IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 28, 2012 Session

IN RE: CAMERON S.H.

Appeal from the Juvenile Court for Knox County

No. 121209 Hon. Tim Irwin, Judge

No. E2012-00220-COA-R3-PT-FILED-SEPTEMBER 14, 2012

In this parental termination case, the father was appointed counsel at the time the Court held

a dependency hearing in the Juvenile Court and the Order appointing counsel in that

proceeding also appointed the attorney for the subsequent termination of parental rightstrial.

When the Petition to terminate the father's parental rights trial was held, neither the father

nor counsel appeared at trial and a Judgment was entered terminating the father's parental

rights. On appeal, appellant argues that the statue and rule governing this proceeding

required notification to the father's attorney. We vacate the Judgment of the Trial Court on

the grounds that both the Court and the Department of Children's Services were charged with

the knowledge that the appellee was appointed counsel and that the termination Petition's

Judgment was prejudicial to the judicial process when the father's lawyer was not notified

of the Petition or trial. We vacate and remand for a new trial.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court Vacated.

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which D. MICHAEL

SWINEY, J., and JOHN W. MCCLARTY, J., joined.

Robin Gunn, Knoxville, Tennessee, for the appellant, J.S.L.

Robert E. Cooper, Jr., Attorney General and Reporter, and Marcie E. Greene, Assistant

Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department

of Children's Services..
OPINION

In this action to terminate the parental rights of the child, Cameron S.H.'s father,

J.S.L., was appointed counsel on March 7, 2011 during the pendency of the

dependency/neglect proceedings in Juvenile Court.

A Petition to Terminate Parental Rights of the father was filed in the Juvenile Court

on November 3, 2011, and avers that the mother had surrendered her rights to the child, and

the father had been incarcerated for a portion of the four month period prior to filing, and that

before that, he engaged in conduct exhibiting a wanton disregard of the child’s welfare, and

that he failed to comply with the permanency plan.

The Petition further states that the child was removed from the mother at birth, and

that the father was arrested in the fall of 2009 for assault against a former girlfriend, but

released on probation, and then was returned to jail for violating that probation for failing

drug screens and incurring additional criminal charges. The Petition states that in June 2010,

the father was arrested for theft, possession of drug paraphernalia, and driving on a

suspended license, and the father was arrested again in August 2010 for aggravated assault

against the child’s mother while she was pregnant with the child. The Petition further

averred the father was released in April 2011 and that he did not visit the child, but failed to

return to his Steps program and was re-incarcerated. At the time the Petition was filed, the

father was classified as an absconder and a warrant was out for his arrest. The Petition

sought termination of the father’s rights on numerous grounds.

On December 22, 2011, the Trial Court issued a Termination of Parental Rights and

Final Decree of Guardianship, finding that the child had been in custody since 12/15/10, that

the Petition to Terminate was filed on November 3, 2011, and was personally served on the

father on November 10, 2011, and that he was given the hearing date and notice that if he did

not appear his rights could be terminated. The Court held the father was also given the

statutory notice to incarcerated parents advising of their right to participate in the proceedings

and the right to counsel. The Court found the father failed to appear or otherwise defend the

petition.

After the hearing the Court found numerous grounds to terminate the father's parental

rights from the evidence heard by the Court, and that it was in the child's best interest that

the father's rights be terminated.

The issues presented on appeal are:

1. Whether DCS failed to properly effectuate service as required by Tenn. R. Civ.

P. 5.02?

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2. Whether the Trial Court erred by taking action on the Petition for Termination

of Parental Rights without proof of the time and manner of such being filed

and properly before the court as required by Tenn. R. Civ. P. 5.03?

Appellant argues that DCS failed to serve his attorney of record with the termination

petition, as is required by Tenn. R. Civ. P. 5.02. He argues that his attorney was appointed

prior to the filing of the termination petition, yet she was never served with the same, and

was never notified of the proceedings, and therefore, did not appear at the hearing. Appellant

further argues that the summons which was filed as a supplement to the record does not bear

the stamp and signature showing that it was properly filed with the court clerk after service.

