               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                  July 7, 2010 Session

                 IN RE MICHAEL C. S. & MAKANZIE A. M. S.

                  Appeal from the Juvenile Court for Cocke County
                   Nos. DC 0805, DC 0806     John A. Bell, Judge




            No. E2009-00971-COA-R3-PT - FILED OCTOBER 19, 2010


This is a termination of parental rights case. The Department of Children’s Services
concedes that it did not prove the grounds for termination of parental rights by clear and
convincing evidence. We likewise find that procedural errors were committed by the trial
court. Accordingly, the trial court’s decision is vacated.


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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J. and C HARLES D. S USANO, J R., J., joined.

Cynthia J. King, Newport, Tennessee, for the appellant, Edward C. S., III.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General;
and Elizabeth C. Driver, Senior Counsel, Nashville, Tennessee, for the appellee, State of
Tennessee, Department of Children’s Services.

J. Derreck Whitson, Newport, Tennessee, Guardian ad Litem.

                                        OPINION

                                  I. BACKGROUND

      The children at issue, Michael C. S. (d.o.b. 4/25/03) and Makanzie A. M. S. (d.o.b.
11/27/05) (“the Children”), along with three half-siblings, entered the custody of the
Tennessee Department of Children’s Services (“DCS”) on June 11, 2007. Domestic violence
was alleged and the Children were found to be living in deplorable conditions with their
mother.1 An investigator noted that “[t]he conditions of the home inside and out were unsafe
and unsanitary and the children’s welfare was in immediate danger.”

       A judge sitting by interchange entered the initial protective custody order after finding
probable cause that the children were dependent and neglected. A team meeting was held
two weeks later and permanency plans (“Plans”) were developed for each child. Father’s
responsibilities were listed as follows: (1) obtain and maintain a safe and stable home with
no safety hazards and adequate space for a minimum of three months; (2) provide adequate
supervision of the Children at all times; (3) participate in a mental health assessment to
address any identified needs, schedule the assessment by July 2, 2007, and sign releases for
DCS to obtain information from the assessment; (4) participate in a parenting assessment and
cooperate with homemaker services, and follow all recommendations; and (5) ensure that the
Children attend school regularly, and utilize available community resources, if needed. The
responsibilities were the same in both Plans. Father was present for the development of the
Plans but refused to sign until his attorney reviewed it. He did sign the form indicating that
he had received the Criteria and Procedures for Termination of Parental Rights. It is unclear
whether the initial Plans were ever ratified by the trial court.

       At a hearing on August 30, 2007, the trial court dismissed the dependency and neglect
petition as to Father, finding it devoid of clear and convincing evidence. On that same day,
however, DCS filed a new petition based upon allegations by the Children that Father had
sexually abused them. A new protective custody order was entered.

        The adjudicatory hearing on the sexual abuse allegations was held on September 27,
2007, and was taken under advisement by the trial court. After nearly eight months had
passed with no judgment, DCS filed a motion to ascertain status on May 22, 2008. On July
31, 2008, an order was finally entered, in which the trial court held that there was no clear
and convincing evidence that the Children had been sexually abused. However, the court
ruled the Children were dependent and neglected (“Upon the other evidence as contained in
the record and testimony as presented, statements of counsel and the record the (sic) as a
whole there is clear and convincing evidence established to show that the children are
dependent and neglected within the meaning of the law[.]”). A third set of Plans immediately
was ratified.2 The no contact order was not specifically lifted. No attorney for Father was


       1
       The mother of the Children is the biological mother to all five children who were residing in the
home. Her parental rights are not at issue in this appeal.
       2
           The trial court noted in this order that the parents have “moved out-of-state and have not kept in
                                                                                               (continued...)

                                                     -2-
present during the day’s events.3

       On September 17, 2008, DCS petitioned to terminate the parental rights of Father to
the Children. The grounds alleged were abandonment, substantial non-compliance with the
Plans, and persistent conditions. By this time, Father had left Tennessee, and DCS was
unable to locate him to serve him with the petition. In December 2008, the trial court ordered
that Father be served by publication.

