In Re: Yariel S.

12/29/2016

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 22, 2016 Session

IN RE: YARIEL S., ET AL.

Appeal from the Juvenile Court for Knox County
No. 53466 Timothy E. Irwin, Judge

No. E2016-00939-COA-R3-PT

This appeal arises from a termination of parental rights. The Tennessee Department of
Children’s Services (“DCS”) filed a petition in the Juvenile Court for Knox County (“the
Juvenile Court”) seeking to terminate the parental rights of Yaron L. (“Father”) to his
four minor children Yariel, Yaron, Yariyana, and YariAsia (“the Children”). After a trial,
the Juvenile Court terminated Father’s parental rights on the grounds of persistent
conditions and substantial noncompliance with the permanency plan. The Juvenile Court
also found that termination of Father’s parental rights was in the Children’s best interest.
Father appeals to this Court. Father argues that he was not properly notified of the trial,
that counsel should have been appointed, and that termination of his parental rights is not
in the Children’s best interest. We hold that that the evidence in the record on appeal
shows, as found by the Juvenile Court, that Father was notified of trial, that Father failed
to appear at trial, and that the Juvenile Court did not err in declining to appoint Father
counsel when he failed to appear. We also find and hold that the Juvenile Court’s
determinations regarding grounds for termination and the Children’s best interest are
supported by clear and convincing evidence. We affirm the judgment of the Juvenile
Court.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and JOHN W. MCCLARTY, JJ., joined.

Robert Lewis Straight, III, Knoxville, Tennessee, for the appellant, Yaron L.

Herbert H. Slatery, III, Attorney General and Reporter, and, W. Derek Green, Assistant
Attorney General, for the appellee, the Tennessee Department of Children’s Services.
 OPINION

Background

In October 2014, DCS became involved with the Children when their
mother admitted to an opiate addiction. Both parents acknowledged using marijuana as
well. DCS removed the Children from the home of the parents in June 2015 pursuant to a
protective custody order. DCS created a permanency plan for the parents. The
permanency plan required the parents, in part, to complete drug and alcohol assessments;
follow recommendations; refrain from illegal activities; submit to and pass random drug
screens; obtain legal sources of income; and, obtain safe and stable housing.
Additionally, Father was required to complete an anger management program and
provide proof of completion to DCS. In August 2015, the Children were adjudicated
dependent and neglected. The Court found that the parents were not in compliance with
the permanency plan. Meanwhile, Father tested positive for cocaine and THC and failed
to complete two drug screens. Father did eventually complete mental health, drug and
alcohol assessments. Father acknowledged a long history of drug abuse. Health Connect
diagnosed Father as having severe cannabis disorder and post-traumatic stress disorder.

In March 2016, DCS filed a petition seeking to terminate Father’s parental
rights to the Children. A summons was issued to Father on March 15, 2016 notifying
him that the hearing on the petition would take place on May 3, 2016. The return
indicated Father was served personally on March 26, 2016. Father neither responded to
the petition in any way nor appeared at the May 3, 2016 hearing. At trial, DCS worker
Sarah Brock and the Foster Father testified. Ms. Brock testified:

Q. [Father] was supposed to participate in some intensive outpatient
treatment?
A. Yes.
Q. Did he actually participate in any outpatient treatment?
A. He did. He started the outpatient treatment at Health Connect after
completing the assessment, a couple weeks after that. He missed almost as
many sessions as he attended.
Q. What happened?
A. He was discharged on February the 22nd for non-compliance.

***

Q. You asked him to participate in some anger management?
A. Yes; that’s correct.
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 Q. And what did he tell you?
A. He reported that he intended to participate in the anger management
sessions at Health Connect.
Q. Said he was going to be starting a group in early December?
A. Yes.
Q. Described the curriculum to you?
A. Yes.
Q. Did he ever actually start it?
A. No, he did not.
Q. When you checked with Health Connect, did you determine whether or
not there was such a program and whether or not he made any arrangements
to start one?
A. They do have a program, but they had not actually spoken to him about
starting the anger management services, and they didn’t have those plans in
place.
Q. So if he had continued and completed the intensive outpatient program
that he started, he could have received anger management -
A.Yes.
Q. - - at that facility?
A. Yes.
Q. He just didn’t do it?
A. That’s correct; he didn’t.

