*1 H. IN RE et al. CARRINGTON Tennessee, Court of
Supreme AT NASHVILLE. 28, 2015 May Session1 January Filed W¿ argument May Legion Auxiliary’s Girls heard oral case on American Volunteer in this 28, 2015, campus (Supreme Advancing Lipscomb on the Univer- State S.C.A.L.E.S. Nashville, Tennessee, Students) sity part Legal project. as a Education
5Q9 *3 ’510 *4 (discre- MeKelvey Castañeda
Rebecca Nashville, Tennessee, tionary appeal), right A. (appeal Mark Free as of trial), Columbia, Tennessee, appel- for the lant, Vanessa G. III, Attorney Slatery
Herbert General Blumstein, Reporter; S. Andrée Solic- Ferrara, General; Byrd Mary itor Assis- . General; Attorney C. tant Nicholas Counsel, Fossett, Assistant General for the appellee, Department of Chil- Tennessee dren’s Services.
OPINION J., CLARK, A. delivered
CORNELIA Court, opinion which S. and HOLLY JEFFREY BIVINS LEE, KIRBY, JJ., joined. G. SHARON WADE, J., J„C. with GARY R. whom dissenting. joins, concurring and 5H in this to de- granted providing We been Carrington’s case services review right indigent parent’s years.2 an family cide whether for ten Mother’s entire his- in a termi- tory DCS is not included the rec- right nation proceeding includes the appeal, ord on appeal the record challenge terminating parental an order following establishes factual back- rights based on ineffective assistance ground. counsel; trial and appellate gave birth to six children be- Appeals must
whether the Court re- tween 1996 and Carrington, 2004. any ground view the trial court on. relied child, sixth born was November par- terminate when About seven Carrington’s months before grounds ent fails to all termi- raise birth, Mother and Father were the sub- appeal. nation on that' parents We hold jects dependency neglect of a action in constitutionally entitled to fundamen- County.3 the Juvenile Court for Lewis tally procedures fair termi- With assistance of their attorney, Nevertheless, proceedings. nation Mother and Father their waived require mandate constitutional does adjudicatory hearing and consented to a procedure by us to adopt which finding that their five depen- children were may terminating collaterally attack orders neglected dent and that their home parental rights based ineffective assis- *5 was in as to such it condition make Additionally, tance we hold counsel. unsanitary unsafe and for the children to must courts review trial appellate reside there. The Court Juvenile awarded regarding for findings grounds court’s all temporary custody of the children DCS and termination is whether placed but physically the children with' interests, a child’s best even if a Mother and Father. The Juvenile Court fails to challenge findings appeal. these on ordered Mother to continue with mental Having appeal record on reviewed the health treatment and directed both par- holdings, accordance these affirm with we ents to counseling continue with domestic judgment terminating the trial court’s the needed, DCS, cooperate as with and to parental rights. mother’s permanency plan. comply with the I. and Factual Procedural 2005, 2, Carrington On December when (cid:127) Background old, nearly was thirteen months the Juve- appeal petition This arises from a Court ordered all six children nile removed rights parents’ custody terminate the through Vanessa their from (“Mother”) G. Carring- to her minor emergency process placed child and removal . By Depart- custody ton. the temporary the time Tennessee them the of their (“DCS”) ment of grandmother filed aunt. Children’s Services maternal and After a Court, 24,. 201,3, petition hearing, on -it on January October Juvenile petition sought 2. DCS’s initial terminate based on his stated intention to surren- ther father, Carrington’s Carrington rights parental rights upon der his ("Father”); well, Christopher rights. H. and final termination of Mother’s sought parents’ both terminate brother, pf Carrington’s day Charles. On Maury County adju- 3. Court for The Juvenile trial, 2013, 20, petition. removed simplic- December For dicated petition, from ity, Charles he was Court” is to refer to because "Juvenile used majority, attaining within four Maury months and Court Lewis Juvenile both and for voluntarily petition against dismissed the Fa- Counties. 10, 2007, Court, August by an 2006, the Juvenile the children continue ordered order, their1 residing temporarily suspended with maternal visitation Mother’s granted but also aunt grandmother hearing on adjudicatory pending the weekly supervised four hours each Juvenile Court petition, DCS’s which the adjudica- The the children. visitation August for scheduled February for hearing was tory scheduled hearing actual- adjudicatory did not 9, 2006, appeal but the record does however, commence, February ly until from, of, or order transcript include the Mother, upon the ad- at which time that proceeding. open vice of her counsel and reflects appeal The record court, adjudicatory to an her waived 7, 2006, and the hearing April occurred on its hearing.” The Juvenile Court entered on a placed Court the children Juvenile 27, 2008, upon orders on March trial visit with ninety-day home Father. Father, Father, Mother, requests of counsel DCS and from then divorced four chil- visitation with the findings allegations received oldest included on al- every weekend and .visitation dren by clear petition had been established youngest with the two ternate weekends chil- convincing that the evidence and old, children, Brighton, years nearly three be- dependent neglected dren were eighteen Carrington, almost months (1) Mother, cruelty, cause: reason contingent was old. visitation depravity or incapacity, immorality, mental study home upon by DCS. a favorable them; properly was unfit to care 5,May appar- On reasons were such condition want children record, the Juvenile ent suffering improper or or under such visitation Car- suspended Mother’s -with injure control as to guardianship or rington Brighton reinstated health; their morals or endanger Nevertheless, visitation later. month *6 or ne- suffering the abuse children were Court noted there [were] Juvenile glect. Ann. 37-1- See Tenn.Code con- concerning [Mother] issues (G) 102(b)(12)(B), (F), (2014).4 Juve- if not Court and cerned] [Juvenile] the nile Court refused reinstate Mother’s addressed, to severe limitations could lead with the and visitation children ordered to visitation.” as legal physical in the them to remain and months'later, July on About fourteen Court custody of Father. The Juvenile dependency neglect filed a and DCS its March “the final deemed order 27/2008 against the Juvenile petition Mother the determination the claims Maury County. sought by DCS Court dependent neglected for children are and petition to Mother’s visita- the terminate set out and “advised” the reasons above” custody privileges and to continue tion ap- parties could “be order Father. DCS filed the the children with Maury de in the pealed for trial novo receiving alleging after a referral petition a notice of County by filing Circuit Court chil- and after the four abuse oldest sexual (10) office within at the appeal days ten during forensic interviews dren disclosed County Maury Juvenile the Clerk of Mother front would masturbate appeal The record on does hearing -July Court.” Following a them.” ver- opinion shall current in this refer language of the statute has 4. Unless filing petition changed since the of the sion of statute. rights, terminate Mother’s citations appealed plans permanency indicate that Mother Juvenile described the concerns n 27,2008 (1) regarding order. Court’s March Mother as:- “a history of instability mental health pre- and abuse of 17, 2009, the On Juvenile November (2) scription medication”; “sexually inap- hearing. held a After hear- Court review propriate children”-; [conduct] with her ing repre- DCS and testimony from CASA (3) history and “a neglect environmental sentatives, Court again kept the Juvenile housing.” The unsafe enumerated place suspending its Mother’s visi- order goals (1) and actions for Mother were: tation with the children. taking her prescribed medications as peti- DCS filed a On December treating (2) her professional; providing Maury tion in the Juvenile Court Coun- documentation to her prescriptions DCS ty, seeking removal children providers pharmacy used for alleging'that chil- Father’s home and (3) submitting her prescriptions; to ran- neglected dependent dren based were screens; drug asking dom her mental upon having physically Father abused five- provider health to'furnish an assessment year-old by beating strik- Carrington ability to parent her emotional her chil- ing By him. an order entered the same dren; (6) providing plan DCS day, the Juvenile awarded Court DCS for children in experi- the- event she temporary custody of children. blackout, enced a seizure or a such as she later, on February About three previously reported experiencing. .months 18, 2010, Court ruled that the Juvenile As to the only, three oldest children no Mother visitation or would “have con- permanency plans required to: children, until tact with the children overcome her denial sex abuse and ac- .volition, request[ed] own such their visita- knowledge or verbally writing it to a tion, only guidance and then with the counselor; (2) professional cooperate with treating pro- facilitation of the children’s treating professional and the children’s Father, Regarding fessionals.” the Juve- treating professionals to ensure appropri- if he failеd to comply nile Court ruled that implemented ate boundaries were and un- him, requirements with the set forth for possibility derstood and to address the guardian either or children’s ad alienation; (3) ensure that no in- appropriate litem “should file the motions materials, books, appropriate maga- sexual petitions Juvenile with the zines, pictures, or videos were around the permanency assure the children *7 children; (4) provide clean and clutter-free this matter.” housing space with enough and furniture 26, later, 2010,
Eight February days children; (5) on for the with six provide DCS provided with DCS a document paid Mother rental consecutive mohths of and utili- (6) titled Procedures for Termi- “Criteria and ty proof stability; as receipts and Rights” nation of Parental and reviewed provide proof legal income sufficient for the contents of the with Mother. document family’s her Mother was expected needs. document, signed Mother acknowl- satisfy by the goals January these 2012. edging along it with that she had received 2011, 14, On October the Juvenile Court explanation of its contents. on entered final order DOS’s December 28, 2011, 21, September neglect On and dependency petition and " appointéd participated against her in Juvenile and Father. The Court found family Carrington that development of Father De- permanency had abused plans. Carrington, Carrington As these cember had suf- relevant and “as a situation begun and the matter nose had and bruised a swollen fered stomach, ankles, mental sides, ... with a Mother who had serious legs, on his bruises trying to raise' six chil- by problems, beside[s] found Court arm.5 The Juvenile and n dren, not as that, was en- and Father who as convincing clear evidence and day- in the as he have been gaged should constituted actions Carrington, Father’s The to-day care of Juvenile abuse, under the children.” abuse, not severe only “not had made found DCS chil- Court other As to the relevant statutes. efforts, efforts,” but Herculean reasonable dren, Court that Fa- found the Juvenile provided or rectify and had the situation by health ther’s threatened their actions par- and services to the children offered discipline inappropriate subjecting them years. many ents Fa- because and threatened their morals actions his оwn ther had lied about and later, a month permanency hearing aAt lie to the children to coached the had 7, 2011, Mother’s on November See Tenn. his actions. about authorities orally Court to the Juvenile .moved 87-l-102(b)(12)(B), (F), and Ann. Code the children. grant Mother'visitation with (G). findings, Juvenile on these Based hearing Court scheduled a The Juvenile the children were concluded 2011. The motion December dependent neglected ordered and include, howev- appeal record does custody. them remain DCS er, any information re- furthér orders or motion, garding disposition of Mother’s Court re- ruling, In so the Juvenile motion, any hearing on other any history of the case. The Juve- viewed the proceeding dependency court emphasized that the children nile Court neglect actions Mother and Father. against adjudicated already dependent had been she neglected as Mother because By the time the October DCS filed by dressing discipline children would parental rights petition terminate masturbating in front of negligee arises, from which Mother had appeal them, fingers her under their putting then custody physical without the been or into their Juve- nose[s] mouth[s].” since almost children December privi- nile the children years, “[had] Court noted that eight visitation without placements” been in numerous foster home July although the leges since Juve- “to having been innumerable interviews and had su- approved nile Court by counties for inci- DCS two if pervised several visitation children dents, by involving the abuse police alleged requested petition, it. its assessors, Father, grounds sup- following mental health three counselors, therapists.” ported The Juvenile termination of having noncompliance with rights: substantial Court described children plan;6 permanency persistence through wringer” “been and stated charged nency plan” ground termination of aggravated child is a was Father inflicting rights. provides: but eventu- injuries abuse for these Another statute *8 abuse, ally pleaded guilty for which to child parent noncompliance by the Substantial sentence, three-year suspended he received a provides responsibilities with the statement of years' upon supervised proba- service of three grounds of for tion. statutory provi- rights, notwithstanding other rights, fоr sions section 36—1— 6. Tennessee Code Annotated (2015 notwithstanding parent of the Supp.) failure 113(g)(2) provides "sub- sign agree to if the noncompliance by with or to such statement court parent... stantial contents, parent of its responsibilities perma- finds the in a was informed statement of. the conditions that led to the removal presented the testimony of four (3) Carrington; mental incom- witnesses and introduced number ex- petence.8 hibits, including September 20 and 2011 permanency plans. Although Mother 20Í3,