       The trial took place on March 12, 2009. Father’s adult son (“Son”) appeared at the
hearing on Father’s behalf. He reported that Father was in Indiana, ill with pancreatitis. Son
presented a note from an Indiana physician that reflected the medical professional’s opinion
that Father should not travel long distances.4 However, the trial court refused to
acknowledge the validity of the doctor’s note. Son also presented a “power of attorney”
document to the trial court in an effort to “stand in” for Father. In regard to Son, the court
never made any inquiries about whether or not Father was represented by counsel, or was
indigent and needed appointed counsel. The court allowed Son to sit at bar for the hearing
but did not obtain a waiver of counsel from him. Son was not given the opportunity to cross-
examine the state’s witness on behalf of Father. He was not allowed to put on proof why
Father’s rights should not be terminated.5 The trial court never offered to continue Father’s


        2
         (...continued)
touch with the children or the Department” and “[n]one of the parents are in substantial compliance and none
of them are here today, nor have they kept in touch with their attorneys in past months.”
        3
            Father’s prior attorney, Scott Justice, was identified in the Certificate of Service.
        4
          DCS entered the entire trial court file as an exhibit. The letter had been filed with the trial court
prior to the termination hearing and is properly in the record before this court.
        5
            The trial court allowed Son to make the following statement:

        My father fought for three of his oldest kids when we were beaten in a basement. No food.
        No water. My father took a beating to his head. You can shave his head and see all the
        scars.

        My father gives a care about his children, and his rights should not be terminated. Because
        all them accusations they’ve been made up were proven not to be founded guilty.

        You know, my father is a good father; and my father rode on a motorcycle from Louisiana
        in the middle of winter to come up there and save his children. When he tried so, so hard
        to save his children from us being almost killed in the State of Indiana.

                                                                                                    (continued...)

                                                        -3-
case.

        At the conclusion of the hearing, the trial court ruled as follows:

                Court: Okay. I do find by clear and convincing evidence that
                [Father has] abandoned [his] children by failure to visit with
                [his] children. In fact, the testimony was that there has been no
                visitations, at all.

                I find further that [he has] abandoned [his] children by failure to
                support those children. And the testimony was there has been
                no support, at all.

                [He has] abandoned [his] children by failure to establish a
                suitable home for the children.

                As to compliance with the permanency plan, . . . [he] took [no]
                . . . efforts to substantially comply with the permanency plan.

                And so, there is substantial noncompliance with the permanency
                plan by . . . [Father].

                I do find that the conditions existed that prevent the return of the
                children to the home and that it is in the best interests of the
                children that the parental rights of . . . [Father] be terminated
                and that the complete custody, control, and guardianship be
                awarded to The State of Tennessee Department of Children’s
                Services with the right to place the children up for adoption and
                consent to adoption in loco parentis.

By order entered April 2, 2009, the trial court terminated Father’s parental rights on the
statutory grounds of abandonment for failure to visit, failure to pay child support, and failure
to establish a suitable home; substantial noncompliance with the Plans; and persistent
unremedied conditions. A timely notice of appeal was filed.




        5
         (...continued)
        My father fought for me, my brother, and my sister; and my father gives a care about his
        children. You know, the man is trying.

                                                  -4-
                                         II. ISSUES

       The issues presented are restated as follows:

       A. Whether the trial court violated Father’s due process rights.

       B. Whether this court lacks jurisdiction to consider issues from the previous
       and separate dependency and neglect case against Father.

       C. Whether the grounds for termination were proven by clear and convincing
       evidence.


                             III. STANDARD OF REVIEW

        As courts in this state have long recognized, a parent has a fundamental right to the
care, custody and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct.
1208, 1212-13 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996).
This right is a fundamental but not absolute right, and the state may interfere with parental
rights if there is a compelling state interest. Santosky v. Kramer, 455 U.S. 745, 747, 102
S.Ct. 1388, 1391 (1982); Nash-Putnam, 921 S.W.2d at 174-75.

