       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                                     FILED
                                        )
                                        )                        September 29, 1999
                                                 Lawrence Chancery
IN RE:                                  )        No. 8663-97
THE ADOPTION OF                         )                           Cecil Crowson, Jr.
                                                                   Appellate Court Clerk
FEMALE CHILD, E.N.R.                    )        Appeal No.
                                        )        01A01-9806-CH-00316
                                        )



                         DISSENTING OPINION

      I cannot concur with the court’s disposition of this case. My disagreement
stems, not from a belief that Timothy Ray Rose could or should ultimately succeed
in preventing the termination of his parental rights, but rather from my belief that he,
like anyone else, is entitled to have the trial and appellate courts consider his
challenge to the constitutionality of a statute that materially affects one of his
fundamental liberty interests. The court has decided to sidestep this issue by
invoking waiver principles that cannot be reconciled with the Tennessee Supreme
Court’s decisions regarding the proper procedure for adjudicating challenges to a
statute’s constitutionality. I would find that the trial court committed reversible error
by failing to cause the Attorney General and Reporter to be notified that Mr. Rose had
challenged the constitutionality of Tenn. Code Ann. § 36-1-113(g)(6) (Supp. 1998).
Accordingly, I would vacate the decision and remand the case with directions to
address the constitutional challenge to Tenn. Code Ann. § 36-1-113(g)(6) after
complying with the mandatory requirements of Tenn. R. Civ. P. 24.04 and Tenn.
Code Ann. § 29-14-107(b) (1980).


                                            I.


      E.N.R. was born on December 21, 1993. Her parents, Timothy Ray Rose and
Amy Jenell Stanford were not married, but Ms. Stanford listed Mr. Rose as E.N.R.’s
father on her birth certificate. Mr. Rose was present at his daughter’s birth and
frequently visited with the child and her mother. Mr. Rose also gave Ms. Stanford
money to help with the child’s expenses. Mr. Rose’s circumstances abruptly changed
shortly after E.N.R.’s birth. On January 25, 1994, he pleaded guilty to the rape of
the five-year-old daughter of his cousin’s girlfriend, and on February 8, 1994, he
began serving a twelve-year prison sentence.


        Ms. Stanford frequently took E.N.R. to visit with Mr. Rose when he was first
incarcerated,1 and Mr. Rose continued to send Ms. Stanford money to the extent that
he was able. As time passed, however, Ms. Stanford became less inclined to take
E.N.R. to visit Mr. Rose. Mr. Rose last saw E.N.R. in October 1996. Ms. Stanford
married Jonathan Lamar Reed in May 1997.


        On August 28, 1997, Mr. and Ms. Reed filed a petition in the Chancery Court
for Lawrence County seeking to terminate Mr. Rose’s parental rights and to allow
Mr. Reed to adopt E.N.R. On the same day, Mr. Rose filed a pro se petition to
legitimate E.N.R. in the Lawrence County Juvenile Court. The trial court later
consolidated Mr. Rose’s legitimation petition with the Reeds’ adoption petition and
appointed an attorney to represent Mr. Rose. Throughout the remainder of the
proceedings, Mr. Rose vigorously contested the involuntary termination of his
parental rights. He also challenged the constitutionality of Tenn. Code Ann. § 36-1-
113(g)(6), the statute upon which the Reeds had predicated their petition to terminate
his parental rights.2


        On February 20, 1998, the trial court entered an order finding that Mr. Rose
was E.N.R.’s biological father and directing him to pay Ms. Reed $9.03 per month
for his daughter’s support. On May 15, 1998, the trial court conducted a hearing on
the merits with regard to the competing petitions for legitimation and adoption. By
this time, Mr. Rose had become eligible for parole. After hearing the testimony, the
trial court found that Tenn. Code Ann. § 36-1-113(g)(6) was constitutional,3
terminated Mr. Rose’s parental rights based solely on Tenn. Code Ann. § 36-1-


