*1 issue, has provided and Marks evidence Tennessee, Tennessee STATE of
directly indicating did As that she not. Department of Children’s testified, Mrs. Ladd “cut him off’ Marks Services claim, she pursuing from did dis- Marks to deal with the issue or want v. it with her. cuss H., et al. DAVID is not Realizing that author- Tennessee, Appeals Court have anything ized to do client would not Section, at Nashville. Middle do, in a may engage contrary 18, course of action to the client’s Assigned Briefs Nov. 2005. on Attorney wishes, see 7A C.J.S. & Client March (2004), evidence the record scope represen- tells us that of Marks’ Ladd did
tation was limited Mrs. pertaining pro-
not include matters policy
ceeds of the life insurance on her Ladd,
son, Therefore, Garnett Jr. is
plaintiffs’ contention that Marks liable to regarding
the estate of Mrs. Gerda Ladd proceeds policy life insurance relating
issue tax ramifications thereto
is without merit.
In Conclusion April of this filed
30, 2007, hereby in all re- reaffirmed
spects for and except to the limited extent
expressly stated herein.
This matter remanded
court, and Appel- costs associated with the petition
lees’ to reconsider are assessed
against Appellees. *2 Ausbrooks,
Dana M. Franklin, Tennes- see, appellant, for the David H. Ausbrooks, David Franklin, M. Tennes- see, appellant, for the Mary Ellen H. Summers, Paul G. Attorney General and Reporter; Stamey Dianne Dycus, Deputy General, Attorney appellee, Ten- Department nessee of Children’s Services. OPINION COTTRELL, J., PATRICIA J. court, delivered the in which KOCH, JR., P.J., M.S., WILLIAM C. joined. CLEMENT, JR., J., FRANK G. dissenting filed a opinion. hearing,
After a the Circuit Court de- clared seven dependent children to be neglected and determined that par- their ents had committed severe child abuse. claim on appeal that the court erred refusing that coun- sel represent them at the hearing. carefully After reviewing record, we find that the trial court failed to conduct a sufficient to determine whether or not the were financial- ly able to retain their own and we accordingly vacate concluding the order that the dependent children were and ne- glected. Proceedings
I. in the Juvenile Court 1, On November Department (“DCS”) of Children’s Services filed an emergency petition in the Juvenile Court Perry County temporary to obtain cus- tody of eight single children in a family, Proceedings age from to sixteen.1 The II. ranging Circuit granted petition, Department’s court, juvenile final After the family placed and the children were with represent- attorney who had friends. repre- ed withdrew from *3 attorney an The trial court 21, 2003, the November sentation. On parents and a ad represent guardian indigency in of parents filed new affidavits the chil- represent litem the interests of that another the Circuit Court and asked attorney parents’ dren. The filed motion them. Their for hearing for a to determine on behalf weekly earnings of listed affidavits $598 and dependent if the children were ne- Mary H.3 H. and Ellen David $200 law glected meaning within and only included in the affidavit assets custody asking physical the chil- bank, in the were a few hundred dollars dren be returned them. vehicles, none of fist- and three which was 27, 2003, February On DCS moved the being ed as more than worth $300. phone to terminate visitation and by 7, 2003, parents, calls and on April affidavits, Judge examining the After parte ad filed the Guardian Litem an ex Court declined Harris Circuit suspend motion to all visitation and com- signed them. He appoint counsel for munication between the and their children nonindigency of a determination of section biological parents. It was revealed that form, reads, appear- “[i]t standard which Attorney begun the District had an investi- ing, upon indigency based the affidavit of gation allegations into of sexual abuse of cause, and due inquiry filed in this after hearing motion, After the children. made, an indigent that the is not defendant barred visitation between the law,” person and added defined and parents and some the children al- “considering handwriting, his com- own only supervised lowed limited visitation bined income of husband and wife.” with the other children. hearing final Circuit Court was 23, 2003, July juvenile On court con- Judge Davies over two conducted before an adjudicatory hearing ducted on the de- February days, full 11 and pendency neglect petition. and The court taken, Before evidence was convincing found there to be clear and ap- their motion that counsel be renewed dependent evidence that the children were them, they out had pointed pointing neglected they had been sub- juvenile in the court and appointed counsel jected physical, emotional and severe not find an stating that could The parents sexual abuse.2 then filed an take for what willing to their case appeal hearing the Circuit Court for a Ap- could The written “Motion to afford. Ann. 37-1- de novo. See Tenn.Code 159(a). Interlocutory or For Relief’ point Counsel parent(s) family committed severe child whether