                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                     Submitted on Briefs November 16, 2001 Session



         STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S
                       SERVICES v. D.G.S.L.

                       IN THE MATTER OF: D.L.L. and L.L.L.

                       Appeal from the Juvenile Court for Knox County
                           No. L-3955    Carey E. Garrett, Judge



                                  No. E-2001-00742-COA-R3-JV
                                     Filed December 28, 2001



In this appeal, D.G.S.L. (“Mother”) challenges the termination of her parental rights, claiming there
was insufficient proof to establish grounds for termination or that it was in the best interest of the
children to terminate the parent-child relationship. Mother also claims her due process rights were
violated when she did not receive notice of the initial hearings in this matter and, therefore, was not
present or represented at those hearings. We affirm the decision of the Juvenile Court terminating
Mother’s parental rights.


                    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                          Juvenile Court Affirmed; 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.


Julie Anne Foster, Knoxville, Tennessee, for the Appellant D.G.S.L.


Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney
General, Nashville, Tennessee, for the Appellee State of Tennessee, Department of Children’s
Services.
                                              OPINION

                                            Background

              This appeal is from an Order of the Juvenile Court for Knox County terminating
Mother’s parental rights to her two sons, L.L.L. (age 8) and D.L.L. (age 7). The children’s father,
V.L.L. (“Father”) also had his parental right terminated, but he has not appealed that determination.

                The record in this case begins with a Temporary Bench Order of Legal Custody
entered by the Juvenile Court Referee in May of 1998. Mother was not present at this hearing
because she was in jail. The Temporary Bench Order was based upon a petition filed by the
Department of Children’s Services (“DCS”), but neither the petition nor the proof relied upon by the
Referee are contained in the record on appeal. In the Temporary Bench Order, the Referee found
that probable cause existed to believe Mother’s two sons were dependent and neglected. The
Referee also found that continuing to allow the children to live in the home was contrary to the
children’s best interests and welfare, and that a less drastic alternative was not available. Due to the
apparent emergency nature of the situation, the Referee transferred custody of the two children to
DCS pending an interim hearing two days later.

                The Referee entered an Interim Order after the interim hearing transferring custody
of the children to DCS. The Order was based on evidence and testimony of the children’s Guardian
ad Litem, a report filed by DCS, an incident report filed by the law enforcement officers who
removed the children from the home, as well as testimony by a DCS representative. Mother was not
present at this hearing since she was still in jail for a violation of probation and shoplifting.

                 The Referee’s Interim Order detailed the events giving rise to the initial removal of
the children from the custody of Mother and Father. Law enforcement officers were summoned by
Father to his house to remove Father’s brother and some friends who were drinking alcohol and
refused to leave. Before the police arrived, Father apparently left the children with his brother and
his brother’s friends and went to the store to purchase cigarettes. When Father returned, there was
a pit bull in the bath tub, the children were asleep on the floor, and Father’s brother and brother’s
friends were still consuming alcohol. When the law enforcement officers arrived, they observed
roaches crawling over the sleeping children. The Referee also noted that an eviction notice had been
served stemming from complaints by neighbors and “excessive 911 involvement with the family.”
The children apparently were sleeping on the floor because the bedrooms were not heated and only
one bed in the house had a mattress. The Guardian ad Litem expressed concerns about the children’s
personal hygiene, the inability of Head Start to locate Mother and Father on one occasion when the
children were being returned home, as well as complaints by neighbors that the children were being
left unattended.

                After the hearing, Ms. Cynthia Templin (“Templin”) from DCS attempted to locate
Mother and Father to discuss the situation, but had trouble finding them. Templin finally located
both of them at the Penal Farm. Templin then met with Mother and Father separately and reviewed
each of the responsibilities outlined in the Foster Care Plan or Permanency Plan (“Plan”) which had

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been developed to correct the situation and enable Mother and Father to properly care for their
children. Both Mother and Father expressed their agreement by signing the Plan.