       1
        By Mr. Rose’s count, Ms. Stanford visited him sixty-two times between April 1994 and
October 1996 and brought E.N.R. with her on most of these visits. Ms. Stanford conceded that she
brought E.N.R. to visit Mr. Rose in prison on approximately one-half of her visits.
       2
         Even though the record does not reveal precisely how Mr. Rose’s lawyer challenged the
constitutionality of Tenn. Code Ann. § 36-1-113(g)(6), the transcript of the May 15, 1998 proceeding
indicates that counsel for both parties and the trial court were aware that the constitutionality of the
statutory grounds for terminating Mr. Rose’s parental rights was at issue.
       3
        The trial court indicated that it was obligated to follow Worley v. State, No. 03A01-9708-JV-
00366, 1998 WL 52098 (Tenn. Ct. App. Feb. 10, 1998) (No Tenn. R. App. P. 11 application filed)
in which the Eastern Section with little discussion declared that Tenn. Code Ann. § 36-1-113(g)(6)
was constitutional.

                                                 -2-
113(g)(6),4 and dismissed Mr. Rose’s legitimation petition. Reflecting its view of the
closeness of the evidence, the trial court ended the proceeding with this comment: “I
think, Mr. Rose, you probably were and, except for this conviction, would have
continued to be a good father for this child.”


       Mr. Rose appeals the termination of his parental rights. He raises two issues.
First, he asserts that Tenn. Code Ann. § 36-1-113(g)(6) violates the Due Process
Clause of the Fourteenth Amendment and Tenn. Const. art. I, § 8. Second, he asserts
that the evidence does not support the trial court’s conclusion that terminating his
parental rights and permitting Mr. Reed to adopt E.N.R. is in the child’s best interests.
Without addressing Mr. Rose’s principal claim that the statutory basis for terminating
his parental rights is unconstitutional, this court has decided that E.N.R.’s interests
will be best served by terminating Mr. Rose’s parental rights and by permitting Mr.
Reed to adopt her.


                                                II.


       Litigation of constitutional questions is not intended to be nonchalant. The
General Assembly and the courts have put in place an elaborate set of procedures -
well known to this court - that should be invoked when the constitutionality of a
statute is attacked. These procedures serve two purposes: first, to assure the existence
of a genuine case or controversy and, second, to assure a vigorous defense of the
statute. Compliance with these procedures is not left to the parties alone. The trial
and appellate courts have obligations as well.
       Tenn. Code Ann. § 29-14-107(b) states that whenever a statute is alleged to be
unconstitutional, “the attorney general of the state shall also be served with a copy
of the proceeding and be entitled to be heard.” While the statute does not clearly
identify who is responsible for seeing to it that the attorney general is served with a
copy of the complaint challenging the constitutionality of a statute, Tenn. R. Civ. P.
24.04 corrects this oversight. In unmistakable terms, the rule states: “When the


       4
         Regrettably, the trial court employed the wrong legal standard to determine whether Mr. and
Ms. Reed had established that terminating Mr. Rose’s parental rights was in E.N.R.’s best interests.
The trial court employed a “preponderance of the evidence” standard. As Judge Cottrell points out
in the court’s opinion “the [trial] court must determine whether it has also been shown by clear and
convincing evidence that termination of the parent’s rights is in the child’s best interests.” The
court’s use of the passive voice should not obscure the fact that the burden of persuasion on this
point rests with the persons seeking to terminate the biological parent’s parental rights.

                                               -3-
validity of a statute of this state . . . is drawn in question in any action to which the
State or an officer or agency is not a party, the court shall require that notice be given
the Attorney General, specifying the pertinent statute, rule or regulation.” The
comment to Tenn. R. Civ. P. 24.04 also leaves no doubt that the trial court’s
obligation to ensure that the Attorney General is notified of a challenge to a statute’s
constitutionality is not limited to declaratory judgment proceedings but rather applies
to “actions of any type.”


       Neither Tenn. Code Ann. § 29-14-107(b) nor Tenn. R. Civ. P. 24.04 require the
Attorney General, once notified of a constitutional challenge to a statute, to defend
the statute. After receiving notice, the Attorney General’s office may, for reasons
satisfactory to the Attorney General, notify the court that the office does not intend
to become involved in the suit. If, however, the Attorney General declines to defend
a statute’s constitutionality, he or she must notify the Speakers of the House and
Senate of the decision, See Tenn. Code Ann. § 8-6-109(b)(9) (1993). The Speakers
of the House and Senate, acting jointly, may then employ counsel to defend the
statute. See Tenn. Code Ann. § 8-6-109(c).


