In Re: Carrington H. - Concurring In Part and Dissenting In Part

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
May 28, 2015 Session
IN RE CARRINGTON H. ET AL.
Appeal by Permission from the Court of Appeals, Middle Section
Appeal from the Juvenile Court for Maury County
Nos. 90576, 90577 George L. Lovell, Judge
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No. M2014-00453-SC-R11-PT – Filed January 29, 2016
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SHARON G. LEE, C.J., with whom GARY R. WADE, J., joins, concurring in part and
dissenting in part.
The Court has decided that an indigent parent has the right to assistance of
counsel—but not the right to effective assistance of counsel—in a parental termination
proceeding. I believe that the vast majority of lawyers provide competent representation
as required by our Rules of Professional Conduct. See Tenn. Sup. Ct. R. 8, RPCs 1.1 &
1.3. But 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.
As noted by the Court, there are numerous procedural safeguards in place to
protect a parent‟s right to the continued care and custody of her child, including the
requirement that the State prove by clear and convincing evidence at least one statutory
ground for termination and that termination is in the child‟s best interest. I concur with
the Court‟s decision to add another procedural safeguard by requiring the Court of
Appeals to review the trial court‟s findings on all grounds for termination and whether
termination is in the child‟s best interest, even if a parent does not challenge these
findings on appeal. But these safeguards, as appropriate and well-meaning as they are,
cannot protect a parent‟s rights when her lawyer is ill-prepared, fails to make an adequate
pretrial investigation, fails to call a necessary witness to testify, fails to advance
appropriate legal arguments, or fails to otherwise adequately represent her. I agree with
the Court that termination proceedings must be fundamentally fair. But how can we
assure the fairness of a proceeding without requiring the parent‟s lawyer to be effective?
I do not think we can.
Most states require appointed counsel in termination proceedings to render
effective assistance. In a proceeding that may result in the permanent severance of the
parental bond, the stakes are high; the effects of a wrong decision are irrevocable and can
cause lasting damage to the parent and the child. In these cases, we cannot expect
counsel to be perfect, but we can require them to be adequate.
A natural parent‟s “„desire for and right to the companionship, care, custody, and
management of his or her children‟ is an interest far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758 (1982) (quoting Lassiter v. Dep’t of Soc.
Servs., 452 U.S. 18, 27 (1981)) (internal quotation marks omitted). A proceeding to
terminate a parent‟s rights does more than infringe on a parent‟s fundamental liberty
interest; it seeks to forever end it. Id. at 758. An order of termination severs “forever all
legal rights and obligations of the parent.” Tenn. Code Ann. § 36-1-113(l)(1) (Supp.
2015). A parent‟s interest in the accuracy and justice of the decision to terminate his or
her parental status is, therefore, “a commanding one.” Lassiter, 452 U.S. at 27.
Granted, not all parents are good. Some parents are bad and harm their children.
The mother in this case was certainly not a model parent. But the fundamental liberty
interest of parents in the care of their children does not “evaporate simply because they
have not been model parents or have lost temporary custody of their child to the State.”
Santosky, 455 U.S. at 753. When the State intervenes to terminate the parent-child
relationship, the process must meet Fourteenth Amendment due process standards and
provide a proceeding that is fundamentally fair. Lassiter, 452 U.S. at 37; see also
Santosky, 455 U.S. at 753-54; Little v. Streater, 452 U.S. 1, 13 (1981). As the United
States Supreme Court noted in Santosky, “parents retain a vital interest in preventing the
irretrievable destruction of their family life.” 455 U.S. at 753.
In Tennessee, indigent parents are entitled to appointed counsel by statute and
court rule. See Tenn. Code Ann. § 37-1-126(a)(2)(B) (Supp. 2012); Tenn. Sup. Ct. R. 13,
§ 1(c), (d)(2)(B); Tenn. R. Juv. P. 39(e)(2). Almost all states provide indigent parents
with appointed counsel in parental termination cases based on statute, constitutional
provision, or court rule. See Susan Calkins, Ineffective Assistance of Counsel in
Parental-Rights Termination Cases: The Challenge for Appellate Courts, 6 J. App. Prac.
& Process 179, 193 (2004).
To make the right to counsel meaningful, most states have recognized that the
right to counsel in parental termination cases includes the right to effective assistance of
counsel.1 Calkins, supra, at 199. As many jurisdictions have observed, a right to counsel
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See, e.g., S.C.D. v. Etowah Cnty. Dep’t of Human Res., 841 So. 2d 277, 279 (Ala. Civ. App.
2002) (quoting Crews v. Houston Cnty. Dep’t of Pensions & Sec., 358 So. 2d 451, 455 (Ala. Civ. App.
1978)); Chloe W. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 336 P.3d 1258, 1265
(Alaska 2014); Jones v. Ark. Dep’t of Human Servs., 205 S.W.3d 778, 794 (Ark. 2005); In re Darlice C.,
129 Cal. Rptr. 2d 472, 475 (Cal. Ct. App. 2003); People ex rel. C.H., 166 P.3d 288, 290 (Colo. App.
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has little value unless we hold counsel‟s performance to some standard of effectiveness.