the 1. The record indicates abuse, long problems history of in both involved in a as defined statute. Tennessee, which result- South Carolina being placed care ed in children in foster that David H. earned 3.The record shows a number of times. Degree and as a crane worked Associates Mary her operator, while Ellen H. has earned 37-l-129(c), §Ann. 2. Pursuant to Tenn.Code part-time at a discount G.E.D. and worked petition alleging dependen- a court store. neglect required cy and to determine explained the parents’ argument financial situation After hearing from both sides fully. counsel, more gross question Out the father’s on the weekly $594, motion, Judge income of the motion Davies alleged denied paid “Well, that he per stating, going week in I’m not go insurance for $60 back go family per week in behind what has court- Harris $55 Thereafter, done.” Mary ordered child David H. support. The motion also se. Ellen pro alleged H. acted gross the mother earned a DCS asked the income week, court if “in per judicial out it wished the interest paid of which she $103 economy,” hear per support. pending petition to also its week child $55 parental rights termination of the motion recounted also Mary David H. and Ellen H. at the same *4 efforts including to secure a claim time dependency neglect as the and pro- that the mother told an attorney was at not, ceeding. The court ruled that it did Society the Legal qualified Aid that she because the had not received ade- Society’s on services the basis of her quate notice. income, Society but the could not take the Eighteen trial, witnesses testified at in- case require. due to the it would time The cluding professionals, six social work motion supplemented by was letters from family custody who had of some of the letter, two attorneys. dated January One children, children, the three oldest and 30, 2004, Legal was Society from Aid neighbors acquaintances various and attorney, who that Society stated did parents. proof, At the conclusion of the case, not have the resources to take their the court took the case under advisement. “you but that appear cannot on such an Adjudication The Final Order of declared important matter without representa- 4 that dependent the seven6 children were letter, tion.” The other dated February neglected and pursuant Tenn.Code Ann. 9, 2004, private attorney from and 37-l-102(b)(12). The court also found said attorney require $15,000 would significant the children had made $1,000 retainer plus an additional for ex- progress being placed since with other penses taking before the case. In the families, and that should remain with motion, parents alleged this those families.7 had stated handling the matter through conclusion would probably cost included court’s order extensive and $30,000. We that the trial note court later detailed of fact. findings Based on the entered finding specific an order this findings, case “com- court found that the plex pursuant to a request extended” had committed severe emotional guardian children, from the ad litem physical against related to at- abuse torney pursuant fees to Tenn. neglect, R.S.Ct. 13.5 well as severe and sexual abuse pertaining 4. That stated also that in a like case other material to the seven repre- this one he not would even consider parents.” children and their senting parents. He both estimated an attor- ney spend would need least 50 hours previously peti- 6. court had severed the preparing for trial. His letter was dated Jan- regarding tion oldest child. 30, 2004, uary apology and included an responding not to the mother earlier. 7. Two almost identical documents entitled Adjudication” "Final were Order of entered. order, 5. In that court found that the case 12, 2004, The first was March entered and the expert testimony required involved 20, September second was entered days full "an of trial and enormous time of preparation due volumes of records abuse, of whether abuse and the issue against appeal three of the children. This re-litigated at the termi- followed. occurred is not be hearing. Severe abuse must nation Attorney Right III. The convincing evidence. by clear proved v. M.S. above, Department Children’s Services As we indicated M2003-01780-COA-R3-CV, J.S., No. by appointed counsel in the & represented 8, juvenile (Tenn.Ct.App. WL 549141 March proceedings depen- 2005). 2005) dency neglect petition, app. August but not denied (perm. Cir- that court found that cuit Court because argue that appeal, On and therefore not
they were
Tennessee and United
provisions
the final
eligible for such assistance. After
them an abso
gave
Constitutions
States
Court, Mary Ellen H.
hearing in Circuit
process right
to have counsel
lute due
of indi-
and David H. filed new affidavits
for them in Circuit Court.
gency, which showed that
were both
Supreme Court has held
United States
Perry County
longer
Jail
and no
process
that constitutional due
does
any income. The court conducted another
for indi
require
hearing,
financial
found that the
*5
every
gent parents
parental
in
termination
and
changed,
circumstances
ordered
Servs.,
Dept.
