# FILED
March 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT NASHVILLE
STATE OF TENN ESSEE, ) DEPT. OF CHILDREN’ S SERVICES, ) ) Petitioner/Appellee, ) Davidson Juv enile No. 09-39-03, 04 ) VS. ) Appeal No . 01A01-9708-JV-00424 ) WINIFRED LYNN MOS S, )

) Respondent/Appellant. )
APPEAL FROM

THE JUVENIL E COURT OF D AVIDSON CO UNTY AT NASHVILLE, TENNESSEE THE HONORABLE ANDREW J. SHOOKHOFF, JUDGE

J. MICHAEL O’ NEIL Nashville, Tennessee Attorney for Appellant
JOHN KNOX WALKUP Attorney

General & Reporter DOUGLASS EARL DIMOND Assistant A

ttorney General Nashville, Tennessee Attorneys for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J. Defendant/Appellant, W inifred Moss (“Moss”), appeals the judgment of the trial cour t2

terminating his par ental rights a nd in failing to award custody of his children to a family member instead of foster parents. Moss contends that becaus e th e termination proceeding was performed without hi s presence, it was in violat ion of his due process rights. We disagree and affirm the judgment of the trial court.

Moss is the father of Winfred Lemar Moss born May 20, 1988, and Camero n Lynn Moss born December 4, 1990. Both children were born of Nicole Rhodelle Crawford (“mother”) in Jackson County, Il linois. The children were taken i nto State custody on April 14, 1994. Atthe tim e, the children lived w ith their mother in an apartment . A rep res entative of the Department of Human Services (now Children’s Services) (“DCS”) wentto visit the child ren at mother’s apartment. Upon arri val at the apartment, the represen tative found o ne child o utside an d one chil d playing wi th sciss ors. The represen tative further observed all the c hildren eating raw ground beef and reported that, besides the raw ground beef, there w as no food in the apa rtment, that clot hes were st rewn throughout

the entirety thereof, that the house reeked of urine, and that the c hildren were generallysoiled and unkempt. All of this was taking place while the mother lay asleep in
an upstairs bedroom. The mother has had a long history of drug addiction. As a result of the above findings, DCS bel ieved the children to be at risk of abuse a nd ne glect due to mother’s drug abuse. In April of 1994, the children were re moved from the mot her b ut were returned later th at month. In September of that same year, the children were once again removed from the mothe r’s car e and custody and placed in foster care. Over the next few years, mother

tried to overcome her drug addiction but did so to no avail. Finally, the Juvenile Court ter

minated her parental right s on July 30, 1996.

For some time durin g this pe riod, it appeared as though custody of the children would be awarded to Nona Moss Rice, Moss’s siste r who lived in Il linois. In a letter dated May 30, 1995, Ms. Rice informed the court that she was v ery much interested

in obtaining custody and raising her two nephews. On June 6, 1995, the court order ed DCS to make
a referral to Illinois that Ms. Rice might obtain custody of the children. The court, however,
on August 12, 1995, found that mother had taken some positive str ides toward the return3

of her children and, therefore, that it was not in the best interest of the children

to move out of state with the Rices at that time.

Mother regressed back to her ol d ways in late 1995. In a per manency planning
or der entered November 13, 1995, the court found tha t mother had failed three dru g screening tests since the last court hearing in

August. Mother was in agreement with the court that the children should go to live with the Rices in Illinois. The court further noted that the Rices did not want the children to come to their home until after Christmas of that year because of prior commitment s.

On January 10, 1996, the court found no variation i n mother’ s condition since November of

the previous year. The c ourt ordered DCS to obtain thorough reports from Illinois regarding

the children’s adjustment and progress.

On February28, 1996, the court learned that the children had not gone to stay with the Rices as planned. Indeed, the court discovered that the Rices had decidednot to take custody of the children.

