# FILED February 23, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ IN THE MATTER OF: KATERINA RICE, d/o/b 12-30-92 EDWARD RICE, Appellant, Weakley Chancery No. 15558 Vs. C.A. No. 02A01-9809-CH-00239 DEBBIE BRADBERRY and LARRY BRADBERRY, Appellees.

____________________________ _______________________________________________ _ FROM THE CHANCERY COURT OF WEAKLEY COUNTY THE HONORABLE WILLIAM MICHAEL MALOAN, CHANCELLOR

Edward Rice, Pro Se Kevin McAlpin; James H. Bradberry & Associates of Dresden

For Appellees

VACATED AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER,

JUDGE Th is case involves a petition for termination of parental rights and adopt ion. Respondent

Appellant, Edward Rice, appeals from the order of the t

rial court termin

ating his parenta

l rights1 The record on appeal does not contain a transcript or statement of the evidence,

thereforethe facts we rel ate are based o

n the information in

th e tech nical record and, as uncontroverted

, in the parties’ b

riefs. 2 andgranting the adoption of his minor child to Petitioners-Appel lees, Larr y Bradberry and Debbie Bradberry. 1 The minor child, Katerina Kayann Rice, involved in this matter was born on December 30, 1992. Mr. Rice is the biological father of the child. The c hild’s bio logical mother was Kimberly Di ver. Ms. Diver was killed on May 1, 1993 by Mr. Rice. Mr. Rice has been incarcerated

since the death of

Ms. Div er and is currently serving a life sentence without any definite release date. Since May 1, 1993, the child’s maternal grandparents, Larry Bradberry and Debbie Bradberry, have had custody of the minor child. On April 21, 1998, the B

radberrys file

d a petition to adopt

the minor chil

d r equesting, interalia , that Mr. Rice’s parental rights be terminated since he hasabandoned the minor child in that he has not provid ed support to or visited with the minor child for more than four consecutive months preceding the filing of the petition. Subsequently, Mr. Rice filed an answer

on May 6, 1998 denying the allegations that he has abandoned theminor child and contending that the reason he has been u nab le to visit with the minor child is because of his incarceration andthat no one has brought the minor child to visit him in prison. Along with the answer, Mr. Rice also filed a petition for writ of habeas corpus ad testificandum requesting that he be present to testify at the hearing concerning the petition of adoption. On August

10, 1998, the trial court entered a final order terminating the parental rights of Mr. Rice finding that he had abandoned the minor child byfailing to support o r visit the child since April 30, 1993. The order also found that the child’s adoption is in the child’s best interest andgranted the adoptionto petitioners. On the same date, the trial court entered an order denying the writ of habea

s corpus ad testif

icandum. Mr. Rice has appealed and presents the following issue for our review: Whether

the trial court erred when it de

nied his peti

tio n to attend the adop

tion hearing thus vi

olating his constitutional rights of due process pursuant to the Fourteenth Amendment of the United States Constitution. Mr. Rice asserts in his brief that “the trial court denied his statutory right to bepresent3

at the hearing.” Thus, he asserts th at he was denied h

is due process rig

hts provided by T.C.A. § 36-1-113 (1996) , which his brief q uotes as follows: In T.C.A., § 36-1- 113, it clearly sta tes: “(f) Before terminating the rights of any parent or guardian who is incarcerated or

who was incarcerated

at the time of an action or proceeding is initiated, it must be affirmatively show [sic] to the court that such incarcerated parent or gu ardian received actual notice of the following: (1) The time

andplace of the hea

ring to terminate parental rights; (2) That the h earing will determine whether the ri gh ts of the incarcerated parent or guardian should be terminated; (3) That the incarcerated paren t or guardian has the right toappear at such hearing and contest the allegation that the rights

of the incarcerated

parent or guardian should be terminated; (4) That if the incarcerated parent or guardian wishes to appear at thehearing and the allegation, such incarcerated parent or guardian wi ll be providedwithtransportation to such hearing and, if indige nt , will be provided with a courtapp ointed attorney to assist such personi n contesting the allegation; and. . . .” Unfortunately

for Mr. Rice, the part of

the statute quoted

in his brief was no longer the law at the time the peti

tio n in the instant case was filed. T.C.A. § 36-1-113(f) (Supp. 1998) provides, as eff

ective June 2, 199

7, as follows:

Befor e te rminating the rights of any parent or guardian who is incarcerated or who was incarce rated at the time of an action or proceeding is initiated, it must be affirmatively shown to the court that suc

h incarcerate

d parent o

r guardian received actual notice of the following: (1) The time andplace of the hearing to terminate parental rights; (2) That the hearing will determine whether the rights of the incarcerated parent or guardian should be terminated; (3) That the incarcerated parent or guardian has the right to participate in the

hearing and cont

est the alle

gation that the rights of the incarcerated parent or guardian should be terminated, and, at the discretion of the cou rt, such participation may be achievedthrough perso nal appearanc

e, te leconference , telecommunication or other means de emed by th

e court to be appropriate und

er the circumsta

nces; (4) T hat if the incarcerated parent or guardian wishe s t o participate

in the hearing and

contest the allegation, suchparent or guardian:2 T.C.A. 41-21-304 ( 1997) provides: (a) In no civil cas e can a convict be removed from the penitentiary to give personal attendance at cour t, but testimony may be taken by deposition, as in other cases. . . . 4 (A) If indigent, will be pr ov ided with a court-appointed attorney to assist the parent or guardian in contesting the allegation; and (B) Shall have the rig

ht to perpetuate such person’s testimon y or tha t of any witness by means of depositions or interro gator ies as provided by the Tennessee Rules o

f Civil Procedure; and (5) If, by means of

a signed waiver, the court determines that the incarcera

ted parent or gua

rdian has volu

ntaril y waived the rightto participate in

the hearing and contest the al legation, or if such parent or

guardian takes no action after receiving notice of such rights, the court m ay proceed with such action without the parent’s or guardian’s participation. Thus, it is clear under §

36-1-113(f)(3)

(Supp. 1998), that i

t is within the trial court ’s discretion to determine the nature of the incarcerated parent’s participation in the procee ding. Virtually, the same issue in the case sub judice was before this Court in State, Dept. of Children’s Services v. Moss , No. 01A01-9708-JV-00424, 1998 WL 122716 (Tenn. App. March 20, 1998). In Moss , the father, who was incarcerated at the time, contended th

at his due process rights had been violated by the failure of the trial court to require his presence at the parenta l rights termination hearing.

