In Re Grayson H. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 3, 2014 Session
IN RE GRAYSON H.
Appeal from the Juvenile Court for Knox County
No. 19372 Timothy E. Irwin, Judge
No. E2013-01881-COA-R3-PT-FILED-APRIL 14, 2014
This is a termination of parental rights case, focusing on Grayson H., the minor child
(“Child”) of Steven H. (“Father”) and Jessica L. (“Mother”). The Child was taken into
protective custody by the Tennessee Department of Children’s Services (“DCS”) on March
9, 2012, following Father’s incarceration and Mother’s subsequent arrest. Mother’s parental
rights to the Child were terminated in a separate proceeding. On October 17, 2012, DCS
filed a petition to terminate the parental rights of Father. Following a bench trial held on July
11, 2013, the trial court granted the petition upon its finding, by clear and convincing
evidence, that (1) Father had abandoned the Child by showing wanton disregard for the
Child’s welfare and (2) the conditions causing the removal of the Child into protective
custody persisted. The court further found, by clear and convincing evidence, that
termination of Father’s parental rights was in the Child’s best interest. Father has appealed.
Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., C.J., and D. M ICHAEL S WINEY, J., joined.
Bradley D. Sherman, Knoxville, Tennessee, for the appellant, Steven H.
Robert E. Cooper, Jr., Attorney General and Reporter, and Ryan L. McGehee, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
OPINION
I. Factual and Procedural Background
The Child had been removed from parental care and placed in protective custody on
two separate occasions, the first occurring one week following the Child’s birth in July 2010.
DCS caseworker Marquita Andrew testified that the Child first came into protective custody
after both he and Mother tested positive for oxycodone at the Child’s birth. Upon the first
removal, Father told the caseworker that he could not care for the Child, and the Child was
placed with the maternal grandparents. Father participated in the creation of a permanency
plan and subsequently complied with the requirements of that plan. Upon DCS’s motion, the
trial court ordered the Child placed with Father for a trial home visit on November 19, 2010.
As the trial home visit proved successful, the trial court subsequently awarded custody to
Father on February 28, 2011. In its order awarding custody to Father, the trial court
stipulated that Mother was to enjoy only supervised visitation and was not to be permitted
overnight contact with the Child.
One year after Father had obtained custody of the Child, Father was arrested on
November 30, 2011, and charged with aggravated kidnapping and robbery in relation to an
incident that occurred on August 26, 2011. Mother was present at the time of the arrest, and
according to DCS personnel, law enforcement officers permitted Mother to take custody of
the Child. Father did not inform the officers that Mother was not allowed unsupervised
visitation. He testified at trial that Mother had left the scene of his arrest before the officers
transported him to jail and that he believed a family friend had taken care of the Child.
Father remained incarcerated from November 30, 2011, through at least March 28,
2012, without notifying DCS of the situation. DCS became aware of Father’s incarceration
when Mother was arrested on March 8, 2012, and charged with possession of a schedule two
drug, as well as driving on a revoked license. At the time of Mother’s arrest, law
enforcement was called to investigate because Mother had parked in a stranger’s driveway,
believing it to be the driveway of Father’s home, where she apparently had been living.
According to Ms. Andrew, Mother was disoriented and admitted to police officers that she
had taken Xanax. The officers searched Mother’s car and found methadone and morphine.
Mother also ingested pills, later identified as Soma tablets, during the process of the arrest.
Law enforcement officers contacted DCS because the Child was in Mother’s car at the time
of Mother’s arrest. Although the Child’s maternal grandfather cared for the Child
immediately following Mother’s arrest, he informed DCS that the maternal grandparents
were no longer in a position to care for the Child for an extended period of time. DCS placed
the Child in a non-kinship foster home and petitioned the trial court for an emergency
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protective custody order, which the court granted on March 14, 2012, nunc pro tunc to March
9, 2012.
On May 7, 2012, Father pled guilty to one count each of robbery, see Tenn. Code Ann.
§ 39-13-401 (2010), and aggravated assault, see Tenn. Code Ann. § 39-13-102 (Supp. 2011),
both Class C felonies. Ms. Andrew testified that DCS records showed that Father had been
temporarily released from confinement on March 28, 2012. Father testified that criminal
court records erroneously showed a March 28, 2012 release and that he actually was not
temporarily released until the hearing at which he pled guilty on May 7, 2012. It is
undisputed that Father spoke with Ms. Andrew only once in May 2012 regarding the custody
situation with the Child, although Father asserted at trial that he attempted to call DCS
personnel several times.