***

Q. Have you attempted to drug screen him since he was released from
Health Connect for non-compliance?
A. Yes, I have.
Q. What happened?
A. He has failed the drug screens, but he has also refused to take drug
screens.
Q. Said he wasn’t putting that cotton under his tongue?
A. Yes; that’s correct.
Q. How are the children doing?
A. The children are doing really well.

In May 2016, the Juvenile Court entered an order terminating Father’s
parental rights to the Children on the grounds of persistent conditions and substantial
noncompliance with the permanency plan after having found that termination of Father’s
parental rights was in the Children’s best interest. The Juvenile Court also made a
specific finding that Father was properly served and notified of the hearing. Father filed
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a pro se notice of appeal on a fill-in-the-blank form, asserting “improper service” and that
he became of the aware of the May 3, 2016, hearing on April 27, 2016.

The Juvenile Court’s order terminating Father’s parental rights stated in
relevant part:

3. The temporary custody of these children was awarded to the State
of Tennessee, Department of Children’s Services, on June 4, 2015, by order
of the Juvenile Court of Knox County, Tennessee; they have been in foster
care continuously since that date. An order finding the children dependent
and neglected was issued by this Court following a hearing on August 24,
2015. The termination petition was filed against Respondent on March 15,
2016. He was served with a summons and copy of the petition by personal
service on March 26, 2016, at . . . Knoxville, Tennessee. The summons
clearly stated the date of this hearing and advised Respondent that he could
either file an answer before this hearing or personally appear. It also stated
that failure to answer or appear could result in the hearing going forward
without Respondent’s participation and in termination of his parental rights.
The Court specifically finds that Respondent was properly served, that he
had actual notice of this hearing and of the consequences of failure to
appear, and that he has nevertheless failed to answer, appear, or otherwise
defend the petition filed against [him]. To the extent that the Rules of Civil
Procedure and the Rules of Juvenile Procedure are inconsistent with regard
to service of process, the Court finds that the Rules of Civil Procedure
should be suspended and that this matter should proceed to adjudication on
the date set without any further notice to Respondent, the interests of justice
so requiring.

***
1. These children were removed from their parents’ custody due to
substance abuse and mental health issues and failure to cooperate with
intervention services. In October 2014, at her first prenatal visit during her
pregnancy with YariAsia, the children’s mother admitted to taking three to
four Xanax per day for her nerves. She reported that she was opiate
dependent and taking “street” Suboxone. She was referred to CenterPointe
and completed detox there in November 2014.
2. Mother and baby were clean when YariAsia was born. Both
parents admitted regular marijuana use. At a Child & Family Team
Meeting on January 5, 2015, the parents agreed to complete mental health
assessments and alcohol and drug assessments, to follow resulting

