Rule 60 Excusable Neglect Found in Sparta, Tennessee Termination of Parental Rights Appeal: In re Raylan W.

August 26, 2020 K.O. Herston 0 Comments

Facts: When the trial ended to terminate Mother’s parental rights to Child, the trial court orally announced that her parental rights would be terminated. Mother told her lawyer she wanted to appeal.

The trial court’s final order terminating Mother’s parental rights was entered on October 7, 2019.

Mother did not file a notice of appeal within 30 days of the entry of the final order.

On November 14, 2019, Mother moved for relief under Rule 60.02, asserting that her failure to file a timely notice of appeal resulted from excusable neglect by her attorney. She asked that a new final order be entered so a timely appeal could be taken.

Mother’s counsel submitted an affidavit noting that her husband was admitted to the ICU with a severe medical condition three weeks before the entry of the final order.

When her husband was released from the hospital, her 79-year-old father, who requires a wheelchair, had emergency heart surgery. When her father was discharged, he had to move in with her and her family, and she became his primary caregiver. She had to modify her home to make it wheelchair accessible and take him to numerous follow-up medical appointments.

Meanwhile, her husband remained disabled from his medical condition. Thus, Mother’s counsel was caring for her children, her disabled husband, and her ailing father. Understandably, she only worked part-time in her law practice.

Mother’s counsel did not set a reminder to file Mother’s notice of appeal after the termination order was entered. As soon as she realized her error, she moved for Rule 60 relief five business days after the deadline for filing the notice of appeal.

The trial court denied Mother’s motion because “other attorneys find themselves in similar circumstances” and, therefore, these circumstances are not excusable neglect.

Mother appealed from that order.

On Appeal: The Court of Appeals reversed the trial court.

Notices of appeal to the Court of Appeals must be filed within 30 days of the entry of the judgment. The timing of the notice is mandatory and cannot be extended by the Court of Appeals. Where no notice of appeal is timely filed, the Court of Appeals lacks jurisdiction to consider civil appeals.

Tennessee Rule of Civil Procedure 60.02 provides, in relevant part, that a trial court may relieve a party from a final order because of “mistake, inadvertence, surprise, or excusable neglect.”

Under Tennessee law, mere ignorance or carelessness of an attorney, without more, will not provide a basis for relief under Rule 60.02.

To determine whether neglect was excusable, Tennessee courts should consider all the relevant circumstances, including

  • the danger of prejudice to the party opposing the late filing,
  • the length of the delay and its potential impact on proceedings,
  • the reason the filing was late and whether that reason or reasons were within the filer’s reasonable control, and
  • the filer’s good or bad faith.

The Court found the trial court abused its discretion in denying Rule 60 relief to Mother:

Clearly, the trial court’s order fails to indicate that the trial court properly considered the multi-part test for determining whether neglect was excusable as set forth by this Court. And failure to consider the factors set forth by a higher court for guiding a decision may result in an abuse of discretion. Under the circumstances, we often vacate the trial court’s ruling and remand for a more detailed explanation.

In the context of termination of parental rights, however, we are directed to expedite cases in order to further the best interests of the parties. As such, we conclude that the best course of action in this case is to independently review the facts and the applicable factors to determine whether Rule 60.02 relief is warranted.

We began with the prejudice to the opposing party. [The Department of Children’s Services] contends in this case that the child would be prejudiced by the delay in resolving this case. . . .

It is well-settled, however, that mere delay does not constitute prejudice. Rather, prejudice involves substantive harm, such as the loss of opportunity to present some material aspect of its case or detrimental changes of position by one side. Neither DCS nor the [Guardian ad litem] filed affidavits in support of their opposition to Mother’s motion demonstrating any prejudice of this type. Generally, we do not presume prejudice in this context in the absence of evidence to that effect. As such, we are chary [!!!] of ruling that prejudice has been properly demonstrated in this case.

Even considering the delay in gendered by Mother’s motion, however, it strains credulity to state that it was significantly prejudicial. Mother’s motion was filed within two weeks of the missed appeal deadline and adjudicated within about two months. Indeed, the trial court appears to have taken over a month to enter its order denying the motion following the hearing. . . .

If the Rule 60.02 motion was granted, Mother would have been able to exercise her appellate rights for review in this Court, necessarily involving some delay in finality. However, even though the trial court denied the motion, Mother still had a right to appeal that ruling to this Court. No resolution for the child can result until this appeal right is exhausted. Thus, the filing of the Rule 60.02 motion appears to have little impact on the length of the proceedings. . . . As such, we must conclude that this factor does not favor denial of Mother’s motion.

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Moreover, because both parties have diligently briefed the substantive issues in this case, should Mother’s request for relief be granted, any delay can be mitigated by resolving the substantive issues in this case in this appeal. The permanence of the child is therefore not materially affected by the delay caused by the failure to file a timely notice of appeal and the Rule 60.02 procedure.

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Mother’s counsel’s affidavit details a situation where a significant family illness, in this case more than one, led to a mistake in calendaring a deadline. Neither DCS nor the GAL disputes these facts, and the trial court did not indicate that the allegations lacked credibility. Therefore, we take as true for purposes of appeal that Mother’s counsel was enduring significant personal challenges at the time the notice of appeal was due. Moreover, as previously discussed, no prejudice has been shown, and the delay that resulted from Mother’s counsel’s excusable neglect was not lengthy. Considering all of the relevant factors, we must therefore conclude that the trial court abused its discretion in denying Mother’s motion.

Unfortunately for Mother, the Court’s review of the substantive issues led it to affirm the trial court’s termination of Mother’s parental rights. While Mother received Rule 60 relief retroactively, the result—the termination of her parental rights—remains the same.

In re Raylan W. (Tennessee Court of Appeals, Middle Section, August 20, 2020).

Rule 60 Excusable Neglect Found in Sparta, Tennessee Termination of Parental Rights Appeal: In re Raylan W. was last modified: August 23rd, 2020 by K.O. Herston

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