Certified copies of the judgments entered against Father by the Knox County Criminal
Court, admitted as exhibits during the termination proceedings, demonstrate that on July 27,
2012, Father was sentenced as a multiple offender. His sentence included two eight-year
periods of incarceration to be served concurrently and at a minimum of 35% before he would
become eligible for parole. The Court of Criminal Appeals subsequently affirmed Father’s
sentence, and a slip copy of that decision was also admitted as an exhibit during the
termination proceedings. See State v. Steven [H.], No. E2012-01597-CCA-R3-CD, 2013 WL
593424 at *5 (Tenn. Crim. App. Feb. 14, 2013) (concluding that the trial court did not err by
denying Father a sentence of community corrections). Father testified at trial in the instant
action that he would be eligible for parole eighteen months following the termination
proceedings, or specifically in January 2015.
Following a hearing conducted on August 23, 2012, the trial court adjudicated the
Child as dependent and neglected as to both parents and entered a written order to that effect
on October 1, 2012, nunc pro tunc to August 23, 2012. In the same order, the court denied
a petition for custody filed by the maternal grandparents. At the time of parental rights
termination proceedings, the Child was in a pre-adoptive home and had been situated there
since May 2012, two months after he was taken into protective custody. Ms. Andrew
testified that the Child was well adjusted in the pre-adoptive home and that he was
identifying the foster parents’ other children, including two biological children, one adopted
child, and one other foster child, as his brothers and sisters.
On October 17, 2012, DCS filed its petition seeking termination of Father’s parental
rights on the statutory grounds of abandonment by wanton disregard for the welfare of the
Child, see Tenn. Code Ann. §§ 36-1-102(1)(A)(iv) (2010), 36-1-113(g)(1) (Supp. 2013), and
persistence of conditions that led to the Child’s removal into protective custody, see Tenn.
Code Ann. § 36-1-113(g)(3). DCS sought termination of Mother’s parental rights in a
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separate petition, which the trial court granted prior to trial in the instant action. In
December 2012, Father wrote and transmitted to the trial court a letter requesting
appointment of counsel. On December 12, 2012, the court appointed attorney Gregory
Bennett to represent Father, who had been represented by other appointed counsel during the
dependency and neglect proceedings. Attorney Heidi Wegryn was appointed and remained
the Child’s guardian ad litem (“GAL”) throughout both the dependency and neglect and
parental rights termination proceedings.
Trial was continued twice by the court, once in March 2013 and once in April 2013,
due to problems with transportation for Father from his prison facility in West Tennessee to
court in Knoxville. When trial was reset for July 11, 2013, the trial court concomitantly
issued an order of transportation for Father. Father declined the transportation, however, and
requested through his counsel that the court order the transportation stopped. The court
granted Father permission to participate telephonically with his counsel present in the
courtroom. At the beginning of trial, Father telephonically requested another continuance,
stating that he was without legal materials he had researched because those materials had
been lost when his transportation to court was stopped midway and he was returned to prison.
The trial court denied Father’s request and proceeded with trial.
During DCS counsel’s direct examination of the first witness, Father interrupted
telephonically to state that he was not comfortable continuing the trial with his appointed
counsel’s representation. The trial court permitted Father to explain his concern and allowed
him time to consult with Attorney Bennett in open court. The court explained to Father,
however, that if it relieved Mr. Bennett of his responsibility to represent Father, the court
would not appoint Father new trial counsel. Father asked the court if it would continue the
trial to allow Father an opportunity to retain other counsel. The trial court treated Father’s
request as a second oral motion for continuance. Upon consideration of the case’s procedural
history, the court denied the second oral motion as well. Father elected to proceed with Mr.
Bennett acting as his counsel.
At the close of trial, the court found, by clear and convincing evidence, that (1) Father
had abandoned the Child by showing wanton disregard for the Child’s welfare and (2) the
conditions causing the removal of the Child into protective custody persisted. The court
further found, by clear and convincing evidence, that it was in the best interest of the Child
to terminate Father’s parental rights. In its final judgment, entered July 18, 2013, the trial
court delineated the following findings of fact and conclusions of law in pertinent part:
[T]he Court finds that [Father] was incarcerated when this petition was filed
and that, prior to his incarceration, [Father] engaged in conduct which exhibits
a wanton disregard for the welfare of the child. The Court has very little
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difficulty making that finding. [Father] was his son’s sole custodian. He
committed a violent criminal offense, knowing the likely consequences would
be incarceration. He refused to make bond and failed to take any steps to
ensure the child had an appropriate caretaker during his months of pre-trial
incarceration. Then, when [he] was released prior to sentencing, he used
drugs–both before a hearing in this Court and before a sentencing hearing–the
Court doesn’t think a parent’s conduct can get any more wanton than that.