                 Another hearing was held on July 7, 1998, at which time the Referee entered an Order
placing the children into protective custody. Mother was not present at this hearing because she was
still incarcerated. Mother claims she did not receive notice of this hearing. Once again, the Referee
found the children to be dependent and neglected and that it was contrary to the best interests of the
children to remain in the care or custody of either parent. The Referee also adopted the terms of the
Plan after concluding that it was reasonably related to the goal of reuniting the family.

                Another hearing was held in March of 1999, at which time the Referee continued to
keep the children in the care of foster parents due to Mother’s and Father’s lack of progress and
noncompliance with the terms of the Plan. Mother was still in jail and claims that notice of this
hearing was sent to her home instead of the jail and was, therefore, defective. She does not state that
she did not receive notice or that she was not made aware of the hearing, only that the notice should
not have been mailed to her home address.

                On November 19, 1999, DCS filed a Petition to Terminate Parental Rights. As it
pertains to Mother, the Petition alleged she had willfully failed to visit or to engage in more than
token visitation with the children for a period of four consecutive months. DCS acknowledged that
Mother was in jail for the majority of the relevant time. DCS asserted, however, that she was
incarcerated based on her willful acts of shoplifting and violating probation, and as a result, her
incarceration constituted willful abandonment of the children because she knew her criminal acts
would result in the suspension of her ability of visit with the children. It also was alleged that
Mother willfully abandoned the children by not paying any child support for a period of four
consecutive months. DCS asserted it had made reasonable efforts to assist Mother in establishing
a suitable home for her children, but she had not made a reasonable effort to accomplish this
objective. DCS claimed Mother demonstrated such a lack of concern that it appeared unlikely she
would be able to provide a suitable home for her children. It also was alleged there was little
likelihood that the conditions leading to the removal of the children from the home would be
remedied and that these conditions had persisted for a period of six months. According to the
Petition, continuing the parent-child relationship would greatly diminish the children’s chances of
early integration into a stable and permanent home. The one-bedroom apartment where the parents
lived had fungus growing on the walls, and apparently Mother and Father admitted the apartment
should be condemned and the children could not live there. While the parents claimed they were
“working on” obtaining suitable housing, no real progress had been made. DCS asserted that neither
Mother nor Father were in compliance with the Plan which they had agreed to previously. Finally,
DCS maintained that termination of the parent-child relationship was in the best interests of the
children.

                On February 17, 2000, Mother was appointed counsel to represent her. The hearing
on the petition to terminate Mother’s parental rights was held in October 2000. At the hearing,
Mother testified she lived in Oklahoma prior to moving to Tennessee. She served eighteen months
in jail in Oklahoma for prostitution and possession of marijuana. She was in jail for three days in

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Denver, Colorado, for “solicitation for a ride”. When this occurred, she was pregnant with her oldest
child. After moving to Tennessee, she was arrested on May 6, 1998, for shoplifting from Kroger.
She remained in jail from May 6 through August 10, at which time she was released on probation
and ordered to go to a halfway house. Approximately three months later, on November 15, 1998,
Mother was arrested for violation of probation. There also were new charges brought against her.
Mother claimed she could not remember exactly what those new charges were, but “there was a gun
involved and there was drugs involved.” She remained in jail until April 22, 1999. Less than two
months later, on June 16, 1999, Mother again was arrested for violating her probation after being
charged with theft from Kroger. She remained in jail until August 11, 1999. She was arrested yet
again on March 18, 2000, for stealing cigarettes from Kroger and was released on probation after
being in jail for three hours. About a month and a half later, on May 1, 2000, Mother was arrested
for possession of a gun and possession of crack cocaine with intent to distribute. She remained in
jail until May 4, 2000. On June 1, 2000, she was arrested for domestic violence on Father and was
in jail until August 13, 2000. Mother testified she was in jail for theft when she learned that her
children had been taken into protective custody.