On December the Juvenile presented evidence, no other appoint- her Maury County hearing Court held a petition. ed attorneys present Four were cross-examined each DCS wit- at the hearing, including appoint- Mother’s ness. counsel, counsel, ed appointed Father’s Smith, Tabitha a counselor service work- litem, Carrington’s guardian ad and the er for the Services, Department Human attorney for Of attorneys, DCS. the four testified as to compliance Mother’s only Mother’s appointed presented , the permanency plans. Smith first Ms. opening statements. became involved with the case in attorney asked the Juvenile not to after the children were from removed Fa-
rely upon the 2005 depriving order According home. Smith, ther’s to Ms. custody of her children a basis attempted Mother had to comply with establishing persistence of. conditions. He many of requirements perma- of the argued pay that Mother’s failure child nency plans but had not complied fully. support Carrington and to visit Car- particular, rington Ms. Smith were the results of testified that Mother having (1) only income had failed to: disability and of submit to pass benefits ran- , prevented court orders that drug testing; her from visit- dom provide opinion ing with the children. from a health professional mental that she requirements and that the of the statement parent parents turned to the or or the remedying reasonable and are related futiire; guardian guardians or in the near ' the conditions that necessitate care foster placement. permanency plan shall not The (C)The parent continuation or require parent employment to obtain if guardian relationship greatly and child parent such has sufficient resources from oth- еarly diminishes the child’s chances of child, er means to care for the and shall not safe, integration perma- stable and into require parent provide the child with home[.] nent specific the child's own safety bedroom unless 36-1-113(g)(3). § Tenn.Code Ann. or medical reasons exist that would make placement bedroom of the child with another parental rights permissi- Termination , is child unsafe. convincing ble if clear and evidence estab- 37-2-403(a)(2)(C) (2014). § Tenn.Code Ann. lishes that: 7. Persistence of the conditions that led to the (i) parent guardian or child parent’s child’s removal from a home is incompetent adequately provide for the grounds for termination where: supervision further care and of the child (3) The child has been removed from the parent's guardian’s because the or mental guardian home or order of presently impaired condition is so and is period a court for a of six months' and: likely .unlikely so to remain it so that (A) The conditions that led to the child's guardian or will be able to removal or other all conditions respon- assume or the care of'and resume probability reasonable would cause the future; sibility for in the the child near subjected child to be or further abuse that, therefore, neglect prevent (ii) That or par- child’s safe return to the care of the guardian rights,is in the best guardian guard- interest[s] or ent or the ians, persist; the child[.] still (B) 36-1-113(g)(8)(B). There is little likelihood that these Tenn.Code Ann. early conditions will be remedied at an date safely so that the child re- can *9 children, that Moth- agreed Ms. Smith emotionally parenting her capable (3) children; of six consecu- provide proof DCS with medical re- provided er had utilities; (4) paid and rent tive months ser- lease authorization to contact her and she proof DCS with that receives provide providers directly Mother’s to obtain vice support fami- legal income sufficient her that DCS records. Ms. conceded Smith safety (5) for provide plan with a ly; DCS health coun- provided had Mother’s-mental happen with children what would seling. and could have contacted services seizure; provide have a she should providers directly. In- Mother’s service in her for space beds home sufficient and deed, actu- that DCS Ms. Smith confirmed children; acknowledge minor and providers ally asked one Mother’s had the children been to a counselor that had opinion on her emotional furnish an sexually physically and abused. Ms. Smith regard to parenting capability. With had attended agreed that Mother 95% requirement acknowledge Mother sex- meetings, but she stated her scheduled abuse, agreed ual that Mother’s Smith Ms. erratically had at the that Mother behaved evaluation, psychosexual conducted on occasion, Ms. meetings. On one such 5, 2009, March indicated [Mother] to a hospi- had driven Mother local Smith produced test a valid result which demon- meeting tal after because Mother’s pathology upon no sexual even re- strated her behavior speech was errat- slurred of the cent test.” resubmission ic. Elysse- Beasley, psychotherapist ques- response cross-examination psychological senior examiner and licensed attorney, tions from Mother’s counselor, for DCS as professional testified had acknowledged Ms. Smith she expert in fields of psychology drug to random asked Mother submit Beasley, psychological examination. Ms. testing only and had three occasions March who conducted Mother’s sample Mother to submit a urine had asked testing years drug psychosexual since 2011—two before and Mother’s evaluation hearing. agreed evaluation, Ms. that Moth- July psychological Smith au Security receiving er had been Social dis- copies and submitted her thenticated ‘ 2008,. ability benefits since she con- reports. evaluation could have ceded Mother advised Beasley, purpose to Ms. According disability of the in- amount her 2,2013 July evaluation was to deter- come before Ms. Smith became involved con- mine Mother’s psychological whether knowledge, To the case. Ms. Smith’s permit dition her to care would sug- debts outstanding Mother had no safely. Beasley’s Ms. evaluation children disability gest income would interview, of a clinical Mother consisted to provide insufficient to enable examination, mental status clinical re- family’s for her needs. When basic asked reports view of Mother’s earlier evalua- testimony about her that Mother’s home tions, provided, review documents DCS adequаte bedding space lacked psy- numerous the administration children, acknowledged Smith that she Ms. tests, chological including the Minnesota been inside Mother’s home since Personality Mil- Multiphasic Inventory-2, year spring more than be- Inventory-Ill, Ion Multi-Axial Clinical hearing. asked about her fore the When Parenting Inventory-2, Adult testimony failed Adolescent pro- that Mother had Screening Abuse In- opinion expert of a mental health Substance Subtle vide regarding capacity ventory-3. her emotional to parent *10 disorder,
From the clinical interview and personality review Beasley opined, Ms. records, Beasley Mother’s medical Ms. has become very ingrained part of who hospitalized learned Mother had been how operates, she and she and there are eight days November 2006 for for treat- no medications for treating personality dis- depression anxiety. ment and In orders, although might medications help inpatient Mother received treatment with bouts depression.” Rolling Psychiatric Hills Hospital and Ms. Beasley explained that Mother’s Heights. Cumberland Mother Global Assessment of Functioning results hospitalized days was for six at Vanderbilt indicated that Mother’s mental health Genter, University Medical after a friend moderately ability interferes with her reported that Mother carrying had been function day-to-day on a basis and that she razor threatening around blades and has Beasley suicidal ideations. Ms. noted During hospital- harm herself. the 2011 as well that Mother’s Substance Abuse ization, diagnosed Mother Bipo- was Screening Inventory Subtle produced un- Disorder, lar II Post Traumatic Stress reliable Although results. Mother denied Disorder, Sedative, Hypnotic, or Anxiolytic alcohol drug or usage the six months Abuse, Dependence, Opioid with un- prior to the screening, high Mother’s de- derlying Personality Borderline Disorder. fensiveness high supplemental-addic- September again Mother was hos- tion-measure scores indicated she was pitalized Rolling Psychiatric Hills Hos- trying to personal minimize evidence pital days for seventeen and was treated problems and that given she had answers polysubstance depression, dependence, similar to given by those persons defensive ideation, suicidal and Xanax abuse. with substance abusе disorders. concluded, Beasley Ms. based Ms. Beasley opined within a reasonable results, clinical interview and Mother’s test degree professional certainty that Moth- poor that Mother has insight, poor impulse er is competent neither nor to provide able contort, widely shifting swings. mood fully for or Carrington care for due to her Beasley Ms. opined that Mother suffers Although mental condition. had Mother disorder, post-traumatic stress been treatment her sub- address by an caused abusive relationship and the stance problems, Beasley abuse Ms. con- anxiety nightmares associated with re- that very changed cluded little had living the trauma. Beasley Ms. also noted emotions, Mother’s depression, anger, history Mother’s well-documented of drug method of handling issues since Ms. abuse and her Axis II diagnosis of his- these Beasley in 2009. evaluated Mother Ms. personality trionic disorder. Histrionic that, Beasley pointed out even without the disorder, personality Beasley Ms. ex- children, caring, stress of for the plained, is characterized intense unsta- hospitalized multiple had been times be- relationships, behavior, ble dramatic and a tween 2006 noticed, experi- and 2012 and was still to be exag- need which results in encing geration, seeking, attention stress-related difficulties rapidly shifting emotions, Beasley Ms. gullibility, emphasized hospital- that the decision-making, rash izations attempts. merely and suicide were the culmination of Beasley Ms. ex- that, plained disorders, problems, opined like all Mother’s she personality personality histrionic long- symp- is a Mother would have all disorder kinds standing very toms personality prior entrenched to function to the inabilities characteristic that very, very, hospitalization[s].” tends to Beasley testified Ms. very difficult to treat.” Mother’s histrionic that all of symptoms pres- were *11 counsel cross-exam- appointed Mother’s at the time of the in 2009 and