As to persistence of conditions, this child was removed from [Father’s]
custody because he had ignored his son’s welfare and failed to make any
arrangements for the child’s care when he became unavailable. He engaged
in magical thinking, believing that somebody would just step in and take care
of Grayson; believing that a guilty plea would lead to automatic restoration of
his son; and now believing that eligibility for parole in 18 months means he
will walk out of prison in 18 months. This Court has heard all sorts of stories
about parole and has sat in many of those meetings. Parole in 18 months is not
a certainty and 18 months, in the life of a child, is not an early date. It’s a long
time. [Father] left this child without a suitable caregiver. He then made
decisions that continued to leave the child without a suitable caregiver. That
has not changed.
Upon those facts, the Court finds that the child has been removed by
order of this Court for a period of six (6) months; the conditions which led to
his removal still persist; other conditions persist which in all probability would
cause the child to be subjected to further abuse and neglect and which,
therefore, prevent the child’s return to the care of [Father]; there is little
likelihood that these conditions will be remedied at an early date so that this
child can be returned to [Father] in the near future; the continuation of the
legal parent and child relationship greatly diminishes the child’s chances of
early integration into a stable and permanent home.
[Conclusions of Law]
[Father] has not made such an adjustment of circumstance, conduct, or
conditions as to make it safe and in the child’s best interest to be in his home
despite reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear possible.
Due to his own conduct, he has not been able to maintain regular visitation or
other contact with the child and any relationship that may once have existed
has been extinguished by his absence. A change of caretakers and physical
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environment is likely to have a detrimental effect on the child’s emotional and
psychological condition. [Father] has shown neglect and wanton disregard
toward this child. He is currently incarcerated, without a healthy and safe
physical environment to offer the child. Prior to his incarceration, he engaged
in criminal activity and in such use of alcohol or controlled substances as may
render [Father] consistently unable to care for the child in a safe and stable
manner.
[Father] has been sentenced to a term of eight (8) years imprisonment.
This child was barely two years old on the date of sentencing. The Court of
[A]ppeals has previously held that “a parent who is incarcerated for a period
of ten or more years when the child is eight years old or younger will be
completely unavailable to care for the child for the majority of his childhood.
For a child who is in foster care, failing to terminate the incarcerated parent’s
parental rights means that the child will spend his childhood in foster care,
with no permanent home. . . Thus, for a child whose parent is incarcerated for
ten years [or] more when the child is young, there need be no further evidence
that substantial harm results to the child from that parent’s total inability to
care for him.” In Re: Marr, [M2001-02890-COA-R3-CV], 2003 WL 152640
[at *12] (Tenn.Ct.App., January 23, 2003).1 The circumstances of this case
would result in a similar period of limbo for this child.
The mother’s parental rights have been terminated by prior order of this
Court.
The Department of Children’s Services has made reasonable efforts
toward achieving permanency for this child.
The child is entitled to a safe, secure and loving home. He is thriving
and advanced in his development in the care of his foster parents. He has the
opportunity to achieve permanency through adoption and he needs permanency
now. He has moved enough through his short lifetime. The factors this court
must consider are overwhelmingly in favor of termination and adoption.
It is, therefore, in the best interest of Grayson [H.] and the public that
all of [Father’s] parental rights to this child be terminated and the complete
custody, control, and full guardianship of the child be awarded to the State of
1
In re Marr was reversed on unrelated procedural grounds by Osborn v. Marr, 127 S.W.3d 737, 741
(Tenn. 2004) (declining to reach the merits of the action due to the petitioner’s lack of standing).
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Tennessee, Department of Children’s Services, with the right to place him for
adoption and to consent to such adoption in loco parentis.
(Paragraph numbering omitted; emphasis in original.)
Acting through his trial counsel, Father timely appealed. Contemporaneously with
the notice of appeal, Mr. Bennett moved to be allowed to withdraw from representation of
Father, citing Father’s stated lack of confidence in his representation at trial and a potential
conflict of interest if Father were to argue ineffective assistance of counsel on appeal. The
trial court allowed Mr. Bennett to withdraw and subsequently appointed Father’s appellate
counsel.
II. Issues Presented
On appeal, Father presents two issues, which we have restated as follows:
1. Whether the trial court erred by denying Father a continuance during trial.
2. Whether Father received such ineffective assistance of counsel during the
proceeding to terminate his parental rights as to constitute denial of his right
to counsel.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586, 597 (Tenn. 2010). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying
such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
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App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982)). As our Supreme Court has instructed:
In light of the constitutional dimension of the rights at stake in
a termination proceeding under Tenn. Code Ann. § 36–1–113,
the persons seeking to terminate these rights must prove all the
elements of their case by clear and convincing evidence. Tenn.