       In addition to the statute and rule governing constitutional attacks on statutes
in the trial court, Tenn. R. App. P. 32 ensures that the Attorney General will receive
notice when the constitutionality of a statute is challenged on appeal. Tenn. R. App.
P. 32 does not supplant the requirements of Tenn. R. Civ. P. 24.04 and Tenn. Code
Ann. § 29-14-107(b)5 and is premised on the assumption that the requirements of
Tenn. R. Civ. P. 24.04 and Tenn. Code Ann. § 29-14-107(b) were satisfied in the trial
court. In the event that a party challenging the constitutionality of a statute fails to
serve a copy of its brief on the Attorney General, Tenn. R. App. P. 32.02(d) directs
the appellate court not to dispose of the appeal until the Attorney General has been
notified and given an opportunity to defend the statute.6



       5
         The Advisory Commission Comment to Tenn. R. App. P. 32 states, in part: “The provisions
of this rule are supplementary to, and do not affect the provisions of Tenn. Code Ann. § 23-1107
(1955) [recodified as Tenn. Code Ann. § 29-14-107] and rule 24.04 of the Tennessee Rules of Civil
Procedure, with respect to notice to the Attorney General in trial court proceedings.”
       6
       Despite some equivocation in the language of Tenn. R. App. P. 32(d), the Advisory
Commission Comment explains that this section “ensures that in the absence of notice to the
Attorney General the appellate court will not dispose of the appeal.”

                                              -4-
       A comparison of what actually happened in this case with the requirements of
the applicable rules and statutes reveals that not one single notice provision has been
complied with. Neither Mr. Rose nor his appointed lawyer notified the Attorney
General of Mr. Rose’s challenge to the constitutionality of Tenn. Code Ann. § 36-1-
113(g)(6). The trial court did not discharge its obligation to ascertain whether the
Attorney General had received the required notice and to direct that proper notice be
given if it had not already been done. Even after it became evident that the Attorney
General had not been properly notified of the constitutional challenge to Tenn. Code
Ann. § 36-1-113(g)(6) in either the trial or the appellate court, this court compounded
the problem by deciding the appeal without first giving the Attorney General an
opportunity to respond.7


        The Tennessee Supreme Court has provided clear directions concerning an
appellate court’s responsibility when it discovers that a trial court has addressed the
constitutionality of a statute without the required notice to the Attorney General. In
the absence of proper notice to the Attorney General, an appellate court must vacate
the decision and remand the case to the trial court with directions to revisit the issue
of the constitutionality of the statute after the required notice has been given to the
Attorney General. See Buena Vista Special Sch. Dist. v. Board of Election Comm’rs
of Carroll County, 173 Tenn. 198, 202, 116 S.W.2d 1008, 1009 (1938). The Court
followed this route most recently in litigation successfully challenging the
constitutionality of the Tennessee Constitution’s prohibition against ministers serving
in the General Assembly. Notwithstanding the importance of the issue and the
impending election, the Court remanded the case to the trial court “to cure the
deficiency of failure to make the Attorney General of Tennessee a party.” Paty v.
McDaniel, 547 S.W.2d 897, 901 (Tenn. 1977), rev’d on other grounds, 435 U.S. 618,
98 S. Ct. 1322 (1978).8

       7
         The court observes in a footnote that the record contains a letter from an assistant attorney
general stating that “the state has no interest” in the case. As I understand it the court has concluded
that this letter does not establish compliance with Tenn. R. App. P. 32.02(d). I agree.
        8
         The per curiam order alluded to in the Court’s opinion was entered on October 15, 1976.
It stated, in part:

              The record in this cause fails to reflect that the Attorney General of the State
       was made a party or served with a copy of the proceedings in accordance with T.C.A.
       § 23-1107 and Rule 24.04, Tennessee Rules of Civil Procedure. These requirements
       are mandatory where the constitutionality of an act of the Legislature is before the
                                                                                       (continued...)

