This article by Debra Cassens Weiss in the ABA Journal may be of interest.

Lawyer Is Suspended for Using Email Information Obtained by Client by Guessing Password

A Missouri lawyer has been suspended for using information obtained by his divorce client by guessing his wife’s email password.

The Missouri Supreme Court indefinitely suspended lawyer Joel Eisenstein with leave to apply for reinstatement in six months, the St. Louis Post-Dispatch reports. A disciplinary hearing panel had sought indefinite suspension with leave to reapply in a year.

Eisenstein’s client had obtained his wife’s payroll documents and a list of direct examination questions prepared by the wife’s lawyer for an upcoming divorce trial, according to the Missouri Supreme Court opinion. The client gave the information to Eisenstein in November 2013.

A disciplinary hearing panel found that Eisenstein used the payroll information during a settlement conference before trial. Opposing counsel learned Eisenstein had the list of questions in February 2014 when it was included in a stack of exhibits that Eisenstein gave the lawyer during trial.

During a hearing that followed, Eisenstein admitted he viewed the information and didn’t immediately disclose it.

Afterward, Eisenstein sent the opposing lawyer an email that read: “Rumor has it that you are quite the ‘gossip’ regarding our little spat in court. Be careful what you say. I’m not someone you really want to make a lifelong enemy of, even though you are off to a pretty good start. Joel”

According to the Missouri Supreme Court, ethics rules required Eisenstein to promptly disclose to opposing counsel that he had received the information from his client so that appropriate measures could be taken. The court also said the threatening email Eisenstein sent to opposing counsel was prejudicial to the administration of justice.

Two dissenting justices said Eisenstein should not be allowed to reapply for reinstatement in 12 months, rather than six months.

The dissenters also said it was inappropriate for Eisenstein to solicit the bar and judiciary to influence the state supreme court in the ethics case. “One of these solicitations,” a dissenter wrote, “took the form of an email titled ‘I’m too old for this xxxx!!’ [Expletive deleted.]” The email included Eisenstein’s “complete history” of the case that “varies greatly from the facts” found by the disciplinary hearing panel, according to the dissent. Eisenstein is 70 years old, according to the Post-Dispatch.

Eisenstein has been disciplined five times before. In 1991 and 1999 he was admonished for ex parte communications with a judge. In 1997 he was suspended after pleading guilty to a misdemeanor for failing to file a tax return. In 2001 he was admonished for failing to respond to a request for information regarding an ethics complaint. And he was admonished in 2004 for failing to inform a court of material facts relevant to a pending issue.

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

Posted by: koherston | April 22, 2016

Photo of the Week: Mottled Bald Eagle Taking Flight

mottled bald eagle

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

Facts: Mother and Stepfather filed a petition to terminate Father’s parental rights and adopt the child.

After a trial, the trial court found clear and convincing evidence of grounds to terminate Father’s parental rights and that termination was in the child’s best interest.

The trial court entered an order stating its conclusions and attached a transcript of its oral ruling from the bench detailing its specific factual findings.

Father appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

Under Tennessee law, the proof in a termination of parental rights case must show, by clear and convincing evidence, at least one statutory ground and that termination is in the child’s best interest. Clear and convincing evidence is evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. This heightened standard of review prevents unwarranted termination or interference with a biological parent’s parental rights.

Tennessee Code Annotated § 36-1-113(k) provides that in termination of parental rights matters:

The court shall ensure that the hearing on the petition takes place within six (6) months of the date that the petition is filed, unless the court determines an extension is in the best interests of the child. The court shall enter an order that makes specific findings of fact and conclusions of law within thirty (30) days of the conclusion of the hearing. If such a case has not been completed within six (6) months from the date the petition was served, the petitioner or respondent shall have grounds to request that the court of appeals grant an order expediting the case at the trial level.

knoxville divorceThe statute explicitly requires trial courts to “enter an order which makes specific findings of fact and conclusions of law” in termination cases. Tennessee courts have interpreted this to require that each parental termination order set forth the findings of fact that underlie the conclusions of law.

In the In re Adoption of Muir opinion, No. M2002-02963-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2003), the Court held, “Because of Tenn. Code Ann. § 36-1-113(k), trial courts cannot follow the customary practice of making oral findings from the bench and later adopting them by reference in their final order.” The Muir Court explained that “trial courts must prepare and file written findings of fact and conclusions law with regard to every disposition of a petition to terminate parental rights, whether [such findings] have been requested or not.”

Subsequent decisions held a trial court’s noncompliance with this rule fatally undermines the validity of parental termination order.