See, e.g., In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (“[I]t would seem a useless
gesture on the one hand to recognize the importance of counsel in termination
proceedings [as provided by statute], and, on the other hand, not require that counsel
perform effectively.”); In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (holding that
Utah‟s statutory right to counsel would be meaningless or illusory without an
effectiveness requirement); see also In re Stephen, 514 N.E.2d 1087, 1090-91 (Mass.
1987) (recognizing that a right to counsel is of little value without an expectation of
effectiveness); In re Trowbridge, 401 N.W.2d 65, 66 (Mich. Ct. App. 1986) (“It is
axiomatic that the right to counsel includes the right to competent counsel.”); In re
Termination of Parental Rights of James W.H., 849 P.2d 1079, 1080 (N.M. Ct. App.
1993) (“Representation by counsel means more than just having a warm body with „J.D.‟
credentials sitting next to you during the proceedings.”).
In declining to recognize a right to effective representation, the Court distinguishes
between a constitutional and a statutory right to counsel, noting that unless there is a right
to counsel under the United States Constitution, there is no constitutional right to
effective assistance. See Pennsylvania v. Finley, 481 U.S. 551, 554-55 (1987);
Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); Ross v. Moffitt, 417 U.S. 600, 610
(1974). This is a distinction without a difference in this case because, under the United
States Supreme Court‟s decision in Lassiter, the mother in this case has a constitutional
right to counsel.
In Lassiter, the United States Supreme Court identified a three-factor test for
determining, on a case-by-case basis, whether the appointment of counsel is
constitutionally required. 452 U.S. at 27-31. Factors to be considered are the parent‟s
2007); State v. Anonymous, 425 A.2d 939, 943 (Conn. 1979); In re R.E.S., 978 A.2d 182, 189 (D.C.
2009); J.B. v. Fla. Dep’t of Children and Families, 170 So. 3d 780, 790 (Fla. 2015); In re A.R.A.S., 629
S.E.2d 822, 825 (Ga. Ct. App. 2006); In re RGB, 229 P.3d 1066, 1090 (Haw. 2010); In re M.F., 762
N.E.2d 701, 709 (Ill. App. Ct. 2002); In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992) (citing In re D.W.,
385 N.W.2d 570, 579 (Iowa 1986)); In re Rushing, 684 P.2d 445, 448-49 (Kan. Ct. App. 1984); In re
Adoption/Guardianship of Chaden M., 30 A.3d 935, 942 (Md. 2011); In re Adoption of Azziza, 931
N.E.2d 472, 477 (Mass. App. Ct. 2010) (citing In re Stephen, 514 N.E.2d 1087, 1090-91 (Mass. 1987));
In re Trowbridge, 401 N.W.2d 65, 66 (Mich. Ct. App. 1986); In re J.C., Jr., 781 S.W.2d 226, 228 (Mo.
Ct. App. 1989); In re A.S., 87 P.3d 408, 412-13 (Mont. 2004); N.J. Div. of Youth & Family Servs. v. B.R.,
929 A.2d 1034, 1037 (N.J. 2007); State ex rel. Children, Youth & Families Dep’t v. Tammy S., 974 P.2d
158, 162 (N.M. Ct. App. 1998); In re Elijah D., 902 N.Y.S.2d 736, 736 (N.Y. App. Div. 2010); In re
S.C.R., 679 S.E.2d 905, 909 (N.C. Ct. App. 2009); In re K.L., 751 N.W.2d 677, 685 (N.D. 2008); In re
Wingo, 758 N.E.2d 780, 791 (Ohio Ct. App. 2001); In re D.D.F., 801 P.2d 703, 707 (Okla. 1990); State
ex rel. Juvenile Dep’t v. Geist, 796 P.2d 1193, 1200 (Or. 1990); In re Adoption of T.M.F., 573 A.2d 1035,
1040 (Pa. Super. Ct. 1990); In re Bryce T., 764 A.2d 718, 722 (R.I. 2001); In re M.S., 115 S.W.3d 534,
544 (Tex. 2003); In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994); In re Moseley, 660 P.2d 315, 318
(Wash. Ct. App. 1983); In re M.D.(S.), 485 N.W.2d 52, 55 (Wis. 1992). But see, e.g., In re Azia B., 626
N.W.2d 602, 612 (Neb. Ct. App. 2001) (declining to recognize a claim of ineffective assistance for
parental termination cases).
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interest; the State‟s interest in the child‟s welfare and the need for an economic and
efficient procedure; and the risk of an erroneous decision if counsel is not appointed. See
id.; State ex rel. T.H. v. Min, 802 S.W.2d 625, 626 (Tenn. Ct. App. 1990). A parent‟s
interest in the accuracy and fairness of the proceeding that will forever irrevocably end
her relationship with her child is, as noted by the United States Supreme Court, a
“commanding one.” Lassiter, 452 U.S. at 27. The State has a strong interest in the
welfare of the child and the correctness of the decision. Id. at 27-28. The State also has
an interest in assuring that the proceeding is handled efficiently and economically. Id. at
28. The State pays the attorney fees and expenses for appointed counsel. See Tenn.
Code Ann. § 37-1-126(a)(3). Given that the State is footing the bill, shouldn‟t the State
expect—even demand—that appointed counsel render effective assistance? I believe it
should. The third factor—the risk of an erroneous decision—often becomes the
tie-breaker in whether counsel is constitutionally required. See Min, 802 S.W.2d at
626-27. In Min, the Tennessee Court of Appeals, relying on Lassiter, listed several
factors to consider in determining whether failing to appoint counsel is likely to produce
an erroneous decision. Id. at 627. These factors are (1) whether expert medical and/or
psychiatric testimony is presented; (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.