Appellant’s attorney was appointed on March 7, 2011, during the pendency of the

dependency/neglect proceedings, months before the termination petition was ever filed. The

Order appointing respondent’s attorney states that she was appointed to represent him

regarding the dependency petition, in foster care review and permanency proceedings, and

from the filing of the termination of parental rights petition to conclusion of trial, and he

argues that his attorney should have been given notice of the termination petition, as she had

been appointed to represent him.

The defendant argues that termination proceedings are separate and distinct from

dependency/neglect proceedings. See In re: Deciandra M., 2011 WL 1679059 (Tenn. Ct.

App. May 4, 2011); In the Matter of L.A.J., III, 2007 WL 3379785 (Tenn. Ct. App. Nov. 15,

2007). The only requirement contained in the statutory scheme or the court rules is that

proper service be had on the necessary party, in this case, appellant. See Tenn. Code Ann.

§36-1-117; Tenn. R. Civ. P. 4; Tenn. R. Juv. P. 39. Tenn. R. Juv. P. 39 states that, upon the

filing of a termination petition, “the court shall cause the necessary parties as provided in

T.C.A. §36-1-117 to be summoned in accordance with the Tennessee Rules of Civil

Procedure.” Tenn. Code Ann. §36-1-117 requires service on parents, guardians, etc., and

Tenn. R. Civ. P. 4 states that when a new action is filed, service must be made on the

defendant. The record shows that the summons that was filed with the Petition to Terminate

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reflects that it was personally served on the father on November 10, 2011, but not his court

appointed attorney.

In this case, there is no dispute that respondent was personally served with the

summons, which listed the date of the termination hearing, a copy of the termination petition,

Respondent’s reliance on Tenn. R. Civ. P. 5 is misplaced, since it only deals with pleadings filed

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after the original complaint/petition.

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and the above-listed rights as an incarcerated parent. The Notice given to the father contains

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all of the above information required by Tenn. R. Juv. P. 39, and also contains the following

admonition: “YOU MUST NOTIFY THE COURT IMMEDIATELY IF YOU WISH TO

PARTICIPATE OR TO CONTEST THIS PETITION.” The Notice goes on to provide the

father with the contact information whereby he can give such notification, and states that if

he fails to do so, a default judgment may be taken against him and the Court may proceed

with the termination without his participation.

When the father was brought before the Juvenile Court in the filing of the dependency

petition, the Juvenile Court entered an Order appointing an attorney for the father. The Order

provided that the appointee would represent the father in the dependency petition proceeding,

the case disposition, foster care review and the termination of parental rights petition to the

conclusion of the trial. (Emphasis supplied). The father's attorney was not notified in any

fashion of the termination proceeding and it was only after Judgment terminating the father's

parental rights that the father learned that his rights had been terminated and he wrote the

Court a letter to reconsider.

Appellee argues, and we agree, that the termination proceeding is entirely separate and

apart and arguably, the statute only requires in termination proceedings that service be had

on the parents, guardians, etc., and on the defendant. However, there is a compelling reason

to vacate and remand for a new trial. The father has a fundamental right to the care, custody

and control of his child. Stanley v. Illinois, 405 U.S. 645-651 (1972); In re: Swanson, 2

S.W.3d 180-188 (Tenn. 1999). In this case, the Trial Court and the Department are charged

with knowing that counsel had been appointed for the father, but counsel was not notified

of the termination proceeding until Judgment had been entered terminating the father's

parental rights, and the failure to notify counsel of the termination proceeding affected the

substantial constitutional and statutory rights of the father. Accordingly, we hold that

substantial justice requires that we grant the father a new trial. We hold the existing

Judgment results in prejudice to the judicial process. See, Tenn. R. App. P. 36(b).

We vacate the Judgment of the Trial Court and remand for a new trial consistent with

this Opinion. The cost of the appeal is assessed to the Department of Children's Services.

_________________________________

HERSCHEL PICKENS FRANKS, P.J.

Respondent argues that the summons and notice are not properly signed/stamped showing they

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were returned to the Court, but the Court has certified that these documents were properly in the Court’s

record. 

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