through the
       filing of this appeal.


Mother argues that she received only “token” counsel who “offer[ed] little assistance or aid with the
complex issues involved in a custody contest with the state.”


                A review of the record shows that the facts are slightly different than Mother
represents. While it is true that Mother was represented by an attorney who moved to withdraw prior
to the September 2001, adjudicatory hearing and that the attorney was allowed to withdraw at the
end of the adjudicatory hearing, a new attorney was appointed to represent Mother that same day.
The findings and recommendations of the referee were signed on October 8, 2001, and the Trial
Court’s order was entered on November 5, 2001. During the entire time within which to contest the
referee’s findings and recommendations, Mother was represented by counsel, and Mother did not
contest the referee’s findings and recommendations.


                 As for Mother’s argument that she was denied her right to adequate counsel because
she had multiple attorneys throughout the process, we find this argument unconvincing. Mother was
represented by counsel at all relevant times. Nothing in the rules states that a person must be
represented by the same attorney throughout the process. In addition, the State points out in its brief,
that “[t]here is no evidence that [Mother] attempted to contact her attorney outside of court and was
rebuffed or that she was not appropriately represented in court.” The State is correct. There is no
such evidence in the record. We find Mother’s argument that she effectively was denied her right
to adequate counsel under Rule 39 of the Tennessee Rules of Juvenile Procedure and Rule 13 of the
Tennessee Supreme Court to be both unconvincing and unsupported by the record, and we hold that
no error occurred as to this issue.


               We next consider whether the Trial Court violated Mother’s due process rights by
accepting uncontested testimony at an ex parte hearing. Basic due process requires "notice
reasonably calculated, under all the circumstances, to apprise interested parties" of the claims of the
opposing parties. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). “The
purpose of due process requirements is to notify the individual in advance in order to allow adequate
preparation and reduce surprise.” Sanford v. Tennessee Dept. of Env’t & Conservation, 992 S.W.2d
410, 415 (Tenn. Ct. App. 1998).


                At the end of the January 10, 2003, termination hearing, the Trial Court took the
matter of the termination of Mother’s parental rights under advisement. On January 31, 2003, the
Department filed a motion for ratification of the permanency plan. The motion was sent to Mother
and her attorney, but does not state a date for the hearing. Neither Mother nor her attorney were
given prior notice of the hearing date. The Trial Court held a hearing on the motion on February 12,
2003, and accepted testimony despite the fact that neither Mother nor her attorney were present.

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Mother’s attorney was notified of the hearing at some point after it began and she made an
appearance after the testimony had been taken. At the hearing, Mother’s attorney made the Trial
Court aware that neither she nor Mother were given prior notice of the hearing.


                The State asserts that the fact that Mother and her attorney were not present during
the entire hearing is mere harmless error. We disagree. The State even asserts that “[Mother] and
her attorney had notice that the Department had filed a Motion for Ratification of the Permanency
Plan. [But] [a]pparently, neither [Mother] nor her attorney took any further steps to determine when
that motion would be heard.” This argument attempts to push the responsibility of notice on to the
wrong party. The State was required to give adequate notice of when the hearing would be held.
The State did not do this. The Trial Court heard ex parte testimony prior to rendering its decision
terminating Mother’s parental rights. Under these circumstances, we cannot say that this was
harmless error or that it was immaterial. Mother had a right to be notified and to be present with her
attorney during all these hearings related to the potential termination of her fundamental right to the
care, custody, and control of the Child. We are neither willing nor able to assume that the evidence
presented to the Trial Court ex parte played no role in the ultimate decision to terminate Mother’s
parental rights. The State violated Mother’s due process rights by failing to notify her in advance
of the hearing date so as to allow Mother and her attorney time to prepare adequately for the hearing
and to attend the hearing. We, therefore, vacate the Trial Court’s order terminating Mother’s
parental rights and remand this case to the Trial Court for a new termination decision. On remand,
the Trial Court may not consider, as to the termination issue, any evidence presented at the February
12, 2003, hearing unless that evidence is properly presented to the Trial Court in a new hearing.


               Our decision to vacate the order terminating Mother’s parental rights eliminates the
necessity of addressing the remaining issues on appeal.


                                             Conclusion
               The judgment of the Trial Court is vacated, and this cause is remanded to the Trial
Court for a new termination decision. The costs on appeal are assessed against the Appellee, State
of Tennessee, Department of Children’s Services.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




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