# FILED

September 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

) ) Lawrence Chancery IN RE: ) No. 8663-97 THE ADOPTION OF ) FEMALE CHILD, E.N. R. ) Appeal No. ) 01A01-9806-CH-00316 )



## DISSENTING OPI

NION

I cannot concur with t he court’s dispos ition of this case. My di sagreement stems, not from a belief that Timothy Ray Rose could or should ultimately succeed in preventing the term

inationof his parental rights, but rather from my belief that he, like anyone el se, is entitled to have the t rial and appellate

courts consider his challenge to the constitutionalit

y of a statute that ma

terially affects

one o f his fundamental liberty interests.The court has deci ded to s id estep this issue by invoking waiver princi ples that cannot be reconciled with the Tennessee Supreme Court’s decis ions regarding the pr oper procedure for

adjudicating challe

nges to a statute’s constitutionality. I would find

thatthe trial court com

mitted reversible error by failing to cause the Attorney General and Reporter to be notified that Mr. Rose had challenged the constitutio nality of Tenn. Code Ann . § 36-1-113(g)(6) (S upp. 1998). Accordingly , I would vacate the decision and remand the case with dire ctions to address the constitutio nal challenge to Tenn . C ode Ann. § 36-1-113(g)(6) after complying with the mand atory req uirements of Tenn. R. Civ. P. 24.0

4 and Tenn. Code Ann. § 29-14-107(b) (1980).

I.

E.N.R. was born on

December 21, 199 3. Her parents, T imothy Ray Rose and Amy Jenell Stanford w

ere not married,

but Ms. Stanford li sted Mr. Rose as E.N.R.’s father on he r birt h certificate. Mr. Rose was present at his daughter’ s birth and frequently

visited with the child and her mother. Mr. R ose 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 Ja nuary 25, 1994, he ple

aded guilty to the rape

o f1 By Mr. Rose’s count, Ms. Stanford visited him sixty-two times between April 1994 an d

October 1996 and brought

E.N.R. with her on most of these visits. Ms. Stanford conceded that she brought E.N.R. to vis

it Mr. Rose in prison o

n approximately on

e-half of her vi

sits.

2 Even though the reco rd d oes not reveal precisely how Mr. Rose’s lawyer challenged the con stitutionality

of Tenn. Code Ann. § 36-1-113(g)(6), the transcript of the May 15, 1998 pr oceedin g 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.

3 The trial court indicated that it was obligated to follow Worley v. State , No . 03A01-9708-JV00366, 1998 WL 52098 (Ten n. Ct. App. Feb. 10, 19

98) (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

. - 2 - the five-year-old daughter of his cousin’s girlfri end, an d on February 8, 1994, he began serving a twelv e-year prison senten ce.

Ms. Stanford frequently took E.N.R. to visit with Mr. Rose when he was first incarcerated, 1 and Mr. Rose contin ued to send Ms. Stanford money to the extent that he was able. As tim

e passed, however

, Ms. Stanford b

ecam e less inclined to tak e E.N.R. to visit Mr. Rose. Mr. Rose last saw E.N.R. in October 1 996. Ms. Stanford married Jonathan L

amar Reed in May 19 97.

On August

28, 1997, Mr. and

Ms. Reed filed a petition in the Chancery Court for Lawrence Count

y seeking to terminat

e Mr. Rose’s par

ental rights and to al

low Mr. Reed to adopt E.N .R. On the same day, Mr. Rose fi

led a pro se petition

t o legitimate

E.N.R. in the Lawrence County Juvenile Court. The trial court later consolidated Mr. Rose’s legitimation petition with the Re

eds’ adoption petition a

nd appointed an attorney to represen t Mr. Ros e. Throughout the r emainder of the pro c eedings, Mr. Rose vigorously contested the involunta ry termination of his parental rights. He also challenged th e constitutional ity of Tenn. Code Ann. § 36-1- 113(g)(6), the statute upon which the Reeds had predicated their petition to terminate his parental rights. 2

