In re S.Y.

121 S.W.3d 358, 2003 Tenn. App. LEXIS 130
Court of Appeals of Tennessee·Decided February 18, 2003·Published·Cited by 34 cases

Opinion

OPINION

W. FRANK CRAWFORD, P.J., W.S.,

delivered the opinion of the court,

in which DAVID R. FARMER, J„ and HOLLY KIRBY LILLARD, J., joined.

Department of Children’s Services filed petition to terminate parental rights of mother of dependent and neglected minor children. Department’s termination petition was based on allegations of abandonment, mother’s failure to substantially comply with a permanency plan, and the removal of the children for at least six months with little likelihood that the condition causing removal will be remedied. Juvenile Court granted petition terminating mother’s parental rights. Mother appeals, asserting that juvenile court violated her due process rights by failing to appoint an attorney for the dependent and neglect proceeding, and erred in concluding that clear and convincing evidence exists to support findings that warrant termination of parental rights. We affirm.

On April 6, 1999, siblings S.Y., J.Y., and D.Y. (“minor children”), were removed to the custody of the Juvenile Court of Shelby County, Tennessee, on suspicion that the children were dependent and neglected. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the juvenile court on April 8, 1999, re[361] questing the “protection and assistance of the Court,” and further calling for an “adjudication of custody and guardianship as provided by law.” DOS’s petition set forth the following allegations:

Said children are dependent and neglected children within the meaning of the law of the State of Tennessee in that said children are under such improper guardianship or control as to injure or endanger their health or morals. That the children were transported to Juvenile Court on April 6, 1999, and the mother [Gloria Jean Young (“Young”) ]1 was transported to the Regional Medical Center for evaluation. That the children were observed to be dirty and reported that they had not eaten in two days. The family reportedly has no permanent address and the mother appears to be unable to provide a stable, safe home for the children and may be in need of mental health treatment. That an older sibling was previously removed from the mother’s care for neglect.
The circumstances create a threat of severe harm to said children and there is no less drastic alternative to removal that would protect said children from harm. Further, reasonable efforts to prevent removal have been made and placement of said children in foster care is in said children’s best interest.

That same day, the court entered a Protective Custody Order bringing minor children within the protective custody of the juvenile court and awarding temporary custody to DCS. As part of this Order, the court appointed Community Services Agency (CSA) to conduct an investigation into minor children’s needs, and instructed CSA to file a written report advising the court of its findings.

Following the removal of minor children from appellant Young’s care, DCS established a permanency plan that required Young to obtain stable housing, participate and schedule consistent visitation with the children, and undergo a psychological evaluation. The underlying goal of this plan was family reunification. As revealed by the sworn testimony of Darnese Windham (“Wyndham”), a case manager for DCS who was assigned to this case on June 1, 2001, at least three updated versions of the original plan have been drafted since April 1999. Young contends that she has never signed a permanency plan, and further maintains that DCS has never discussed any of the plans, either the original or the updated versions, with appellant. When questioned on direct examination at a hearing before the juvenile court on January 27, 2002, Wyndham acknowledged that Young did not sign the original plan or the updated plans, and did not participate in, or have explained, any of the updated plans, but asserted on cross examination that, although no documentation exists to verify that any of the plans were explained to appellant, the notes from a former case manager on this file led Wyndham to believe that Young was involved in the first permanency plan. None of the plans, original or updated, were entered as exhibits to the Technical Record in this case.

A hearing was held on May 25, 1999 regarding DOS’s dependency and neglect petition. After examining witnesses and considering the presented evidence, the presiding Referee of the juvenile court sustained the petition and recommended that it was in the best interests of the children to be placed in the custody of DCS. It is undisputed that Young was not represented by an attorney at this depen[362] dent and neglect hearing, and it is further acknowledged that the court took no action to appoint an attorney on appellant’s behalf.

On October 5, 1999, Honorable Claudia S. Haltom, presiding Referee, recommended that the children “remain in foster care with the goal changed to Adoption and CASA is hereby appointed in light of the goal change.” The case was continued several times, with each continuance entered upon the recommendation of a Referee that it was in the best interests of the children to remain in foster care.

CASA representative Felecia C. Wade, filed a Diligent Search Affidavit on March 8, 2001, stating that she was unable to determine the whereabouts of appellant Young despite a search of the “[t]elephone directory in Memphis, Department of Safety, Jail Management System, Credit Bureau, Clearing House, Electronic parent locator, and Letters to the last known address of said parent(s).”

On March 12, 2001, CASA and DCS filed a joint Petition for Termination of Parental Rights, seeking to terminate the parental rights of Young, Wilson, and any unknown father of the minor children. In support of their petition to terminate, CASA and DCS asserted that Young unlawfully abandoned minor children, pursuant to T.C.A § 36-l-113(g)(l), by willfully failing to visit and pay support to the children for a period of four consecutive months “immediately preceding the filing of this petition.” Additionally, petitioners argued that, pursuant to T.C.A. §§ 36-1-113(g)(2) and 37-2-403, Young “substantially failed to comply with the statement of responsibilities contained in the Permanency Plans of the minor children,” and noted that, despite the reasonable efforts of DCS to assist in the establishment of a suitable home as required by the guidelines of the permanency plans, appellant “made no reasonable effort to provide a suitable home and demonstrated a lack of concern for the children to such a degree that it appears unlikely that she will be able to provide a suitable home for the children at an early date.” Asserting that the termination of Young’s parental rights is in the best interests of minor children, petitioners also noted that the children, pursuant to T.C.A. § 36-l-113(g)(3)(A), had been removed from appellant’s custody for a period of at least six months, and cited the following reasons to justify permanent removal:

A. The conditions which led to the children’s removal or the conditions which in all probability would cause the children to be subjected to further abuse or neglect and which, therefore, prevent the children’s return to the care of Respondent, Gloria Young, still persist;

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In re S.Y., 121 S.W.3d 358, 2003 Tenn. App. LEXIS 130 (Tenn. Ct. App. 2003).

121 S.W.3d 358 (In re S.Y.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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