Code Ann. § 36–1–113(c); In re Adoption of A.M.H., 215
S.W.3d at 808–09; In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The purpose of this heightened burden of proof is to
minimize the possibility of erroneous decisions that result in an
unwarranted termination of or interference with these rights. In
re Tiffany B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005). Clear and
convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, In re Audrey S.,
182 S.W.3d 838, 861 (Tenn. Ct. App. 2005), and eliminates any
serious or substantial doubt about the correctness of these
factual findings. In re Valentine, 79 S.W.3d at 546; State, Dep’t
of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447
(Tenn. Ct. App. 2008).
In re Bernard T., 319 S.W.3d at 596.
IV. Denial of Motions for Continuance
Father contends that the trial court erred by not granting him a continuance on July
11, 2013, for the trial set that day. DCS contends that the trial court did not abuse its
discretion in denying Father’s motions for continuance, particularly considering the previous
continuances granted to Father in the instant action and the Child’s high-priority right to
completing a termination of parental rights proceeding without unnecessary delay. We agree
with DCS.
“The granting or denial of a motion for continuance lies in the sound discretion of the
court. The ruling on the motion will not be disturbed unless the record clearly shows abuse
of discretion and prejudice to the party seeking a continuance.” In re Zacharias T.M., 403
S.W.3d 212, 224 (Tenn. Ct. App. 2012) (quoting Tenn. Dep’t of Children’s Servs. v. V.N.,
279 S.W.3d 306, 317 (Tenn. Ct. App. 2008) (in turn quoting Blake v. Plus Mark, Inc., 952
S.W.2d 413, 415 (Tenn. 1997))). Our Supreme Court has explained that a “trial court abuses
its discretion only when it applie[s] an incorrect legal standard, or reach[es] a decision which
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is against logic or reasoning that cause[s] an injustice to the party complaining.” Eldridge
v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247
(Tenn. 1999)). As relevant to this issue, Tennessee Code Annotated § 36-1-124 (2010)
provides:
(a) In all cases where the termination of parental rights or adoption of a child
is contested by any person or agency, the trial court shall, consistent with due
process, expedite the contested termination or adoption proceeding by entering
such scheduling orders as are necessary to ensure that the case is not delayed,
and such case shall be given priority in setting a final hearing of the
proceeding and shall be heard at the earliest possible date over all other civil
litigation other than child protective services cases arising under title 37,
chapter 1, parts 1, 4, and 6.
...
(c) It is the intent of the general assembly that the permanency of the
placement of a child who is the subject of a termination of parental rights
proceeding or an adoption proceeding not be delayed any longer than is
absolutely necessary consistent with the rights of all parties, but that the rights
of the child to permanency at the earliest possible date be given priority over
all other civil litigation other than child protective services cases arising under
title 37, chapter 1, parts 1, 4 and 6.
At the beginning of trial in the instant action, the trial court addressed the reasons for
Father’s absence and for the court’s grant of Father’s request to participate telephonically,
stating:
This is an unusual set of facts in that an order of transportation was
signed to arrange to bring the father to court. After that order was signed, the
father declined to come to court and asked this Court through his attorney to
stop the transportation. It’s well known to this Court and well known to the
various participants here that when a person in prison leaves and goes
somewhere else, he stops accruing what is known as good time. And good
time gets you credit to get out a little earlier than you would if you didn’t have
good time.
When a person has to travel from Northwest Correctional Complex in
Tiptonville, Tennessee to Knoxville, they don’t just lose the day, they might
travel two or three days to court and then they sit in court, have their hearing
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and then they go back to Maloneyville Road and they wait on the next
transport going that way. It could be a day, it could be a week, so it could be
several days that [Father] would have lost by coming to court. I’m trying to
lay this out very carefully for the record because I expect we might need it.
Now, [Father]’s attorney has asked this Court to attempt to contact
[Father] by telephone for the purpose of allowing him to participate in this
hearing. Sometimes we’re successful, sometimes we’re not. But we’re going
to have this hearing in just a minute whether we’re able to reach [Father] or
not. I want all of that on the record.
Any objection to what I’ve put on the record thus far? Does that seem
accurate, Mr. Bennett?
Mr. Bennett: Your Honor, may I make a proffer of fact –
The Court: Yes.
Mr. Bennett: –as it related to his transport?
The Court: Yes.