On F ebruary 20, 1998, the trial cour t entered an order

finding that Mr. Rose
was E.N.R.’s biological father and directing him t o pay Ms. Reed $9.0 3 per m onth for his daughter’s support. On May 15, 1998, the trial court cond

ucted a hearing on the merits with regar

d to the competing petitio ns for legitimation a

nd adoption. By this time, Mr. Rose

had become eligible

for parole. Af

ter hearing the tes

timony, the trial court found tha

t T enn. Code Ann. § 36- 1-113(g)(6) was c onstitutional, 3 terminated Mr. Rose’s pare ntal rights based sole

ly on Tenn . Code Ann . § 36-1-4 Regrettably, the trial court employed the wrong legal standard to determine whether Mr. and Ms. Reedhad established that terminating Mr. Rose’s paren tal rights was in E.N.R.’s best interes ts. 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 obscu re the fact that the b urden of persua

sion on this point rests with the

persons seeking to

terminate the biol

ogical parent’s

parental rights. - 3 - 113(g)(6), 4 and dismissed Mr. Rose’s legiti mation petition. Re

flecting its view of

the closeness of the evidence, the trial court ended the proceeding with this comment: “I think, Mr. Rose, you prob ably were and, e xcept for this conv

iction, would have continued to be a g ood father for this ch ild.”

Mr. Rose appealsthe termination of h is parental rights.He raises two iss ues. First, he asserts th at Tenn. Code Ann . § 36-1-113(g)(6) violates the Due Pr

ocess Clauseof the Fourteenth Amendment and Tenn. Const. art. I, § 8. Second, he as serts that the evidence does n

ot support the trial cour

t’s conclusion that te

rminating his parental rights and permitting Mr.Reed to adopt E.N .R. is in the child’s best intere sts. Without addressing Mr. Rose’s principal clai m that the statutory ba

sis for terminating his parental rights is un

constitutional, this c

ourt has decided that

E.N.R.’s inte rests will be best served by terminating Mr.Rose’s parental r ights and by permitting Mr. Reed to adopt her.

II.
Litigation of constit

utional questions is not intended to be nonchalant. T

he General Assembly and the courts have

put in place an elabor

ate set of procedur

es -
w ell known to this court - that should be invoked when the constitutionality of a statuteis attacked. These procedures serve two purposes: first, to assure the existence of a genu ine case or controversy and, second, to assure a vigorous defense of th e statute. Compliance with these procedures is not left to the parties alone. The trial and appellate court

s have obligations as w

ell. Tenn. Code Ann. § 29-14-10 7(b) states that wh

enever a statute is

alleged to be unconstitutional,“the attorney gener al of the state shall

also be served with

a copy of the proceeding and be

enti tled to be heard.” Whi le the statute does not

clearly identify who is responsible for see ing to it that the attor

ney general is serve

d with a copy of the complaint challenging the constitutionality of a statute, Tenn. R. Civ. P. 24.04 corrects this over

sight. In unmistakabl

e terms, the rule

sta tes: “ When the5 The Advisory Commission Co mment to Tenn. R. App . P. 32 states, in part: “The provisions of this rule are supp

lementary to, and

do not affect the

provisions of Tenn. Co de An n. § 23-1107 (1955) [recodified as Tenn. Code Ann. § 29-14-107] and rule 24.04 of t he Tennessee Rul

es of Civil Procedure, with respect to notice to the Attorney General in trial court proceedings.”

6 Despite s o me equivocation in the language of Tenn. R. App. P. 32(d), the Advisory Commission Comment explains that this section “ensur es that in the absence of notice to the Attorney General the appellate court will not dispose of the appeal.” - 4 - validi ty of a statute of this s tate . . . is dra

wn in question in any ac

tion to which the Stateor an officer or agenc y is not a party, the court shall require that notice be given the Attorney General, specifying the pertinent statute, rule or re gulation .” The comment to Tenn. R. Civ.P. 24.04 also leaves no doubt that the tria l court’s obligation

to ensure that the

Attorney Genera

l is notified of a cha

llenge to a statute’s constitutionality

is not limited to declaratory judgment proceedings but rather applies to “actions of any t ype.”