Thereafter

on June 5, 1996, DCS filed a petition to terminate the parent al rights of Moss. The court initially terminated Moss’s parental ri g hts on July 30, 1996. The court found that Moss had been served by publication. However, in a letter dated October 10, 1996, and styled “Notice of Appeal,” Moss contested the court’s decision to terminate his parental rights. Moss contended t hat he h ad no notice of the earlier ter mination proceeding.

T he court treated Moss’s l etter as a motion to set aside i ts previou s orde r terminating his parental rights a nd granted that mot ion on Octobe r 25, 1996. The court held a rehearing on the ter mination of Moss’s parental r ights on December 18, 1996.

At the hearing, the court had before it all of the afo rementioned facts. Also , Ms

.4

Rice testified. She stated that there had been a home st udy done in Illinois and that she had c ome to Tennessee in August of 1995, ho ping to gain custody of the childre n. Sh e testified that she did not obtain custody of the children at such time be cause the court found that mother had made some progress in her dr ug interdiction. She admit ted that in January of 1996, she told DCS that “it was against [her] hus ban d’s wishes to place the children with [her] and God’s will was for [her ] to be submissive to

[her] husband.” At the time of trial, she admitted that she r emained unable to obtain custody of the children, but that her sister would t

ake care of them. Ms. Rice’s siste r never filed for custody of the children.
Additionally the children’s foster parent testified. He stated that he and his wife had taken care o f the children for approximatel y two years, and wanted to adopt them. H e further testified that the childr en were excited about bei ng adopted.

On December

3, 1996, Moss was deposed for the trial. He testified, in part, that he
was currentl y inc arcerated in Big Muddy River Correcti onal Center since December 7, 1994, on a number of charges for tw enty years. He conceded that he was confine d in a correctional facility under a sentence of ten or more years and that the children were under the age of eigh t years old when the sentence was entered. He last saw his children in January of 1994, nearly a year before his incarceration. He beseeched the court to gr ant custody of his children to Ms. Rice instead of terminating his parental rights because his family was “real close.”

On January 4, 1997, the court terminated Moss’s parental rights on several grounds, and particularlypursuant to Tenn. Code Ann. § 36-1-113(g) (6), in that Moss w as confined in a correctional facility

under a sentence of ten or more years,and the children were und er eightyears of age when Mos s was sentenced. The cus tod y of the children was turned
over to DCS with the rig ht to place the children for adoption. This appeal ensued. At the presenttime, the Robinsons, the foster p arents, have completed the adopti on paperwork and are waiting to si gn said paperwork depend ing on the outcome of this appeal.5

On appeal, Moss cites three issu es to this court. However, we conclude that there are essentially two issues of import in this matter. They are as follows:

1. Whet her Moss’s right to du e process wa s vio lated by the failure of the trial court to req uire his attenda nc e at the termination o f parental right s rehearing. 2. Wheth er t he State failed to make reasonable efforts t o place the minor children with relatives, particularly the pate rnal relatives of the childr

en.
Whether Moss’s right t o due process was violated by the failur

e of the trial court to require his attendance at the termination of parental rights rehearing. Tenn. Code Ann. § 36-1-113(g)(6) provides: (g) Termination of parental or guar dianship rights may be based upon an y of the following: (6) The parenth as been confined in a correctional or detention fac il ity of any type, by order of the court as a result of a crimin al act, under a sentence of ten (10) or more years, and the child is under eight (8) years of ag e at the time the sentence is entered by the court. In the case under submission, M oss concedes that the statutory grounds

for termination of his p arental rights do exist. He contends, however, that his due process rights h av e been violated by the failur e of the trial court to requi re his presence at the termi nation rehearing. We disagree.

The right of a prisoner to be transported to a county courthouse for the h earing of
a civil matter in w

hich the prisoner is a par ty dep ends upon whether the prisoner is a plainti ff or defendan t as discussed below. While a prisoner has a constitutional r ight to instigateand prosecute a civil action, this is a quali fied and restricted right and is not absolute.