        The United States Supreme Court has recognized the unique nature of parental rights
termination proceedings, observing that “[f]ew consequences of judicial action are so grave
as the severance of natural family ties.” M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555,
565 (1996), quoting Santosky, 455 U.S. at 787, 102 S.Ct. at 1412 (Rehnquist, J., dissenting).
The Court has recognized that “[t]he interest of parents in their relationship with their
children is sufficiently fundamental to come within the finite class of liberty interests
protected by the Fourteenth Amendment.” Id. (quoting Santosky, 455 U.S. at 774, 102 S.Ct.
at 1405 (Rehnquist, J., dissenting)). Accordingly, due process requires the application of
stringent standards to insure the protection of the fundamental rights at stake. See In re W.B.
IV, Nos., M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at
*8 (Tenn. Ct. App. M.S., Apr. 29, 2005).

       As we noted in In re W.B.IV,

              Courts are not authorized to terminate a parent’s rights only
              because the children would be better off with such termination.
              There must first be a showing that a parent has in essence
              forfeited his or her rights through conduct the legislature has

                                              -5-
              determined constitutes sufficient danger of harm to the child to
              be made a ground for termination. “The federal and state
              constitutions require the opportunity for an individualized
              determination that a parent is either unfit or will cause
              substantial harm to his or her child before the fundamental right
              to the care and custody of the child can be taken away.” In re
              Swanson, 2 S.W.3d [180, 188 (Tenn. 1999)].

2005 WL 1021618, at *13.


                                     IV. DISCUSSION

                                              A.

        Counsel for Father claims that because such serious fundamental rights were at stake,
the trial court erred when it refused to appoint counsel and continue Father’s case.

       According to Father’s current counsel, a constructive request for a continuance of the
hearing was made upon the submission of the letter from the Indiana physician. Indeed, on
March 10, 2009 – two days prior to the hearing – the trial court received and filed a letter
dated March 5, 2009, from Dr. John G. Mathis, advising that Father was “not to travel any
long distance because of possible need for readmission and surgery.” Subsequently, Son
informed the court that Father “was sick and was supposed to have surgery” and that he had
“been in and out of the hospital.” The court requested “medical documentation showing that
[Father is] sick and cannot be here.” When shown the letter from the physician, the trial
court responded as follows: “This letter is not signed by some doctor. It just has some kind
of computerized stamp on it.”

        Father’s counsel asserts that considering the unique nature of parental rights
termination proceedings, the trial court displayed an unwarranted suspicion of the doctor’s
letter and acted punitively towards Father by not accepting the letter at its face value.
Counsel contends it is reasonable to assume that a doctor’s office would delegate to a staff
member the task of writing such a letter and that a stamp of the physician’s signature would
be authorized for use by the staff. Counsel observes that if Father had been properly
represented at the hearing, the attorney would have argued as to the authenticity of the letter
and would have requested the grant of a continuance.

       Counsel further argues that Father clearly wanted to be heard at the termination
hearing – as evidenced by the presence of Son as his agent and the submission of the letter

                                              -6-
from his doctor. As noted by counsel, Father was actively involved in this case at the onset.
He was present and participated in the case from the beginning, including attendance at the
team meeting, both preliminary hearings, and the adjudicatory hearing.

        Counsel also contends that the trial court failed to advise the agent,6 Son, of Father’s
right to counsel and then failed to appoint counsel at the termination hearing. The transcript
of the hearing is devoid of any attempt by the trial court to address Father’s right to counsel
or to inquire as to Father’s indigence.7 According to counsel, by failing to inform Son of any
of these rights, the trial court deprived Father of his right to counsel. Counsel asserts there
is nothing in the record to indicate that Father had ever waived his right to counsel at any
stage of the case. The trial court was aware that attorney Scott Justice had previously
represented Father, yet made no inquiry as to whether that attorney was still serving as
counsel.8

       The state argues that Son, the individual who appeared at the hearing with an
ineffective power of attorney document, was not a party or an agent. Because Father did not
appear at the hearing to be advised of his right to counsel and did not request in any other