Neither Tenn. Code Ann.§ 29-14-107(b) nor Tenn. R. Civ

. P. 24.04 require the Attorney General, once notified of a constitutional challe

nge to a statute, to defend the st atute. After receiving notice, the Attor

ney General’s of

fice may, for r

easons satisfactory to the Attorney General, notify the court that the office does not intend to become involved in the suit. If, ho wever, the Atto

rney General dec

lines to defend

astatute’s constitutio

nality, he or sh

e 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 Senat

e, acting jointly, may then employ counse l 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, T

enn. R. App. P. 32 ensures that the Attorney General will re ceive 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) 5 and i s p remised on the assump tion that the require

ments of Tenn. R. Civ. P. 24.0

4 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 Att

orney General,

Tenn. R. App.P. 32.02(d) dire cts the appellate courtnot to dispose of the app eal until the

Attorney General has been notified and given an opportunity to defend the statute. 67 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 thecase. 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.

8 The per curiam order alluded to in the Court’s opinion w as entered on October 15, 1976. It stated, in part:

The record in this cause fails to reflect that the Attorney General of the St ate was made a party or served with a copy of the proceedings in accordance with T.C.A. § 23-1107 andRule 24.04, Tennessee Rules of Civil Pro cedure. These

requirements are mandatory where the constitutionality of an act of the Legislat ure is before the (continued...) - 5 - A comparison

of what actually ha

ppened in this case w

ith the requirement

s of the applicable rules and statutes reveal s that not one single notice provision has been complied with. Neither M r. Rose nor his appoi

nted lawyer not

ified the Attorney General of

Mr. Rose’s challenge to the cons titutionality of Tenn . Code Ann. § 36-1- 113(g)(6). The trial court di d n ot discharge its obliga tion to ascertain w

hether the Attorney General had received the required notice and to direct that pr oper notice be given if it had not already been done. Even af

ter it became evident that

the Attorney General had not been properly notified of the constitutional c hallenge to Tenn. C

ode Ann. § 36-1-113(g)(6) in e ither the trial or the appellate court, this court compounded the problem by decid

i ng the appeal without first giving the Attorney General an opportunity to respond. 7

The Tennessee Suprem

e Court has provided c

le ar direc tions concerning an appellate court’s responsibili

ty when it discovers t

hat a trial courthas addressed the constitutionality

of a statute without the required notice to the Attorney General. In the absence of proper

notice to the Attorn

ey General,an appellate court must vacate the decision and remand the case to the trial court with directions to r

evisit the issue of the constitutionality of the statute after the required notice has been given to the Attorney General. See Buena Vista Spe cial Sch. Dist. v

. Board of Electio

n Comm’rs of Carroll County , 173 Tenn. 198, 202 , 116 S.W.2d 1008, 1009 (1938). The Court foll owed t his route most recen tly in litigation succe ssfully challenging the constitutionality of the Tennessee Constitutio n’s prohibition against ministers serving in the General Asse

mbly. No twithstanding the impo rtance of the issue

and the impending election, the Court remanded the case to the trial court “t o cu re the deficiency of failure to make the At torney 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). 88 (...continued) Court in an action for a declaratory judgment. [citations omitted]
Due to the failure to include a necessary party, the decree of the Chanc ery Cour tinvalidating the qu alification provi

sions of Chapter 848, § 4, Public Acts o f 1976, on constitution

al grounds is of no f

orce and effe

ct. Paty v. McDaniel , Hamilton Equity (Tenn., Oct. 15, 1976).

9 The Court’s concern about collusion between the county judge and th

e county trustee was apparently

well-founded. After the Court dismissed the first suit, the parties switched sides and filed a second suit chall

enging the statute’s constitutionality. On this occasion, the parties notified the Attorney General who defended the constitutionality of

the statute. On ap

peal, the Court upheld the trial court’s conclusi

on that the statute

violated Tenn. Const. art. II, § 28. See Shipp v. Cummings , 158 Tenn. 526, 529, 14 S.W.2d 747, 748 (1929).