Mr. Bennett: My understanding is that it dealt with more than just
good time. [Father] has a job while he’s in prison, that if
he were to be transported and miss too many days of that
job through the transport, he would lose the job.
The Court: I understand.
Mr. Bennett: His parole requires that he have the job. And so, in
essence, via transport, he was risking his very
opportunity for parole.
The Court: I understand your client’s position and I understand the
need of the children in this Court to have timely hearings
and establish permanency and I’ll balance those two
interests as best I can through the remainder of this
proceeding.
The transcript indicates that the trial court reached Father by telephone upon its first
attempt. Father participated in the proceeding by speaker phone. The following exchange
then occurred:
The Court: We attempted to transport you and were notified by your
attorney that you did not wish to be transported, so we
stopped the transport at your request; is that correct?
[Father]: Yeah, that’s correct.
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The Court: All right. And we made it available to you –
[Father]: Exactly – it didn’t exactly work the way it was supposed
to. He put in to stop the transport a month or so ago and
they actually transported me halfway to Knoxville
Tuesday, during which time they lost some of my
property which included all of the stuff I had researched
in the law library for this case today.
The Court: Well, we got you back where your – we got you back
where you wanted to go. I did the best I could. I
received the order at 8:00 that morning and I acted on it
very quickly. That’s all I can tell you.
[Father]: At this time, though, due to the fact that they lost my
property which, you know, included what I built up for
this case, I’m not prepared to go forward today.
The Court: All right. You’ve made your record and the Court
respectfully, is going to inform you we’re going forward
anyway.
Father moved a second time for a continuance after interrupting direct examination
of DCS’s first witness. Father expressed his concern, to be addressed in a subsequent section
of this opinion, that his appointed counsel was not adequately prepared for trial. As pertinent
to Father’s second oral motion for continuance, the following exchange occurred:
[Father]: Okay. This next question I have for Your Honor, will
make the decision for me immediately. If I choose to try
and acquire my own private counsel, pay for them, will
I be granted that opportunity and given a continuance?
Because if that’s not going to be granted to me, then I see
no point in attempting it. However if you will grant me
that opportunity and you give me adequate time to do so,
then I feel that I would very much like that chance.
The Court: Let’s review the procedural history in this case before I
rule on that motion for a continuance and I’ll treat it as
an oral motion for continuance.
This case was originally set when, does anybody know?
[DCS Counsel]: It was filed on October 17th of 2012, Your Honor.
The Court: October 17th, 2012.
[DCS Counsel]: And it was set for the first time on December 18th of
2012.
The Court: It was set then on December 18th, 2012.
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[DCS Counsel]: There was an application for counsel and a contested trial
date and this is the third trial date.
The Court: All right. When was the first one?
[DCS Counsel]: I’m not sure I have that information.
The Court: The first trial wasn’t held because the respondent
prisoner wasn’t transported; is that correct?
[DCS Counsel]: That’s correct, Your Honor.
The Court: That was the second setting.
[DCS Counsel]: I think that was both settings, Your Honor.
The Court: Both settings.
[DCS Counsel]: Right.
The Court: So he was not transported. So then he was arranged to be
transported for this setting and he cancelled his transport
after it had begun.
[DCS Counsel]: That’s correct.
The Court: The first was March 26th of 2013, and the next setting
was April 23rd of 2013, and now we’re into July and
he’s cancelled his – he’s effectively, through his attorney,
has cancelled his order of transport and wishes to
participate by phone. Now he wishes to have a
continuance to retain his own counsel, yet he didn’t offer
any objection to Mr. Bennett in March or April. Now
that we’re down to it, he offers an objection to Mr.
Bennett’s service, I’m not going to grant –
[Father]: I didn’t have an option to object in March or April, Your
Honor.
The Court: We have a writing from you.
[Father]: I’m sorry, what?
The Court: We have writings from you where you answered and
asked for an attorney. There’s no other correspondence
from the Courts since that initial, so I’m denying your
request for a continuance.
Now, do you want Mr. Bennett to continue or do you
want to go without an attorney?
[Father]: No, we’ll continue on then, Your Honor.
Pursuant to Tennessee Rule of Juvenile Procedure 17(b), a juvenile court may direct
a case to be continued “[u]pon good cause being shown.” Father argues that considering his
position as an inmate housed in West Tennessee, he submitted his request “as soon as
practical,” pursuant to the applicable local rule. See Knox County Juv. Ct. Local R. 10 (“All
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Motions for Continuance shall be made as soon as practical before the trial date and must be
approved by the Court.”). He further argues that the trial court “summarily dismissed” his
concerns regarding unpreparedness for trial and insufficient representation without proper
consideration or explanation. We disagree.
