In re Carrington H.

483 S.W.3d 507

In re Carrington H.et al.

No. M2014-00453-SC-R11-PT.

Supreme Court of Tennessee, AT NASHVILLE.

May 28, 2015 Session¹

Filed January 29, 2016

Rebecca McKelvey Castañeda(discretionary appeal), Nashville, Tennessee, and Mark A. Free(appeal as of right and at trial), Columbia, Tennessee, for the appellant, Vanessa G.

Herbert Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Mary Byrd Ferrara, Assistant Attorney General; and C. Nicholas Fossett, Assistant General Counsel, for the appellee, Tennessee Department of Children's Services.

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JEFFREY S. BIVINSand HOLLY KIRBY, JJ., joined. SHARON G. LEE, C.J., with whom GARY R. WADE, J., joins, concurring and dissenting.

OPINION

CORNELIA A. CLARK, J.

We granted review in this case to decide (1) whether an indigent parent's right to appointed counsel in a parental termination proceeding includes the right to challenge an order terminating parental rights based on ineffective assistance of trial and appellate counsel; and (2) whether the Court of Appeals must review any ground the trial court relied on to terminate parental rights when a parent fails to raise all grounds for termination on appeal. We hold that parents are constitutionally entitled to fundamentally fair procedures in parental termination proceedings. Nevertheless, this constitutional mandate does not require us to adopt a procedure by which parents may collaterally attack orders terminating parental rights based on ineffective assistance of counsel. Additionally, we hold that appellate courts must review a trial court's findings regarding all grounds for termination and whether termination is in a child's best interests, even if a parent fails to challenge these findings on appeal. Having reviewed the record on appeal in accordance with these holdings, we affirm the trial court's judgment terminating the mother's parental rights.

I. Factual and Procedural Background

This appeal arises from a petition to terminate the parental rights of Vanessa G. ("Mother") to her minor child Carrington. By the time the Tennessee Department of Children's Services ("DCS") filed the petition on October 24, 2013, it had been providing services to Carrington's family for ten years.² Mother's entire history with DCS is not included in the record on appeal, but the record on appeal establishes the following factual background.

Mother gave birth to six children between 1996 and 2004. Carrington, the sixth child, was born November 24, 2004. About seven months before Carrington's birth, Mother and Father were the subjects of a dependency and neglect action in the Juvenile Court for Lewis County.³ With the assistance of their attorney, Mother and Father waived their right to an adjudicatory hearing and consented to a finding that their five children were dependent and neglected and that their home was in such a condition as to make it unsafe and unsanitary for the children to reside there. The Juvenile Court awarded temporary custody of the children to DCS but physically placed the children with Mother and Father. The Juvenile Court ordered Mother to continue with mental health treatment and directed both parents to continue with domestic counseling as needed, to cooperate with DCS, and to comply with the permanency plan.

On December 2, 2005, when Carrington was nearly thirteen months old, the Juvenile Court ordered all six children removed from their parents' custody through an emergency removal process and placed them in the temporary custody of their maternal grandmother and aunt. After a hearing, the Juvenile Court, on January 10, 2006, ordered the children to continue residing temporarily with their maternal grandmother and aunt but also granted each parent four hours supervised weekly visitation with the children. The adjudicatory hearing was scheduled for February 9, 2006, but the record on appeal does not include the transcript of, or order from, that proceeding.

The record on appeal reflects that a hearing occurred on April 7, 2006, and the Juvenile Court placed the children on a ninety-day trial home visit with Father. Mother, by then divorced from Father, received visitation with the four oldest children every weekend and visitation on alternate weekends with the two youngest children, Brighton, nearly three years old, and Carrington, almost eighteen months old. Mother's visitation was contingent upon a favorable home study by DCS.

On May 5, 2006, for reasons not apparent from the record, the Juvenile Court suspended Mother's visitation with Carrington and Brighton but reinstated her visitation a month later. Nevertheless, the Juvenile Court noted that there [were] issues concerning [Mother] that concern[ed] the [Juvenile] Court and if not addressed, could lead to severe limitations as to visitation."