In Whisnant v. Byrd

, 525 S.W.2d 152 (Tenn.1975), the plaintiff a pris oner confined in the Tennessee State Prison filed a pro se complain t seeki ng to recover a 5" X 7" photograph of a young lady and for $10,0 00 damages for intense worr y, grief and mental pain, caused by the defendants' false dealings. The trial ju dge entered an order reciting that in view of the fact that the plaintiff was presently incarcerated in the

state pe nitentia ry,6

that his case should be continued from term to term until plaint iff's release from prison. On appeal, the plaintiff conte nded that he had the right to have his case heard immediately and to be present for trial.
Justice Henry, w riting for the Court st ated: “These constitutional provi sions (Art. 1, Sec. 12 and Art. 1, Sec. 17, Const. of Tenn) constitute clear

and unequivocal declar ations of the public policy of this State to theeffect that no forfeiture of property rig hts shall follow conv iction for a crime, and that every man shall have a remedy by due course of law for an inju ry sustained by him.”
The Court went on the prov ide: We therefore, hold that a prisoner has a constitutional right to institute and prosecute a civil action seek ing redress for injury and damage to his person, or pr operty, or for the

vindication of any other legal right; however this is a qualified and restricted right.

. .[w]e hold that absent unusual circumstances, prisoners who have filed their civ

il complaints, unrelated to the legality of theirconvictions

and who have thus protected themselves against the running of any statute of limitations, wi ll not be aff ord ed the opportunity to appear in court to present their cases during their prison terms. . .[i]nstead such matters will be held in abeyance until the pri soner shall have been rel eased from prison and is in a posi tion to prepare and present his case. . .[w]e hold th at in a proper case, and upon a proper showing of particularized needs, the trial judge in his discretion, may issue an appropri ate di rective requiri ng the attendance of the prisoner. Id. at 153, 154.

Based on the foreg oing, it is clear that a prisoner has no absolute right to be in attendance at a civil matter w hi ch he ha s initiated absent unusual circumstances. Such matters in the case of the prisoner plaintiff sha ll be held in abeyance until the prisoner is released

. Whisnant v. Byrd , supra ., Smith v. Peebles, 681 S.W.2d 567 (Te nn. App.1984).

In Tolbert v. Tolbert , No. 03A01-9406-CV-00230 (Tenn. Ct. App. Dec. 15, 1994), our colleaguesfrom the eastern section noted the s carcity of Tennessee authorit ydealing with the rights of incarcerated defendants in civil suits to be personally pre sent a t their trials,7

and sought guidance from other jurisdictions that have considered the question. The court cited with appr

oval a case

of the Ariz

ona Supreme

Court, Strube

v. Strube , 764 P.2d 731 (Ariz. 1988). The Strube court held that: Prisoners have a right of access t o the courts for legitimate purpose s. At least with respect to a significant civil proceedings initiated against a prisoner by others, we hold that there is a presumption that the prisoner is entitled to be per sonally present at critical pr oceedings, such as the tr ia l itself, when he has made a timely r equest to be prese nt. Of course this is a rebuttable p resumpt ion and the ultimate decision is within the sound discretion of the tri al court. 764 P.2d at 735. The Strube court also said that “the court’s di scretion should be exercised after balancing the interest of the pris oner aga inst the interests of the other parties and the state, including the authorities having

custody of the prisoner.” Id. at 734.

While the Tolbert

court did not go so far as to hold that Tennessee had adopted the rebuttable presumption discus sed supra , it did place the question of whether to permit a prisoner in a civil case to be physically pres ent a t court within the tr ial court’s sound discretion, and instructed the court that its disc retion wasto be exercised with the best interest of both the prisoner and the government in mind.

A prisoner's constituti onal right of access to the c ourts does not encompass the right of the pr ison er to appear personally in all instances and present his version of the facts. Stone v. Morris , 546 F.2d 730 (7th Cir.1976). As long as the inmate and his counsel are af forded adequate opportunity to co nfer confidentially and to petition the court about matters in controversy, the right of access is satisfied. Id. at 735. It is within the discretion of the cou rt to determine whether an inmate shall attend court proceedings held in connection with an action initiated by the inmate. Id.