ent both focusing on conclu- Beasley, ined Ms. unlikely to July and were 2013 evaluation psyehosexual Beasley’s 2009- sion in Ms. Beasley in Ms. the near future. resolve pro- had report evaluation Mother explained: that, while it could a valid test and duced in- psychological little [Mother] has culpable that Mother was not be stated to and reluctаnt sight. is defensive She offense, no there was sexual sexual Additionally, engage self-exploration. in culpa- an support to inference pathology to change motivation her has little she counsel also bility. appointed for blames others since she behavior Beasley regarding the tele- questioned Ms. finds herself. in she situation which from a phone call she had received therapy to is re- commitment Long-term employee submitting her evalu- after personality quired [Mother’s] before According to Ms. report ation to DCS. However, substantially change. would stated that Beasley, employee the DCS termi- profile her often individuals with report happy was not with the her boss point in early. At this nate treatment Beasley whether DCS could and asked Ms. time, physi- not have the does [Mother] information about send her additional emotional, well-being safely review, might cal and it in event case thera- past of her evaluation re- change care her six children the results that she in- port. Beasley Ms. testified to the py efforts from 2005 current time employee additional formed the DCS providing proven unsuccessful facts or information would not .change long improvement psycho- term her of the Neverthe- the results evaluation. logical functioning. less, Beasley to resubmit the Ms. decided Beasley, more According Ms. to. :the data, results but the raw test evalu- under, the reduced stress more Mother is agreed Beasley Ms. change. ation did After ability to her function becomes.” evaluation, that, she after 200.9 opinions that her Beasley explained Ms. Mother, therapy with family recommended answering question of were aimed at goal working super- towards “with the capaci- has the emotional Mother whether vised visitation.” Mother’s child, counsel for ty a normal Beasley opin- Ms. her counsel then asked has. the emo- DCS asked whether Mother Juvenile decision ion Court’s children, .parent a child “a capacity deny tional with with the visitation Mother requested visitation problem or disorder: that re- unless the. children behavioral that, Beasley responded with Mother. Ms. anger,, dem- periodic sult[s] outbursts decision, at the the children time screaming, kicking and refus- onstrated years ranged age from to twelve five instruction, sort of ing to listen to or take old, that, in opinion, “[i]t her should being told what oppositional an defiance do, ... up not have been left to the children do, it, it.” To when to do how they see a or not should whether Beasley question, responded, this' Ms. response to further parent.” not see would be difficult sort of child “[T]hat questioning,, Ms. cross-examination Beas- know,- somebody, you who manage, even attempt ley opined some should have of this.”'' Al- suffering was not some visitation and been made “towards though not View Mother Beasley Ms. did [Mother].” reconciliation sort of with to the posing physical a risk of abuse child, Ross for DCS. Ms. pose Leslie also testified opined she would at Cen- outpatient therapist Ross was risk of abuse to the child. emotional terstone, patterns in young Mother’s mental health children when their one.-of Moth- causing Ms. Ross are providers. disrupted, service treated attachment them to depression, post-traumatic er forming sustaining have problems at- disorder, concerning issues visita- stress tachments. Mr. Walker stated Car- children, tion and medication'. rington’s problems atypical. behavioral time, ordinarily Ms. During this Ross part, most Carrington For the functions as week, per with Mother once *12 unmanageable a normal but child becomes counseled January month. per than once less . upset. During periods, when he these sign asked to Mother Centerstone. Carrington any- refuses to with cooperate ongoing prob- to contract due behavior one, restrained, physically and unless he is Mother, required lems. The contract kicks, bites, screams, Carrington throws things, particular to among other see things, and attacks other children and prescribe staff would clinical- member who to anyone else who tries direct him. Ac- ly would appropriate who medications Walker, Mr. cording episodes these as Mother prescribe requested. Ativan Carrington losing control coincide im- with to re- n required The contract also Mother pending example, .moves. As an Dr. (1) sending emails,to frain from: .Center- explained that in when Car- Walker (2) staff; calling stone Centerstone several rington home to an- was moved from one day. demanding to speak times each home, рarents other his difficul- foster (3) members; .using inappropriate staff ty controlling Carrington his behavior. threatening language language and/or with clinging would alternate between to his verbally manager; using her and case becoming oppositional foster in- aggressive inappropriate language, and combative. At the time the hear- cursing, cluding calling, yelling, name ing, treating Carrington Mr. Walker was pa- toward Centerstone and other staff play therapy, counseling with talk and him sign tients. When Mother refused others, cooperating teaching with and. agreement, to contin- Centerstone refused for building friendships get-, him skills providing services. ue Mother with ting Mr. along people. other Walker with cross-examination, appoint- On Mother’s permanent living that a opined and stable testimony ed elicited from Ms. home, arrangement nurturing in a where that, prior problems that cul- Ross break, even the attachments do not when presenting minated in Mother Centerstone Carrington upset, becomes critical to contract in Mother with the behavior Placing Carring- Carrington’s being. well had received treatment Centerstone personali- ton with with a histrionic years more than without ten incident. op- ty disorder would be almost exact that he posite of the home environment Walker, a clinical worker Richard social needs, Walker, according to Mr. because a Centerstone, also for. DCS as testified personality histrionic parent with disorder expert social work and child witness provide unable to would be stable explained Car- therapy. Mr. Walker Carrington home needs. Mr. diagnosed environment rington reactive had been with that, explained although visitation Walker oppositional defi- attachment disbrder Walker, personality According with á with ant Mr. histrionic disorder.9 Carring- usually disruptive arises would be reactive disorder disorder attachment agreed diagnosis. Carrington diagnosed been with this had also disorder, dis- attention deficit but Mr. Walker ton, plaining personali- more limited with the histrionic disruption would be ty all to the unstable disorder and the other sad issues exposure parent’s because patterns and be has had to her [Mother] behavior emotions would deal with parent a periodic capacity than constant. Mother lacks the rather life/’ child, difficult Carrington, like ap- Mother’s On cross-examination him. mental status would detrimental attorney, agreed Mr. pointed Walker giv- of the 2009 order At he had been the conclusion December aware ing hearing, the choice of whether took the the Juvenile children Court opin- visit with Mother. When asked his its matter under advisement issued arrangement, 27, 2014, ion Mr. Walker stated February final order on terminat- approach that he have favored an ing Carring- would were ones where the not the who children ton.10 The Juvenile found clear involved th[e] [which] made decision” and convincing evidence that *13 and, visits in this periodic [Mother]- with to'substantially comply had failed with the case, supervision.” under close (2) requirements permanency plan; of the Carrington been Moth- had from removed present any not Mother did additional by er’s home court order for than six more proof. closing argument, ap- Mother’s months, and the conditions that led to pointed that had counsel contended DCS Carrington’s still persisted, removal and carry establishing to its failed burden there was little likelihood condi- that these any alleged grounds of the for termination tions early would be an remedied at date convincing by and evidence. He also clear Carrington so to safely that could return was for argued that not at fault Mother future, in the near the contin- and allowing to the 2009 the children order Mothe^ parent-child relationship uation the' to visit make the decision whether greatly Carrington’s diminished chances her, that, had not and because Mother integration safe, stable, early into a and Carrington, been allowed to visit with thé home; permanent Mother was incom- proof regarding inability her to was to petent adequately provide for the fur- speculative. that purely He asserted supervision care Carrington ther and pur- it put had Mother’s case while aside unlikely and it that ‘was Mother would be against and charges the abuse Father sued able to assume resume the care and any reunify effort to had failed to make n responsibility Carrington near Carrington. Mother-with future; of Mother’s termination argument, Carrington’s his closing parental rights in Carrington’s was best guardian as ad described the case litem interest. probably with which saddest” lawyers appealed involved had ever dealt. Nev- Mother court’s the trial n ertheless, terminating to judgment parental he asked the Juvenile Court her parental rights, rights.11 appeal, ex- On appointed terminate Mother’s Mother’s 2014, January attorney requesting 10. On a motion er’s DCS filed filed a motion appointed as ascertain the status Juvenile Court's relieved for Mother. counsel 36-1-113(k) Appointed alleged repre decision. See Tenn.Code counsel he had Ann. proposed (requiring sented Mother since 2007 and trial courts to render decisions thirty perspective’ ‘‘fresh days within would serve Mother’s of the conclusion of a hear-' best appeal, interests in ing petition rights). the event that on a to terminate court,” right, ruling from the this taken day theOn same that DCS filed the motion not reflect record does Juvenile status, January Having to ascertain Moth ruled been on the motion. attorney the Juvenile Court argued counsel statutorily'guaranteed finding convincing clear indigent erred evi- parents in proceed- grounds dence establish ings. Specifically, Mother asserted that ' noncompliance persis- of substantial she prejudiced by appointed been Appointed tence of conditions. representation counsel’s deficient during argued also trial that the court-erred dependency neglect proceed- finding convincing clear and evidence that ing during
termination of Mother’s trial appeal. also Mother asserted Carrington’s was in best Ap- interests. Appeals that the Court of erred declin- pointed the trial appeal counsel did ing to sufficiency review the the evi- finding court’s lacked the dence to support the Juvenile Court’s provide competency Carring- mental findings regarding the grounds for termi- supervision. ton’s care and nation. 21, 2014, Ap- On the Court of October granted pro application We Mother’s se peals judgment the trial court’s affirmed for permission appeal review' any' declinéd new before represent challenges grounds to the trial court’s' H., Carrington Court. In re No. M2014- H., In re Carrington termination. No. (Tenn. 28, 2015) 00453-SC-R11-PT Jan. M2014-00453-COA-R3-PT, 2014 WL (order pro granting se application, appoint- *5 (Tenn.Ct.App. Oct. ing counsel, *14 setting and out of рar- issues 2014). appellate The intermediate court interest).12 directed, ticular We-also that, because' Mother had not reasoned parties to address following issues: finding appealed trial court’s she competency lacked mental to (1) right Whether the to counsel in a trial Carrington, finding court’s parental of termination rights- proceed- ground final a was and furnished sufficient ing to includes the the effective appellate basis for the court to affirm the counsel; assistance terminating trial court’s decision Mother’s so, If procedure what and stan- parental Appeals rights. Court adopt dard should Court to review finding that affirmed the trial court’s that claim? convincing offered evidence to clear pa- establish that of Mother’s Analysis II. Carrington’s rental in- rights was best 5, 2014, terests. Id. at *8. On November A. Governing Parental Standards Appeals granted appointed the Court of Termination Trial counsel’s motion to as withdraw Proceedings for Mother. Mother, A Thereafter, se, parent’s right proceeding pro care and custody timely application permission is among filed an her child the' oldest of appeal recognized in this Court. asserted the judicially She fundamental lib representation erty protected her appointed counsel’s interests Due Pro inadequate deprived was her of cess Clauses the federal and state eon- relieved, grateful attorney notice- of 12. The is filed Rebecca McKelvey appeal represented firm of behalf and Castañeda the law Stites PLLC, Harbison, providing & Mother with Appeals. before the Court representation outstanding appeal. in this 522 ,U.S. 759, Granville, 102 S.Ct. Santosky, U.S. at 1388 530 455 v.
stitutions.13 Troxel
terminating
2054,
(recognizing
49
57, 65,
L.Ed.2d
decision-
120
147
S.Ct..
irrevocable”).
Illinois,
645,
(2000);
U.S.
Stanley
rights
v.
405
final
1208,
551.(1972);
651,
light
consequences
92
31 L.Ed.2d
In
interests
S.Ct.
240,
E.,
stake,
constitutionally enti
Angela
parents
S.W.3d
are
In re
303-
at
250
Female
(Tenn.2010);
Adoption,
re
fundamentally
procedures”
fair
tled
546,
(Tenn.1995);
Child,
455
Santosky,
896 S.W.2d
547-48
-proceedings.
573,
Hawk,
578-79
855
754, 102
v.
S.W.2d
also Lassi
Hawk
see
U.S.