                Mother went to live at a half-way house after being released from jail after her most
recent arrest. Mother was “kicked out” of the half-way house, although there was some dispute as
to the reason why this happened. After leaving the half-way house, she lived with a male friend.
The friend’s place had only one-bedroom, but Mother claims there were two beds. Mother then
moved to downtown Knoxville and lived with four or five people before locating her own apartment.
Mother also lived at the Red Carpet Inn at some point before locating the apartment. Mother had
been in the apartment for one week at the time of the trial. Mother admits there is inadequate room
in this apartment for her and her two children. Mother admitted she was required in the Plan to
resolve all “legal issues” and that she had agreed to do this. Notwithstanding this agreement, she
was arrested five times after agreeing to the terms of the Plan. Mother admitted she was a drug
addict, and at the time of trial she had been “clean” for one week. She had been employed at a
restaurant for two weeks. Mother stated she took each day minute by minute and could not make
any assurances to the Court that she could stay clean.

                Mother claimed she was unable to complete the drug and alcohol assessment because
she did not have any insurance. She denied being given a referral from DCS. She missed some of
her appointments for drug and alcohol treatment. She claimed to be attending AA and NA meetings
every day, but she did not bring the supporting documentation to verify this because it “slipped” her
mind. She began parenting classes a little over one month before trial. She began taking GED
classes two weeks before trial. Mother admitted she was ordered to pay five dollars per month in
child support and that she did not pay that. Her visitation with the children was lost because of her
incarceration.

               The only other witness at trial was Rachelle Reed (“Reed”), who was the home-
county case manager for the two children. According to Reed, when the children first came into
protective custody, they had behavioral and developmental problems and were acting out sexually.
When Mother and Father were still exercising visitation privileges, the children’s behavioral
problems increased to the point where one of the children had to be removed from school. When

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Mother and Father were not exercising any visitation, the behavior of both children improved. In
fact, at one point the children were able to cease treatment, at which time it was recommended that
visitation remain suspended. Reed testified that Mother was in no better position to care for her
children than when the children were initially taken into protective custody. The two primary
conditions leading to the removal of the children (i.e., Mother’s drug addiction and lack of housing)
had not been resolved. Reed testified that when she would try to help Mother comply with the Plan,
Mother would become defensive and tell Reed it was none of her business to make referrals. Mother
would hang up the telephone on Reed. Since Mother had lived in five different places since the last
time she was released from jail, Reed stated she did not believe there was any likelihood that the
housing issue would be resolved. Reed stated that Mother was given every necessary referral in
order to complete the terms of the Plan. Mother would miss meetings scheduled by Reed. Had
Mother shown up for these meetings, Mother would have been provided more information on
necessary referrals. Reed stated the children had been released from counseling because the foster
mother was cooperating fully. Both children are now making high grades in school. Reed testified
the children were afraid to go back to their parents.

                After the trial, the Juvenile Court Judge entered an order terminating Mother’s
parental rights and placing custody of the children with DCS. The Trial Court held that the State had
met its burden of proving by clear and convincing evidence several issues. These conclusions, which
we paraphrase, are as follows:

               1.     That the children were previously found to be dependent and
               neglected and placed in the custody of DCS; that DCS had made
               reasonable efforts to prevent removal of the children or the situation
               prevented reasonable efforts from being made; that DCS had made
               reasonable efforts to assist Mother in establishing a suitable home for
               a period of four months following removal of the children; and that
               Mother had not made reasonable efforts to provide a suitable home
               and demonstrated a lack of concern to such a degree that it appeared
               unlikely that she would be able to provide a suitable home at an early
               date.


               2.     That the children have been removed by order of the court for
               a period of six months; that the conditions which lead to their
               removal still persisted as did other conditions which would cause the
               children to be subjected to further abuse and neglect and which
               prevented their return to Mother; that there was little likelihood that
               these conditions would be remedied at an early date so the children
               could be returned in the near future; and that continuing the legal
               parent and child relationship would greatly diminish the children’s
               chances of early integration into a stable and permanent home.



                                                -5-
               3.     That Mother failed to comply in a substantial manner with the
               reasonable responsibilities set out in the Plan related to remedying the
               conditions which necessitated foster care placement.

               4.      That Mother had abandoned the children by willfully failing
               to visit them and willfully failing to make any contribution
               whatsoever toward the support of the children for four consecutive
               months immediately preceding the filing of the petition.

