Opinion
Appeal No. 01A01-9806-CH-00316.
September 29, 1999.
APPEAL FROM THE CHANCERY COURT FOR LAWRENCE COUNTY, THE HONORABLE ROBERT L. JONES PRESIDING, Lawrence Chancery No. 8663-97.
AFFIRMED AND REMANDED
Attorney for Petitioners/Appellees:
Andrea Huddleston, Hillhouse Huddleston
Attorney for Respondent/Appellant:
J. Jay Cheatwood
OPINION
Appellant Timothy Ray Rose, an inmate of the Tennessee Department of Correction, seeks reversal of the trial court's decision to terminate his parental rights regarding E.N.R., his daughter by Amy Jenell Reed. Mr. Rose asserts that Tenn. Code Ann. § 36-1-113 (g) (6) (Supp. 1998) violates the Due Process Clause of the Fourteenth Amendment. He also maintains that termination of his parental rights was not in E.N.R.'s best interest. For the following reasons, we affirm and remand.
E.N.R.'s parents began dating in January of 1993. She was born on December 21, 1993. Her parents never married. Mr. Rose attended the birth, and, in the ensuing weeks, visited the new-born and her mother frequently. Although he did not pay for pre-natal care, he gave Mrs. Reed $500 or $600 of his income tax refund after the birth.
When E.N.R. was seven weeks old, Mr. Rose pleaded guilty to a lesser included offense of rape and was incarcerated on February 8, 1994, under a twelve-year sentence. He was originally charged with aggravated rape of a five-year-old child. Mrs. Reed testified that she did not learn about the charges until May of 1993, after she got pregnant. She stated that Mr. Rose claimed to be innocent and she believed him. Mr. Rose maintained that he told Mrs. Reed of the charges shortly after they began dating.
For the first year after Mr. Rose was incarcerated, Mrs. Reed regularly took E.N.R. to visit her father at the penitentiary. Mrs. Reed's interest in maintaining the relationship waned after she learned that Mr. Rose had confessed to the crime with which he was originally charged. During his incarceration, Mr. Rose sent E.N.R. $177.09 in child support. Mrs. Reed returned most of this money at Mr. Rose's request, for his use while incarcerated. Mrs. Reed last visited the prison in October 1996.
The Reeds married in the summer of 1997. On August 28, 1997, they filed the underlying petition. On the same day, Mr. Rose filed a petition to legitimate E.N.R. The Reeds successfully moved to consolidate Mr. Rose's legitimation petition with this action. On November 18, 1997, the Reeds moved for summary judgment. Mr. Rose filed a pro se response, a motion seeking appointed counsel and a motion requesting an order to allow his personal appearance at all hearings. The trial court granted Mr. Rose's motions, appointed counsel, and issued an order legitimating E.N.R. See Tenn. Code Ann. § 36-1-117 (b)(2) and (3) (Supp. 1998). After a hearing, the court denied the Reeds' motion for summary judgment.
The case came on for trial and, after hearing the evidence, the trial court terminated Mr. Rose's parental rights and granted the Reeds' petition for adoption of E.N.R. by Mr. Reed. The trial court found that Mr. Rose pleaded guilty to rape and received a 12-year sentence when E.N.R. was under eight (8) years of age, and, therefore, the Reeds had met their burden of proving, by clear and convincing evidence, the existence of statutory grounds for termination on the basis of Tenn. Code Ann. § 36-1-113 (g) (6). The court further concluded that the Reeds had proved that termination of Mr. Rose's parental rights and E.N.R's adoption by Mr. Reed were in the best interest of the child. The trial court also upheld the constitutionality of Tenn. Code Ann. § 36-1-113 (g) (6), relying on Worley v. State Department of Children's Services, No. 03A01-9708-JV-00366, 1998 WL 52098 (Tenn.App. Feb. 10, 1998) (no Tenn. R. App. P. 11 application filed).
On appeal, Mr. Rose has raised no issue regarding the court's decision to grant the adoption of E.N.R. by Mr. Reed.
I.
To terminate a parent's rights to his or her child, the trial court first must find that one of the statutory grounds for termination has been established by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1) (Supp. 1998). Once this finding is made, the 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. Tenn. Code Ann. § 36-1-113(c)(2) (Supp. 1998).