S.Ct.
l
.
al
(Tenn.1993)
rights,
But parenta
Durham
Dep’t
v.
ter
Soc. Servs.
constitutionally
2153,
27, 101
fundamental and
though
N.C.,
18,
Cnty.,
U.S.
S.Ct.
452
Angela
In re
protected,
absolute.
(discussing
due
640
68 L.Ed.2d
“
E.,
250.
[S]tate
fundamentally
‘[T]he
S.W.3d
right of
process
duty
pro
patriae
special
has a
parens
procedures).
fair
minors_’
law, thus, up
Tennessee
tect
constitutionally
Among the
man
pat-
authority as parens
the [SJtate’s
holds
dated,,fundamentally
is a
procedures”
fair
parenting
riae when interference with
heightened
proof
harm
standard
necessary
prevent
serious
—clear
Hawk,
convincing
Santosky, 455
(quoting
U.S.
at 580
child.”
S.W:2d
evidence.
Hamilton,
429 at
102 S.Ct.
This
In re
657 S.W.2d
standard
;
or
Santosky
unnecessary
see also
v.
erro
(Tenn.Ct.App.1983))
minimizes the risk
Kramer,
745, 747,
governmental
455 U.S.
with fun
S.Ct.
neous
interference
E.,
(1982);
Angela
M;
In re
re Ber
rights.
L.Ed.2d
damental
(Tenn.2010).
T.,
initi
at 250.
the State
“When
303 S.W.3d
nard
proceed
convincing
evidence enables
Clear and
ates
merely
infringe
ing, it
or
seeks
to form
convic
fact-finder
a-firm belief
liberty interest,,
to end
the-facts,
fundamental
regarding
tion
the- truth of
Santosky, 455
102 S.Ct.
it.”
U.S. at
doubt
eliminates
serious
substantial
*15
consequences
judicial
of
action
1388. Few
of
factual find
the correctness
these
about
as the
of natural
grave
are
severance
Bernard T.,
so
at
ings.” In re
319 S.W.3d
1388;
at
102
family ties.” Id.
S.Ct.
(citations omitted). The clear-and-
596
102, 119,
S.L.J.,
see
v.
519 U.S.
also M.L.B.
ensures
convincing-evidence standard
(1996).
117
role pa obligations of Tennessee legal governing all statutes forever proceedings incorporate guardian or the child.” rental termination of 1—113(i of )(1); constitutionally § see also standard Tenn.Code Ann. mandated 36— Const, ("[N]or freehold, privileges, § of his or XIV 1 shall seized liberties 13. U.S. amend. life, outlawed, liberty, exiled, deprive any person any State or or in manner or process life, property, or' without liberty due' destroyed deprived or or his law...,”). Similarly, 8 of article by peefs or property, judgment 1/section of his ‘'[t]hat’iio 'the Tennessee Constitution states of the land.” the law imprisoned, dis- man shall be taken or or proof. Furthermore, Tennessee Code Annotated section other statutes 1113(c)provides: impose requirements certain' upon 86— trial hearing petitions. courts A
Termination of parental
guardian-
or
court must
trial
“ensure that
ship rights
hearing
be based upon:
must
on the petition
(6)
place
takes
within
(1)
six
A finding by
the court
clear
months of
that,
the date that
petition
the.
is
convincing
evidence
filed, unless the court
grounds for
an ex
termination of
determines
or
tension is in the
guardianship rights
best
interests of
been estab-
lished;
36-1113(k).
Child.?’
Tenn.Code Ann.
A
trial
court must
“enter
order
That
parent’s
termination of the
makes specific findings
guardian’s
of fact and
rights is in
conclu
the best
sions
law
thirty
interests of the
within
days
child.
conclusion of the hearing.” Id.
por
This
This
requires
statute
the State to establish
tion of the
requires a
statute
trial court to
convincing
clear
proof
that at' least
“findings
make
of fact and conclusions of
one
grounds14
statutory
enumerated
law as to whether clear and convincing
for termination exists and that termination
evidence establishes
is
existence-of each
Angela
child’s best interests.
In re
.,
grounds
F.R.R., III,
E
asserted for
terminating
S.W.3d
re
[parental] rights.”-
E.,
(Tenn.2006);
193 S.W.3d
In re Angela
In re
Valentine,
(Tenn.2002). S.W.3d at 255.
79 S.W.3d
“Should the trial court
“The
analysis
best
conclude that
separate
interests
and convincing
clear
evi
subsequent
dence
ground(s)
determination
for termination does
exist,
there is clear
convincing
evidence
then the trial court must also
amake
grounds
Angela
for termination.” In re
written finding whether clear and convinc
E.,
Although
524 E., its
T., Angela In 596; ruling asks to affirm on this re ing us at 319 S.W.3d 13(d), issue. 246. Under Rule at 303 S.W.3d findings factual de appellate courts review on Appeals disagreed has The Court of find and accord these novo on record parental scope termination review unless
ings
presumption
of correctness
have declined
appeals.
panels
Some
In
otherwise.
preponderates
the evidence
grounds
termination
address
T.,
In re
re Bernard
at
319 S.W.3d
fewer than all
appeals
where
M.L.P., 281
387,
(Tenn.2009);
393
S.W.3d
by
on
the trial court
grounds
relied
793,
Adoption of A.M.H., 215 S.W.3d
In re
trial
only appeals
termination
.
(Tenn.2007)
height
light
In
of the
inter
as to the child’s best
court’s-decision
proof
pro
J.,
In
ened burden
Patrick
ests. See
re
No. M2014-
however,
court
ceedings,
reviewing
7366946,
00728-COA-R3-PT,
at
2014 WL
23, 2014);
In re
as to
must make its
determination
(Tenn.Ct.App.
own
*1
Dec.
L.,
M2013-01814-COA-R3-PT,
facts,
either
found
Alexis
whether the
as
No.
1778261,
(Tenn.Ct.App.
at *1
by preponder
court
supported
trial
or as
WL
P.,
Kyla
re
30,
In
evidence,
2014);
M2013-
Apr.
to clear
No.
ance of the
amount
02205-COA-R3-PT,
4217412, at
2014 WL
convincing
of the
neces
evidence
elements
26, 2014); In re
re
(Tenn.Ct.App. Aug.
*3
sary
parental rights.
terminate
A.T.S., No.
M2004-01904-COA-R3-PT,
T.,
Bernard
at 596-97. The
319 S.W.3d
229905,
(Tenn.Ct.App.
at *3
Jan.
WL
suffi
ruling
trial court’s
that the evidence
2005).
panel
At
least one
has held
ciently
supports
trial
parent appeals only
when a
law,
appel
rights is
conclusion
which
the child’s
inter
on
best
court’s decision
pre
de novo with no
late courts review
ests,
duty to
Appeals
the Court of
has a
M.L.P.,
In re
sumption
of correctness.
determine whether
examine
record
Adoption
re
(quoting
hear this Court. Although DCS correct is sues not (citations Appeals raised in the Court omitted). S.W.3d at n. generally will not be coiisidéred this argues DCS foregoing language that the Court, there exceptions general this require Appeals does Court of Indeed, rule. every ground recognized recently review we termination of 13(b) 36(a) parental rights, regardless of “Rules whether the' Tennessee Procedure, appeal, issue has on Appellate been raised Rules of because considered appeal together, issues not give raised cannot be appellate courts considera in this raised Court. DCS also maintains ble discretion to issues that consider have requirement imposing such would not properly presented been in order to encouraging have the effect of In re Kali justice.” achieve fairness 54() termi- yah, raise frivolous on appeal issues (footnote omitted). 455 S.W.3d at ' proceedings” nation operate would We exercised this discretion that case to against the interest in prompt child’s reso- consider an issue that raised lution of termination proceeding.” in either the trial court the Court of Id. Appeals. argument DCS’s no certainly
We desire to encour- Therefore, point is unpersuasive. consis age attorneys to frivolous raise issues E., Angela In re tent with our appeal. we statement prolong do wish Nor we that in appeal hold an order pro- resolution terminating ceedings. the Court of requiring But we fail see how Appeals the Court of trial Appeals must review the court’s find thoroughly review findings ings the trial ground ground court’s as to each each for termination and for termination as to as to is in whether termi- whether the child’s interests, nation inis best regardless child’s best interests would whether the *18 526 precedents” its challenges findings app prior “relevant defined these as “the establishing 251 n. 14. “fundamental fairness” 303 at eal.16 litigant indigent that an presumption has a finally'resolving this the interest when, light appointed only if he counsel appeal expeditiously as already protraсted loses, may of his deprived physical he be trial possible, review the court’s we will 26-27, 101 (em liberty.” Id. at S.Ct. 2153 to' the remand Court findings, rather than added). phasis The Court Lassiter then undertaking so. Before Appeals do the three factors enunciated in utilized however, review, we that next consider 319, 335, Eldridge, v. 424 Mathews U.S. statutory right her that assertion (1976), analyze S.Ct. L.Ed.2d necessarily includes counsel appointed requires due process whether assistance counsel right to.effective potential is no depriva counsel when there right procedure to. which she a and ..the liberty physical parental tion of but when
may
terminating
the judgment
attack
Lassiter,
rights are at
stake.
U.S. at
parental
assis-
ineffective
based
31,
527
ceedings, the Court described that interest
indicates
appointment
an
is necessary.
Id.
28, 101
as minimal.
at
27-32,
Id.
S.Ct. 2153. The
at
101 S.Ct.
see also State ex
interests,
recognized,
State’s
Court
the
Min,
rel. T.H. by
625,
H.H. v.
802 S.W.2d
“may perhaps
aby hearing
best be served
626 (Tenn.Ct.App.1990) (explaining that a
in which both the parent and the State
parent has no
right
absolute constitutional
acting
represented
for the child are
by
appointment
in
counsel
termination
counsel, without whom the contest of inter
proceedings under the
state
federal con
may
unwholesomely
ests
become
unequal.”
stitutions and discussing the factors that
factor,
Id. As to the final
Court
the
de
should be considered to determine if ap
’
procedures
scribed the
place
in-
in North
pointment of
counsel
warranted in a
Carolina,
originat
where the Lassiter ease
case).
particular
ed,
parental’
noted that most
termination
The Lassiter Court recognized that its
proceedings
do
“the evidentia-
involve
holding represented a “minimally tolera-
problems
ry
peculiar
trials,”
to criminal
ble”
standard
and that
constitutional
that “the
for
standards
ter
and.observed
public
“wise
policy” may
counsel
favor
mination
complicated.”
29,
are not
Id. at
of a
protective
more
standard. 452 U.S.
Nevertheless,
S.Ct. 2158.
Court
33,
2153.
Supreme
S.Ct.
recognized that
proceedings
termination
Court
has
revisited
question
the-
may
psychiatric
involve medical and
evi
appointed
parental
termination
dence and that
often have little
proceedings in
years
the more than thirty
education and are
“distress[ed]
diso
since Lassiter was
may
decided. This
30,
process.