10 For example, I would find little solace in the notion that this court should re mand a c ase to give the Attorney Ge neral the requir ed notice when the

trial court has de

termined that a sta

tute is unconstitutional bu

t not when the trial

court has upheld

the statu te. See Wallace v. Knoxville’s Community

Dev. Corp. , 568 S.W.2d 107, 110 (Tenn. Ct. App. 1978) (stating that “if the circuit judge had held the statut

e unconstitutional

, we more than like

ly would have remanded the cause”). The Eastern Section apparen

tly still follows this

practice beca

use there is no indication in Worley v. State that the Attorney General received notice on eithe r th e trial or appellate level that the constitutionality of Tenn. Code Ann. § 36-1-113(g)(6) had been challenged. - 6 - I can find only one case in which the Tennessee Supreme Court dec ided against remandinga case to the trial court to cure the failure to notify the

Attorney Genera

l. That case involved a collu sive lawsuit filed by the

county judge for Ham

ilton County again stthe county trustee f or Hamilton County se

eking to declare unc

onstitutio na l

arecently enacted state law that cha nged the delinquency da te for payment of propertytaxes. When the case reached the Tennessee Supreme Court, the Court noted that the

Attorney Gen eral had not been ma de a party but dismisse

d the case because the interests of the

county judge and the cou nty trustee were not

sufficiently adverse. See Cummings v. S hipp , 156 Tenn. 595, 597 -98, 3 S.W.2d 1 062, 106 3 (1928). 9 The Court’s conclusion tha t the trial court la

cked jurisdiction to

consider the complaint obviated the

need to notify the At

torney General.

The court seeks

to justify its decision not to remand this case by citing Court of Appeals decisions st

ating that appellate cour

ts may, in their discretion, disregard Tenn. R. Civ. P. 24.04, Tenn. Code Ann . § 29-14-107(b), and Tenn. R. App. P. 3 2 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 Speci al Sch. Dist . v. Board of Ele

ction Comm’rs of Carroll County. 10 The other

decisions cited by the court are inapposite because they involved either a proceedi ng in which the

constitutional challe

nge was not raised i

n11 After ho lding 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. - 7 - the trial court, see McDaniel v. General Care Corp. , 627 S.W.2d 129, 133 (Tenn. Ct. App. 1981), or a challe

nge to the constitutiona

li ty of a cit

y ordinance that the Attorney General is not re quired to defend

. See Harless v. Ci ty of Kingsport, No. 03A01-9707-CH-00289 , 1998 WL 131519, at *7 (Tenn. Ct. App. Mar. 25, 19 98) (No Tenn. R. App. P. 11 application filed). 11

The court’s efforts t

o distinguish Patyv. McDa niel and Buena Vista Special Sch. Dist. v. Board of

Election Comm’ rs of Carroll Countyon procedural grounds are unconvincing. Asserting that a c ourt’s decision to ent ertain a constitution

al 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. 24.0 4 and Tenn. R. App.P. 32(a). The se rules do not permit cour

ts to draw distinctions based on the manner in whic h a constitutional quest

ion is raised. The

y state quite plainly that challenges to the constitutionality of a statute in any action or appeal to which the State

or an officer or a

gency is not a party should not be decided until the Attorney General has been notified of the proceeding. Thus, as lon g as Mr. Rose challenged the constitutionality of Tenn. Code Ann. § 36-1-113(g)(6) in the trial court, how he did it sh ould be of little s ignificance.

The court’s conclusion

that Mr. Rose wa

ived his opportunity to challeng e the constitutionality

of Tenn. Code An

n. § 36-1-113(g)(6) doe s not sit well with the facts of this case or with the

seriousness of the co

nstitutional issues be

in g 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 Te nn. R. App. P.32 place an obligation on the courts to see to it tha t the Attorney Ge neral receives notice of a constitutional- 8 -

challenge to a statute. This

o bli gation exists notwithst anding the court’s noti

ons about the merits of t

he constitutional issue

being raised.
Retreating

behind the shield of jud

icial discretion is l

ikewise unavailing.The question here is not whether

appellate courts ha

ve some leeway in determi ning the nature of the relief that

should be granted in a particular case.Of course, appe llate courts have discretion in these matters. The question here i s whether the court , exercising

its discret io n, should brush aside M r. Rose’s challe

nge to the constitutionality

of Tenn. Code Ann. § 36-1- 113(g)(6). In my min d, the court’s explanation

for its decision does not ri

ng true. Following

the lead of the Tennessee Supreme Court, I would

vacate the

decision and remand the case to the tria l court to reconsiderMr. Rose’s challenge to Tenn. Code Ann. § 36-1-1 13( 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 An