                                                 -5-
        I can find only one case in which the Tennessee Supreme Court decided against
remanding a case to the trial court to cure the failure to notify the Attorney General.
That case involved a collusive lawsuit filed by the county judge for Hamilton County
against the county trustee for Hamilton County seeking to declare unconstitutional
a recently enacted state law that changed the delinquency date for payment of
property taxes. When the case reached the Tennessee Supreme Court, the Court
noted that the Attorney General had not been made a party but dismissed the case
because the interests of the county judge and the county trustee were not sufficiently
adverse. See Cummings v. Shipp, 156 Tenn. 595, 597-98, 3 S.W.2d 1062, 1063
(1928).9 The Court’s conclusion that the trial court lacked jurisdiction to consider the
complaint obviated the need to notify the Attorney General.


        The court seeks to justify its decision not to remand this case by citing Court
of Appeals decisions stating that appellate courts may, in their discretion, disregard
Tenn. R. Civ. P. 24.04, Tenn. Code Ann. § 29-14-107(b), and Tenn. R. App. P. 32
and decline to remand a case when the Attorney General has not received the required
notice. I would not to follow these cases to the extent that they are contrary to Paty
v. McDaniel and Buena Vista Special Sch. Dist. v. Board of Election Comm’rs of
Carroll County.10 The other decisions cited by the court are inapposite because they
involved either a proceeding in which the constitutional challenge was not raised in

       8
       (...continued)
       Court in an action for a declaratory judgment. [citations omitted]

              Due to the failure to include a necessary party, the decree of the Chancery
       Court invalidating the qualification provisions of Chapter 848, § 4, Public Acts of
       1976, on constitutional grounds is of no force and effect.

Paty v. McDaniel, Hamilton Equity (Tenn., Oct. 15, 1976).
       9
         The Court’s concern about collusion between the county judge and the county trustee was
apparently well-founded. After the Court dismissed the first suit, the parties switched sides and filed
a second suit challenging the statute’s constitutionality. On this occasion, the parties notified the
Attorney General who defended the constitutionality of the statute. On appeal, the Court upheld the
trial court’s conclusion that the statute violated Tenn. Const. art. II, § 28. See Shipp v. Cummings,
158 Tenn. 526, 529, 14 S.W.2d 747, 748 (1929).
       10
          For example, I would find little solace in the notion that this court should remand a case
to give the Attorney General the required notice when the trial court has determined that a statute
is unconstitutional but not when the trial court has upheld the statute. See Wallace v. Knoxville’s
Community Dev. Corp., 568 S.W.2d 107, 110 (Tenn. Ct. App. 1978) (stating that “if the circuit judge
had held the statute unconstitutional, we more than likely would have remanded the cause”). The
Eastern Section apparently still follows this practice because there is no indication in Worley v. State
that the Attorney General received notice on either the trial or appellate level that the
constitutionality of Tenn. Code Ann. § 36-1-113(g)(6) had been challenged.

                                                 -6-
the trial court, see McDaniel v. General Care Corp., 627 S.W.2d 129, 133 (Tenn. Ct.
App. 1981), or a challenge to the constitutionality of a city ordinance that the
Attorney General is not required to defend. See Harless v. City of Kingsport, No.
03A01-9707-CH-00289, 1998 WL 131519, at *7 (Tenn. Ct. App. Mar. 25, 1998) (No
Tenn. R. App. P. 11 application filed).11


       The court’s efforts to distinguish Paty v. McDaniel and Buena Vista Special
Sch. Dist. v. Board of Election Comm’rs of Carroll County on procedural grounds are
unconvincing. Asserting that a court’s decision to entertain a constitutional issue
somehow depends on the manner in which the issue is raised is judicial sophistry of
the first order in light of the broad, all inclusive language of Tenn. R. Civ. P. 24.04
and Tenn. R. App. P. 32(a). These rules do not permit courts to draw distinctions
based on the manner in which a constitutional question is raised. They state quite
plainly that challenges to the constitutionality of a statute in any action or appeal to
which the State or an officer or agency is not a party should not be decided until the
Attorney General has been notified of the proceeding. Thus, as long as Mr. Rose
challenged the constitutionality of Tenn. Code Ann. § 36-1-113(g)(6) in the trial
court, how he did it should be of little significance.