Id.
rient[ed]”
because almost all
provide
States now
ap-
however,
Ultimately,
S.Ct. 2153.
pointed counsel in every рarental
termi-
Court concluded that the
weight
combined
case.,,
by statute,
nation
either
constitu-
interests,
parent’s
government’s
provision,
rule,
tional
or court
and do not
interests,
and the risk
depri
erroneous
condition the appointment of counsel on
vation was
insufficient
“lead to the con
case-by-case
outcome of the
balancing
clusion that
the Due Process Clause re
adopted
test
in Lassiter.17 See Susan
quires
appointment
of counsel
[as
Calkins,
Assistance
Counsel
Ineffective
matter of course] when a State
seeks
Parentalr-Rights
Termination Cases:
terminate
indigent’s parental status.”
n
Courts,
The Challenge
Appellate
Rather,
Id. at
counsel is
statutory right
responds that
the
DCS
by
represented
was
disputed that Mother
to separate
to
rise
a
give
counsel does not
Instead,
in this matter.
counsel
appointed
right
counsel and
of effective assistance of
further,
go
step
a
us to
Mother asks
right
judg
mount
on
a
to
collateral attacks
statutory right
appointed
to
hold that the
every
terminating- parental rights
ments
in
case,
includes,
to
every
right
in
counsel
the
concedes, however,
if a
terminating parental
case. DCS
challenge
judgment
a
the
parent
constitutionally
on ineffective
is
entitled to
rights based
assistance.
appellate court has
counsel
the
ren-
after
appointment Las-
counsel-based on the
appeal as
parent’s
on
its decision
dered
test,
balancing
siter
the
is also enti
judgment
terminating
right from
tled
of counsel.
to the effective assistance
'
suggests that the
parental rights. Mother
expedited
To
review of termi
promote
period
given specific
should be
cases,
urges this
to
nation
DCS
Court
time,
appeal,” to
“akin
a time to
raise
require parents to raise ineffective assis
assistance to the
the claim ineffective
by
filed
of counsel claims
motions
tance
appellate
Mother asserts
court.
prior
briefing
right
as of
ini'appeals
being the court
appellate
“[t]he
court —
terminating parental rights.
orders
See
having
recently reviewed
record
most
R.E.S.,
(D.C.Ct.App.
In
re
A.2d
that rec-
and then rendered
decision
2009).
DCS,
According
pro-
this
under
timely
in the most
actually be
ord—would
cédure,
Appeals
Court of
either
would
parent’s
position
opine
whether
expedited
rule on the motion in ah
fashion
was
or
court-appointed counsel
ineffective
permits, or if
record
when the record
not,
the face of the record.”
based on
sufficient,
trial
is not
would remand to the
appellate
that “[t]he
suggests
development of a
court for
sufficient rec
court
then either decide
claim
could
appeal proceeds.
ord
rest
while the
of the
based on' the
or remand the case
record
light
importance
of the
providing
(to
evidentiary hearing
place
for an
take
children,
permanency for
DCS asserts that
limit) on
within a
issue whether
time
“only
would
when
remands
occur
absolute
counsel,
-of
there was
assistance
ineffective
instructions,
ly necessary
satisfy
minimum standards
trial
if the
court
assistance,
process,
due
strict instruc-
was ineffective
then
under
finds there
and,
indigent
appoihted
party
if the
is
ex-
Supreme
19.
Court Rule
Tennessee
section
(C)
below,
(D)
cept
.provided in
re-
provides
pertinent part:
quests appointment of counsel.
sessions,
(c)
trial,
general
juvenile,
All
appoint
appellatе
counsel
courts shall
(B)
Cases under Titles 36 and 37 of
represent
indigent defendants
and other
involving
Tennessee Code Annotated
alle-
parties
or
who
constitutional
statuto-
against
gations
parents that could result
representation
according
ry right to
....
finding
dependent
neglected
a child
or
procedures and
set
standards
forth
rights;
terminating parental
or in
this rule.
1(c), (d)(2)(B).
Sup.Ct.
§'
Tenn.
R.
(c)
following proceedings,
...
party
"[A]ny
appears
an at-
who
without
proceedings
required
where
all other
right
torney shall be
to an
informed
law,
authority
appointing
court
attorney,
indigent
an
te-
the case of
any party
spondentf]
attorney
without counsel of
shall advise
shall be
represented throughout
Supreme
right
pursuant
to be'
Rule
Tennessee
39(e)(2).
Tenn. R. Juv.
13[.]”
case
counsel and that
will
P.
time limits
Court of
tíons and
from the
assistance
post-con
effective
counsel in
Finally,
appellate
Appeals.”
ensure
proceedings);
viction
Wainwright
Tor
v.
suggests
process
protracted,
DCS
na,
586, 588,
455 U.S.
102 S.Ct.
discretionary appeals
that no
should be
(1982) (stating,
L.Ed.2d 475
that because
as
permitted after the issue of ineffective
there is
right
no constitutional
to counsel
direct
sistance
resolved on
discretionary
appeals,
there is no
appeal.
purposes
appeal,
For
to effective assistance of counsel in such
presumes
constitutionally
that Mother was
*21
600,
appeals);
v. Moffitt,
Ross
417 U.S.
to appointed
entitled
counsel and therefore
610,
2437,
94
S.Ct.
531
supra,
Nevertheless,
judgment
at 199.
terminating
“[m]ost
grounded
have
an ineffec
[S]tates
based on counsel’s ineffectiveness. M26
statutory
tiveness
right
claim on
to.coun
that have-recognized
Courts
a parent’s
have ignored
proposition
sel
that-there
right
to elaim ineffective
'assistance
right
is no
it
effective counsel
is a
unless
uniform, however,
counsel are
no means
Id. at 197.
right.”
constitutional
Many
procedure by
which such' claims
opined
these state courts
have
should be raised. Some courts allow such
statutory right
meaningless
to counsel is
motions,27
claims to be
in post-trial
it
raised
right
unless
includes the
to effective
counsel,
while
other courts allow
assistance
which
courts
such claims to
these
have
right
challenge
defined as
raised on
appeal,28
direct
and still other
E.H.,
11,
(Utah Ct.App.1994);
gants
880
right
P.2d
no-
to assert' ineffectiveness
Moseley, Wash.App.
re
660 P.2d
gesture.”
claims
very
is an
We also
"empty
(1983);
M.D.(S)., Wis.2d 995,
In re
much
dissenting justices'
take issue
(1992).
485 N.W.2d
But see
In re Azia
assertion that fairness cannot be assured in
B.,
Neb.App.
626 N.W.2d
proceedings
par-
unless
(2001) (declining
recognize
a claim of inef
bring
ents are allowed to
claims of ineffec-
fective assistance for
tive
against
assistance
their
attor-
cases).
assertion, accurate,
neys. Were this
fairness
could not be assured in
quasi-
civil or
dissenting justices adopt
ap-
26.The
criminal case which does not include a con-
that,
proach, stating
"providing counsel for
stitutional
to effective assistance of
indigent parent
requiring
but not
judicial
proceedings
counsel. Fairness
*23
representation
emp-
to render effective
is an
hinge upon
litigant's
does
right
a
to as-
ty gesture”
opining
that fairness cannot
Indeed,
sert an ineffective assistance claim.
requiring
parent’s
assured
be
."without
hereinafter,
as detailed
in Tennessee numer-
lawyer
they
to be
appar-
What
effective!.]”
procedures
place
ous
are in
to ensure that
ently
recognize
fail to
is that our refusal to
parents
fundamentally
proce-
receive the
fair
repeatedly challenge
allow
orders
they
dures to
constitutionally
which
enti-
terminating
rights through
their
ineffective-
parental
in
tled
termination cases.
negate
ness claims does not at all
the ethical
obligations
lawyers
“provide
all
have to
com-
See,
J.D.G.,
1177,
e.g.,
27.
S.E. v.
869 So.2d
client,”
petent representation to a
which "re-
J.B.,
(Ala.Civ.App.2003);
1179
170 So.3d at
skill,
legal
quires
knowledge,
thorough-
(adopting
procedure
794
whereby
an interim
ness,
preparation reasonably necessary
parent
“a
appointed
assistance of
—without
representation”
for the
to "act with rea-
twenty
days
counsel—shall have
...
after the
diligence
promptness
repre-
sonable
in
judgment
issues within which to
8,
senting
Sup.Ct.
a client.” Tenn.
RPC
R.
file a
alleging
motion in the trial court
claims
1.1,
obligations
1.3.
apply
These ethical
in
counsel”); Jones,
of
assistance of
ineffective
cases,
all
including
qua-
civil cases and other
(declining
courts
right
parents have
to attack
whether
corpus.29
tion for habeas
terminating
judgment
on the standard
Courts
divided
are also
on
assistance of counsel.
based
ineffective
claims should be evaluated.
which such
Appeals
Although the
has
Court
adopted an
majority
jurisdictions
A
right,
Grayson
see In
recognized such a
re
Washing-
v.
adaptation
the Strickland
E2013-01881-COA-R3-PT,
H.,
No.
687,
2062,
ton,
104 S.Ct.
U.S.
Apr.
(Tenn.Ct.App.
at *13
WL
minority
A
L.Ed.2d 674
standard.30
filed),
2014) (no perm. app.
the intermedi
fair-
utilize
fundamental
jurisdictions
claims
appellate court has
ate
addressed
test,
the al-
inquires whether
ness
which
challenging
appointed
effectiveness of
part
parent’s
of a
leged
deficiencies
by reviewing the
representation
counsel’s
fundamentally
in a
unfair
attorney resulted
In the
reviewed
appellate record.
cases
Calkins,
proceeding.
Appeals,
record
by the
at
The fundamental fair-
supra,
216-17.
proof
clear
appeal contained
either
closely
ness
hues
to the doctrinal
standard
repre
appointed
effectively
counsel had
right
appointed
from
basis
which
appointed
or that
coun
sented
proceed-
key
portions
been
absent
sel
ings
Process.
It is also more
arises —Due
proceeding and therefore
the termination
standard,
al-
statutory
than the Strickland
deprived
flexible
See, e.g.,
In re
procedural protections
as
counsel.
lowing for such
H.,
*10-11;
Grayson
demands,
WL
at
it con-
particular situation
M.H.,
In re
No. M2005-00117-COA-R3-
totality of the
siders the
circumstances
(Tenn.Ct.
PT,
at
2005 WL
*7-8
Geist,
re
In
796 P.2d
proceeding.
See
2, 2005) (no
filed);
perm. app.
Dec.
App.
RGB,
re
at 1090-91
In
P.3d
S.D.,
In re
No. M2003-02672-COA-R3-
(“[T]he
...
inquiry
is whether
proper
(Tenn.Ct.
PT,
831595, at *14-15
2005 WL
fundamentally
proceedings were
unfair
(no
filed);
8,2005)
App. Apr.
perm. app.
incompetence.”);
re
a result
counsel’s
M.E.,
M2003-00859-COA-R3-PT,
No.
re
T.M.F., 573
Adoption
A.2d
*24
of
1838179,
(Tenn.Ct.App.