Lassiter v.
Social
case.
upcom-
that
be
for the
appointed
counsel
of
2153,
18, 101 S.Ct.
The for is personal real or property; not whether the in parents this case would (6) appearance The amount of the or right have a appointed to counsel if bond, appeal party whether the has been indigent. Clearly, were they would have by making able to obtain release such right. The question is whether their bond, and, if party obtained release qualification for appointed ap counsel was bond, by making such the amount of propriately or decided whether sufficient paid money and the source of such mon- inquiry was an conducted to made accurate ey; and determination indigency of their or non- (7) Any present- other circumstances indigency. ed to the court which are relevant to the indigency. issue of 13(e)(2)
Rule directs the court to inquiry make an into the financial status of § Tennessee Code Annotated 40-14-201 a defendant in proce accordance with the “any person person defines an as in dures set out Ann. Tenn.Code 40-14- who not possess does sufficient means to 202 to determine whether a defendant is pay compensation reasonable for the ser- indigent and ap therefore entitled to an If competent attorney.” vices of a a trial pointed attorney. That statute describes inquiry to adequate fails make an in required procedures as follows: response to an and a indigency affidavit
(b) party improperly right Whenever an accused informs the denied the result, that such financially may accused is counsel as the court’s order R.D.V., to obtain the unable assistance of coun- be v. appeal. vacated See State wages. E2004-01216-COA-R3-PT, modest employed are but earn 2005 WL 2005) (no Thus, Mar.17, original denial (Tenn.Ct.App. the extent the filed). parents’ application only P. 11 on the R.App. indigency Tenn. was based income, implies, required order us, In the case other than the before was of other factors consideration form to “due reference on the standard us The record before does present. no in the rec- inquiry,” there is indication par- on the any hearing was held indicate as to the made scope ord request appointment ents’ renewed parents’ judge who first declined the trial indication the There no counsel. The appointment of counsel. factors, all the relevant court considered only mentioned “combined court’s notation fees, what would be reasonable including wife,” a fact obtain- income of husband clearly though motion even indigency. able from the affidavits of contrary, To factor at issue. put that Ann. other factors found in Tenn.Code issue court declined revisit the § 40-14-202 were not mentioned. eligibility day hearing On the of the final Court, Circuit renewed their have, on the record we Based attorney. motion for case and the complexity view of the of this income, They alleged despite involved, can- rights we importance they were unable to afford the services of ap- parents’ request that the not find attorney. for DCS private appropriately pointment argued that the have filed should least, en- denied. At the earlier, noting they their motion had two hearing thorough compliance titled to and a half months between Harris’ Ann. requirements of Tenn.Code with the so. order and scheduled do they were § 40-14-202 to determine if claim, however, un pay without sufficient means reasonable but dertook a serious unsuccessful effort in this representation fees for attorney willing find an to take their case. case, coun- and thus entitled Their claim is bolstered letters from Rule pursuant Supreme sel attorneys. 13(d)(2)(B). have no choice but We *7 it would have for the While been better trial vacate the order of the court. parents to have renewed their motion be- the present Our decision does not affect trial, many day fore the first the when In for the children. gathered custody arrangements witnesses and others were and fact, contemporane- an ready opinion to in issued proceed, we cannot conclude one, ously we affirmed parents given up with this have unrepresented parental rights parents’ full these inquiry their a into whether termination of chil- they rights. Consequently, custody reason- pay had sufficient means attorney. an an able fees to is not issue. dren Income alone is not the sole determina- IV. person qualifies a indi-
tive whether judgment of the Circuit Court gent purposes of coun- one, this to the Cir- complex In case this a We remand case sel. a such as vacated. pro- Perry for further easily be cuit Court Count reasonable fee could opinion.9 with this ability ceedings financial who consistent beyond persons subsequent proceedings and rights been ter- minated in have 9. Because appeal Tax the costs on to the appellee, improperly were denied the right ap- the State of pointed Tennessee. presented The trial court was with two CLEMENT, JR., J., FRANK G. filed a opportunities address the re-
dissenting opinion.
counsel,
quest for
at
once
inception of this action at the circuit court
JR.,
CLEMENT,
J.,
FRANK G.