                 The Juvenile Court also found by clear and convincing evidence that Mother was
addicted to crack cocaine and to support her addiction, she had made decisions during the time the
children were in foster care which showed her lack of concern and her inability to put their needs
first, as demonstrated by Mother’s significant criminal record. The Juvenile Court also took specific
note of the fact that Mother had used drugs just one week before trial. Although DCS and the state
probation office tried to help Mother with her addiction, nothing worked. Mother had at least four
different residences since being released from jail the most recent time and currently was living in
a studio apartment which she admitted would not be suitable for the children. According to the
Juvenile Court, Mother refused to accept referrals for assistance and had yet to maintain any period
of sobriety. The Juvenile Court noted that Mother admitted she was not yet able to take care of the
children and was not sure when she would be able to do so. By her choice in committing criminal
acts that resulted in incarceration, Mother disrupted her visitation with the children. She refused to
make any child support payments when she was not in jail, and then was unable at other times
because she was in jail. The Juvenile Court concluded it was in the children’s best interest to
terminate the parental rights of Mother and transfer complete custody and control of the children to
DCS.

                 Mother appeals, raising four issues: 1) whether DCS met its burden of proof at the
termination hearing; 2) whether she was afforded appropriate notice of the hearings and whether she
received due process at all stages of the proceedings; 3) whether DCS fulfilled its obligations when
it failed to provide Mother with appropriate resources to enable her to meet the goals of the Plan; and
4) whether DCS fulfilled its statutory obligations when it failed to provide relevant information
regarding the requirements of the Plan.

                                             Discussion

                A review of findings of fact by a trial court is de novo upon the record of the trial
court, accompanied by a presumption of correctness, unless the preponderance of the evidence is
otherwise. Tenn. Rule App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). Review
of questions of law is de novo, without a presumption of correctness. See Nelson v. Wal-Mart Stores,
Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

                 We first address the issues raised by Mother regarding the Juvenile Court’s
determination that there was clear and convincing evidence of grounds to terminate her parental
rights. It is well established that "parents have a fundamental right to the care, custody, and control

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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). This Court discussed the “clear and convincing evidence” standard
in O’Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995), as follows:

                       The “clear and convincing evidence” standard defies precise
               definition. Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App.
               1989). While it is more exacting than the preponderance of the
               evidence standard, Santosky v. Kramer, 455 U.S. at 766, 102 S. Ct.
               at 1401; Rentenbach Eng’g Co. v. General Realty Ltd., 707 S.W.2d
               524, 527 (Tenn. Ct. App. 1985), it does not require such certainty as
               the beyond a reasonable doubt standard. Brandon v. Wright, 838
               S.W.2d 532, 536 (Tenn. Ct. App. 1992); State v. Groves, 735 S.W.2d
               843, 846 (Tenn. Crim. App. 1987).

                       Clear and convincing evidence eliminates any serious or
               substantial doubt concerning the correctness of the conclusions to be
               drawn from the evidence. See Hodges v. S. C. Toof & Co., 833
               S.W.2d 896, 901 n. 3 (Tenn. 1992). It should produce in the fact-
               finder’s mind a firm belief or conviction with regard to the truth of
               the allegations sought to be established. In re Estate of Armstrong,
               859 S.W.2d 323, 328 (Tenn. Ct. App. 1993); Brandon v. Wright, 838
               S.W.2d at 536; Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct.
               App. 1985).

O’Daniel v. Messier, 905 S.W.2d at 188.

              Initiation of termination of parental or guardianship rights may be based upon a
number of statutory grounds. The three grounds pertinent to this appeal are:



                                                -7-
                  (1)       Abandonment by the parent or guardian, as defined in [prior
                            law], has occurred;1

                  (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.

Tenn. Code Ann. § 36-1-113(g).