After reviewing the record, a majority of the Court concluded:

In this case, the trial court made no written findings of fact in its final order. Instead, the final order attached a transcript of the court’s oral findings given from the bench at the close of the trial. The written order then listed the court’s conclusions of law…. [T]his is insufficient under Tenn. Code Ann. § 36-1-113(k). When such findings of fact are not made, “we cannot simply review the record de novo and determine for ourselves where the preponderance of the evidence lies as we would in other civil, non-jury cases. . . . [W]e must remand the case for the preparation of appropriate written findings of fact and conclusions of law.” For the reasons stated above, we vacate the trial court’s final order and remand the case with directions to prepare the written findings of fact and conclusions of law as required by Tenn. Code Ann. § 36-1-113(k).

Accordingly, the trial court order was vacated and the matter remanded for written findings.

Dissent: Judge Swiney wrote a dissenting opinion, explaining:

The majority vacates and remands this case because the trial court attached to its final order a transcript of its oral findings rendered from the bench at the close of trial, which, the majority concludes, is insufficient under the statute as “an order that makes specific findings of fact. . . .” The majority correctly cites the language of In re: Adoption of Muir, wherein this Court stated: “Because of Tenn. Code Ann. § 36-1-113(k), trial courts cannot follow the customary practice of making oral findings from the bench and later adopting them by reference in their final order.” This Court has invoked this language many times over the years, and I have joined in some of these opinions.

However, upon due consideration, I now question applying the apparent Muir rule that oral findings and conclusions, no matter how thorough or detailed, as transcribed and incorporated into a final order by reference, somehow do not comply with Tenn. Code Ann. § 36-1-113(k). Why is this so? Provided the findings and conclusions are sufficiently detailed, a separate question, what difference does it make under the statute whether the trial court has its oral findings transcribed and incorporated by reference in its final order, or instead later types them out or has them typed out by an assistant? In each of these scenarios, we have what we need for appellate review as required by statute, an order that makes specific findings of fact and conclusions of law….

I question only whether Tennessee Appellate courts should continue to follow Muir and balk at transcribed oral findings and conclusions in parental rights termination cases simply because they initially were uttered aloud, no matter how very detailed and thorough they are.

K.O.’s Comment: I agree with Judge Swiney. Precedent is sometimes followed just because it’s precedent. Occasionally one needs to ask, “Does this longstanding interpretation make any sense?” Usually it does. But sometimes — as is the case here — it is difficult to see the rationale. I appreciate that Judge Swiney is willing to reconsider things when they no longer make sense to him. I don’t think this merits the prestigious “World’s Most Awesome Judge” designation, but it’s certainly a step in the right direction.

In re K.J.G. (Tennessee Court of Appeals, Eastern Section, March 28, 2016).

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

Since I began summarizing and commenting online about Tennessee case law over six years ago, I have always posted links to the actual appellate court opinions. I wanted to make it easy for you to read the opinion yourself if you wanted to.

tennessee bar associationUntil recently, I always linked to copies of the opinions hosted on the Tennessee Bar Association website.

For reasons known only to the TBA, they have now put all the publicly available appellate court opinions behind a pay wall accessible only to TBA members.

Seriously.

That means my links to appellate court opinions on almost 800 blog posts are now dead links.

Several weeks ago I contacted the TBA leadership with some questions about this change. No one has bothered to respond. Clearly I am a valued member of the Association!

From this point forward, I will link to appellate court opinions hosted on the website maintained by Tennessee’s Administrative Office of the Courts (AOC).

If you are looking for opinions covered in old posts, you can find them by typing in the party names on the AOC website.

I apologize for any difficulty you may have finding the opinions from old posts. You can thank our forward-thinking friends at the Tennessee Bar Association.

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

Posted by: koherston | April 15, 2016

Photo of the Week: Coastal Brown Bears Feasting on Salmon

bears from plane

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

Facts: Mother and Father are the parents of two children. Father paid court-ordered child support.

Later, Father petitioned to change custody. Immediately prior to the trial, the parties announced they had reached an agreement changing the parenting schedule and the amount of each party’s parenting time. The specific terms of their agreement was recited in open court, after which both parties affirmed their agreement under oath.

Subsequent court filings indicate a lack of consensus as to the nature of the parties’ agreement. Each party filed proposed parenting plan reflecting their understanding of the agreement.

The trial court entered Mother’s parenting plan because it was consistent with the parties’ “announced agreement.” The parenting plan entered by the trial court did not specify a particular amount of child support, however.

Father appealed the trial court’s entry of Mother’s proposed parenting plan.

On Appeal: In a 2-1 decision, the Court of Appeals dismissed Father’s appeal because the order appealed from is not a final judgment.