21, 2003,
level on
again
November
and
on
dissenting.
11, 2004,
February
day
of the trial in
I
legal
concur with the
set
principles
circuit court.
majority
forth in the
particu-
requested appointed coun-
larly
recognition
impor-
with the
inception
sel
this action in
affording parent
tance of
a
an opportunity
Perry County.
Circuit Court of
Circuit
to request appointed
when
appropriately by
Harris acted
appropriate,
inquiry
and due
on
requiring
complete
the stan-
counsel in de-
form,
dardized
an affidavit. The
pendent
I,
and neglect proceedings.
how-
duty
were under an affirmative
to disclose
dissent,
ever, respectfully
believing the
income, assets,
liabilities,
and ex-
facts, particularly
demonstrating
those
penses so the court could
a determi-
make
irresponsible
acts
omissions of David
deny
nation
or
grant
whether
the re-
Mary
H.
seeking
Ellen H. in
appoint-
quest for
or
appointed counsel whether to
ed counsel
then retaining
separate
make
further
to determine their
counsel, are sufficient to affirm the trial
eligibility.
unexplained by
For reasons
court.
record,
informed
trial
they
employed,
both
earning
ruling
the majority
in
based
$40,0002
combined income in excess of
part
R.D.V.,
on State v.
E2004-01216-
They
owned three automobiles.
(Tenn.Ct.
COA-R3-PT,
659 § 40-14-201. Whether TenmCode Ann. place to an burden on appropriate combine $40,000 year a in excess inquiry” to a an income the trial court make “due trial court to the need for the determining appoint obviated when whether subject may inquiries be deny request appointed the make additional counsel or by people. reasonable disagreement re- trial court denied the counsel. The Moreover, 21, parents presented 2003 whether quest hearing at the on November countervailing evidence com- sufficient upon finding based spite of an $40,000 that an- to establish was in excess of bined income $40,000 year, they income of signed aggregate nually. Specifically, Judge Harris read, pay not sufficient means possess that did portion form order compensation for the services upon the affidavit of reasonable appearing, “[i]t based cause, attorney may subject be a competent and after due of indigency filed this by made, disagreement people. an reasonable that the defendant is not inquiry law,” person as and to defined am, nevertheless, I unable conclude his Judge added in own which Harris logic or rea- the trial court acted without hand, “considering income of combined deny request when soning husband and wife.” upon was based uncontrovert- the decision evidence, provided parents, Our of a trial court’s decision to ed review subject to income was excess of appoint appoint or not counsel is their collective $40,000 they no year significant had abuse of discretion standard. contrary, I or liabilities. To the per expenses abuse of discretion does not standard disagree could mit its contend reasonable minds appellate substitute deny propriety for that of the trial court. El as to the the decision judgment 82, request for counsel based Eldridge, appointed v. 42 85 the dridge S.W.3d $40,000 year. I am (Tenn.2001)(citing upon v. Ins. an income of Myint Allstate (Tenn.1998)). Co., 920, result- to conclude the decision 970 927 also unable S.W.2d standard, injustice. in an This is because the ruling a trial court’s ed Under deni- hardship long imposed parents, “will so reasonable upheld a result of the disagree can propriety minds as to al present 42 and failed to Eldridge, presented decision made.” S.W.3d at 85 facts Therefore, Scott, find I no (Tenn.2001)(eiting v. 33 S.W.3d to Harris. State Gilliland, (Tenn.2000), 22 of the trial court’s 746, 752 v. error with extent State (Tenn.2000)). 266, resulting decision on No- A trial S.W.3d its discretion when it reaches vember abuses is against logic decision which or reason passed Eleven weeks before ing injustice party to the that causes inform the court chose to Eldridge, at 85 complaining. S.W.3d That occasion was retained 243, 247 (citing Shirley, State v. 6 S.W.3d trial, 11, 2004, a morning February (Tenn.1999)). (18) eighteen witnesses had been for which gave no testify. majority opinion correctly notes summoned morning until the waiting the entitlement to excuse ap- or indi- trial to make their second merely a matter of income *9 of Chil- Department The complex question pointed It of counsel. gency. is a more request objected to the late sufficient drens’ Services litigant possesses the whether counsel, would have for which pay compensation reasonable means trial, delay a contend- attorney. necessitated competent the of a See services ing parents the ing could have and should prove parents approached have the only two Davies, filed their motion earlier. attorneys over an period. eleven-week trial, who was to preside agreed over the The from Legal provides letter Aid the and denied the motion. the concerning of author how im-