The wording of the statute indicates the legislature's intent that the evidentiary requirements of both prongs of Tenn. Code Ann. § 36-1-113 (c) must be satisfied by clear and convincing evidence. See also State Department of Children Services v. Malone, No. 03A01-9706-JV-00224, 1998 WL 46461 at * 2 (Tenn.App. February 5, 1998) (Tenn. R. App. P. 11 application denied, June 8, 1998) (applying the clear and convincing standard to the best interest test); State Department of Children Services v. Darr, No. 03A01-9706-JV-00213, 1998 WL 128874 at * 4 (Tenn.App. March 24, 1998) (no Tenn. R. App. P. 11 application filed) (same).
The grounds for the termination of Mr. Rose's parental rights were those found in Tenn. Code Ann. § 36-1-113(g)(6) (Supp. 1998). That subsection states in pertinent part:
Initiation of termination of parental or guardianship rights may be based upon any of the following grounds: . . .
(6) The parent has been confined in a correctional or detention facility of any type, by order of the 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.
On appeal, Mr. Rose does not dispute the trial court's finding that the requirements set out in section 113(g)(6) were proved. He does, however, argue that termination of his parental rights is not in the best interest of E.N.R. He maintains that E.N.R. should not be deprived of his support and affection.
As stated in the statute, an action to terminate parental rights can be initiated only if one of the statutorily-defined grounds is shown to exist. Our legislature has chosen to define those grounds by using objective criteria, leaving little room for consideration of other factors, such as intent or wilfulness in determining whether the grounds exist. See Adoption of Dunaway, 1999 WL552873 (Tenn.App. July 29, 1999).
However, the finding that grounds for termination exist only triggers the second analysis — whether termination of this parent's parental rights is in this child's best interest. It is in this critical phase of the analysis that the court can and should consider the particular circumstances before it, including the impact on the child of the termination of a previously established and maintained relationship, where such has existed, or the impact on a young child of the absence of a parent for a foreseeably large portion of that child's early years. It is in the best interest analysis phase of the termination determination that the court must engage in individualized consideration of the situation before it and make that often-difficult decision as to the child's best interest.
In making this best-interest determination, the trial court is required to consider, but is not limited to, the following factors:
(1) Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it in the child's best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to have on the child's emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward other children in the family or household;
(7) Whether the physical environment of the parent's or guardian's home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol or controlled substances as may render the parent or guardian consistently unable to care for the child;
(8) Whether the parent's or guardian's mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with the child support guidelines promulgated by the department pursuant to § 36-5-101.
Tenn. Code Ann. § 36-1-113(i) (Supp. 1998).
Our review of the trial court's decision is de novo upon the record with a presumption of correctness of the trial court's findings of fact, unless a preponderance of the evidence dictates otherwise. See Tenn. R. App. P. 13(d). The trial court herein, however, applied the generally applicable preponderance of the evidence standard to the best interest analysis. Our task, then, is to determine whether the record shows by clear and convincing evidence that termination of Mr. Rose's parental rights is in E.N.R.'s best interest.
The record shows that Mr. Rose was charged with the aggravated rape of a five year old child, the daughter of his cousin's girlfriend. He confessed and entered a plea to the lesser included offense of rape. Mr. Rose was denied parole in 1996 based on the seriousness of the offense. He has obtained no psychiatric treatment during his incarceration. E.N.R. was conceived while the charges were pending against Mr. Rose, raising questions regarding Mr. Rose's forethought as to and interest in maintaining a presence in E.N.R.'s life. Further, prior to the court granting his petition to legitimate E.N.R. and setting of child support, Mr. Rose provided minimal child support, and actually requested the return of funds he sent to Mrs. Reed. He sent no birthday or Christmas gifts or greetings. Mr. Rose's family has not maintained ties with E.N.R. through visits, telephone calls, support, or any communication.
E.N.R. has been living with her mother and her stepfather, Mr. Reed, since their marriage in May of 1997. Mr. Reed has cared for and supported E.N.R. They have developed a close relationship, and he considers her his daughter. He reads to her, plays with her, and the family enjoys many activities together. E.N.R. calls Mr. Reed "daddy", and he introduces her as his daughter. E.N.R. has also developed a familial relationship with Mr. Reed's mother. Mr. Reed testified that he would obviously continue to love E.N.R. and take care of her if he were not allowed to adopt her. However, he wanted to adopt her so that she could share a last name with him, her mother, and her new sibling. He also testified that he understood the obligations for future support he would undertake if the adoption were granted.
Mrs. Reed was pregnant at the time of the hearing.