This Court is aware of no author ity granting a pr

isoner defendant a righ t to be presentin a civil matter. However, Tenn. Code Ann. § 41-21-304 is instructive in this regard. In pertinent part the statute provides as follows:

(a) In no civil case can a convict b e rem oved from the peni tentiary to give personal atten dance at court, but hi s testimony may be taken by deposition, as in other cas es. . .8

The court in Whisnant v. Byrd , supra , found the plaintiff's limited right to personally appear in civil matters to be bas ed upon certain provisi ons of the Tennessee Constitution
as cited above. However, there appears to be no basis, constitutional or othe rwise, to extend this right to party defendants. Accordingly,we opine that the current status of

the law is that party defendants hav e no absol ute righ t to be in attendance at the hearin g of a civil matter.

This, in our op inion, would not prohibit a defendant from v igorously defending against a civil matter. His unavailability for hearings and trials would not prohibit him from presenting matters to the co u rt on his behalf. His testi mony, as well as that of other prisoner witnesses, may be pr

esented by deposition in accor dance with Tenn. Code Ann. § 41-21-304. Moreover, a prisoner defendant may engage counsel to represent him. As long as the prisoner d efendant is afforded ample opportunity to pr esent his side of the controversy, there is no need fo r him to ap pear pers onally. See Stone v. Morris , supra . However, unlike the case of th e p risoner plaintiff, it wo uld be inappropriate to hold the matt er in abeyance until the pri soner's release from custody . If adequate opportu nity t o presenta meaningful defense has been afforded , we see nothing to prohibit the court from proceeding with the matter in the absence of a prisoner defenda nt. To this end, we note that this decision of whether or not to allow a defendant-prisoner personally to appear in a civil trial ag ainst him is within the sound discretion of the trial court.

A prisoner's unavailability for hearings and trials is due to his c onvi ction. We are
unaware of any authorities giv i ng compelling reasons to remove prisoners from their self-caused restrictions and proceed with the case a s though they could proceed at will. See Seybold v. Milwaukee County Sheriff , 276 F.Supp. 484 (E.D. Wis.19 67).

In Stone v. Morris , 546 F.2d 730, 735 (7th Cir. 1976), the court propounded a list of factors to be used by the trial court in exercising its discretion in determining whether a plaintiff-prisoner should be per mitted to attend thetrial of his claim. This court in Tolbert9

v. Tolbert, supra , quoted the Stone court factors with approval: And [the judg e] shou ld take into account the costs and inconvenience of transporting a pris onerfrom his place of incarceration to the courtroom, any potenti al danger or security risk which the pres ence of a particular inmate w ould pose to the court, the substantiality of the matt er at issue, the need for an early determination of the matter, the possibility of delaying trial until the prisoner is released, the probability of succes s on th e mer its, the integrity of the correctional sys tem, and the interestsof the inmate in presenting his testimony in person rather than by deposition. It is imperative to note tha t this list of

factors deals primarily with plaintiff-prisoners. However , even when applying these factors to Moss, a defendant-p risoner, we findth e decision of the trial court to be the co rrect one. The costs and inconvenience of transporting Moss from Illinois to Tenness ee would be prohibitiv

e. We fully realize that the termination of Moss’s pa rental rights is a substantial matter. However, in light of his admission of the existence of the statutory grounds for the termination of hi s parental rights under Tenn. Code Ann. § 36-1-113, the possi bility of his success on the merits is extremely diminished if not completely nonexistent thereby lessening the substantiality of this matter. Without a doubt, considering the need for an early determination and preve nting the possible delay of trial, the best interest of the children is to get on with thei r lives and to begin on their road to emotio nal recovery.
Although a prisoner incarcerated in a state penitentiary who is a plaintiff in a civil matter may have a qualified

and restricted right to be in attendance at a civil hearing, this limited right has not been extende d to include party defenda nts. Whether to permit a prisoner in a civil case to be phy sically present at c

ourt should beleft within the trial court’s sound discretion with the instruction that the court’s discretion should be exercised with the best interest of both the prisoner and the government in mind.

