                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                            February 15, 2005 Session

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v.
                          RDV

                Direct Appeal from the Juvenile Court for Anderson County
                        No. J-21244     Hon. Patricia Hess, Judge



                  No. E2004-01216-COA-R3-PT - FILED MARCH 17, 2005



In this action to terminate father’s parental rights, the Trial Court refused to appoint counsel for
father, despite his claim of indigence. On appeal, we vacate the Judgment and remand for further
hearing on the issue of indigency.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court vacated and remanded.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and SHARON G. LEE, J., joined.

David A. Stuart, Clinton, Tennessee, for appellant.

Paul G. Summers, Attorney General and Reporter,
and
Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for appellee.



                                            OPINION


               This is an action to terminate parental rights between the minor child, DM, and his
biological father, RDV, who was incarcerated at the time of the termination hearing.

                The Petition to Terminate was filed on October 13, 2003, seeking to terminate the
rights of both parents, and alleged grounds for termination of parental rights.
                A hearing was scheduled for January 12, 2004, and at the beginning of the hearing,
the Judge stated that there had been some contact from RDV or his family about getting a form filled
out so that he could be appointed counsel, but the Court had not received his application. RDV’s
mother attended the hearing, and she advised the Court that the form had been filled out by RDV and
faxed to the Court, but the Judge told her it was not there, and that she should try to get a copy. The
mother reported that RDV was incarcerated in Florida at the time, having been moved from Knox
County the previous week.

              The Court then proceeded to hear testimony from the DCS worker regarding the
mother and her circumstances. At the conclusion of hearing that evidence, the Court terminated the
mother’s parental rights.

               RDV’s family then returned to the courtroom, and the Court reviewed a copy of a
Uniform Affidavit of Indigency signed by RDV. The Court noted that the affidavit stated that RDV
was employed by Russell Gibson, and enquired of the mother, who advised the Court that Mr.
Gibson was RDV’s father. The Court enquired the name of the business and the nature of the
business, and the mother said that it was a family tree business, and when RDV worked he earned
$18.00 an hour. The mother on the court’s inquiry said that RDV had an interest in the business, and
that he had been a partner in the business before his incarceration.

                RDV’s sister then explained that the father was going to own half the business once
he paid for his interest, but that he had not done so. Whereupon, the Court responded, “Well he is
a partner and he has a half interest whether you like it or not. So you just need to answer my
questions about how much the equipment is worth.” His sister replied that the equipment was worth
$40,000, which was all in her name. The Court then stated that RDV would not qualify for an
attorney because of his partnership interest.

            The Court continued the case until January 29, 2004 in order for RDV to get counsel,
and RDV could participate in the hearing by teleconference from the jail.

                The affidavit filed by RDV stated that he was incarcerated, and had no income and
no assets. At the hearing on January 29, 2004, RDV participating by teleconference, asked the Court
why he was not allowed to have an attorney appointed, and the Court replied that he did not qualify
based on his affidavit of income. RDV then stated that he had no income and no assets, and the
Judge stated that there was prior testimony of ownership in a business. RDV stated, “But that’s gone
completely under. I don’t have a business. A-Reasonable Tree Service does not exist anymore. The
Judge replied, “That’s not the statements of those who were here, sir. And then when they found out
that that impacted your ability to get a lawyer, they wanted to change their testimony. But that’s a
concluded matter.”

                RDV attempted to explain that the Court was confusing his tree business and his
sister’s tree business, which was A-Afforded Tree Service, but the Court replied there was no
confusion, that he was not to argue with the Court, and “that is how that is.” The hearing then


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proceeded, and at the conclusion of the hearing the Court entered a decree terminating the parental
rights of RDV.

              Several issues are presented on appeal, but the determinative issue is whether RDV
was improperly denied his right to counsel.

                RDV asserts that the Court improperly denied him his right to counsel. This Court
has previously addressed the issue of right to counsel in parental termination proceedings, in the case
of In re Valle, 31 S.W.3d 566, 572 (Tenn. Ct. App. 2000), wherein it was explained:

               Under the United States Constitution, parents do not have an absolute right to
               counsel in termination of parental rights proceedings. Lassiter v. Dept. of Social
               Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). The Lassiter Court,
               however, recognizing that the requirements of due process vary from case to case,
               determined that the nature of the proceeding and the interests involved are
               determinative factors in what due process requires. 101 S.Ct. at 2158. In State ex
               rel. T.H. by H.H. v. Min, 802 S.W.2d 625 (Tenn. Ct. App. 1990), the parents of a
               minor child filed a complaint and petition for writ of habeas corpus, against the
               Commissioner of the Department of Human Services, seeking a declaratory judgment
               that their due process rights were violated by failure of the juvenile court to appoint
               counsel to represent them at various custody hearings. This Court noted that the
               issue on appeal is whether the due process provisions of the state and/or federal
               constitutions require the juvenile court to appoint counsel for the parents in a
               proceeding in which the parents face the possibility of losing custody of the child.
               Id. at 625. The Court noted that it is well established "that the parental right to raise
               one's children is a fundamental liberty protected by the due process clause of the
               Fourteenth Amendment." Id. at 626. The Court further noted that the Lassiter Court
               and the Circuit Court of Appeals in Davis v. Page, 714 F.2d 512 (5th Cir. 1983)
               listed several factors to determine whether an indigent parent in a hearing affecting
               parental rights may be entitled to the assistance of counsel as a matter of due process.
               The Court stated:

               To help assess the risk of an unfair proceeding resulting in an erroneous decision, the
               courts in Lassiter and Davis have listed several factors that bear on the question.
               They include: (1) whether expert medical and/or psychiatric testimony is presented
               at the hearing; (2) whether the parents have had uncommon difficulty in dealing with
               life and life situations; (3) whether the parents are thrust into a distressing and
               disorienting situation at the hearing; (4) the difficulty and complexity of the issues
               and procedures; (5) the possibility of criminal self-incrimination; (6) the educational
               background of the parents; and (7) the permanency of potential deprivation of the
               child in question. Lassiter, 101 S.Ct. at 2161-2163; Davis, 714 F.2d at 516-517.

       Id. at 627.


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               Rule 39 of the Tennessee Rules of Juvenile Procedure prescribes the procedures for
               termination of parental rights cases. Rule 39(f) provides in pertinent part:

               (f) Adjudicatory Hearing on Termination

               (1) The court shall conduct an adjudicatory hearing to determine the issues raised by
               the petition and by any answer(s) filed. Notice of the hearing shall be provided in the
               summons.

               (2) At the beginning of the 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, the
               court shall consider the facts and circumstances alleged and make a determination as
               to whether an attorney should be appointed.

               In State, Dept. of Human Services v. Taylor, 1997 WL 122242 (Tenn. Ct. App.), this
Court held that the procedures of Rule 39(f)(2) concerning the right to have an attorney, appointed
or otherwise, are mandatory. In so holding, the Court said:

               Our present Rules of Juvenile Procedure became effective July 1, 1984. Since these
               rules postdate Lassiter, it would appear that in order to insure that the conditions
               therein stated are properly considered, the Tennessee Supreme Court and the General
               Assembly, by the adoption of the Rules of Juvenile Procedure, provide minimum
               requirements which the trial court must follow when a parent appears at a termination
               hearing without an attorney.

               Id. at *2.

               The statute regarding termination of parental rights, Tenn. Code Ann. §36-1-113,
provides:

               (f) Before terminating the rights of any parent or guardian who is incarcerated or who
               was incarcerated at the time of an action or proceeding is initiated, it must be
               affirmatively shown to the court that such incarcerated parent or guardian received
               actual notice of the following:

               (1) The time and place of the hearing to terminate parental rights;

               (2) That the hearing will determine whether the rights of the incarcerated parent or
               guardian should be terminated;

               (3) That the incarcerated parent or guardian has the right to participate in the hearing
               and contest the allegation that the rights of the incarcerated parent or guardian should
               be terminated, and, at the discretion of the court, such participation may be achieved


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                through personal appearance, teleconference, telecommunication or other means
                deemed by the court to be appropriate under the circumstances;

                (4) That if the incarcerated parent or guardian wishes to participate in the hearing and
                contest the allegation, such parent or guardian:

                        (A) If indigent, will be provided with a court-appointed attorney to assist the
                        parent or guardian in contesting the allegation; and

                        (B) Shall have the right to perpetuate such person's testimony or that of any
                        witness by means of depositions or interrogatories as provided by the
                        Tennessee Rules of Civil Procedure; and

                (5) If, by means of a signed waiver, the court determines that the incarcerated parent
                or guardian has voluntarily waived the right to participate in the hearing and contest
                the allegation, or if such parent or guardian takes no action after receiving notice of
                such rights, the court may proceed with such action without the parent's or guardian's
                participation.

                 In addition, Supreme Court Rule 13(d) provides that in cases dealing with the
termination of parental rights, the court “shall advise any party who is without counsel that he or she
has the right to be represented by counsel throughout the case and that counsel will be appointed to
represent the party if he or she is indigent and requests the appointment of counsel.” Subsection (e)
of this rule provides that a party requesting the appointment of counsel must complete an Affidavit
of Indigency Form, and the court “shall upon inquiry make a finding as to the indigency of the party
pursuant to the provisions of Tenn. Code Ann. §40-14-202.”