E.N.R. was seven weeks old when Mr. Rose was incarcerated. Her mother and Mr. Rose had never established a home together. During the next two years, E.N.R. was brought by her mother to visit Mr. Rose in prison approximately twenty-five times. At the time of the hearing, E.N.R. was almost four and one-half years old and had had no contact with Mr. Rose or his family for approximately two years. She has formed close relationships with her stepfather and his family. She has been living in a stable home environment with a nurturing family unit and has prospered. The trial court found, "this child for the last two or three years has really not had a father figure other than Jonathan Reed." We find, by clear and convincing evidence, that four-year-old E.N.R.'s best interests lie in maintaining a nurturing, stable environment where she feels secure and feels she is part of a family group.
II.
Although he agrees that the statutory grounds set out in Tenn. Code Ann. § 36-1-113 (g) (6) were proved, Mr. Rose asserts that that provision unconstitutionally deprives him of his fundamental liberty interest in his parental relationship without due process of law. According to Mr. Rose, the statute's fatal flaw is its failure to consider all relevant circumstances, including parole possibilities or an early release date from prison.
Before appellate review of an attack on the constitutionality of a statute is appropriate, the record must reflect compliance with Tenn. R. Civ. P. 24.04, Tenn. R. App. P. 32, and Tenn. Code Ann. § 29-14-107 (b).
Rule 24.04 of the Tennessee Rules of Civil Procedure states in pertinent part:
When the 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 . . .
In proceedings in which a statute of statewide effect is alleged to be unconstitutional, Tenn. Code Ann. § 29-14-107 (b) mandates that "the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard." Tenn. Code Ann. § 29-14-107 (b).
Nothing in the trial court record demonstrates that the Attorney General received the requisite notice of this action challenging the constitutionality of Tenn. Code Ann. § 36-1-113 (g) (6). Such notice is mandatory. See Cummings v. Shipp, 156 Tenn. 595, 597, 3 S.W.2d 1062, 1063 (Tenn. 1928); Harless v. City of Kingsport, No. 03A01-9707-CH-00289, 1998 WL 131519 at * 7 (Tenn.App. March 25, 1998) (no Tenn. R. App. P. application filed). Thus, the constitutional issue is not properly before us.
In addition, the Rules of Appellate Procedure also require such notice. Rule 32 states:
(a) Service; When Required. — When the validity of a statute of this state or an administrative rule or regulation of this state is drawn in question in any appeal to which the state or an officer or agency is not a party, the party raising such question shall serve a copy of the party's brief on the Attorney General.
(b) Proof of Service. Proof that service has been made on the Attorney General shall be filed with the brief of the party raising such question.
(c) Right to Respond. The Attorney General is entitled, within the time allowed for the filing of a responsive brief by a party, to file a brief. The Attorney General is also entitled to be heard orally, regardless of whether he or she files a brief.
(d) Consequence of Failure to Comply. Except by order of the court, in the absence of notice, the appellate court will not dispose of an appeal until notice has been given and the Attorney General has been given such opportunity to respond as shall be set by the court.
Subsection (d) of this rule would allow this Court to direct that notice and the opportunity to respond be provided to the Attorney General and to suspend disposition of an appeal pending such response where the requisite notice has been provided in the trial court's proceedings but not on appeal. However, we do not interpret the rule to allow us to order the notice and hear the appeal where notice was not provided in the trial court which considered the constitutional challenge.
The appellate clerk's file includes a letter from an Assistant Attorney General asking to be removed from the notice list in this case because "the state has no interest" in it. It is not clear how the Assistant Attorney General came to be listed to receive notices regarding this case, and the appellate record contains no indication that the Attorney General was provided notice that Mr. Rose was challenging the constitutionality of a statute. The letter supports that conclusion since indicating "no interest" is not one of the options available to the Attorney General upon receipt of notice of a challenge to the validity of a statute. See Tenn. Code Ann. § 8-6-109(b)(9).
The appellate clerk's file includes a letter from an Assistant Attorney General asking to be removed from the notice list in this case because "the state has no interest" in it. It is not clear how the Assistant Attorney General came to be listed to receive notices regarding this case, and the appellate record contains no indication that the Attorney General was provided notice that Mr. Rose was challenging the constitutionality of a statute. The letter supports that conclusion since indicating "no interest" is not one of the options available to the Attorney General upon receipt of notice of a challenge to the validity of a statute. See Tenn. Code Ann. § 8-6-109(b)(9).