n. § 36-1-113(g)(6)

is heightened by the fundamental nature of the rights atstake and by the seri

ous cloud hanging over the challenged statute. Until the constitutional issues s

urrounding Tenn. Co

de Ann. § 36- 1-113(g)(6) c an be f

ully aired, persons like Mr. Rose, whom some might view as society’s detritus, face the almost ce rtain loss of their r

elationships with

their children without a prior in-depth judicial consideration of whether the affected child w ill be harmed i f his or her ties to a parent are not severed. The potential psychological ramifications

of severing a child’ s relati onship with a parent are severe enough to require individualized termination proced ures that focus chie

fly on the relationship between the child a

nd the parent, not me

rely the parent’s s

tatus.

Mr. Rose’s parental r

elationship with E. N.R. is a fundamental liberty interest entitled to the greatest possi ble constitut

ional pro tection. See Santosky v. Kramer , 455 U.S. 745, 753, 102 S. Ct. 1388 , 1394-95 (1982); Nash-Putnam v. M cCloud , 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 strippe d of these rights when he was convicted of rape a

nd sentenced to s erve twel ve years in12 When the Tenness ee Supreme Court reversed our decisions that prisoners were not

“citizens” entitled to acce

ss to public recor

ds, the Court noted t

hat pris oners in Tennessee are not automatically

stripped of all rights of citizenship upon conviction. S ee 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 ba rr ier separating prison inmates from the protections of the Constitution.” Turner v. Safley , 482 U.S. 78, 84, 107 S. Ct. 2254, 2259 (1987).

13 A clear shortcoming of the Eastern Section’s analysi

s 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 subs tantial r elationship” analysis, the court actually used principles associated with a n 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. - 9 - prison. 12 Nor was he strippe d of his right to seek ju

dicial redress

for unconstitutional infri ngements of his rights. Indeed, Mr. Rose’s right of access to the courts has become a fundamental politi cal right because i

t is his only effec tive means to preserve his other r

ights. See Hudson v. McM illian , 503 U.S. 1, 15, 112 S. Ct. 995, 1003 (1992) (Black mun, J., concurring in the judgment).

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 c a nnot be upheld unless it is supported by sufficie

ntly important governmental interests and is closely tailored to e

ffectuate 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. Redha il , 434 U.S. 374, 388, 98 S. Ct. 673, 682 (1978). In order t

o be “sufficiently i

mportant,” the asserted gov ernme ntal 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 57 9 n.8; Davis v. Davis , 842 S.W.2d 588, 602 (Tenn. 1992). The state a

nd federal constituti

ons impose

on the courts the obliga

tion to examine careful

ly the e xtent to which the asserted governmental interests are served by the challenged statut e, see Moore v. City of East Cleveland

, 431 U.S. 494, 499, 97 S. Ct. 1932,1936 (1977), and to ass ure that fundamenta

l rights are protec

ted, not only against heavy-ha

nded frontal attack

but also from being st

ifled by more subtle governmental inte rference. See Bates v. City of Little Rock , 361 U.S. 516, 523, 80 S. Ct. 412, 416 (1960). 13
It is constitutionally impermissible to sever a parent’s connect ion with his or her child unless there has first been a finding that the cont inuation of the paren

t-child rel ationship threatens the child ’s welfare. See In re Adoption of a Fem ale Child14 See Act of May 26, 19 95, 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(l)(A)(iv) (Supp. 1998) for a c urrent statutory example of this approach.

15 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 § 16-2 005( j) (Supp. 1999), Iowa Code Ann. § 232.116(l)(i)(2) (West Supp. 1999), and Or. Rev. Stat. Ann. § 109.322 (Butterworths 1990).

16 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).

17 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. § 625.09 0(2) (Michie Supp. 1998); Nev. Rev. Stat. § 128.106 (1997). - 10 - (Bond v. McK enzie) , 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 58 2. Tennessee’s ne wly minted adoption statutes contain a list of types of parental conduct that wi ll trigger a termination

proceeding. See Tenn. Code Ann. § 36-1-113(g). The nec essary implication

to be drawn from

this list is that the General Assembly has concluded that the continuation of a chil d’s relationship wit

h a parent who

commits any of the ac

ts
on the list ipso facto thr

eatens the child’s welfare. That

rather sweeping c

onclusion may or may not be true depending on the facts of the case.