*15
2004
at
WL
(same);
S.C.D.,
A review - chancery juris or point. exercising courts circuit Under illustrates procedures D.P.E., diction); statutes, Adoption No. parental termination In re Tennessee resort, E2005-02865-COA-R3-PT, sought only WL usually after and a last 22, to reu 2417578, Aug. have been made (Tenn.Ct.App. efforts *2 reasonable re 2006) children. See In Kali nify parents with R. 13 (interpreting Sup.Ct. Tenn. (citing Tenn.Code at 553 yah, 1(d)(2)(D) § S.W.3d requiring appointment as 36-l-113(h)(2)(C)); § Tenn.Code Ann. in guardians ad contested litem (2014). This illus T.B.L., 371-166 case Ann. re proceedings); termination Here, point. an in order filed M2005-02413-COA-R3-PT, trates the 2006 WL No. pro DCS before 2, (Tenn. instituted June Ct.Apр. at’ *2 ceedings, the Court stated Juvenile chancery that the court had (holding 2006J to rec “Herculean”.efforts DCS made. guardian ad obligation appoint an Carrington’s that led tify problems, litem, request, absence of a even are grounds The for termination removal. contested); see also petition was where the circumscribed, and statutorily defined and Porter, No. Newsome v. M2011-02226- notice, of the particular parents receive COA-R3-PT, at *2 2012 WL is relying on grounds which State 7, 2012) (citing Mar. other (Tenn.Ct.App. an to contest opportunity termination and interpreting Appeals’ Court of decisions §Ann. 36-1- grounds. those TenmCode of a requiring appointment Rule 13 as 39(a)-(b); 113(d), (e), (g); R. Juv. P. Tenn. guardian parental termination ad litem Educ. Louder also Bd. v. see Cleveland guardian A litem is re proceedings). ad mill, 532, 546, 105 U.S. S.Ct. sponsible advocating for the child’s (1985) (stating that two “es L.Ed.2d may position best take interests and ... process requirements due sential independent opposed to of and opportunity respond notice are and an is in best the child’s whether termination why in writing, ..'. person either D.P.E., Adoption In re interests. taken”); not be proposed action should The ad guardian WL litem *3. (stating that Heyne, 380 at 732 legally sanc must all “undertake in a be heard opportunity notice and an [e]nsuring tioned consistent with actions meaningful manner are funda time and protected are that the child’s best interests Indigent process). mental elements due _ in things, [including], among other ‘ counsel, provided are wit terviewing] parties the other appointed attorneys ethically obli are records, nesses, pertinent reviewing] represent parents gated competently filing] responding] pleadings diligently. Sup.Ct. R. RPC Tenn. behalf.” Id. child’s 1.1, attorneys appoint li3. addition accuracy and fairness parents, appoints trial court also ed proceedings enhanced litem attorney guardian ad for chil by judi- of proof the. standard elevated proceedings. dren cial is more intensive 39(d) involvement R. P. (stating Tenn. See Juv. impartial cases. Fair and than other ad in a appointment guardian of a litem ’ *26 at stake and judges, aware the interests juvenile pro court termination parental law, are the fact the knowledgeable of to TenmCode ceеding pursuant shall be proceed- (2014)); 37-l-149(a) § finders Ann. Tenn. R. Civ. Respon- l Bd. appointment ings. Moncier v. (discussing the See P. 17.03 Prof (Tenn.2013) sibility, or chancery in circuit S.W.3d guardians ad litem 2014). requirement App., Aug. parents that basic (recognizing Indigent [a] are fair a fair trial process provided appointed due is before on appeal. tribunal”). judge a trial must 37-l-126(a)(2)(B)(ii) § While de- Ann. TenmCode litigants present to the pend on the evi- (2014). Finally, our holding appeal defenses, judge grounds dence the that appellate makes clear courts must limited, parties’ presentations is not to review the trial court’s findings as to each evidence, investiga- may require more ground for termination to and as whether evaluations, tion, testimony or expert when termination is the child’s interests. best necessary that more is she determines existing procedural Given these safe the issues at stake. R. Juv. resolve Tenn. guards, decline to securing we hold that 39(e)(3)-(4), P. constitutional fun fair damentally procedures requires adop noted, already As before tion of an additional procedure, subsequent terminated, rights may be the State must to or separate appeal from an as of right, statutory ground at one prove least by parents may which attack the convincing judgment clear evi terminating parental rights terminating parental rights upon based in dence and is in best interests. of appointed the child’s Tenn.Code effective assistance counsel. 36-1113(c). Although Ann.'§ factors some Moreover, analysis independent
relevant to best interests are our review enumerated, statutorily list illustra appeal record refutes op 1—113(i). tive not Par exclusive. Id. representation assertion counsel’s her 36— proof may ties introduce fact rele a fundamentally proceed denied fair her interests, including vant to the child’s best ing. To contrary, record illus efforts, proof about DOS’s reasonable represented trates that counsel actively thereof, lack reunite the child with the Mother at As proceeding. parent. best Facts relevant to a child’s summary, the factual ap mentioned only interests need established pointed only attorney counsel was the evidence, preponderance although Additionally, an оpening offer statement. must DCS establish the combined appointed counsel each cross-examined proven weight of the facts amounts to pursued strate witness reasonable convincing clear and evidence that termi showing no gy of relation had ‘ nation is in child’s best interests. ship Carrington because trial Kaliyah, re at S.W.3d denied visitation with him court had and because DCS rea had failed make discussed, previously
As trial At efforts reunification. sonable specific findings courts make must written proceeding, time of the 2013 termination every ground alleged on each ter required appellate some decisions findings on mination and factors rele prove reasonable con State efforts vant to best Appel the child’s interests. terminating parental precedent dition late review of termination cases Kaliyah, re rights. at 535 expedited. R.App. Indigent P. 8A. Tenn.. (discussing overruling prior those de parents entitled a record at state cisions). Therefore, appointed counsel’s expense complete enough ap to allow fair showing strategy of had failed to pellate parents’ consideration claims. designed efforts In make reasonable was U.S. 117 S.Ct. C., petition pa re DCS’s to terminate her Austin No.* defeat M2013-02147-COA-R3- PT, (Tenn.Ct. rights. at *6 rental WL *27 expert mental health attempted mony from DCS’s counsel also
Appointed argu- favorable to his which was undermine witnesses through cross-examination to made for that not reasonable grounds ment DCS had regarding the proof DOS’s trial court’s asked and order Appointed counsel efforts termination. prevented had designed denying to visitation cross-examination Mother questions on substantially establishing relationship com- a had from that Mother her show plan, summary, a permanency Carrington, review plied with the ap- some on appeal least convinces us Mother corrected record had not Carrington’s representation to remov- did that led counsel’s pointed conditions fair al, fundamentally had of a participated deprive Mother Mother and that incident proceeding. mental treatment without termination health of time. period for some Moth also address We decline ap Although cоmplains Mother to relief assertion that she entitled er’s failure to file an answer pointed counsel’s pa judgment terminating her from the that an petition, note to the termination we appointed on counsel’s rental based R. P. not filed. Juv. answer Tenn. need 2008 de inadequate representation 39(c) respondent appear a (requiring proceeding. and De pendency neglect answer). a Addi file written personally or neglect proceedings pendency answer, filing appointed tionally, by not proceedings from separate distinct admitting denying each counsel avoided re M.J.B., rights. See terminate petition, may actu allegation of the which (Tenn.Ct. Mother, was, in but ally have aided which (Tenn. perm. July denied App.2004), app. event, Id. Moth reasonable choice. a 2004) (“A of parental rights appointed counsel’s complains also er a continuation proceeding simply however, discovery; she failure conduct proceeding. It is a dependent-neglect a how this explain
fails decision denied involving separate proceeding new Ap fundamentally proceeding. a fair remedies, goals ev- different different represented pointed counsel standards, avenues identiary and different therefore, and, already had ac since 2007 L.A.J., III, In re No. appeal.”); information about the case cess all the W2007-00926-COA-R3-PT, 2007 WL Indeed, during years. those-six amassed (Tenn.Ct.App. at *6 Nov. counsel appointed record reflects 2007) (declining to set aside participated formulating permanen appoint failure to order based cy appointed also plans. Mother faults dependency in a counsel Father filing in Mau- for not list counsel witness This arises neglect proceeding). appeal Court, County she fails ry Juvenile only the termination and involves filing of identify requiring rule a court therefore, any re assertion proceeding; list, ap nor does she how explain such rep allegedly deficient garding counsel’s such a list pointed failure to file counsel’s dependency earlier resentation fundamentally proceed denied her fair properly neglect proceeding is before complains ing. Mother also аppeal. in this us however, witnesses; call did not reviewing now turn our attention to reflects that We already explained, record grounds findings DOS’s trial strategy counsel’s court’s was attack inter- cross-examining child’s witnesses. best case DOS’s eliciting testi- ests. strategy This led *28 Findings
E. Court’s Review of abuse, Trial and Xanax and that her mental health services had been terminated in that trial court'found óf- DCS had January 2013 Mother because refused to convincing proof of fered clear and three sign her, a behavior requiring contract grounds supporting termination Moth- among to things, other with par- a (1) parental rights: substantial non- er’s ticular staff who prescribe member would (2) compliance permanency plan; with the appropriate medications and would not that persistence the conditions led to prescribe the request- medication Mother Carrington; removal of and mental ed. Although DCS had not asked Mother incompetence. the trial We review court’s drug submit to testing random during findings as ground. to each the two years prior the termination hearing, the record contains clear and con- Noncompliance 1. Substantial vincing proof support the trial court’s A parent’s" may be ter findings regarding Mother’s substantial for noncompliance minated her substantial noncompliance. responsibilities per with the contained a § manency Ann. plan, Tenn.Code 36-1- 2. Persistence Conditions 113(g)(2), long plan requirements so rights may Parental be terminat to remedying “reasonable and related persistence ed for of conditions when: the conditions which necessitate^] foster (g)(3) has [t]he child béen removed Valentine, placement.” care re parent by home' of ... (Tenn.2002). Determining order period court of six párent substantially whether has com months and: permanency plan with a plied involves (A) The conditions that led merely counting up more than the tasks in child’s removal other conditions plan to whether a certain determine reasonable, .all probability completed “going number have been would cause child subjected to be through the motions” does constitute that, or neglect to further abuse compliance. substantial Id. The trial court therefore, prevent, the child’s safe re- found that tо comply “ha[d] failed turn to the care ... parent still ain substantial manner those reason persist; responsibilities out in the able set foster (B) is little There likelihood plans remedying care related to the condi will be these conditions remedied which foster necessitate^] tions care early so that- date can child placement.” Specifically, trial court safely returned ... found that Mother had failed to comply future; the near requirements substantially with the (C) The continuation of the screens, drug submit to she random take ... relationship greatly child di- by her medication as prescribed treating ..and early minishes child’s chances professionals, continue with mental safe, integration, per- into stable proof health services. offered DCS manent home. show that failed to submit Mother had tests, drug random she had not taken 36-l-113(g)(3). Tenn.Code Ann. It prescribed treating pro medications as undisputed Carrington had been re- hospitalized custody fessionals and had been in moved from court 2011 and 2012 to treatment receive order more months at than six the time abuse, opioid dependence, fact, polysubstance hearing. the termination Car- §. 36-l-113(g)(8)(B)(i). from Mother’s Tenn.Code Ann. custo- rington was removed according dy in December proof show that Mother’s offered *29 trial, terminat- finding order ,for court’s the impaired mental had been condition rights, had not ing her Mother likely to years and more than six was Carrington in contact since been with time, contin- with a short even improve proceeding. year before the had therapy ued and medication. Mother’s record that behav- The reflects of occa- hospitalized on a. number been stemming problems ioral from hisT obtain, mental sions to treatment for among were personality trionic disorder issues. issues and abuse health substance Carrington’s conditions that resulted the experts The that mental health testified custody. Elysse Beas- from her removal mental condition would impaired Mother’s li- ley,. psychological examiner and senior assuming from care and prevent her the counselor, professional testified censed for near responsibility Carrington in the problems. behavioral The about Mother’s short, appeal future. the record оn to be a Beasley trial court found Ms. credi- fully finding supports the trial that court’s opined Beasley Ms. ble witness. DCS mental incom- proved Mother’s problems had not im- Mother’s behavioral petence by convincing clear and evidence. unlikely improve suffi- proved and were ciently in make it near future to safe the Analysis Best Interests Jh As for return to her care. Carrington to out, pointed trial also another the court trial proof supports The also the professional, Carrington’s health mental finding terminating court’s counselor, placing Carrington testified in parental rights Carrington’s is in best person with the same in the care of terests. mental health and behavioral disorders (i) opposite determining whether termination be the exact Mother would trial court rights what needs.” The ... is in the best child relationship noted that Mother no pursuant to this child interest[s] Carrington.” The kind record with Consider, part, court is not shall fully supports finding the trial court’s to, folio-wing: limited persistence of proved ground (1) has parent .... .Whether convincing conditions clear and evi- adjustment of circum- made such dence. stance, conduct, or conditions as Incompetence