About fourteen months later, on July 13, 2007, DCS filed a dependency and neglect petition against Mother in the Juvenile Court for Maury County. DCS sought by the petition to terminate Mother's visitation privileges and to continue custody of the children with Father. DCS filed the petition after receiving a referral alleging sexual abuse and after the four oldest children disclosed during forensic interviews that Mother would masturbate in front of them." Following a hearing on July 23, 2007, the Juvenile Court, by an August 10, 2007 order, suspended Mother's visitation pending the adjudicatory hearing on DCS's petition, which the Juvenile Court scheduled for August 27, 2007.

The adjudicatory hearing did not actually commence, however, until February 15, 2008, at which time Mother, upon the advice of her appointed counsel and in open court, waived her right to an adjudicatory hearing." The Juvenile Court entered its orders on March 27, 2008, and upon the requests of counsel for DCS and Father, included findings that the allegations of the petition had been established by clear and convincing evidence and that the children were dependent and neglected because: (1) Mother, by reason of cruelty, mental incapacity, immorality, or depravity was unfit to properly care for them; (2) the children were in such condition of want or suffering or under such improper guardianship or control as to injure or endanger their morals or health; and (3) the children were suffering abuse or neglect. See Tenn.Code Ann. § 37–1–102(b)(12)(B), (F), (G)(2014).⁴ The Juvenile Court refused to reinstate Mother's visitation with the children and ordered them to remain in the legal and physical custody of Father. The Juvenile Court deemed its March 27, 2008 order "the final determination as to the claims that the children are dependent and neglected for the reasons set out above" and "advised" the parties that the order could "be appealed for trial de novo in the Maury County Circuit Court by filing a notice of appeal within ten (10) days at the office of the Clerk of the Maury County Juvenile Court." The record on appeal does not indicate that Mother appealed the Juvenile Court's March 27, 2008 order.

On November 17, 2009, the Juvenile Court held a review hearing. After hearing testimony from DCS and CASA representatives, the Juvenile Court again kept in place its order suspending Mother's visitation with the children.

On December 21, 2009, DCS filed a petition in the Juvenile Court for Maury County, seeking removal of the children from Father's home and alleging that the children were dependent and neglected based upon Father having physically abused five-year-old Carrington by beating and striking him. By an order entered the same day, the Juvenile Court awarded DCS temporary custody of the children.

About three months later, on February 18, 2010, the Juvenile Court ruled that Mother would "have no visitation or contact with the children until the children, on their own volition, request[ed] such visitation, and then only with the guidance and facilitation of the children's treating professionals." Regarding Father, the Juvenile Court ruled that if he failed to comply with the requirements set forth for him, either DCS or the children's guardian ad litem "should file the appropriate motions or petitions with the Juvenile Court to assure the children have permanency in this matter."

Eight days later, on February 26, 2010, DCS provided Mother with a document titled "Criteria and Procedures for Termination of Parental Rights" and reviewed the contents of the document with Mother. Mother signed the document, acknowledging that she had received it along with an explanation of its contents.

On September 20 and 28, 2011, Mother and her appointed counsel participated in the development of family permanency plans. As relevant to Carrington, these permanency plans described the concerns regarding Mother as: (1) "a history of mental health instability and abuse of prescription medication"; (2) "sexually inappropriate [conduct] with her children"; and (3) "a history of environmental neglect and unsafe housing." The enumerated goals and actions for Mother were: (1) taking her medications as prescribed by her treating professional; (2) providing documentation to DCS of her prescriptions and providers and the pharmacy used for her prescriptions; (3) submitting to random drug screens; (4) asking her mental health provider to furnish an assessment of her emotional ability to parent her children; and (5) providing DCS with a plan for the children in the event she experienced a seizure or a blackout, such as she had previously reported experiencing.

As to the three oldest children only, the permanency plans required Mother to: (1) overcome her denial of sex abuse and acknowledge it verbally or in writing to a professional counselor; (2) cooperate with her treating professional and the children's treating professionals to ensure appropriate boundaries were implemented and understood and to address the possibility of parental alienation; (3) ensure that no inappropriate sexual...