The trial court in the instant action had previously granted two continuances, one in
April 2013 and one in May 2013, due to difficulties in arranging Father’s transportation from
a prison facility in West Tennessee to the Knox County court. For the date of trial on July
11, 2013, Father’s transportation was successfully arranged but was aborted at Father’s
request. Although Father’s counsel presented reasons for Father’s decision not to be
transported as concern regarding missed good-time credit and prison employment, Father
later testified during trial that his only reason for cancelling the transportation was his
concern that he would not be able to emotionally withstand seeing the Child taken from him
during a court hearing. The trial court granted Father’s motion to participate telephonically.
The transcript demonstrates that the court afforded Father ample opportunity to be heard and
positioned other witnesses in the courtroom so that Father could hear them.
As the trial court noted, it was confronted with the task of balancing Father’s requests
for a continuance against the Child’s paramount need for expedited proceedings and
permanency of placement. See Tenn. Code Ann. § 36-1-124(c); In re Zacharias T.M., 403
S.W.3d at 225 (concluding that the trial court did not abuse its discretion by denying the
mother’s motion for continuance when the mother failed to produce documentation of a
medical emergency that she claimed prevented her from appearing, particularly considering
“our General Assembly’s clear directive regarding expediting contested parental termination
proceedings”). Moreover, Father has failed to prove prejudice to his case due to the denial
of a continuance. See In re Zacharias T.M., 403 S.W.3d at 224-25. We find it difficult to
envision how Father’s cause could have been furthered by the legal research he claimed to
have lost during the aborted transportation attempt. As we will address more fully in a
subsequent section of this opinion, the evidence also does not support Father’s assertion that
his case was prejudiced by his appointed counsel’s representation. The undisputed facts of
this case support the trial court’s finding, by clear and convincing evidence, that Father
abandoned the Child by showing wanton disregard for the Child’s welfare when Father
committed acts that led to his incarceration and when he subsequently failed to provide for
the Child’s safety and stability during that incarceration. Father is not entitled to relief on
this issue.
V. Ineffective Assistance of Counsel Claim
Father contends that he received such ineffective assistance of counsel at the trial
court level as to constitute a denial of his right to counsel. While the right to counsel in a
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parental rights termination proceeding is provided by Tennessee Rule of Juvenile Procedure
39(e)(2), there is no controlling precedent for this Court to recognize ineffective assistance
of counsel as a theory for relief in such a proceeding. See In re S.D., No. M2003-02672-
COA-R3-PT, 2005 WL 831595 at *15 (Tenn. Ct. App. Apr. 8, 2005) (explaining that
Tennessee appellate courts “are not required to determine whether due process requires not
just appointment of counsel in termination cases, but effective performance of counsel.”).
We conclude that the instant action is not an appropriate one for consideration of establishing
a protected right to effective assistance of counsel in parental rights termination cases.
“Under the United States Constitution, parents do not have an absolute right to
counsel in termination of parental rights proceedings.” In the Matter of Valle, 31 S.W.3d
566, 571 (Tenn. Ct. App. 2000) (citing Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 18
(1981)). Noting, however, that a parent’s interest “‘undeniably warrants deference, and,
absent a powerful countervailing interest, protection,’” the United States Supreme Court in
Lassiter described a balancing test to be considered when a court assesses the risk of such
a proceeding violating a parent’s due process rights if the parent is not represented by
counsel. Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 27 (1981) (quoting Stanley v.
Illinois, 405 U.S. 645, 651 (1972)); see also State ex rel. T.H. by H.H. v. Min, 802 S.W.2d
625, 626 (Tenn. Ct. App. 1990) (“[T]he parental right to raise one’s children is a fundamental
liberty protected by the due process clause of the fourteenth amendment.”).
In 1984, the Tennessee Supreme Court and General Assembly adopted the Tennessee
Rules of Juvenile Procedure, providing what this Court has held to be “minimum
requirements which the trial court must follow when a parent appears at a termination
hearing without an attorney.” See In the Matter of Valle, 31 S.W.3d at 572 (quoting State,
Dep’t of Human Servs. v. Taylor, No. 03A01-9609-JV-00286, 1997 WL 122242 (Tenn. Ct.
App. Mar. 19. 1997)). Pursuant to Tennessee Rule of Juvenile Procedure 39(e)(2), the trial
court must inform any party to a parental rights termination proceeding who appears at an
adjudicatory hearing without counsel of that party’s right to counsel and in the case of an
indigent respondent, the right to court-appointed counsel. In addition, to proceed at trial, the
petitioning party must affirmatively show that an incarcerated parent or guardian has received
notice that a court-appointed attorney will be provided if the parent or guardian is indigent.