               The Juvenile Court found there was clear and convincing evidence that Mother had
met all three of these statutory grounds for termination of her parental rights. In making this
determination, the Juvenile Court had access to reports from the DCS representative and the reports
of the Guardian ad litem. The Juvenile Court heard the testimony of the DCS representative and
Mother. “Unlike this Court, the [Juvenile Court] observed the manner and demeanor of the
witnesses and was in the best position to evaluate their credibility.” Union Planters Nat’l Bank v.
Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). The trial court’s
determinations regarding credibility are accorded considerable deference by this Court. Id.; Davis
v. Liberty Mutual Ins. Co., 38 S.W.3d 560, 563 (Tenn. 2001). “‘[A]ppellate courts will not re-

         1
             The statutory definition o f “aband onm ent” referenced in this statute h as been declared un con stitutional.
Hence, we have substituted “prior law” to reference the law wh ich is to b e app lied until the statute is amended by the
legislatu re.

                                                           -8-
evaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence to the
contrary.’” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).

                 Based on our review of the record, including the facts detailed above, we do not
believe the Juvenile Court committed any reversible error in its conclusion that clear and convincing
evidence existed to terminate Mother’s parental rights pursuant to Tenn. Code Ann. §§ 36-1-
113(g)(2) and (g)(3)(A)(i) through (iii). Mother’s last minute efforts to attempt to comply with the
requirement of the Plan and remain drug free simply cannot form the basis for a conclusion that these
statutory requirement have not been met. This is especially true since Mother admittedly still is not
able to properly care for her children or provide them a suitable place to live. Because we affirm the
termination of Mother’s parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and
(g)(3)(A)(i) through (iii), we pretermit Mother’s argument that she had not abandoned the children
or willfully failed to support them due to her incarceration.

                Having affirmed that two of the three statutory grounds for termination were proven
by clear and convincing evidence, we next address Mother’s claim that it was not proven by clear
and convincing evidence that the termination of Mother’s parental rights was in the best interests of
the children. Tenn. Code Ann. § 36-1-113(i) describes the standard for determining whether
termination is in the best interests of the child in such cases:

               (i)     In determining whether termination of parental or
                       guardianship rights is in the best interest of the child pursuant
                       to this part, the court shall consider, but is not limited to, the
                       following:

                       (1)     Whether the parent or guardian has made such an
                               adjustment of circumstance, conduct, or conditions as
                               to make it safe and in the child’s best interest to be in
                               the home of the parent or guardian;

                       (2)     Whether the parent or guardian has failed to effect a
                               lasting adjustment after reasonable efforts by available
                               social services agencies for such duration of time that
                               lasting adjustment does not reasonably appear
                               possible;

                       (3)     Whether the parent or guardian has maintained regular
                               visitation or other contact with the child;

                       (4)     Whether a meaningful relationship has otherwise been
                               established between the parent or guardian and the
                               child;



                                                  -9-
                        (5)     The effect a change of caretakers and physical
                                environment is likely to have on the child’s emotional,
                                psychological and medical condition;

                        (6)     Whether the parent or guardian, or other person
                                residing with the parent or guardian, has shown
                                brutality, physical, sexual, emotional or psychological
                                abuse, or neglect toward the child, or another child or
                                adult in the family or household;

                        (7)     Whether the physical environment of the parent’s or
                                guardian’s home is healthy and safe, whether there is
                                criminal activity in the home, or whether there is such
                                use of alcohol or controlled substances as may render
                                the parent or guardian consistently unable to care for
                                the child in a safe and stable manner;

                        (8)     Whether the parent’s or guardian’s mental and/or
                                emotional status would be detrimental to the child or
                                prevent the parent or guardian from effectively
                                providing safe and stable care and supervision for the
                                child; or

                        (9)     Whether the parent or guardian has paid child support
                                consistent with the child support guidelines
                                promulgated by the department pursuant to § 36-5-
                                101.

Tenn. Code Ann. § 36-1-113(i). When taking into account these relevant considerations, as well as
Mother’s testimony and admissions coupled with the testimony of Reed, we do not believe the
Juvenile Court committed reversible error when it concluded that clear and convincing evidence
existed that it was in the best interest of the children to terminate Mother’s parental rights.