The failure to provide notice to the Attorney General precludes our review of the constitutional issue raised by Mr. Rose. When this court has faced a situation where the Attorney General was not properly given notice in the trial court, we have interpreted our authority as including the discretion either to remand the case or to decide the other issues and refuse to consider the constitutional issue. See Wallace v. Knoxville's Community Development Corp., 568 S.W.2d 107 at 110 (Tenn.App. 1978) ("in the exercise of our discretion, we have entered an order declining to remand the cause for the purpose of notifying the Attorney General.") Tenn. R. App. P. 36 gives this court authority to "grant any relief" on the law and the facts, and the Advisory Committee's Comments state that the rule "makes clear that the appellate courts are empowered to grant whatever relief an appellate proceeding requires." We find no language in Tenn. Code Ann. § 29-14-107(b) Tenn. R. Civ. P. 24.04 which limits this court's discretion to grant appropriate relief. Similarly, we find no such language in any opinions of the Supreme Court or any language indicating that our interpretation as to the scope of our discretion has been incorrect.
In the few cases where the Supreme Court has faced a situation where a constitutional challenge to a statute was raised and the Attorney General had not been properly notified at the trial level, the lawsuits were brought under the Declaratory Judgment Act and the only issue in the case was the constitutionality question. In those cases, the Supreme Court had no option to disregard the procedurally defective constitutionality issue and decide the case on the remaining grounds.
The scarcity of cases involving this situation is not surprising because the intermediate appellate courts would have addressed the lack of notice to the Attorney General except in those cases wherein the intermediate court is bypassed pursuant to Tenn. Code Ann. § 16-3-201(d).
The Supreme Court has determined that in a action brought under the Declaratory Judgment Act challenging the constitutionality of a statute, the Attorney General must be made a party. See Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913 (1949). See also Paty v. McDaniel, 547 S.W.2d 897, 901, wherein the Court stated that the case had earlier been "remanded to cure the deficiency of failure to make the Attorney General a party."
In Cummings v. Shipp, the Court held that service on the Attorney General, under the Declaratory Judgment Act, was mandatory. This lawsuit had only one issue: the constitutionality of a statute of statewide application. The Court found that it was without jurisdiction because the parties did not have adverse interests, and since the Attorney General was not made a party, no adverse interests were represented. In Paty v. McDaniel, the only issue before the Supreme Court was whether a provision of Tennessee's Constitution violated individual rights guaranteed under the U.S. Constitution. The Plaintiff brought suit to have an opposing candidate for office declared ineligible under the Tennessee Constitution. In Buena Vista Special School Dist. v. Board of Election Com'rs of Carroll County, 173 Tenn. 198, 116 S.W.2d 1008, (1938), the lower court had enjoined the holding of an election on the ground that the statute authorizing the election was unconstitutional. The Supreme Court, while finding that the chancellor was correct in his conclusion that the statute was unconstitutional, reversed the granting of the injunction. The Court then held that the lawsuit should proceed under the Declaratory Judgment Act, that relief under that act seemed proper, and that the Attorney General should be made a party to the declaratory judgment action.
In a number of cases, this court's analysis of the relief appropriate where no notice has been given to the Attorney General has been based on two general principles: (1) the burden of providing the required notice lies with the party bringing the constitutional challenge, and (2) that party's failure to provide notice constitutes a failure to properly proceed below which can prelude that party from the relief sought in this court, i.e., a holding that the statute is unconstitutional. See Laue v. Richardson, (Appeal No. not given) 1987 WL 9374 at *3 (Tenn.App. April 14, 1987) ("plaintiff [the party asserting the unconsitutionality of a statute] failed to comply with the notice requirement of Rule 24.04, T.R.C.P.".);Harless v. City of Kingsport, No. 03A01-9707-CH-00289, 1998 WL 131519 at * 7 (Tenn.App. March 25, 1998) (no Tenn. R. App. P. application filed) (finding that the party bringing the constitutionality challenge "failed to comply with T. C. A. § 29-14-107(b), which requires that a party who seeks to challenge the constitutionality of a statute of statewide effect must give notice to the State Atttorney-General", and also failed to comply with similar notice requirements in Tenn. R. Civ. P. 24.04 and Tenn. R. App. P. 32, and in such absence of compliance, the constitutionality issue "is not properly before us."). In Wallace v. Knoxville's Community Development Corp., 568 S.W.2d 107 at 110, this court found that the appellants, who were challenging the constitutionality of a statute, "did not properly proceed below" by failing to give notice to the Attorney General. See also Neill v. Neill, (no Tenn. R. App. P. 11 application filed) Appeal No. 02A01 — 9109-GS-00201, 1992 WL 41697 at *6 (Tenn.App. March 6, 1992) ("Since appellant [the party challenging the constitutionality of the statute] did not properly proceed below, we will not consider this issue.") Similarly, in McDaniel v. General Care Corp., 627 S.W.2d 129 (Tenn.App. 1981), this court found that the party seeking to challenge a statute was "not at liberty to raise the constitutional question at this stage of the proceeding." Id. at 133.