Accordin gly, we conclude that Moss’s due process rights have not been violated by the trial court’s f ailure to require h is presence at th e termination rehearing.

Whether the State fail ed to make reasonable eff orts to place the min or children with relatives, particularly the paternal relatives of the children.10

When placing children, the order ofpreference is to return them to their parents or place them with relatives over permanent placement throu gh adoption. Tenn. Code Ann. § 37-2-403 (1993); State Department of Hum an Services v. Smith

, 785 S.W.2d 336, 338 (Tenn. 1990). The best interest of the child is the paramount consideration w hen determining the placement of a minor child. Arnold v. Arnold, 774 S.W.2d 613, 621 (Tenn. App.1989). Th e trial court must be guided by the best interest of the child. The best interest of the child is the poles tar, the alpha and omega, in chi ld placement determinations. Bah v. Bah , 668 S.W.2d 663, 66 5 (Tenn. App.1983).

In the case under submission, DCS made every reasonable effort to pla ce th e chil dren in the care of the Rices. After the trial court approv

ed such placement with th e Ri ces, the Rices, for whatever reasons, decided that it w as not in their best inter est to obtain custody of the children. A t this point, Ms. Rice s uggested that the childr en be placed with her sister. However, the identity and whereabouts of this sister were nev er forthcoming and this sister nev er filed for custody of the children. At the time

of the trial, Robinson and his wife

had cared for the children approximately two years and were willing to adopt the children. Indeed, the record reveal s that the Robinsons wer e without a

doubt eagerlyawaiting to adopt Winfred and Cameron. In fact, the Robinsons had filed out the adoption paperwork

completely and were read y and waiting to si gn, pending the outcome of the present appeal. Undoubtedly , the trial court took al l this into considerati on whe n placing the children w

ithin the care of DCS.

We strongly em phasize that the courts of this state place a p remium on continuity of placement because stability is important to a child's well-being. Contreras v. Ward , 831 S.W.2d 288, 290 (Tenn. Ct. App.1991); Bah v. Bah , 668 S.W.2d at 666. The real matter that the trial court was

confronted with in placi ng the children with DCS was whatwas the best thing to do with these children--that they should remain in a hom e where they are nurtured, loved, appreciated and where the environment is such that is conducive not only to the physical welfare of the children, but also to thei r emotional and moral welfare, and where they can receive i nstructions from those who have control over them to inspire them11

to activities so as to develop a personality prepared for a life of service, and to successfully compete in the society w hich the child faces when an adult.

The trial court found that “a change of

caretakers and physical environment is likely to have a negative impact on the children’s emotional,psychological and medi cal condition.” Additionally, the trial court stated:

The Court finds that the children were in a home to gethe r where they

are likely to

be adopted. The Court finds that the children are in an ideal s ituati on because the foster parents clearlyunderstand tha t these children have a grandmother, aunts and unc l es, a mother, and a father, unlike an adoption that occurs at birth wher e everything is kind of hidden away in records until everybody gets older. We conclude that DCS did make reasonable effo rts to place the child ren wi th family members. In the end, the trial court was confronted with

whether to allow the children to get on with the rest of the ir lives or to sear ch for other family members w ho were not eagerlyforthcoming. Whe n the Rices were no longer a placement option, the trial court acted in what it concluded to be the best interest of the children

. We conclude that the trial court’s efforts were reasonable and thei r decision well reason ed. Accor dingly we affirm the judgmentof the trial court terminati ng Moss’s parentalrightsand placing the children within the care of DCS.

In light of the foregoing, th e judgment of the trial court is affirmed. Costs are taxed to Moss, f or which exe cution m ay issue if necessar y.

HIGHERS, J. CONCUR:

FARMER, J.12

LILLARD, J.