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recommendations, to submit to random drug screens, and to cooperate with
the Department of Children’s Services. Family Support Services were
placed in the home and the children returned to their parents’ care.
3. Over the next several months the parents failed to cooperate at all,
coming up with one excuse after another. On March 26, 2015, Respondent
was positive for marijuana and cocaine. The children’s mother was
positive for benzodiazepines, buprenorphine, and marijuana. They were
warned that they risked losing their children if they did not stop using illicit
drugs. The children’s mother repeatedly rescheduled appointments at
Bradford for an assessment. New Beginnings tried unsuccessfully to
schedule a telephone screening on several different occasions. After
multiple attempts to contact the family the case manager was finally able to
meet with the parents on May 27, 2015. During the meeting, the case
manager called Peninsula and was advised that the mother could be seen
the next day due to a cancellation; she did not go. An oral swab obtained
from her during that meeting was positive for benzodiazepines, cocaine and
marijuana. Respondent’s screen was positive for marijuana; he insisted that
he was never going to quit smoking marijuana. Based on those drug screens
and the parents’ failure to cooperate with assessments and services for the
previous six months, the Department no longer had any confidence that the
parents would successfully comply and cooperate with services; their
continuing substance abuse issues placed the children at risk and resulted in
the children’s removal.
4. The initial permanency plan was developed at a Child & Family
Team Meeting on June 25, 2015, Respondent did not appear although he
had been invited; the plan was reviewed with him a few days later. Among
other things the plan required that he (a) complete a mental health
assessment and follow resulting recommendations; (b) complete an alcohol
and drug assessment, follow resulting recommendations, and pass random
drug screens to demonstrate sobriety; and (c) obtain and maintain safe,
suitable housing free from environmental hazards, domestic violence, drug
abuse or other risks to the children. He was also expected to visit regularly,
to participate in parenting education through therapeutic visitation, to pay
child support, and to maintain contact with the children’s case manager.
The plan was updated periodically but the responsibilities never changed as
Respondent made little progress in accomplishing them.
5. After repeated reminders, Respondent finally completed mental
health and alcohol and drug assessments on September 8, 2015, through
Health Connect America, when the clinician went to Respondent’s home to
get it done. He reported using cocaine occasionally, with the last use about
a month before the assessment, and smoking marijuana every day. He
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submitted to a urine drug screen that was clean for all drugs. When
confronted with the contradiction between those results and his reported
use, he explained that she had taken something from GNC to clear his
system. Based on his self-report, the clinician recommended that he “would
benefit from co-occurring Intensive Outpatient Program for his PTSD and
addiction.” He expressed a willingness to participate in treatment.
6. Respondent began intensive outpatient treatment through Health
Connect a few weeks after completing his assessments. He missed almost
as many sessions as he has attended. He was discharged on February 22,
2016, for non-compliance. Although he did produce two clean drug
screens during this time, he was not able to maintain either consistent
attendance or consistent sobriety. He never participated in anger
management treatment. He reported to the children’s case manager that he
intended to participate in an anger management group at Health Connect
America. On December 2, 2015, he stated that he would be starting such a
group the next Friday and would complete the twelve-hour curriculum by
attending four 3-hour sessions. He thought he could complete it within a
month. His first session was scheduled for the following day. He did not
appear. At the end of January 2016 he made the same claim to the
children’s case manager. He stated that he would complete intensive
outpatient treatment and then begin anger management while doing
aftercare once each week. When she checked with Health Connect
America, she learned that he had not actually spoken with anybody there
about starting anger management services and no such plans were in place.
7. Respondent has yet to establish a suitable home for the children.
Sometimes he “stays” with his mother. Otherwise, he is with the children’s
mother in the home of her grandfather, who abuses alcohol. On December
9, 2015, the children’s case manager and her supervisor made an
unannounced home visit. The grandfather opened the door and insisted that
the parents did not live there. He was already intoxicated and appeared
agitated and very angry but opened another can of beer during the visit. He
claimed the parents had stolen money from him and he wanted them out of
the house. While he was explaining this, the children’s father came out and
told the grandfather that he did not need to be talking to the visitors.
Respondent had been asleep when the case manager arrived. When she
woke up and came out on the porch, her grandfather said he was going to
shoot the children’s father. He then went inside the home and shut off the
electricity. He returned to the porch and again told the parents to leave;
they indicated that they would move out that day and go to the home of Mr.
[L.’s] mother. As the children’s case manager and her supervisor left the
residence, the grandfather pulled away in his truck.
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 8. Respondent’s last urine drug screen, on March 23, 2016, was still
positive for marijuana. He has refused to submit to any drug screens since
then. He has been encouraged to resume intensive outpatient treatment, to
stop smoking marijuana, and to complete his anger management classes.
He claims he is too busy at work to do any of this. The Court notes that
during this hearing he was not at work or in the courtroom but was
somewhere in Lonsdale posting to Facebook.
9. Upon those facts, the Court finds that these children have been
removed by order of this Court for a period of six (6) months; the
conditions which led to their removal still persist; other conditions persist
which in all probability would cause the children to be subjected to further
abuse and neglect and which, therefore, prevent the children’s return to the
care of Respondent; there is little likelihood that these conditions will be
remedied at an early date so that these children can be returned to
Respondent in the near future; the continuation of the legal parent and child
relationship greatly diminishes the children’s chances of early integration
into a stable and permanent home.
10. The Court further finds that Respondent has failed to comply in a
substantial manner with those reasonable responsibilities set out in the
permanency plan related to remedying the conditions which necessitate
foster care placement. Respondent has done completed nothing other than
cooperate with a substance abuse assessment when the clinician showed up
at his door. He attended intensive outpatient treatment inconsistently until
he was discharged for non-compliance and never quit smoking marijuana.
He has done nothing to establish a suitable home for these children. It does
not appear that he wants to get clean or to accept responsibility for his
children.
11. The Court did not hear proof as to Respondent’s ability to
support these children and that ground was conceded by counsel.
III
1. Respondent has not made such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the children’s best interest
to be in his home despite reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible. He has not maintained regular visitation or
other contact with these children. A change of caretakers and physical
environment is likely to have a detrimental effect on the children’s
emotional and psychological condition. Respondent has shown neglect
toward these children. He is without a healthy and safe physical
environment to offer the children. He continues to engage in such use of