8. Mental it safe in the best make and child’s home of the interests] statutory ground the tri The-final ...; parent upon al court terminate Mother’s relied is as follows: (2) parent ... Whether has is parent The ... of the Child incom- lasting adjustment failed effect & petent adequately provide fur- by available after reasonable efforts supervision ther the' child care and agencies social such dura- services ;.. parent’s because the mental condi- lasting adjustment tion time that and tion so is so presently impaired reasonably appear possible; does likely to unlikely so that it is remain n (3) parent ... has Whether the. parent ... will be able assume visitation or other regular maintained responsibility
resume care of child; contact with in the near future. child (4) meaningful relation- relationship Carrington Whether and has had ship has (4) otherwise been established no contact him since with- re- .,. child; between the and the turning Carrington to Mother’s care would (5) emotional, have a detrimental effect on change his effect caretakers psychologicаl, condition; likely physical environment medical emotional, Mother’s mental and' emotional psycho- the child’s status condition; would be logical detrimental, Carrington and medical prevent her providing him safe ... Whether has stable care supervision *30 effec- from sexual, brutality, physical, shown emo- tively parenting him. We' conclude abuse, psychological tional or ne- or the. evidence in the does not pre- child, glect the or record toward another ponderate against the trial court’s factual family or in or child adult the house- findings that the combined hold; conclude weight of these facts to amounts clear and (7) physical Whether the environ- convincing evidence termination parent’s ment of ... the is home parental Mother’s Carrington’s safe, healthy and whether there is best interests. home, criminal ,activity the or .in alcohol, whether there is such use III. Conclusion controlled substances or controlled as, analogues may substance render n Given existing the procedural safeguards parent consistently the ... to unable applicable parental proceed- termination care for the child in a safe and stable decline, hold, ,we ings, securing manner; right, constitutional funda- (8) parent’s ... mental Whether mentally procedures fair requires adoption status, emotional would be -det- and/or of an procedure, additional subsequent to rimental to the prevent or child pf or separate from an appeal right, as effectively ... providing which parents may judgment attack the supervision safe stable care and parental terminating rights, upon.in- based child; for the or appointed, assistance of counsel. effective ... has.paid Having Whether the thoroughly reviewed the trial support child with findings consistent the child court’s grounds regarding support; guidelines promulgated by termination and the best interests Car- department § pursuant 36-5- rington, we judgment affirm terminat- ing rights.- We also that appointed conclude repre- counsel’s 1—113(i). Tenn.Code Ann. The trial 36— sentation deny did Mother a funda- court found: an Mother has not made mentally parental, fair pro- adjustment circumstances, conduct, or ceeding. Accordingly, judgment of .the conditions so as оther to make it or in safe of Appeals Court Costs of affirmed. Carrington’s best interests be appeal are taxed to the State Ten- home; (2) Mother has from men- suffered nessee, for which may execution issue if illness tal and behavioral disorders for necessary. many years, and these conditions have not
improved, treatment, medication, despite DCS,: provided by C.J., services LEE, and these SHARON G. with whom unlikely WADE,
conditions are improve-in J., joins, GARY R. concurring and future; (3) near meaningful no dissenting. has LEE, C.J., proceeding whom without assure the fairness
SHARON G. WADE, J., parent’s lawyer to effec- requiring be joins, concurring R. GARY not think tive? I do we can. dissenting part. part and require appointed states Most indigent has that an decided proceedings to render effec- right assistance of coun- parent has may proceeding tive In a assistance. right not the assis- sel—but effective permanent result in the severance of counsel—in tance bond, high; stakes are majori- I believe that the vast proceeding. wrong of a irrevocable effects decision lawyers represen- ty provide competent lasting damage par- and can cause to the our Rules required tation Profes- cases, In these we ent and the child. Sup.Ct. sional See Tenn. R. Conduct. perfect, but we expect cannot counsel to 1.1 But in those rare situa- RPCs & 1.3. adequate. require can them to be lawyer makes a tions where a mistake duty fails to or her to such do his extent parent’s A natural for and “‘desire proceeding is not care, that the termination fun- custody, companionship, *31 fair, I damentally providing par- favor the management his or her is an children’ to seek In opportunity ent with an relief. more than precious prop- interest far view, indigent for an my providing Kramer, erty Santosky v. 455 right.” U.S. requiring counsel 745, 1388, but not render 758, 102 71 599 S.Ct. L.Ed.2d ges- is an representation empty effective (1982) (quoting Dep’t Lassiter v. Soc. ture. Servs., 18, 2153, 27, 452 101 S.Ct. 68 U.S. (internal (1981)) quotation 640 L.Ed.2d Court, As there are by noted numer- omitted). proceeding marks A to termi- procedural safeguards place pro- in ous in- parent’s rights nate a does more than right to parent’s tect a the continued care liberty fringe parent’s on a fundamental child, including of her custody interest; it Id. at seeks to forever end it. рrove by requirement that the clear State 758, 102 An order of termi- S.Ct. 1388. convincing evidence at least one statu- legal rights all nation severs “forever tory ground ter- for termination obligations of parent.” Tenn.Code best I mination is the child’s interest. 36-1-113(0(1) 2015). § A (Supp. Ann. concur decision to add with Court’s jus- parent’s accuracy in the interest by procedural safeguard requiring another or her tice of decision to his terminate Appeals to review the trial is, therefore, “a status command- on all findings grounds court’s termi- Lassiter, 27, ing 452 U.S. 101 one.” at nation in the and whether S.Ct. 2153. interest, if a child’s best even does Granted, findings good. on not challenge appeal. parents not these all are safeguards, appropriate parents are chil- But these as and Some bad and harm their are, protect well-meaning they cannot in this cer- The mother case was dren. lawyer is parent’s rights ill-pre- when her model But the tainly parent. not a fundar liberty parents pared, adequate pretrial fails to make an mental interest investigation, “evaporate fails to call care does not necessary wit- of their children fails to testify, appropriate simply they ness advance because have been model arguments, legal parents temporary custody or fails to otherwise ade- or have lost her, agree I quately Santosky, with the their 455 represent child the State.” 753, 102 proceedings 1388. Court that termination must U.S. at S.Ct. When parent- fundamentally fair. But how intervenes to can we State terminate
541 meet relationship, process Parental-Rights child must Counsel Termi- stan process Challenge Appellate Fourteenth Amendment nation due Cases: The Courts,-6 179,193 provide proceeding J.App. dards and Prac. Process & , (2004). fundamentally fair. 452 U.S. Lassiter 37, 2153; Santosky, see also 455 101 S.Ct. right To make the to counsel meaning 753-54, 102 S.Ct. Little U.S. v.. ful, recognized states most have that the Streater, 1, 13, 68 U.S. S.Ct. right to counsel in parental (1981). As L.Ed.2d the United States right includes cases to effective assis Supreme Santosky, “par Court noted Calkins, supra, tance counsel.1 at 199. preventing ents retain a interest vital jurisdictions observed, As many family irretrievable destruction their right to counsel' has little value unless we life.” 455 U.S. at S.Ct. performance to hold counsel’s some stan Tеnnessee, indigent M.S., See, e.g., enti- dard of effectiveness. In re (Tex.2003) (“[I]t appointed tled to statute and would 3,7-1- §Ann. gesture court rule. See TenmCode seem a useless one hand to 126(a)(2)(B) 2012); Sup.Ct. (Supp. recognize importance Tenn. counsel in ter 1(c), (d)(2)(B); R. P. proceedings Tenn. R. Juv. provided mination stat [as 39(e)(2). and, hand, ute], provide Almost all states indi- require the other gent parents perform effectively.”); counsel in that counsel re E.H., (Utah termination cases on stat- Ct.App.1994) based 880 P.2d ute, provision, (holding statutory or court rule. constitutional Utah’s Calkins, Susan Assistance meaningless illusory See counsel would be Ineffective *32 See, 785, e.g., Dep't Trowbridge, Cnty. 1. S.C.D. v. Etowah 155 401 Mich.App. N.W.2d of Res., 277, (Ala.Civ. 65, (1986); re J.C., Jr., 226, Human 841 So.2d 279 In 781 66 S.W.2d App.2002) (quoting Cnty. A.S., Crews v. Houston 1989); (Mo.Ct.App. 228 320 In re Mont. Sec., 451, Dep’t & 358 455 Pensions So.2d 268, (2004); of P.3d 87 412-13 N.J. Div. of State, (Ala.Civ.App.1978)); Dep’t W. Chloe v. B.R., 301, Family 192 Youth & Servs. v. N.J. Servs., Health & Soc. Children's 1034, of Office (2007); 929 A.2d State ex 1037 rel. Servs., 1258, (Alaska 2014); 336 1265 P.3d Children, Dep’t Tammy Youth & v. Families Servs., Dep’t Jones v. Ark. Human 361 Ark. S., 664, 158, 162 (Ct.App. 126 N.M. 974 P.2d 164, 778, (2005); S.W.3d 794 In re Darl 205. 1998); D., 1846, Elijah In re A.D.3d 902 74 C., 459, Cal.Rptr.2d Cal.App.4th ice 105 129 736, S.C.R., (2010); N.Y.S.2d 736 In re 198 472, 475.(2003); C.H., People ex rel. 166 P.3d 905, (2009); N.C.App.525, 909 679 S.E.2d In 288, 2007); Anony (Colo.App. 290 State v. K.L., 677, (N.D.2008); re 751 685 In N.W.2d 155, 939, mous, 943 179 Conn. 425 A.2d 652, App.3d Wingo, re 143 Ohio 758 N.E.2d R.E.S., (1979); 182, (D.C. In 978 A.2d 189 re D.D.F., 780, (2001); 703, 801 P.2d 791 In re 2009); Dep’t J.B. v. Children and Fami Fla. (Okla.1990); Dep’t 707 State ex Juvenile v. rel. 780, lies, (Fla.2015); 170 In So.3d 790 re Geist, 1193, 176, 310 P.2d 1200 Or. 796 A.R.A.S., 608, 822, Ga.App. 278 629 S.E.2d T.M.F., (1990); Adoption In 392 re Pa.Su (2006); RGB, 1066, 825 re 229 1090 In P.3d 598, (1990); 1035, per. 573 A.2d 1040 In re (Haw.2010); M.F., 1110, Ill.App.3d In 326 re T., 718, (R.I.2001); Bryce 764 A.2d 722 In re 132, 701, (2002); 261 Ill.Dec. 762 N.E.2d 709 (Tex.2003); M.S., 534, 115 S.W.3d In re 544 (Iowa A.R.S., 888, In re N.W.2d 480 891 E.H., 11, (Utah Ct.App.1994); 13 P.2d In 880 1992) D.W., 570, (citing In 385 579 re N.W.2d 179, 315, Moseley, 660 Wash.App. re 34 P.2d (Iowa 1986)); Kan.App.2d Rushing, re 9 In 995, (1983); M.D.(S.), 168 Wis.2d 318 In re 541, 445, (1984); Adop 684 P.2d 448-49 In re 52, see, (1992). e.g., 485 55 But In re 498, N.W.2d M., tion/Guardianship Chaden 422 Md. B., 124, 602, Neb.App. 10 626 N.W.2d 935, (2011); Azia Adoption 30 A.3d 942 In re (2001) recognize Azziza, 363, 472, (declining a claim 612 Mass.App.Ct. 931 N.E.2d 77 (2010) assistance for (citing Stephen, ineffective 477 In re Mass. 401 144, 1087, cases). (1987)); 514 1090-91 In re N.E.2d
542
proceeding
see
will
requirement);
and. fairness
an
without
effectiveness
144,
irrevocably
relationship
forever
end
514
Stephen, 401 Mass.
