Facts: Mother’s parental rights to Child were terminated after a trial in which she was represented by court-appointed counsel. The trial court found three separate grounds for termination.

Mother appealed the trial court’s termination of her parental rights. Mother’s court-appointed counsel sought appellate review of two of the three grounds for termination.

The Court of Appeals affirmed the trial court’s judgment but declined to review any of Mother’s challenges to the trial court’s grounds for termination. The Court of Appeals reasoned that, because Mother had not appealed one of the three grounds relied upon by the trial court, the trial court’s finding on that ground was final and furnished a sufficient basis for the Court of Appeals to affirm the trial court’s decision terminating Mother’s parental rights. The Court of Appeals also affirmed the trial court’s finding that clear and convincing evidence established that termination of Mother’s parental rights was in Child’s best interests.

Mother, proceeding pro se, applied for permission to appeal to the Supreme Court. She argued her court-appointed counsel’s representation was inadequate and deprived her of the right to counsel statutorily guaranteed to indigent parents in termination proceedings. She also argued the Court of Appeals erred by declining to review the sufficiency of the evidence to support the trial court’s findings regarding grounds for termination.

The Supreme Court granted Mother’s pro se application for permission to appeal and appointed new counsel to represent her before the Supreme Court.

On Appeal: In a 3-2 decision, the Court of Appeals’ decision was reversed but the termination of Mother’s parental rights was affirmed.

No collateral attack for “ineffective” assistance of counsel. Tennessee Code Annotated § 37-1-126(a)(2)(B)(ii) provides the right to court-appointed counsel for indigent parents in every termination of parental rights case.

Mother argued the statutory right to court-appointed counsel includes, in every case, the right to challenge a judgment terminating parental rights based on ineffective assistance of counsel after the appellate court has rendered its decision on a parent’s appeal as of right from the judgment terminating parental rights.

Notably, no Tennessee statute provides a procedure, comparable to post-conviction procedures, by which parents may attack judgments terminating parental rights based on ineffective assistance of counsel. Rather, Tennessee Code Annotated § 36-1-113(q) is a statute of repose providing that, if an order terminating parental rights is affirmed on appeal, the order is binding and shall not, “for any reason,” “be overturned by any court or collaterally attacked by any person after one (1) year from the date of the entry of the final order of termination.”

After reviewing the evidentiary record, a three-member majority of the Supreme Court ruled:

After carefully considering this issue, we conclude that transporting the structure of the criminal law, featuring as it does the opportunity for repeated re-examination of the original court judgment through ineffectiveness claims and post-conviction processes, has the potential for doing serious harm to children whose lives have by definition already been very difficult.

Due process unquestionably requires States to provide parents with fundamentally fair procedures, but it does not require States to ignore the other interests at stake in parental termination proceedings. The State has both the right and the responsibility to protect children. The State’s interest in finality is unusually strong in child custody disputes. It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents. In criminal cases, the burdens resulting from extended, collateral attacks on convictions are justified because the complete deprivation of personal liberty demands a thorough search for the innocent. In parental termination proceedings, the burdens of extended litigation fall most heavily upon children—those most vulnerable and most in need of protection, stability, and expeditious finality. There is little that can be as detrimental to a child’s sound development as uncertainty over whether he is to remain in his current “home,” under the care of his parents or foster parents, especially when such uncertainty is prolonged. Due to the immeasurable damage a child may suffer amidst the uncertainty that comes with such collateral attacks, it is in the child’s best interest and overall well-being to limit the potential for years of litigation and instability….

Given the existing procedural safeguards applicable to parental termination proceedings, we decline to hold that securing the constitutional right of parents to fundamentally fair procedures requires adoption of an additional procedure, subsequent to or separate from an appeal as of right, by which parents may attack the judgment terminating parental rights based upon ineffective assistance of appointed counsel.

Appellate review of all grounds required. In light of the interests and consequences at stake, parents are constitutionally entitled to “fundamentally fair procedures” in termination proceedings.