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 alcohol or controlled substances as may render Respondent consistently
unable to care for the children in a safe and stable manner.
2. The mother’s parental rights are terminated on this same date by
companion order.
3. The Department of Children’s Services has made reasonable
efforts toward achieving permanency for these children.
4. The children are entitled to a safe, secure and loving home. They
are now placed together in a prospective adoptive home where they are
thriving, behaving as typical siblings. They are all meeting their
developmental milestones with no therapy needs at this time. They have
the opportunity to achieve permanency through adoption. These children
deserve to grow up knowing where they will lay their heads at night. They
should not have to rely on somebody who is unreliable, to depend on
somebody who is undependable.
5. It is, therefore, in the best interest of [the Children] and the public
that all of Respondent’s parental rights to these children be terminated and
the complete custody, control, and full guardianship of the children be
awarded to the State of Tennessee, Department of Children’s Services, with
the right to place them for adoption and to consent to such adoption in loco
parentis.
6. Respondent is not hereafter entitled to notice of proceedings for
the adoption of these children nor has he any right to object to such
adoption or otherwise to participate in such proceedings.

Father timely filed an appeal to this Court.

Discussion

Although not stated exactly as such, Father raises the following two issues
on appeal: 1) whether the Juvenile Court erred in failing to appoint Father counsel for his
parental termination proceedings and by failing to make a determination as to whether
Father was properly served and notified of trial; and, 2) whether the Juvenile Court erred
in finding that it is in the Children’s best interest for Father’s parental rights to be
terminated.

As our Supreme Court recently instructed:

A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected

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 by the Due Process Clauses of the federal and state constitutions.1 Troxel v.
Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley
v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors .
. . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d
425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S.
745, 747, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303
S.W.3d at 250. “When the State initiates a parental rights termination
proceeding, it seeks not merely to infringe that fundamental liberty interest,
but to end it.” Santosky, 455 U.S. at 759, 102 S.Ct. 1388. “Few
consequences of judicial action are so grave as the severance of natural
family ties.” Id. at 787, 102 S.Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S.
102, 119, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). The parental rights at
stake are “far more precious than any property right.” Santosky, 455 U.S.
at 758-59, 102 S.Ct. 1388. Termination of parental rights has the legal
effect of reducing the parent to the role of a complete stranger and of
“severing forever all legal rights and obligations of the parent or guardian
of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also Santosky, 455
U.S. at 759, 102 S.Ct. 1388 (recognizing that a decision terminating
parental rights is “final and irrevocable”). In light of the interests and
consequences at stake, parents are constitutionally entitled to
“fundamentally fair procedures” in termination proceedings. Santosky, 455
U.S. at 754, 102 S.Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of
Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640
(1981) (discussing the due process right of parents to fundamentally fair
procedures).

Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. This standard

1
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property,
without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states
“[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or
outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the
judgment of his peers or the law of the land.”
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 minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586,
596 (Tenn. 2010). “Clear and convincing evidence enables the fact-finder
to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than
not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).

Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1-113(c) provides:

Termination of parental or guardianship rights must be based
upon:

(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.

This statute requires the State to establish by clear and convincing proof
that at least one of the enumerated statutory grounds2 for termination exists
and that termination is in the child’s best interests. In re Angela E., 303
S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is
separate from and subsequent to the determination that there is clear and
convincing evidence of grounds for termination.” In re Angela E., 303
S.W.3d at 254. Although several factors relevant to the best interests
analysis are statutorily enumerated,3 the list is illustrative, not exclusive.
The parties are free to offer proof of other relevant factors. In re Audrey S.,
182 S.W.3d at 878. The trial court must then determine whether the
combined weight of the facts “amount[s] to clear and convincing evidence
that termination is in the child’s best interest.” In re Kaliyah S., 455
S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent

2
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
3
Tenn. Code Ann. § 36-1-113(i).
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receives the constitutionally required “individualized determination that a
parent is either unfit or will cause substantial harm to his or her child before
the fundamental right to the care and custody of the child can be taken
away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).

Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion
of the statute requires a trial court to make “findings of fact and conclusions
of law as to whether clear and convincing evidence establishes the
existence of each of the grounds asserted for terminating [parental] rights.”
In re Angela E., 303 S.W.3d at 255. “Should the trial court conclude that
clear and convincing evidence of ground(s) for termination does exist, then
the trial court must also make a written finding whether clear and
convincing evidence establishes that termination of [parental] rights is in
the [child’s] best interests.” Id. If the trial court’s best interests analysis “is
based on additional factual findings besides the ones made in conjunction
with the grounds for termination, the trial court must also include these
findings in the written order.” Id. Appellate courts “may not conduct de
novo review of the termination decision in the absence of such findings.”
Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n.15 (Tenn.
Ct. App. 2007)).

B. Standards of Appellate Review

An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at
596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of
A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). In light of the heightened
burden of proof in termination proceedings, however, the reviewing court
must make its own determination as to whether the facts, either as found by
the trial court or as supported by a preponderance of the evidence, amount
to clear and convincing evidence of the elements necessary to terminate
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 parental rights. In re Bernard T., 319 S.W.3d at 596-97. The trial court’s
ruling that the evidence sufficiently supports termination of parental rights
is a conclusion of law, which appellate courts review de novo with no
presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re
Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions
of law in parental termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness. In re Angela E., 303 S.W.3d at
246.

In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered).

We first address whether the Juvenile Court erred in failing to appoint
Father counsel for his parental termination proceedings and by allegedly failing to make a
determination as to whether Father was properly served and notified of trial. Our
Supreme Court recently stated:

Tennessee joined this majority in 2009. Rather than incur the time
and expense of litigating the right to appointed counsel in each case under
the Lassiter balancing test, Tennessee statutorily provides the right to
appointed counsel for indigent parents in every parental termination
proceeding. Tenn. Code Ann. § 37-1-126(a)(2)(B)(ii) (2014); Tenn. Sup.Ct.
R. 13, § 1(c), (d)(2)(B); Tenn. R. Juv. P. 39(e)(2).

In re: Carrington H., 483 S.W.3d at 527-28 (footnotes omitted).