Tenn. R. Juv. P. 39(b)(2)(D)(i).
In the case at bar, Father was appointed attorney Bennett upon Father’s request for
counsel submitted to the trial court in December 2012. Father acknowledges that Mr.
Bennett contacted him at least twice in preparation for trial and worked with him to acquire
and subsequently cancel, at Father’s request, transportation from prison to the parental rights
termination proceeding. To support his position that he should receive relief for ineffective
assistance of counsel, Father notes that he voiced misgivings at trial about his counsel’s
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representation and attempted to have Mr. Bennett relieved early in the proceedings that day.
Subsequent to the trial court’s denial of Father’s first oral motion for continuance and a few
minutes into DCS’s direct examination of its first witness, the following exchange occurred:
[Father]: Your Honor, sir?
The Court: Yes. I’m a little uncomfortable with you talking to me.
What I would like for you to do if you want to speak is
say I have something I need to say, have my attorney
come to the phone.
[Father]: That’s what I was about to ask is how do I confer with
my attorney?
The Court: Right now, I’m going to let you.
[DCS Counsel]: Do you want us to leave?
The Court: No, you’re not going to leave. He’s the one that chose to
have this this way. So he’s going to have to live with the
consequences. I can’t keep cutting you off and redialing
and putting you on – it’s too difficult a procedure to get
you back. So go ahead.
Mr. Bennett: [Father]?
[Father]: Yes.
Mr. Bennett: Is it something you can tell me in open court?
[Father]: I’m sorry, what?
Mr. Bennett: Is this something you can discuss with me in open court?
[Father]: I prefer not to.
The Court: Then you’re not going to get to discuss it then. We’ve
only got you on one phone line, it’s a speaker phone and,
you know, have at it, [Father]. You’re the one wanting
to do it this way, you’ve got to live with the limitations.
[Father]: Then I guess we can discuss in open court. Mr. Bennett,
I prefer – I hope you do not take offense to this, it’s not
how I intend it, but I wanted to know if there’s a way to
– I can’t believe I’m saying this, but relieve you as my
counsel and perhaps try and acquire another attorney,
because I just honestly feel that you’ve not represented
my best interest up to this point. We’ve spoke twice not
about the case whatsoever. I have – you know, I just
don’t feel like I’m being adequately represented. This is
very, very important to me. This is my son. He means
the world to me and I can’t not voice this, is what I’m
trying to get at.
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Mr. Bennett: That is a matter you probably need to address in open
court and the judge heard what you said and it will be his
decision.
[Father]: We have –
The Court: Hold on a minute.
[Father]: – no witnesses, there’s nobody that I can call, there’s
nothing. It’s just me sitting here and you objecting when
you feel the need to object, but I don’t think you know
very much about the situation or the case and given
what’s at stake here, I feel that I need someone that’s
more prepared.
The Court: Here are your choices, sir. You can go with Mr. Bennett,
you can represent yourself. You can ask this Court to
grant you a continuance so you can hire a private counsel
and I can rule on that, but if you get rid of Mr. Bennett,
you will not be appointed another counsel by this Court.
Do you understand?
[Father]: Okay.
The Court: That’s your choices. So you decide what you want to do.
If you want to ask me for a continuance, I’ll rule on that.
You can tell me why on the record and I’ll do everything
I can to protect your rights on appeal. So if you want to
ask for a continuance so that you can retain counsel, I’ll
consider that request.
[Father]: Okay. Your Honor, my next question to you would be if
by some means I cannot find counsel that, you know, that
I can afford, what happens then? Does it fall back on me
representing myself?
The Court: I have given you in the Court’s eyes, very competent,
very experienced counsel. He’s handled dozens of these
cases, has appeared in the Court of Appeals, appeared in
this Court many times with varying degrees of success,
has represented his clients zealously and admirably. Mr.
Bennett lives in Knoxville –
Mr. Bennett: Sevier County.
The Court: Sevier County, I’m sorry, and you are placed very far
away. And if he’s contacted you twice in preparation for
this without getting into specifics, the Court is satisfied
with that. So you can either go with Mr. Bennett or make
a motion that you wish to hire your own counsel and I’ll
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consider that, or you can go alone. You may not get your
motion to continue granted. You haven’t made one, it’s
not before the Court.