       The court’s conclusion that Mr. Rose waived his opportunity to challenge the
constitutionality of Tenn. Code Ann. § 36-1-113(g)(6) does not sit well with the facts
of this case or with the seriousness of the constitutional issues being raised. These
issues affect not only rights personal to Mr. Rose but also the rights of all those who
may be subjected to this statute in the future. The court has decided to penalize Mr.
Rose for an oversight for which he is not completely responsible. In the final
analysis, both Tenn. R. Civ. P. 24.04 and Tenn. R. App. P. 32 place an obligation on
the courts to see to it that the Attorney General receives notice of a constitutional




       11
          After holding that Mr. Harless could not challenge the constitutionality of the local
ordinance and the underlying state statute because he had not complied with Tenn. Code Ann. § 29-
14-107(b), Tenn. R. Civ. P. 24.04, or Tenn. R. App. P. 32, the court proceeded to decide the
constitutional question anyway. See Harless v. City of Kingsport, 1998 WL 131519, at *7.

                                              -7-
challenge to a statute. This obligation exists notwithstanding the court’s notions
about the merits of the constitutional issue being raised.


      Retreating behind the shield of judicial discretion is likewise unavailing. The
question here is not whether appellate courts have some leeway in determining the
nature of the relief that should be granted in a particular case. Of course, appellate
courts have discretion in these matters. The question here is whether the court,
exercising its discretion, should brush aside Mr. Rose’s challenge to the
constitutionality of Tenn. Code Ann. § 36-1-113(g)(6). In my mind, the court’s
explanation for its decision does not ring true. Following the lead of the Tennessee
Supreme Court, I would vacate the decision and remand the case to the trial court to
reconsider Mr. Rose’s challenge to Tenn. Code Ann. § 36-1-113(g)(6) after giving
the Attorney General an opportunity to defend the statute.


                                           III.


      My concern over the court’s decision to sidestep Mr. Rose’s challenge to the
constitutionality of Tenn. Code Ann. § 36-1-113(g)(6) is heightened by the
fundamental nature of the rights at stake and by the serious cloud hanging over the
challenged statute. Until the constitutional issues surrounding Tenn. Code Ann. § 36-
1-113(g)(6) can be fully aired, persons like Mr. Rose, whom some might view as
society’s detritus, face the almost certain loss of their relationships with their children
without a prior in-depth judicial consideration of whether the affected child will be
harmed if his or her ties to a parent are not severed. The potential psychological
ramifications of severing a child’s relationship with a parent are severe enough to
require individualized termination procedures that focus chiefly on the relationship
between the child and the parent, not merely the parent’s status.


       Mr. Rose’s parental relationship with E.N.R. is a fundamental liberty interest
entitled to the greatest possible constitutional protection. See Santosky v. Kramer,
455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95 (1982); Nash-Putnam v. McCloud, 921
S.W.2d 170, 174-75 (Tenn. 1996); Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn.
1994); Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993). He was not stripped of
these rights when he was convicted of rape and sentenced to serve twelve years in


                                           -8-
prison.12 Nor was he stripped of his right to seek judicial redress for unconstitutional
infringements of his rights. Indeed, Mr. Rose’s right of access to the courts has
become a fundamental political right because it is his only effective means to
preserve his other rights. See Hudson v. McMillian, 503 U.S. 1, 15, 112 S. Ct. 995,
1003 (1992) (Blackmun, J., concurring in the judgment).