This Court, in addressing the issue of a pro se parent’s right to
representation in a parental rights termination case, stated:

“Upon finding a party indigent, the court shall enter an order
appointing counsel unless the indigent party rejects the offer of
appointment of counsel with an understanding of the legal consequences of
the rejection.” Tenn. S.Ct. R. 13 § 1(e)(3). If the indigent parties refuses to
accept the services of appointed counsel, “such refusal shall be in writing
and shall be signed by the indigent party in the presence of the court,” the
trial court shall acknowledgment the fact, and the written refusal of counsel
shall be made a part of the record. Tenn. S.Ct. R. 13 § 1(f)(1)-(2).

The record reveals the father filed a pro se Answer to the Petition, he
appeared at trial to defend the action without counsel, and the transcript of
the evidence reveals that his primary defense was his indigency. The
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 record, however, provides no indication that the trial court made any
inquiry regarding the father’s indigency or his ability to retain counsel to
represent him in the proceedings, wherein his parental rights were subject
to being terminated, and the record does not contain a writing to confirm
that he knowingly waive the right to appointed counsel.

***
Here, the father appeared without counsel at trial to contest the
termination petition. Moreover, the father’s defense to the claim of
abandonment was wholly based on his alleged financial limitations. Each of
these facts, standing alone, compelled the trial court to conduct an
indigency inquiry and to inform the father of his constitutional right to
counsel as mandated by Tenn. S.Ct. R. 13. The record fails to establish that
the trial court complied with the mandatory provisions of the rule.

Lyon v. King, No. M2007-01156-COA-R3-PT, 2008 WL 490657, at **5-7 (Tenn. Ct.
App. Feb. 22, 2008), no appl. perm. appeal filed (footnotes omitted).

In the present case, however, Father did not avail himself of his right to
representation during the parental rights termination proceedings. In contrast, Father
secured counsel both in the dependency and neglect phase and now on appeal. Father
knew how to obtain counsel. Father, however, made no appearance before trial after
being served in the termination proceeding, did not show up at trial, and finally appeared
and requested counsel only after the trial was completed. Father was entitled to
representation at trial, if indigent, but he had to take the minimum steps of showing up
and proving his indigency at that time. Father did neither.

The evidence in the record on appeal shows that Father knew in advance of
the date of trial and that he was served personally. While denying that he was served on
March 26, 2016, Father admits that he knew at least by April 27, 2016 that the trial would
be on May 3, 2016. Despite this knowledge, Father still did nothing including not
showing up at the trial on May 3, 2016. The Juvenile Court made a specific finding that
Father was “properly served, that he had actual notice of this hearing and of the
consequences of failure to appear, and that he has nevertheless failed to answer, appear,
or otherwise defend the petition filed against [him].” The Juvenile Court noted further
that “during this hearing [Father] was not at work or in the courtroom but was somewhere
in Lonsdale posting to Facebook.” The evidence does not preponderate against these or
any other findings of the Juvenile Court.

Father argues further that the Juvenile Court should have treated his Notice
of Appeal as a Tenn. R. Civ. P. Rule 59 motion to amend judgment or a Rule 60 motion
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for relief from judgment. We review denials of both Rule 59 and Rule 60 motions under
an abuse of discretion standard. Smith v. Haley, No. E2000-001203-COA-R3-CV, 2001
WL 208515, at *5 (Tenn. Ct. App. March 2, 2001), no appl. perm. appeal filed. Rule
59.04, Tenn. R. Civ. P. allows a party to ask the trial court to alter or amend a judgment
within 30 days of the entry of the judgment, prior to the judgment becoming final.
Similarly, Rule 59.02, Tenn. R. Civ. P. allows a motion for a new trial if made within 30
days of the entry of judgment. After a judgment becomes final, a party may not seek
relief under Rule 59, but may seek relief under Rule 60.02. Tenn. R. Civ. P. 60.02
provides that a “court may relieve a party or the party’s legal representative from a final
judgment, order or proceeding” for any of several specific enumerated reasons, including
“mistake, inadvertence, surprise or excusable neglect.” Tenn. R. Civ. P. 60.02.