Waiting morning portant until the of trial it was parents was for the to obtain yet parents’ many another the irrespon- of counsel; however, parents’ the af- conduct Moreover, sible acts and omissions. when receiving ter the benefit of this advice was parents sought the the of days wait until two prior the trial trial, counsel on the morning they of sub- letter, attorney.3 contact one The other mitted affidavits on the same form used only from private practice eleven weeks earlier. This time each par- parents attempted to retain during the ent a child support obligation disclosed weeks, critical nothing eleven confirmed week, per H. $55 David disclosed an they more than the late date contacted the expense insurance per week. No $60 requirements.4 and his fee The explanation given was for the new disclo- two letters and presented by facts why they sures or not previously parents morning on the of trial establish Moreover, disclosed. is there no indication little than proof pattern other ne- newly disclosed expenses were in- glectful, indeed, irresponsible conduct con- curred request since the first for appointed very matter, cerning important legal considering After the belated rights responsibilities parents second counsel, request children. Judge Davies advised that he would not go behind previous deny decision to only aspect The parents’ belated request. Although expressly it was not second request appointed counsel de- stated, appears it applied serving of second assessment was the judicata along doctrine of with res a little fact retained counsel judicial deference. them, represent morning and it was the only “new” presented facts with the fact, however, important trial. That second were letters from two at- was undermined parents’ failure torneys confirming had made make retain reasonable efforts to attempts unsuccessful to retain coun- negated which the contention did not during sel preceding eleven weeks. possess pay sufficient means to reasonable prove The new facts little more than the compensation the services of an attor- minimal efforts made dur- ney. failure to establish ing the eleven weeks their request since made retain reasonable efforts to for appointed counsel had been denied. non-indigent away since found being took Moreover, support these facts do little to any justifiable basis to contend the trial claim of reasonable to retain coun- efforts conduct contrary, inqui- sel. To should a second “due the letters combined with ry.” at the statements hear- attorney's
3. February Perry letter Although County was dated blessed with began February attorneys, and the abundance there are other 11. There attorneys available to matters handle such as suggest no evidence in the record to the letter Moreover, counties, adjoining this. Hick- subsequent to the date the con- Lewis, man, Humphreys, offer a more attorney. tacted the attorneys adequate supply regu- than who larly practice Perry County. in the courts *10 necessitated, eigh- especially realizing It be further noted the trial court should waiting wings.5 in the teen witnesses were dealing litigants. uneducated was not with contrary, H. well educat- To the David was deny to Judge of The decision Davies ed; Degree possessed he an Associate’s request appointed for belated second the Mary operator, as a and worked crane of subject the same standard counsel to Fur- a clerk. employed Ellen H. was as Judge of the earlier decision review as thermore, parents not unaccus- that he Harris I am unable conclude record proceedings. tomed to by denying re- his discretion abused long history parents indicates the contin- counsel and quest pertain- problems hearings and court legal appointment trial that an uance children in South Carolina and ing To con- counsel would necessitate. Tennessee. I minds could trary, submit reasonable the decision propriety to the disagree as our courts be hesitant Although should appointed counsel deny deprive person right Moreover, I am of trial. also morning exists, right the trial court where such the decision resulted unable conclude must afforded the latitude balance before, as, injustice hardship like those rights with was the direct imposed on interest in fair public’s children diligence lack of result of their own judicial Delays proceedings. and efficient Therefore, I retain counsel. attempting to irresponsible such those necessitated no with the extent of trial find error litigants who seek continuances on resulting and the decision court’s kept trial to a mini- morning of should be 21, 2003. on November Moreover, irresponsible litigants, mum. I affirm the deci- Accordingly, would included, not be should Judge Harris and Davies sions of irresponsible for their rewarded acts deny requests justifiable pro- omissions. No reason was until waiting vided these days before trial contact an attor-
ney practice waiting or until the private of trial to seek
morning
counsel and continuance it would have children, neighbors Eighteen during testified the two- the three older witnesses workers, day including acquaintances parents. six social one children, custody the families that had