       When a state statute substantially interferes with the exercise of a fundamental
liberty interest, it must satisfy a strict two-prong test to pass constitutional muster.
Such a statute cannot be upheld unless it is supported by sufficiently important
governmental interests and is closely tailored to effectuate only those interests. See
Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 303, 110 S. Ct. 2841, 2864
(1990) (Scalia, J., concurring); Zablocki v. Redhail, 434 U.S. 374, 388, 98 S. Ct. 673,
682 (1978). In order to be “sufficiently important,” the asserted governmental
interest must be compelling. See Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705, 728
(1973); Hawk v. Hawk, 855 S.W.2d at 579 n.8; Davis v. Davis, 842 S.W.2d 588, 602
(Tenn. 1992). The state and federal constitutions impose on the courts the obligation
to examine carefully the extent to which the asserted governmental interests are
served by the challenged statute, see Moore v. City of East Cleveland, 431 U.S. 494,
499, 97 S. Ct. 1932, 1936 (1977), and to assure that fundamental rights are protected,
not only against heavy-handed frontal attack but also from being stifled by more
subtle governmental interference. See Bates v. City of Little Rock, 361 U.S. 516, 523,
80 S. Ct. 412, 416 (1960).13


       It is constitutionally impermissible to sever a parent’s connection with his or
her child unless there has first been a finding that the continuation of the parent-child
relationship threatens the child’s welfare. See In re Adoption of a Female Child


       12
         When the Tennessee Supreme Court reversed our decisions that prisoners were not
“citizens” entitled to access to public records, the Court noted that prisoners in Tennessee are not
automatically stripped of all rights of citizenship upon conviction. See Cole v. Campbell, 968
S.W.2d 274, 276 (Tenn. 1998). This holding echoes the United States Supreme Court’s admonition
that “[p]rison walls do not form a barrier separating prison inmates from the protections of the
Constitution.” Turner v. Safley, 482 U.S. 78, 84, 107 S. Ct. 2254, 2259 (1987).
       13
         A clear shortcoming of the Eastern Section’s analysis of the constitutionality of Tenn. Code
Ann. § 36-1-113(g)(6) in Worley v. State is that the court employed the wrong constitutional
principles. By employing a “real and substantial relationship” analysis, the court actually used
principles associated with an intermediate scrutiny analysis under the Equal Protection Clause of the
Fourteenth Amendment. The United States Supreme Court traditionally uses intermediate scrutiny
to analyze statutory classifications based on gender.

                                               -9-
(Bond v. McKenzie), 896 S.W.2d 546, 548 (Tenn. 1995); Nale v. Robertson, 871
S.W.2d at 680; Hawk v. Hawk, 855 S.W.2d at 582. Tennessee’s newly minted
adoption statutes contain a list of types of parental conduct that will trigger a
termination proceeding. See Tenn. Code Ann. § 36-1-113(g). The necessary
implication to be drawn from this list is that the General Assembly has concluded that
the continuation of a child’s relationship with a parent who commits any of the acts
on the list ipso facto threatens the child’s welfare. That rather sweeping conclusion
may or may not be true depending on the facts of the case.


       Tenn. Code Ann. § 36-1-113(g)(6) provides that the following conduct may
trigger the initiation of a termination proceeding:
                      The parent has been confined in a correctional or
               detention facility of any type, by order of a court as a result
               of a criminal act, under a sentence of ten (10) or more
               years, and the child is under eight (8) years of age at the
               time the sentence is entered by the court.

This particular ground for terminating parental rights was not part of Tennessee’s law
until 1995.14 Our statute is one of only six state statutes making a criminal
conviction, by itself, grounds for triggering a termination proceeding.15 Several other
state statutes include conviction and incarceration in conjunction with other factors
as grounds for terminating parental rights.16 Most state termination statutes either do
not mention incarceration specifically as separate grounds for termination17 or simply




       14
         See Act of May 26, 1995, ch. 532, § 1, 1995 Tenn. Pub. Acts 952, 986-87. Prior to the
enactment of this statute, a parent’s incarceration was not mentioned as a ground for termination but
was a factor to be considered in the context of determining whether the parent had abandoned the
child. See Tenn. Code Ann. § 36-1-102(l)(A)(iv) (Supp. 1998) for a current statutory example of
this approach.
       15
        The other five statutes are Ariz. Rev. Stat. Ann. § 8-533(B)(4) (1999), Colo. Rev. Stat. §
19-3-604(1)(b)(III) (1998), Idaho Code § 16-2005(j) (Supp. 1999), Iowa Code Ann. §
232.116(l)(i)(2) (West Supp. 1999), and Or. Rev. Stat. Ann. § 109.322 (Butterworths 1990).
       16
        See, e.g., Alaska Stat. § 47.10.080(o) (Supp. 1998); Kan. Stat. Ann. § 38-1583(b)(5) (Supp.
1998); La. Ch.’s Code Ann. art. 1015(6) & 1036(E) (West Supp. 1999); Mich. Comp. Laws Ann.
§ 712A.19b(3)(h) (West Supp. 1999).
       17
        See, e.g., Ark. Code Ann. § 9-9-220 (1998); Conn. Gen. Stat. Ann. § 17a-112 & 45a-717
(West Supp. 1999); Ky. Rev. Stat. Ann. § 625.090(2) (Michie Supp. 1998); Nev. Rev. Stat. §
128.106 (1997).

                                               - 10 -
include conviction and incarceration as one of a number of factors to be considered
when determining abandonment or unfitness.18


       Substantial questions exist concerning the constitutionality of statutes like
Tenn. Code Ann. § 36-1-113(g)(6) that permit courts to terminate parental rights
because of the status of the parent rather than because of the detrimental effect of the
parent-child relationship on the child.19 Apart from the states’ generalized interest in
the welfare of children, these statutes, as a practical matter, have the effect of shifting
the focus to the parent’s conduct alone and away from an individualized identification
of the states’ particularized interests in severing a specific parent-child relationship.
There are also substantial questions concerning the closeness of the fit between such
a statute’s means and its objectives because the use of per se triggering grounds in
termination proceedings could very well result in cases where the child will actually
be harmed by irretrievably severing his or her relationship with an otherwise fit
incarcerated parent. If the fit between a statutory ground for termination on a
parent’s fitness cannot withstand close constitutional scrutiny, no amount of reliance
on a child’s best interests can save the statute.


                                              IV.


       Reliance on the best interest analysis required by Tenn. Code Ann. § 36-1-
113(c)(2) to cure the problems created by Tenn. Code Ann. § 36-1-113(g)’s list of per
se grounds is misplaced. I can find no reported or unreported case in which a trial or
appellate court in this State has determined that a child’s best interests would not be
served by terminating a parent’s rights after determining that statutory grounds for
termination of a parent’s rights have been proven by clear and convincing evidence.
While academically possible, it is unrealistic to expect that a trial court, after finding
that a parent has engaged in conduct that warrants the termination of his or her

       18
        See, e.g., Ala. Code § 26-18-7(a)(4) (Supp. 1998); Del. Code Ann. 13 § 1103(a)(5) (Supp.
1998); Ga. Code Ann. § 15-11-81(b)(4)(B)(iii) (1999); Mo. Ann. Stat. § 211.447.6(6) (West Supp.
1999).
       19
          See Philip M. Gentry, Procedural Due Process Rights Of Incarcerated Parents In
Termination Of Parental Rights Proceedings: A Fifty State Analysis, 30 J. Fam. L. 757 (1991-92);
Philip J. Prygoski, When A Hearing Is Not A Hearing: Irrebuttable Presumptions and Termination
Of Parental Rights Based On Status, 44 U. Pitt. L. Rev. 879 (1983); Steven Fleischer, Note,
Termination Of Parental Rights: An Additional Sentence For Incarcerated Parents, 29 Seaton Hall
L. Rev. 312 (1998).

                                            - 11 -
parental rights, will decline to terminate parental rights and leave the parent-child
relationship intact.


      The state and federal constitutions protect fundamental liberty interests from
unwarranted governmental infringement whether the infringement is ill-motivated or
well-intentioned. Mr. Rose has attempted to question whether Tenn. Code Ann. § 36-
1-113(g)(6) impermissibly interferes with his constitutionally protected parental
rights. The trial court decided this constitutional question without complying with
Tenn. R. Civ. P. 24.04 and Tenn. Code Ann. § 29-14-107(b). Rather than penalizing
Mr. Rose for the trial court’s oversight, I would follow the lead of the Tennessee
Supreme Court and vacate the trial court’s decision and remand the case with
directions to give proper notice to the Attorney General and to again address the issue
of the constitutionality of Tenn. Code Ann. § 36-1-113(g)(6).




                                        _____________________________
                                        WILLIAM C. KOCH, JR., JUDGE




                                        - 12 -