Father submits that the substance of his Notice of Appeal should be
prioritized over its form, keeping in mind his pro se status. Father argues the substance
of his notice of appeal was really that of a Rule 59 or 60 motion rather than a notice of
appeal. This Court has stated:

Pro se litigants should not be permitted to shift the burden of the
litigation to the courts or to their adversaries. They are, however, entitled
to at least the same liberality of construction of their pleadings that Tenn.
R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Irvin v. City of
Clarksville, 767 S.W.2d at 652. Even though the courts cannot create
claims or defenses for pro se litigants where none exist, Rampy v. ICI
Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. Ct. App. 1994), they should
give effect to the substance, rather than the form or terminology, of a pro se
litigant’s papers. Brown v. City of Manchester, 722 S.W.2d 394, 397
(Tenn. Ct. App. 1986); Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct.
App. 1977).

Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003).

Given Father’s pro se status, and the fact that he wrote “improper service”
on the Notice of Appeal which, in our judgment, arguably suggests a desire for relief
from the Juvenile Court’s judgment rather than a statement of an issue for appeal, the
Juvenile Court could have treated Father’s Notice of Appeal as a Rule 59 or Rule 60
motion. We, however, find no reversible error by the Juvenile Court’s treatment of the
document titled “Notice of Appeal” as just that. In any event, this decision by the
Juvenile Court does not impact the ultimate outcome. As already addressed, the Juvenile
Court found, as now affirmed by this Court, that Father was properly served and notified
of trial and failed to appear. We find no reversible error regarding Father’s rights in the

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parental termination proceedings, either as to appointment of counsel or as to service and
notice.

Although Father does not raise grounds for termination of parental rights as
an issue on appeal, we, as our Supreme Court has said we must, address them
nevertheless. Two grounds for termination of parental rights are at issue on appeal.
Tenn. Code Ann. § 36-1-113 (g)(2) (Supp. 2016) provides the first relevant ground of
substantial noncompliance with the permanency plan as follows: “There has been
substantial noncompliance by the parent or guardian with the statement of responsibilities
in a permanency plan pursuant to the provisions of title 37, chapter 2, part 4.” Regarding
persistent conditions, the termination statute states:

(3) 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:

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

(B) 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 or parents or the guardian or guardians in the near future; and

(C) 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)(3) (Supp. 2016).

The Juvenile Court made detailed findings, quoted above, regarding
grounds for termination against Father. The evidence in the record on appeal does not
preponderate against any of these findings by the Juvenile Court. We find and hold, as
did the Juvenile Court, that the grounds of persistent conditions and substantial
noncompliance with permanency plan are established by the standard of clear and
convincing evidence.

The final issue we address is whether the Juvenile Court erred in finding
that it is in the Children’s best interest for Father’s parental rights to be terminated.
Father points to his 31 sessions of treatment and that he eventually was discharged only
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because of a transportation issue. Father points to evidence in the record describing his
participation in drug treatment as “high.” Father also states that the foster parents
acknowledged a bond between the Children and Father and that DCS’s evidence at trial
was relatively scant.

The record does show that although Father undertook certain steps toward
addressing his substance abuse issues, he never successfully addressed his substance
abuse issues. Father refused drug screens and otherwise failed to complete drug
treatment. As found by the Juvenile Court, “[Father] continues to engage in such use of
alcohol or controlled substances as may render [Father] consistently unable to care for the
children in a safe and stable manner.” Drug abuse was the basis for the Children’s
removal from Father in the first place, and Father’s failure to address his drug abuse is
not a mere detail but the central point in the case. On the other hand, the evidence in the
record is that the Children are thriving in foster care. We find and hold, as did the
Juvenile Court, that the evidence is clear and convincing that it is in the Children’s best
interest for Father’s parental rights to be terminated. We affirm the judgment of the
Juvenile Court.

Conclusion

The judgment of the Juvenile Court is affirmed, and this cause is remanded
to the Juvenile Court for collection of the costs below. The costs on appeal are assessed
against the Appellant, Yaron L., and his surety, if any.

____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE

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