                 Next, we consider Mother’s argument that she was not made aware of the initial
hearings where the children were found to be dependent and neglected and was otherwise not
afforded her due process rights since she was in jail and no one made sure she was present or
represented at these initial hearings. Tenn. R. Sup. Ct. Rule 13 § 1(d)(7) states that parents have a
right to counsel at all stages of proceedings involving dependency and neglect issues or termination
of parental rights. There is nothing in the record to indicate that Mother raised this issue at the trial
court level after an attorney was appointed to represent her. Issues not raised at trial may not be
raised for the first time on appeal. Simpson v. Frontier Community Credit Union, 810 S.W.2d 147,
153 (Tenn. 1991); Dep’t Human Serv. v. DeFriece, 937 S.W.2d 954, 960 (Tenn. Ct. App. 1996).
In addition, upon consideration of the record as a whole, and since Mother was present and


                                                  -10-
represented by counsel at the termination hearing, we hold that if this constituted error, it did not
more probably than not affect the judgment, nor did it result in prejudice to the judicial process.
Tenn. R. App. P. 36 (b); see also Dep’t Children’s Serv. v. Wilkerson, No. 03A01-9810-JV-00341,
1999 WL 775759, at * 2 (Tenn. Ct. App. Sept. 15, 1999) (citations omitted) (holding that no due
process violation occurs where the appellant parent participates in the termination hearing and there
asserted his or her plenary rights; any lack of due process initially was thereafter fully supplied). If
we were to accept Mother’s position on this issue, it would lead to the outlandish conclusion that
once a hearing was held without Mother’s or her attorney’s attendance, for whatever reason, the
Juvenile Court would be powerless later to hold any hearing terminating Mother’s parental rights.
Such is not the law. Accordingly, due to the facts and circumstances presented by the record on
appeal, we find no merit in Mother’s position on this issue.

                 Mother’s next argument challenges the effectiveness of DCS in providing Mother
referrals so that she could comply with the terms of the Plan. At trial, the DCS representative, Reed,
testified that when she would try to help Mother comply with the Plan, Mother would become
defensive and tell Reed it was none of her business to make referrals. Mother even would hang up
the telephone on Reed. Reed further stated that Mother was given every necessary referral in order
to complete the terms of the Plan. Mother denied receiving these necessary referrals. This involves
a fact question, which the Juvenile Court obviously resolved in favor of DCS when it found that
DCS had made reasonable efforts to prevent removal of the children or the situation prevented
reasonable efforts from being made, and that DCS had made reasonable efforts to assist Mother in
establishing a suitable home for a period of four months following removal of the children. As
stated previously, “[A]ppellate courts will not re-evaluate a trial judge’s assessment of witness
credibility absent clear and convincing evidence to the contrary.” Wells v. Tennessee Bd. of Regents,
9 S.W.3d 779, 783 (Tenn. 1999). Mother presented no such evidence.

                Finally, Mother argues that because the Plan was not made a part of the technical
record on appeal, (1) it cannot be established that DCS fully explained its obligations to Mother; or
(2) that the consequences of not complying with the Plan were properly explained to Mother. The
appellant has the duty "to prepare a record which conveys a fair, accurate and complete account of
what transpired in the trial court with respect to the issues which form the basis of the appeal."
Nickas v. Capadalis, 954 S.W.2d 735, 742 (Tenn. Ct. App. 1997). In the absence of an adequate
record on appeal, this Court will presume that the trial court’s rulings were supported by sufficient
evidence. See State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Since Mother failed
in her duty to make the Plan part of the record, we presume that DCS met its obligations and Mother
was aware of the consequences of not complying with same. Mother cannot provide an incomplete
record on appeal and then challenge the termination of her parental rights because the record is
incomplete. We note, however, that in any event, there is clear and convincing evidence in the
record that DCS did fully explain the Plan’s obligations to Mother and the consequences of not
complying with the Plan.

                                             Conclusion



                                                 -11-
               The judgment of the Juvenile Court is affirmed, and this cause is remanded to the
Juvenile Court for such further proceedings as may be required, if any, consistent with this Opinion,
and for collection of the costs below. The costs on appeal are assessed against the Appellant,
D.G.S.L. and her surety.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




                                                -12-