        6
         The state asserts that the “power of attorney” document filed with the court does not meet the
statutory requirements of the Uniform Durable Power of Attorney Act. See Tenn. Code Ann. § 34-6-101 et
seq. Tenn. Code Ann. § 34-6-102 defines a durable power of attorney as:

        a power of attorney by which a principal designates another as the principal’s attorney in
        fact in writing and the writing contains the words “This power of attorney shall not be
        affected by subsequent disability or incapacity of the principal,” or “This power of attorney
        shall become effective upon the disability or incapacity of the principal,” or similar words
        showing the intent of the principal that the authority conferred shall be exercisable,
        notwithstanding the principal’s subsequent disability or incapacity.

According to the state, the document presented by Son is clearly deficient on at least two bases. First, it
contains none of the language required by Tenn. Code Ann. § 34-6-102. Second, the notarization clearly
states that Son was the person who appeared and executed the document. Thus, the signature of Father is
not notarized at all. Accordingly, the state contends that the power of attorney presented by Son is
ineffective, and, therefore, Father was not present in court either personally or through his agent.


        7
          At a hearing heard on June 12, 2007, Father was appointed an attorney when the judge sitting by
interchange “found him to be indigent for the purposes of retaining counsel.” On September 21, 2007, the
trial court found Father “not to be indigent based on his income without any significant indebtedness.”
Father had indicated that he had no job, owned no real estate, had no assets, and his income was “$0.”
Subsequent to the termination proceeding, the trial court appointed counsel to represent Father.
        8
            Apparently Father could no longer afford to retain Mr. Justice after the adjudicatory hearing.

                                                      -7-
manner that counsel be appointed to represent him, the trial court did not err in proceeding
with the hearing without appointing counsel for Father. The state further observes that the
grant or denial of a continuance lies within the sound discretion of the trial court. Because
Father was not present but instead sent Son with an unauthenticated letter from a doctor
stating that he was too ill to travel, the state contends the trial court did not abuse its
discretion when it refused to continue Father’s case. In view of the probable indigence status
of Father and the type of the proceeding at issue, we find the state’s argument unavailing.

       The Tennessee Rules of Juvenile Procedure provide:

       At the beginning of the [termination] hearing, any party who appears without
       an attorney shall be informed of the right to an attorney, and in the case of an
       indigent respondent an attorney shall be appointed pursuant to Tennessee
       Supreme Court Rule 13, unless waived by the party. Any such waiver shall be
       reflected in the record pursuant to Rule 30 of these rules.

Tenn. R. Juv. P. 39(e)(2). Further, Tennessee has now joined most other states that have
declared an indigent respondent in a parental rights termination case, like an indigent
defendant in a criminal case, is entitled to the services of a court-appointed attorney. Tenn.
R. Sup. Ct. 13, § 1(d)(2)(D). See In re M.H., No. M2005-00117-COA-R3-PT, 2005 WL
3273073, at *7 (Tenn. Ct. App. M.S., Dec. 2, 2005).

        We agree with Father’s counsel when she asserts the trial court confused the matter
when it allowed Son to remain in the courtroom seated at counsel’s table, asked that all
exhibits presented by DCS be shown to him, and allowed him to make a statement to the trial
court. For all practical purposes – without the benefit of counsel – the trial court allowed Son
to stand in for Father at the termination proceeding in some capacity. Such was prejudicial
to Father’s rights. The court should have afforded Father the right to be counted present for
the sole purpose of appointing counsel and continuing the case.


                                              B.

       DCS concedes that there is not clear and convincing evidence in the record to support
the termination of Father’s parental rights. As a favorable ruling will issue for Father, we
pretermit consideration of the other arguments he raised.




                                              -8-
                                    V. CONCLUSION

        The order terminating Father’s parental rights is vacated and this case is remanded to
the trial court for assignment to another judge for all future proceedings. Costs of the appeal
are charged to the State of Tennessee.




                                                    _________________________________
                                                    JOHN W. McCLARTY, JUDGE




                                              -9-