Tenn. Code Ann. § 36-1-113(g)(6) provid es that the following conduct may trigger the initiati

on of a termination pr

oceeding: The parent has been confined in a correctional or detention facility of any type , by order of a court a s a result of a crimina

l act, under a sentence of ten (10) or more years, and the child is under e ight (8) ye ars of age at the time the sentence i s entered by the cour t. This particular ground f

or terminating parent

al rights was not par

t of Tennessee’s law

u ntil 1995. 14 Our statute is one of only six state statutes

makin g a crimina

l conviction, by itself, grounds fo r triggering a term

ination proceeding. 15 Several other state statutes include convi ction and incarcer

ation in conjunction with other factors

as grounds for terminating parental rights. 16 Most state termina tion statutes either do not mention incarceration specifically as separate grounds fo r termination 17 or simply18 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. A nn. Stat. § 211.447.6(6) (West Supp. 1999).

19 See Philip M. Gen try, Procedural Due Process Rights Of Incarcerated Parents In Termination Of Parental Rights Pr oceedings: 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 B

ased On Statu

s , 44 U. Pitt. L. Rev. 879 (1983); Steven Fleischer, Note, Termination Of Parental Rights: An Additional Sentence For Incarcerate d Parents , 29 Seaton Hall L. Rev. 312 (1998). - 11 - includeconviction and incar ceration as one of a

number of

factors to be considered when determining a

bandonment or unfitnes s. 18

Substantial questions exist concer ning the constitutionality o f statutes like Tenn. Code A n n. § 36-1-113(g)(6) that permit courts t

o terminate parent

al rights because of the status of the pa

rent rather than be

cause of the detrim

ental effect of t

he parent-child

relationship on

the child. 19 Apart

from the states’ ge

neralized intere st in the welfare of chil

dren, these statutes, as a practical matter, have the effect of shiftin

g the focus to the parent’ s conduct alone a nd away from an indi vidualized identification of the states’ partic

ularized interest

s in severing a

specific parent- child relationship. There are also substantial questions concerning

the closeness of the fit between such

astatute’s means and

its objectives be

cause the use of per se tr iggering grounds in termination

proceedings could ver

y well result in cases where the child will actually be harmed by irret rievably severing hi s or her relationshi p with an otherwise

fit incarceratedparent. If the f it between a statu

tory g round for terminati on on a parent’s fitness cannot withs tandclose constitutional scrutiny, no amount of reliance on a child’s best interests can save the statute.

IV.

Reliance o n the best interest a nalysis required by T

enn. 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 report ed or unreported ca

se in which a

trial or appellate court in this State has determined that a child’s best in terests would not be served by terminating a par ent’s rights after

determining that sta

tutory grounds for termination

of a parent’s rights have been proven by clear and convincing evidence. Whileacademically possible, it is unrealistic to expect that a trial court, after fi nding that a parent has engaged i n conduct that warr

ants the termination

of his or he r- 12 -

parental rights, will decli ne to terminate par

ental rights and leav

e the parent-child relationship int act.
The state and federal constitutions protect fundamental liberty interests f rom unwarranted governmental infri ngement whether th

e infringement is

ill-motivated or well-intentioned.Mr. Rose has atte mpted to question whet

her Tenn. Code A

nn. § 36- 1-113(g)(6) impermissibly interferes with his constitutional ly pr otected parental rights. The trial court de cided this constitutiona

l question without comp

l ying with Tenn. R. Civ. P. 24.04 and Tenn. Cod e Ann. § 29-14-107(b). Rather than penali zing Mr. Rose for the trial

court’s oversight,

I would follo w the lead o f the Tennessee Supreme Court and vacate the trial court’s dec is ion and remand the ca se with directions to give proper notice to the Attorney General and to aga in address the issue of the constitutionality of Tenn. Code Ann. § 36-1-113(g)(6).

_____________________________ WILLIAM C. KOCH, JR., JUDGE