Unless an appeal from an interlocutory order is provided by the rules or by statute, appellate courts only have jurisdiction over final judgments. A judgment is a final when it decides and disposes of the whole merits of the case leaving nothing for the further judgment of the court.

tennessee child supportIn Leonardo v. Leonardo, a divided Court held “the filing of a petition to modify child visitation and/or the child’s residential parenting schedule triggers a review of the parents’ respective child support obligations.” Judge Stafford dissented.

The Tennessee Supreme Court accepted permission to appeal in Leonardo and issued an order vacating that portion of the Court’s majority opinion regarding modification of child support. The Supreme Court remanded the case to the trial court with the direction that the trial court permit discovery and conduct a hearing on the issue of the appropriateness of any modification of child support and the proper amount of child support if it is determined that child support is subject to modification.

A majority of the Court believes the Supreme Court endorsed its holding in Leonardo, explaining:

Had the Supreme Court disagreed with our substantive holding in Leonardo, it would have reversed this Court or would have determined that the issue of child support was not before the trial court and thereby negated the requirement that a trial court revisit child support when it changes a residential parenting schedule. If the Supreme Court had disagreed with our legal position on that issue, there would have been no need for its remand for discovery and a hearing on child support. As we interpret it, the Supreme Court’s mandate that the trial court inquire into the “appropriateness of any modification” relates to whether a significant variance existed, not to whether a modification was appropriate in the absence of a pleading requesting relief related to child support.

Failing to require a trial court to revisit child support incident to a modification of the parenting schedule poses a serious threat to children’s welfare. Child support payments are for the benefit of the child, and both parents have a duty to support their minor children. Holding otherwise would only undermine our trial courts’ authority to exercise continuing jurisdiction over the care of the children of this State.

Accordingly, the majority dismissed the appeal for lack of subject matter jurisdiction.

Dissent: Just as he did in Leonardo, Judge Stafford filed a dissenting opinion, stating:

Because I cannot accept that an agreed upon change in a parenting plan automatically necessitates an unrequested reconsideration of the parties’ child support obligations, I must respectfully dissent….

[A]t this juncture, there is no pending request by either party to modify the parties’ child support obligations. Despite this fact, the majority concludes that the trial court was required to enter a new child support worksheet, presumably for the trial court to consider the parties’ current incomes…. Based upon my concerns regarding the application of Tennessee law and fundamental due process, as more fully articulated in my dissent in Leonardo, I must respectfully dissent from the majority’s conclusion that the trial court was required to reconsider the parties’ respective child support obligations given that no such request for relief is pending at this time.

The end result of the majority’s holding is that this Court is deprived of subject matter jurisdiction by the trial court’s purported failure to adjudicate an issue not raised nor litigated by the parties. Because such a holding prevents this Court from reviewing the issues and claims actually raised by the parties, I find it illogical and not an effective use of judicial resources.

K.O.’s Comment: Hopefully we won’t have to wait for the Supreme Court’s decision in Leonardo to resolve this question. Perhaps one of the parties in this case will ask the Supreme Court to weigh in.

In re Gabrielle R. (Tennessee Court of Appeals, Western Section, March 17, 2016).

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

Facts: Mother and Father are the unmarried parents of Child. When they separated, Mother was designated the primary residential parent and Father was ordered to pay child support.

Six years later, Mother petitioned to modify child support and requested an award of attorney’s fees. Father counter-petitioned for a change of primary custody.

After the trial, the trial court increased Father’s child support obligation and denied his request to become the primary residential parent. The trial court denied Mother’s request for attorney’s fees.

Mother appealed.

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

tennessee child support attorney's feesMother argued the trial court abused its discretion by denying her request for attorney’s fees.

Civil litigants are generally required to be responsible for their own attorney’s fees in the absence of a statute or contractual provision otherwise. One of the most common circumstances in family law cases in which an award of attorney’s fees is appropriate is when an economically disadvantaged parent returns to court to enforce the other parent’s child support obligations.

Tennessee Code Annotated § 36-5-103(c) provides a statutory mechanism for the recovery of attorney’s fees in certain cases involving the custody and support of children. Section 36-5-103(c) provides:

The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court.

In cases involving the custody and support of children, it has long been the rule in Tennessee that attorneys fees incurred on behalf of minors may be recovered when shown to be reasonable and appropriate. There is no absolute right to such fees, but their award in custody and support proceedings is fairly common.

There is no list of factors a trial court should take into account in exercising its discretion on the question of attorney’s fees. However, such awards are most appropriate .where the parent proves he or she is entitled to an award for the benefit of the minor child, and where the cost of vindicating that right produces an inequitable reduction in the actual amount the child receives.

Additionally, a trial court may consider proof of a party’s inability to pay such fees and whether one party is at an economic disadvantage in comparison to the other. The purpose of requiring a non-custodial parent to pay attorney’s fees is to protect the legal remedies of the child, not the parent. Tennessee courts can grant attorney’s fees awards in child custody or support proceedings to facilitate a child’s access to the courts.