                 Tenn. Code Ann. §40-14-202 states “whenever the accused informs the court that
such accused is financially unable to obtain the assistance of counsel, it is the duty of the court to
conduct a full and complete hearing as to the financial ability of the accused to obtain the assistance
of counsel, and, thereafter, make a finding as to the indigency of the accused.” The statute goes on
to list several factors which the court is required to consider, such as the nature of the services to be
rendered, the usual charge in the community for an attorney to render such service, the income of
the accused, any property owned by the accused, the poverty level income guidelines compiled by
the department of labor, whether the party posted a bond, and other relevant circumstances. Tenn.
Code Ann. §40-14-202. Further, Tenn. Code Ann. §40-14-201, the definition section relating to the
above statute, defines an indigent person as “any person who does not possess sufficient means to
pay reasonable compensation for the services of a competent attorney.”

               Whether a person is indigent is a question of fact, and as such, the standard of review
is de novo with a presumption of correctness of the trial court’s findings, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d). In this case, the evidence in the record does not
support the Trial Court’s finding that RDV was not indigent.


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                RDV filed an affidavit which listed his income and assets at zero. RDV’s mother
testified that RDV had been a partner in a tree cutting business with her, but stated that she owned
all the equipment and he did not own it. RDV’s sister attempted to explain to the court that RDV
had never paid for his interest in the business, but the Court discounted her testimony, describing it
as “a change in the story.”

               At the beginning of the second hearing, RDV explained to the Court that his business
was bankrupt, owned no equipment, and he thus had nothing to sell. The Court refused to
reconsider, and in the Court’s Order, she noted that the ruling that RDV was not entitled to an
attorney was based on his affidavit (which listed zero income/assets) and on RDV’s mother’s
testimony that RDV made good money in his tree-trimming business and supported two households.
RDV, of course, was incarcerated at the time of the hearing, and there was no evidence that he was
earning any income or supporting two households. The Court also remarked about statements RDV
made during a prior hearing, but there is no transcript of that hearing.

                The Court of Criminal Appeals, when construing the requirements of Tenn. Code
Ann. § 40-14-202, has ruled that an indigency hearing is required at any point in the proceedings
when the defendant claims indigency. State v. Dubrock, 649 S.W.2d 602 (Tenn. Crim. App. 1983).
Thus, the fact that a defendant had previously been able to afford private counsel did not preclude
him from later claiming a change in circumstances had rendered him indigent and in need of an
appointed attorney. Id. The Court noted that the legislature placed no limits on the word
“whenever” as used in Tenn. Code Ann. § 40-14-202, and that a defendant who put the trial court
on notice that he could no longer afford an attorney was entitled to an indigency hearing. Id. Thus,
the fact that RDV may have previously been in a different financial condition would not preclude
him from claiming indigency at the time of the termination proceedings, and he would still be
entitled to a hearing on this issue.

                The statute requires a “full and complete hearing” regarding the indigency claim,
which did not occur in this case. At the initial hearing, the Court asked questions of RDV’s mother
and sister (who RDV claims were not sworn, although it is impossible to determine this from the
record), but then refused to allow them to explain their answers or to provide the Court with
additional information regarding RDV’s situation. Likewise, the Court had RDV’s affidavit which
showed he had no assets or income, but did not question RDV at the later hearing regarding the
same, nor did the Court allow RDV to explain his situation, but simply told RDV that she had
already made a decision on that issue. The foregoing demonstrates that RDV did not have a full and
complete hearing on this issue, as required statute. See State v. Miller, 2003 WL 1618070 (Tenn.
Crim. App. Mar. 28, 2003).

               Since RDV was denied a proper hearing on the issue of his indigency and need for
appointed counsel, the Judgment is vacated, and the cause remanded, and the Trial Court is directed
to conduct a full hearing on RDV’s indigency, and a new trial on the propriety of the termination.
The Court is required to comply with the statute and Court Rules and must take into account the


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factors as enumerated. Moreover, the Court cannot consider the assets or income of the RDV’s
family. State v. Gardner, 626 S.W.2d 721 (Tenn. Crim. App. 1981); State v. Ramsey, 2003 WL
21658589 (Tenn. Crim. App. July 15, 2003). As above reiterated, the Trial Court cannot preclude
RDV’s claim of indigency based simply on the fact that at an earlier time in the proceedings, he may
not have been indigent. See Dubrock and Ramsey. Further, the Court should consider that “[i]t is
not necessary that one be a ‘pauper’ in order to be ‘indigent’ for purposes of having appointed
counsel . . . Indigency in the sense of ability to employ competent counsel is not necessarily
equatable with ‘destitution’. The judge need only be satisfied that representation essential to an
adequate defense is beyond the means of the defendant. Indigency is a relative concept, and must
be defined with reference to the particular right asserted.” State v. Gardner, 626 S.W.2d 721, 725
(Tenn. Crim. App. 1981).

                The Trial Court’s Order of Paternal Termination is vacated and the cause remanded
for further proceedings consistent with this Opinion. The cost of the appeal is assessed to the State
of Tennessee, Department of Children’s Services.




                                                      ______________________________
                                                      HERSCHEL PICKENS FRANKS, P.J.




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