In only one case has the procedural defect been attributed to the trial court, and in that case the trial court, sua sponte, determined a statute to be unconstitutional, even though the issue had not been raised by the parties. No notice had been provided to the Attorney General. See Haynes v. City of Pigeon Forge, 883 S.W.2d 619 (Tenn.App. 1994). This court found the trial court's ruling "procedurally defective", but pretermitted the constitutional issue and decided the case on other grounds which did not require consideration of the constitutional issue. Id at 619.
In Harless, the plaintiff-appellant challenged city ordinances. However, this court found that the claim also constituted a challenge to statutes of statewide applicability since the ordinances essentially tracked the language of the corresponding statutes. Therefore, the court found the notice provisions of Tenn. Code Ann. § 29-14-107(b) and Tenn. R. Civ. P. 24.04 applied.
Although the court found that the issue of the constitutionality of the statute was not raised in the trial court, it specifically relied on Tenn. R. Civ. P. 24.04 in denying consideration of the question of the validity of the statute.
In Wallace, in explaining its decision not to remand, the court explained that the appellants were not in a position to assert the unconstitutionality of the statute on appeal. The court indicated that it would more than likely have remanded the case if the trial court had found the statute unconstitutional. This reasoning is implicitly based on the court's often-applied analysis that the challenging party had the burden of providing the required notice and, therefore, was not entitled to relief on appeal because of its responsibility for the error below.
Tenn. R. App. P. 36(a) provides that appellate courts are not required to grant relief to a party responsible for an error or who failed to prevent or nullify the harmful effect of an error. The Advisory Committee Comments indicate this provision is a statement of the previously accepted principle that a party is not entitled to relief if the party invited error, waived an error, or failed to take whatever steps were reasonably available to cure an error.
We are of the opinion that, as stated in Wallace, the question of whether to remand a case to the trial court for reconsideration of the constitutional issue after notice to the Attorney General is a matter within our discretion. In view of this court's recent ruling on the constitutionality of the same statutory provision, and in the interest of providing stability to the child involved in these proceedings, we decline to remand.
Therefore, for the reasons stated above, we affirm the order of the trial court in terminating the parental rights of Mr. Rose. Costs of this appeal are taxed to Appellant, for which execution may issue if necessary.
_____________________________ PATRICIA J. COTTRELL, JUDGE
CONCURS:
_______________________________________ BEN H. CANTRELL, P. J., M.S.
DISSENTS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
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, 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.
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.
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.
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.
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, terminated Mr. Rose's parental rights based solely on Tenn. Code Ann. § 36-1-113(g)(6), 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."
The trial court indicated that it was obligated to follow Worley v. State, No. 03A01-9708-JV-00366, 1998 WL 52098 (Tenn.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.
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.
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 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) 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.
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."
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."
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.
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.
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).
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 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).
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). The Court's conclusion that the trial court lacked jurisdiction to consider the complaint obviated the need to notify the Attorney General.
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).
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. The other decisions cited by the court are inapposite because they involved either a proceeding in which the constitutional challenge was not raised in the trial court, see McDaniel v. General Care Corp., 627 S.W.2d 129, 133 (Tenn.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.App. Mar. 25, 1998) (No Tenn. R. App. P. 11 application filed).
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.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.
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.
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 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 prison. 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 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).
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).
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.
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 (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. Our statute is one of only six state statutes making a criminal conviction, by itself, grounds for triggering a termination proceeding. Several other state statutes include conviction and incarceration in conjunction with other factors as grounds for terminating parental rights. Most state termination statutes either do not mention incarceration specifically as separate grounds for termination or simply include conviction and incarceration as one of a number of factors to be considered when determining abandonment or unfitness.
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(1)(A)(iv) (Supp. 1998) for a current statutory example of this approach.
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 (1)(i)(2) (West Supp. 1999), and Or. Rev. Stat. Ann. § 109.322 (Butterworths 1990).
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).
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).
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).
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(1)(A)(iv) (Supp. 1998) for a current statutory example of this approach.
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 (1)(i)(2) (West Supp. 1999), and Or. Rev. Stat. Ann. § 109.322 (Butterworths 1990).
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).
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).
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).
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. 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.
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).
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 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