Among the constitutionally mandated “fundamentally fair procedures” is a heightened standard of proof—clear and convincing evidence. Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings. The clear-and-convincing-evidence standard ensures that the facts are established as highly probable, rather than as simply more probable than not.

Tennessee statutes governing parental termination proceedings incorporate this constitutionally mandated standard of proof. Tennessee Code Annotated § 36-1-113(c) provides:

Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established; and
(2) That termination of the parent’s or guardian’s rights is in the best interests of the child.

This statute requires the State to establish by clear and convincing proof that at least one of the enumerated statutory grounds for termination exists and that termination is in the child’s best interests.

In In re Angela E., the Supreme Court said in dicta:

[T]he Court of Appeals should likewise review the trial court’s findings of fact and conclusions of law as to each ground for termination, even though the statute only requires the finding of one ground to justify terminating parental rights. The Court of Appeals’ thorough review of all grounds decided by the trial court will prevent unnecessary remands of cases that we hear in this Court.

Now with the issue squarely before the Supreme Court, the Court decided:

[R]equiring this review will ensure that fundamental parental rights are not terminated except upon sufficient proof, proper findings, and fundamentally fair procedures. Requiring this review should not prolong any appeal already pending before the Court of Appeals by any measurable degree and has the potential to reduce the number of applications for permission to appeal filed in this Court. This will, in turn, advance the important goal of concluding parental termination litigation as rapidly as possible consistent with fairness.

After reviewing the evidentiary record, however, the Supreme Court concluded there was clear and convincing evidence supporting the trial court’s finding of grounds and best interests. Accordingly, the termination of Mother’s parental rights was affirmed.

Dissent: Justices Lee and Wade concurred with the decision to add another procedural safeguard by requiring the Court of Appeals to review the trial court’s findings even if a parent does not challenge those findings on appeal. They wrote separately, however, to dissent from the majority’s holding regarding the right to “effective” assistance of counsel.

The Court has decided that an indigent parent has the right to assistance of counsel—but not the right to effective assistance of counsel—in a parental termination proceeding. I believe that the vast majority of lawyers provide competent representation as required by our Rules of Professional Conduct. But in those rare situations where a lawyer makes a mistake or fails to do his or her duty to such an extent that the termination proceeding is not fundamentally fair, I favor providing the parent with an opportunity to seek relief. In my view, providing counsel for an indigent parent but not requiring counsel to render effective representation is an empty gesture….

[The procedural] safeguards, as appropriate and well-meaning as they are, cannot protect a parent’s rights when her lawyer is ill-prepared, fails to make an adequate pretrial investigation, fails to call a necessary witness to testify, fails to advance appropriate legal arguments, or fails to otherwise adequately represent her. I agree with the Court that termination proceedings must be fundamentally fair. But how can we assure the fairness of a proceeding without requiring the parent’s lawyer to be effective? I do not think we can.

Most states require appointed counsel in termination proceedings to render effective assistance. In a proceeding that may result in the permanent severance of the parental bond, the stakes are high; the effects of a wrong decision are irrevocable and can cause lasting damage to the parent and the child. In these cases, we cannot expect counsel to be perfect, but we can require them to be adequate….

I share the Court’s concern that the opportunity for repeated re-examination of a parental termination judgment through ineffectiveness claims can inflict immeasurable damage upon children and that achieving finality is imperative. A parent should not be able to repeatedly challenge the judgment terminating her parental rights. However, the interest in finality should not trump a parent’s interest in maintaining the parental bond and in the correctness of the decision to terminate parental rights. Recognizing a right to effective assistance of counsel will not unduly compromise a child’s interest in finality, permanency, and safety.

K.O.’s Comment: (1) It should be noted the Court reviewed the actions of Mother’s court-appointed counsel and found them to be completely appropriate under the circumstances. The Court wrote the actions of Mother’s court-appointed counsel “did not deprive Mother of a fundamentally fair parental termination proceeding.”

(2) Most states have held that the right to counsel in parental termination cases includes the right to effective assistance of counsel. Tennessee is now among the minority of jurisdictions holding otherwise.

In re Carrington H, et al. (Tennessee Supreme Court, January 29, 2016).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.