Id. (citing Lassiter, 452 U.S. at 29-33; Davis v. Page, 714 F.2d 512, 516-17 (5th Cir.
1983)).
Based on these factors, the mother in this case was constitutionally entitled to the
appointment of counsel. In applying the Min factors, (1) the State presented expert
testimony to support its case, making representation by counsel important for the mother
to effectively question the veracity of that testimony; (2) the mother had uncommon
difficulty in dealing with life and life situations, having a long history of family
problems, drug dependency and abuse, and mental illness; (3) the issues and procedures
involved in the termination hearing were difficult and complex, particularly given the
State‟s allegation of the mother‟s mental incompetency and introducing expert medical
testimony; (4) the parental termination hearing would have likely been a distressing and
disorienting situation for the mother; and (5) an order terminating the mother‟s parental
rights would have been permanent and irrevocable. In its brief, the State presumes that
the mother “would meet the [Lassiter] balancing test . . . for assistance of counsel, and
likely therefore, for effective assistance of counsel in this termination proceeding.” I
agree.
As the State concedes, “[i]t is generally accepted that where the Lassiter . . .
due[]process analysis establishes a federal constitutional right to counsel, due process
also entitles the parent to have a right to effective counsel.” See also Calkins, supra, at
196 (noting that “presumably there is a federal constitutional right to effective assistance
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of counsel in every case in which a Lassiter analysis finds a right to counsel”). Even if
this Court does not recognize the right to effective assistance of counsel in all parental
termination cases, the mother in this case is constitutionally entitled to the appointment of
counsel under Lassiter and, therefore, effective assistance of counsel.
The Court likens the statutory right to counsel in parental termination proceedings
to the statutory right to counsel in post-conviction cases, which does not include a right to
effective assistance. See Frazier v. State, 303 S.W.3d 674, 680 (Tenn. 2010). The
litigants, however, in these proceedings are on different footing. A petitioner pursuing a
petition for post-conviction relief has already been tried and convicted, most likely
received at least one tier of appellate review, and otherwise afforded the full panoply of
procedural protections required by the Tennessee and United States Constitutions. The
post-conviction petitioner initiated the action, and if he loses, his position remains
essentially the same. Id. at 682 (noting that “a post-conviction petitioner does not stand
in the same shoes as the criminally accused” and the provision of counsel is “not to
protect them from the prosecutorial forces of the State, but to shape their complaints into
the proper legal form and to present those complaints to the court”). A parent in a
termination proceeding is more akin to a defendant in the trial stage of a criminal
proceeding. The parent did not initiate the proceeding and has much to lose if the court
renders an adverse decision. No decision has been made by a fact finder, and it is the
parent‟s first opportunity to defend herself in court against charges brought by the State,
which could forever sever the relationship with her child.
I share the Court‟s concern that the opportunity for repeated re-examination of a
parental termination judgment through ineffectiveness claims can inflict immeasurable
damage upon children and that achieving finality is imperative. A parent should not be
able to repeatedly challenge the judgment terminating her parental rights. However, the
interest in finality should not trump a parent‟s interest in maintaining the parental bond
and in the correctness of the decision to terminate parental rights. Recognizing a right to
effective assistance of counsel will not unduly compromise a child‟s interest in finality,
permanency, and safety. I would recommend referring this issue to the Tennessee
Advisory Commission on the Rules of Practice and Procedure to formulate a process for
a parent to assert a claim for ineffective assistance of counsel. I would encourage the
Commission to study the post-trial motion procedure adopted by the Florida Supreme
Court in J.B. v. Florida Department of Children and Families, 170 So. 3d 780 (Fla.
2015), and the procedures in other states that allow motions to be filed in the appellate
court for review, see, e.g., People ex rel. C.H., 166 P.3d 288 (Colo. App. 2007); N.J. Div.
of Youth & Family Servs. v. B.R., 929 A.2d 1034 (N.J. 2007); State ex rel. Juvenile Dep’t
v. Geist, 796 P.2d 1193 (Or. 1990).
Upon review of the record before us, I cannot disagree with the Court‟s decision
that the mother was not deprived of a fundamentally fair parental termination proceeding.
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I regret that the mother did not have the opportunity to present any proof or evidence to
support her claims of ineffectiveness.
In conclusion, Tennessee should join the majority of states and recognize that a
parent has the right to effective assistance of counsel in a termination proceeding. This is
a necessary step to ensure that proceedings with the effect of severing the bond between
parent and child are fundamentally fair.
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SHARON G. LEE, CHIEF JUSTICE
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