As noted previously, Father elected to continue with Mr. Bennett as counsel. A few
minutes following the above exchange and before cross-examination of DCS’s first witness
was completed, the trial court allowed Father approximately five minutes to consult privately
with Mr. Bennett while all others, including the trial judge, left the courtroom. Mr. Bennett
continued to represent Father throughout the proceedings, and from all indications in the
record, he did so zealously. Counsel then filed a timely notice of appeal on Father’s behalf
contemporaneously with his motion for withdrawal of representation.
In support of his argument that this Court should consider the theory of ineffective
assistance of counsel, Father relies on In re M.E., No. M2003-00859-COA-R3-PT, 2004
WL1838179 (Tenn. Ct. App. Aug. 16, 2004). This Court reversed the termination of the
father’s parental rights in In re M.E. upon determining that the trial court had erred by failing
to appoint substitute counsel to represent the father after his retained counsel “disappeared.”
Id. at 15. The father in In re M.E. attempted to retain counsel, but his retained counsel
appeared for only slightly more than two days out of six full days of trial and left the father
without representation for “major aspects of the trial,” including testimony of the children,
the children’s mother, and the father himself, as well as such key facets of representation as
closing arguments. Id. at 14-15. As DCS notes, In re M.E., did not establish a theory of
ineffective assistance of counsel in parental rights termination cases in Tennessee. Instead,
this Court determined that the essential disappearance of the father’s retained counsel in that
case was equivalent to no counsel at all. Id. at 15 (“The foregoing analysis of the
performance, or lack thereof, of Father’s attorney reveals that it was so inadequate it was
equivalent to Father having no attorney.”).
The facts surrounding Mr. Bennett’s representation of Father in the instant action are
highly distinguishable from those in In re M.E. Upon our thorough review of the record, we
find no indication that Father was provided with ineffective assistance of counsel. We
accordingly find no evidence in the record that Father’s case was prejudiced by the trial
court’s denial of Father’s request to substitute counsel. Father is not entitled to relief on this
issue.
VI. Grounds for Termination of Parental Rights and Best Interest of the Child
Father does not raise as issues on appeal the grounds upon which the trial court
terminated his parental rights or the court’s finding that termination of those rights was in the
best interest of the Child. Because of the significance of these issues, however, we have
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considered them on appeal. See In re Arteria H., 326 S.W.3d 167, 184 (Tenn. Ct. App.
2010). The trial court terminated Father’s parental rights on the statutory grounds of (1)
abandonment by wanton disregard for the welfare of the Child, pursuant to Tennessee Code
Annotated § 36-1-113(g)(1), and (2) persistence of conditions that led to the Child’s removal
into protective custody, pursuant to Tennessee Code Annotated § 36-1-113(g)(3).
Tennessee Code Annotated § 36-1-113(g)(1) provides, as relevant to this action:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and non-exclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred; . . .
Tennessee Code Annotated § 36-1-102(1)(A) defines abandonment, in relevant part, as:
(iv) A parent or guardian is incarcerated at the time of the institution of
an action or proceeding to declare a child to be an abandoned child, or the
parent or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding, and
either has willfully failed to visit or has willfully failed to support or has
willfully failed to make reasonable payments toward the support of the child
for four (4) consecutive months immediately preceding such parent’s or
guardian’s incarceration, or the parent or guardian has engaged in conduct
prior to incarceration that exhibits a wanton disregard for the welfare of the
child; . . .
(Emphasis added.)
Tennessee Code Annotated § 36-1-113(g)(3) provides as an additional ground for
termination of parental rights:
The child has been removed from the home of the parent or guardian by order
of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
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therefore, prevent the child’s safe return to the care of the
parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely returned
to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of early
integration into a safe, stable and permanent home; . . . .
When at least one ground for termination of parental rights has been established, the
petitioners must then prove, by clear and convincing evidence, that termination of the
parent’s rights is in the Child’s best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn.
Ct. App. 1994). When a parent has been found to be unfit by establishment of a ground for
termination, the interests of parent and child diverge, and the focus shifts to what is in the
child’s best interest. In re Audrey S., 182 S.W.3d at 877.
Following our careful and thorough review of the record, we conclude that there is
clear and convincing evidence to support the trial court’s findings that grounds to terminate
Father’s parental rights exist pursuant to Tennessee Code Annotated §§ 36-1-113(g)(1) and
(3). We further conclude that the record contains clear and convincing evidence that
termination was in the Child’s best interest. We therefore affirm the trial court’s termination
of Father’s parental rights.
VII. Conclusion
The judgment of the trial court terminating the parental rights of Father is affirmed.
Costs on appeal are taxed to the appellant, Steven H. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of the trial court’s judgment and collection of
costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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