Although the petition in Moss was filed in 1996, and the trial court hearing was held on December

18, 1996, this Court, and apparently the trial court, failed to discuss the provisions of T.C.A. § 36-1-113(f)(3), then in force as quoted in Mr. Rice’s brief. The Court quoted T.C.A. § 41-21-304, 2 and the Court opinedthat the current status of the law is that party defendants have

no abs olute right to be in attendance at the hearing of a civil matter. Id. at *5. Moreover, the Courtstated that if the incarcerated defendant has been afforded an adequate o pportunity to present a meaningful defense, there is nothing to prohibit the court from proceeding with the matter in the absence of the incarcerated defendant. Id. “Whether to per mit a prisoner in a c

ivil

case to be physically present at court should be left within the trial court’s soun d discretion with the instruction that thi

s discretion should

be exercised wi

th the best interes

tof both the prisoner5

andthe government in mind.” Id. at *6. The Co urt held that the incarcerated father’s due p rocess rights were not violated by the trial court’s failure to require his pres ence at the termination hearing. We agree with the Moss Court’s reasoning in view of the provisions of the present statute vesting discretion in the trial court. In its order denying Mr. Rice’s petition for writ of habeas corpus ad testificandum, the trial court state

d, in pertinent par

t, as follows:

. . . [U]pon the Petition for W rit of Habeas Corpus ad Testificandum,

statements of counsel, and, in fact, upon the entire record in this cause, from all of which it appears to the Court that the costs and inconvenience of transporting a prison er from his place of incarceration to the court room, the potential dang

er to society, the probability of suc cess on the merits, and t

he interests of the inmate

in presenting his testimony in person dictate that the petition should be denied. Given the foregoing, it appears that the trial court considered the appropriate

factors in the determination concerning Mr. Rice’s attendance at trial, thus corre

ctly denying his re

quest to attend. Notwithstanding the above conclusion, our inquiry is not over. From a review of the record and the briefs sub

mitted, there rem

ains a n issue befor e us as to whether the trial court erred in terminating the parental rights of Mr. Rice. In the final order of adoption, the trial court basedits decision to terminate Mr. Rice’s parental rights on grounds that Mr. Rice had abandoned

his minor child in that he “has not seen nor paid child support for the child since April 30, 1993.” It appears that thetrial court focus ed on the wrong time

period in determining whether Mr. Rice hadabandoned the minor child for purposes of terminating his parental rights. T.C.A. § 36-1-113 (Supp. 1 998) provides in pe rtinent part: (c) Termination of parental or guardianship righ

ts must be based upon: ( 1) A finding by the court by clear and conv incin g evidence that the grounds f or termination of parental or guardianship rights have been established; and (2) That termination of the parent’s o r guardian’s rig

hts is in the best interests of the child. Grounds for termi

nation of parenta

l rights are set fo

rth in T.C.A. § 36-1-113(g) (Supp. 1998) which provid

es in pertinent pa

rt: (g ) Initiation of termination of parental or guardianshi p rights may be base

d upon any of the fo

llowing grounds:6 (1) Abandonment by the

parent or guard

ian, as defined in § 36-1-102, has occurred;

* * * (6) The parent has been confined in a c orrectional or detention facility of any type, by order of the c ourt as a result of a criminal act, und

er a sentence o

f ten (10) or more

years, and the child is under eight (8) years of age a t the time the sente

nce is entered by the c

ourt. Concerning what constitutes abandonment, T.C.A. § 36-1-1 02 (Supp . 1998) provides, as pertinent to the

circumstances o

f the present ca

se, as follows: (1)(A) “Abandonment” me ans, for purposes of t erminating the parental or guardian rights of parent(s) o r guardian(s)

of a child to that child in order t o make that child available for a

doption, that: * * * (iv) A parent

or guardian is

incarcerated at the time of the institution of an action or proceeding to declare a child to b e a n abandoned

child, or the parent or guardian has beenincarcerated during all or part of the f

our (4) months immed

iately prece ding the institution of such a ctio n or p roceeding, and either has willfully failed to visit orhas willfully failed to support or make reasonable

payments toward the support of the child for four (4) consecutive months immediately preceding such p aren t’s or guardian’s incarceration, or the parent or guardian has engaged

in conduct prior to incarceration

which exhibits a

wanton disregard for the welfare of the child. The trial court based its finding of abandonment on the period of ti me following Mr. Rice’s incarceration. The time frame the trial court should have used was the four months prior to his incarceration. T.C.A. § 36-1-102(1)(A) (iv). Since the tr ial court made no f

inding in this regard, nor was there any reliance on T.C.A. § 36-1-113(g)(6), the case should be remanded for further proceedings. Moreover, the trial court on remand sho uld req uire compliance with the provisions of T.C.A. § 36-1-113(f). The trial court’s order terminating the p arental rights and grantin g the adoption is vacated, and the case is remanded for further proceedings consistent with this opinion. Costs of the appeal are a

ssessed to the appe

llees.

_________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE