Tennessee Supreme Court Clarifies Constitutional Rights of Parents in Termination Proceedings

January 29, 2016

In an opinion filed today, the Supreme Court held that parents’ constitutional right to fundamental fairness in termination proceedings does not require adoption of a separate procedure that allows parents to further appeal termination orders based on ineffective representation by appointed counsel.

The Court recognized that many other states have adopted such a procedure. However, the Supreme Court concluded that applying the criminal law concept of ineffective assistance of counsel claims into parental termination proceedings would have “the potential for doing serious harm to children whose lives have by definition already been very difficult.”

The Court recognized that a “parent’s right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions.” The Court pointed out, however, that the State has a special duty to protect minors, that parental rights are not absolute, and “children require secure, stable, long-term, continuous relationships with their parents or foster parents.” The Court therefore declined to adopt a procedure that could result in years of litigation regarding parental rights, explaining that such a procedure could cause “immeasurable damage” to children.

The Court emphasized that Tennessee already has many procedures in place to ensure parents are afforded fundamentally fair parental termination proceedings, including rigorous grounds that must be established by clear and convincing evidence before any court may terminate parental rights.

To supplement these existing procedures, the Court imposed an additional safeguard in today’s ruling and held that, in an appeal from an order terminating parental rights, the Court of Appeals must consider whether the evidence supports the trial court’s findings as to all the grounds for termination alleged and as to the best interests of the child, even if the parent fails to challenge these findings on appeal. Typically on appeal, only those issues raised when the appeal is filed may be considered by the appellate court.

In this case before the Supreme Court, the mother had lost custody of the child in 2005, when he was 13 months old, and had never regained full custody. The trial court found that she had last visited with the child in 2012 and had no meaningful relationship with him. The Supreme Court affirmed the trial court’s decision terminating the mother’s parental rights based on persistent poor living conditions, noncompliance with a parenting plan, and mental incompetence. The Court pointed out that the Department of Children’s Services had provided the mother with assistance and services for ten years before filing the petition to terminate her rights. Two years before the petition was filed, the juvenile court found that DCS had made “Herculean efforts” to rectify the issues that ultimately resulted in the termination of the mother’s parental rights.

Chief Justice Sharon G. Lee wrote a separate concurring and dissenting opinion, which retired Justice Gary R. Wade joined. The justices agreed that the mother in this case had received a fundamentally fair hearing and that the Court of Appeals must review all grounds for termination. They, however, would have required appointed counsel to render effective assistance of counsel in parental termination proceedingstoensure that proceedings with the effect of severing the bond between parent and child are fundamentally fair. Chief Justice Lee wrote, “in those rare situations where a lawyer makes a mistake or fails to do his or her duty to such an extent that the termination proceeding is not fundamentally fair, I favor providing the parent with an opportunity to seek relief. In my view, providing counsel for an indigent parent but not requiring counsel to render effective representation is an empty gesture.“ She further concluded that recognizing a right to effective assistance of counsel will not unduly compromise a child’s interest in finality, permanency, and safety.

Read the majority opinion in In Re Carrington H., authored by Justice Cornelia A. Clark, and the separate concurring and dissenting opinion, authored by Chief Justice Lee.