also In re
is,
as noted
the United
(1987)
her child
(recognizing with
1087, 1090-91
N.E.2d
Court, a
Supreme
“commanding
States
value
is of little
right
counsel
Lassiter,
27,
101
452 U.S.
S.Ct.
effectiveness); one.”
expectation of
an
without
strong
State has a
The
interest
785,
2153.
Mich.App.
155
401
Trowbridge,
In re
correct
the welfare
child
(“It
(1986)
axiomatic that
65,
is
66
N.W.2d
27-28,
101
Id.
ness
decision.
right to
includes the
right
counsel
.
has an
The
also
interest
S.Ct.
State
2153
counsel.”);
re Termination
In
competent
is
assuring
proceeding
handled
W.H., 115
Rights
James
Parental
28, 101
economically. Id. at
efficiently
256,
1079,
(Ct.App.
P.2d
1080
N.M.
pays
attorney
The
State
S.Ct.
1993)
means
by counsel
(“Representation
expenses
fеes and
counsel.
body
just having a
than
more
warm
37-l-126(a)(3).
Ann.
See Tenn.Code
during
you
sitting next
‘J.D.’ credentials
bill,
footing
is
Given
State
proceedings.”).
expect
shouldn’t
State
de
—even
recognize
to effec
declining
right,
appointed counsel
ef
render
mand —that
Court distin
representation,
tive
it
fective assistance?
I believe
should.
guishes.
constitutional and
between a.
risk of an
third factor —the
erroneous
.'Counsel,noting,
statutory right to
that .un
becorhes the tie-breaker
decision—often
under the
is a
less there
constitutionally
is
re
whether
-
Constitution,
no
there is
States
United
Min,
quired, See
at 626-27.
right to
assistance.
effective
constitutional
Min,
of Appeals,
the Tennessee
Pennsylvania
Finley,
v.
U.S.
See
Lassiter,
listed several factors
relying on
554-55,
1990, 95
107 S.Ct.
L.Ed.2d
determining
failing
to consider
whether
Torna,
(1987); Wainwright
455 U.S.
v.
likely
produce
appoint
counsel is
587-88, 102
S.Ct.
71 L.Ed.2d
Id. at 627. These
erroneous decision.
(1982);
Moffitt,
v.
Ross
417 U.S.
expert
factors are
medical
whether
(1974).
2437, 41
This
S.Ct.
L.Ed.2d
testimony
presented;
psychiatric
and/or
in this
a distinction without a difference
*33
parents
the
have had uncom
whether
because, under
Su
the United States
case
difficulty
dealing
in
with life
life
mon
and
Lassiter,
the
preme
decision in
Court’s
situations;
(3)
the
are
whether
in
case has a
mother
this
constitutional
distressing
disorienting
into a
and
thrust
right to counsel.
(4)
hearing;
difficulty
at the
the
situation
'proce
complexity
and
and
of the issues
Lassiter,
Supreme
In
the United States
(5)
dures;
possibility of criminal self-
the
a
for de
test
identified
three-factor
incrimination;
(6)
back
the educational
basis,
termining,
case-by-case
on a
wheth
(7)
parents;
perma
of
ground
and
the
the
of
appointment
is constitu
er the
nency
potential deprivation
of
child.
27-31,
tionally required. 452 U.S.
Lassiter,
29-33,
(citing
Id.
452 U.S.
to
are
2153. Factors
considered
S.Ct.
F.2d
Page,
Davis v.
S.Ct.
interest;
interest
parent’s
the
the State’s
(5th Cir.1983)).
516-17
in
for an
child’s welfare
the need
the
and
factors,
procedure; and the
economic and
the mother in
efficient
Based
these
if counsel is
constitutionally
risk of an erroneous
decision
case was
entitled
id.;
ex
T.H.
appointed.
applying
See
State
rel.
appointment
the
counsel.
factors, (1)
Min,
presented
(Tenn.Ct.App.
v.
the
the Min
Státe
802 S.W.2d
case,
1990).
testimony
support its
mak-
accuracy
expert
A
in the
parent’s interest
(Tenn.2010).
representation by
important
ing
litigants,
however,
The
effectively
question
proceedings
for the mother
the
these
footing.
different
(2)
petitioner
a
veracity
testimony;
pursuing
petition
that
the mother A
post-
for
conviction relief has
dealing
already
uncommon
difficulty
been tried and
convicted,
situations,
likely
most
received at
having long
and life
histo-
least one
life
a
review,
tier of appellate
family
and otherwise af-
ry
problems, drug dependency
panoply
procedural
forded the full
(3)
abuse,
pro-
illness;
and
and mental
the is-
required by
tections
the Tennessee and
procedures
and
the
sues
termi-
involved
United States Constitutions.
post-
The
hearing
complex,
nation
were difficult and
action,
petitioner
conviction
initiated the
particularly given
allegation
the State’s
loses,
if
position
and
he
his
remains essen-
the mother’s mental
in-
incompetency tially the same. Id. at
(noting
“a
that
troducing expert
testimony;
medical
post-conviction petitioner does not
stand
hearing
the
would
criminally
same shoes
accused”
likely been a distressing
and diso-
provision
counsel is “not
mother;
rienting situation for the
protect
prosecutorial
them
forces
terminating
an order
mother’s
State,
to shape
complaints
their
permanent
would have been
into
proper legal
form
to present
brief,
pre-
irrevocable.
its
State
court”).
complaints
those
to the
A parent
the mother
sumes
“would meet the
in a termination
is more akin to
proceeding
balancing test
]
...
assis-
[Lassiter
a
in the trial stage
defendant
of a criminal
counsel,
therefore,
likely
tance
proceeding.
parent
did not initiate
effective assistance
counsel in this ter-
proceeding
and has much to
if the
lose
I
proceeding.”
mination
agree.
court
renders
adverse decision. No
concedes,
As
generally
the State
“[i]t is
finder,
decision
been made
a fact
has
accepted
where the
...
Lassiter
parent’s
and it is
first
opportunity
]process analysis
due[
establishes
federal
against
in court
charges
defend herself
right
counsel,
process
constitutional
due
State,
brought by the
which
forever
could
also
a right
entitles
to have
sever
relationship
with her child.
Calkins,
effective counsel.” See also
su-
I
the Court’s concern
share
at 196
pra,
(noting
“presumably
there
opportunity
repeated
re-examination
a federal
right
constitutional
effective
judgment
every
assistance
counsel in
case in
through
claims can
ineffectiveness
inflict
analysis
which Lassiter
right
finds
damage upon
immeasurable
children
counsel”). Even if this Court does not
achieving
A
finality
imperative.
recognize
to effective assistance
repeatedly
be able to
should
of counsel
all parental
*34
judgment
challenge
terminating her
cases, the mother in this case is constitu-
However,
parental rights.
the interest
tionally entitled to
appointment
finality
not trump
parent’s
should
a
inter
and, therefore,
Lassiter
counsel under
ef-
maintaining
est in
bond and
fective assistance
counsel.
in the
of the decision to
correctness
termi
statutory right
The Court
likens the
rights.
Recognizing
nate
right
a
in parental
proceed-
effective assistance
counsel will
ings
statutory right
unduly
to counsel in
compromise a child’s interest
fi
cases,
post-conviction
which
in- nality, permanency,
safety.
does not
I would
right
a
referring
clude
effective
See
assistance.
recommend
issue to the
State,
Advisory
Frazier v.
Commission on the
Tennessee
regret
I
mother
proceeding.
and Procedure to formu
did
Rules of Practice
a
a
process
assert
opportunity
present
late
assistance of counsel.
claim
ineffective
support
proof
her claims
evidence
encourage
I
Commission to
would
ineffectiveness.
procedure
motion
study
post-trial
conclusion,
join
Tennessee should
Supreme
Florida
adopted
majority
recognize
that a
.states
Department
J.B.
Florida
Children
v.
parent has the
to effective assistance
Families,
(Fla.2015),
So.3d 780
proceeding.
procedures
in other states that
step
necessary
This
to ensure that
the appellate
to be
allow motions
filed
proceedings
severing
the effect of
see,
review,
People
e.g.,
court for
ex rel.
bond
C.H.,
between
child
funda-
(Colo.App.2007);
ex rel. Juvenile v. 310 Or. (1990). P.2d 1193 us, I Upon review of record before disagree cannot with the Court’s decision deprived was not mother fundamentally fair