After reviewing the record, the Court reasoned:

In this case, the evidence adduced at trial indicates that there is a large disparity between the income of Mother and Father. Specifically, the juvenile court found that Father’s monthly gross income is $9,783.41, while Mother’s income is only $1,576.90. It was because of this economic gap that Mother prevailed on her petition to increase child support, resulting in an increase of monthly support from $520 to $959.38. Based on these facts, we have determined that if Mother were now also required to pay the entirety of her attorney’s fees it would, in effect, reduce the amount of support received. This result would ultimately operate to the detriment of the parties’ child.

For the reasons stated above, Mother is entitled to recover the attorney’s fees she incurred, to the extent they are reasonable and necessary, to enforce Father’s child support obligation and to defend his petition to change custody….

Therefore, on remand, the [trial] court is instructed to award Mother attorney’s fees she incurred in pursuit of her petition for modification of child support and in defending against Father’s counter-petition, to the extent those fees are both reasonable and necessary.

Accordingly, the trial court’s denial of attorney’s fees to Mother was reversed. The Court also awarded Mother her reasonable attorney’s fees on appeal.

In re Jasmine G. (Tennessee Court of Appeals, Middle Section, March 16, 2016).

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

Posted by: koherston | April 8, 2016

Photo of the Week: Sunset in Alaska

sunset in alaska

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

This article by Erin Brodwin in Business Insider may be of interest.

Scientists say one behavior is the ‘kiss of death’ for a relationship

On the way home from work you have every intention of greeting your partner with a friendly “Hi, how are you? How was your day?” and listening attentively while he or she tells you all about it.

But the minute you open the door and drop your keys on the counter, you find yourself knee-deep in an argument about how he or she bought the wrong type of pepper.

Don’t worry: It’s perfectly normal to get into arguments like these with your significant other every once in a while, says John Gottman, a psychologist at the University of Washington and founder of the Gottman Institute.

It’s what happens next that you need to watch out for, he says.

When you express your frustration over the pepper mix-up, do you listen while he explains that perhaps you didn’t ever tell him what type of pepper you wanted? Do you think this over, and, when you realize that maybe he’s right, do you apologize? Or do you adopt an attitude and think to yourself, What kind of an idiot doesn’t know that bell peppers are for stir-fry and habaneros are for salsa?

If you find yourself in the second situation, you’re likely displaying contempt for your partner, and it could be putting your relationship in jeopardy.

Contempt, a virulent mix of anger and disgust, is far more toxic than simple frustration or negativity. It involves seeing your partner as beneath you, rather than as an equal.

Gottman and University of California-Berkeley psychologist Robert Levenson found this single behavior is so powerful that they can use it — along with the negative behaviors of criticism, defensiveness, and stonewalling — to predict divorce with 93% accuracy.

“Contempt,” says Gottman, “is the kiss of death.”

The striking 93% figure comes from a 14-year study of 79 couples living across the US Midwest (21 of whom divorced during the study period) published in 2002. Since then, decades of research into marriage and divorce have lent further support to the idea linking divorce with specific negative behaviors.

One recent study of 373 newlywed couples, for example, found that couples who yelled at each other, showed contempt for each other, or simply began to disengage from conflict within the first year of marriage were more likely to divorce, even as far as 16 years down the road.

So why are couples who exhibit this one behavior more likely to split up?

It comes down to a superiority complex.

Feeling smarter than, better than, or more sensitive than your significant other means you’re not only less likely see his or her opinions as valid, but, more important, you’re far less willing to try to put yourself in his or her shoes to try to see a situation from his or her perspective.

Picture a resonance chamber, suggests Gottman, with each person in the relationship a source of his or her own musical (or emotional) vibrations. If each partner is closed off to the other person’s vibes (or emotions) and more interested in unleashing their own feelings of disgust and superiority, these negative vibrations will resound against one another, escalating a bad situation “until something breaks,” Gottman says.

If you’ve noticed yourself or your partner exhibiting this type of behavior, don’t despair — it doesn’t mean your relationship is doomed.

Being aware that you’re doing something that could negatively affect your partner is the first step to actively combating it. If you can figure out how to avoid the behavior or replace it with a more positive one, you’ll likely greatly improve the relationship — and increase your chances of staying together for longer.  

Source: Scientists say one behavior is the ‘kiss of death’ for a relationship (Business Insider, January 28, 2015).

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

Facts: Husband and Wife divorced after 21 years of marriage.

At the time of divorce, Husband and Wife entered into it a marital dissolution agreement (“MDA”) that required the marital residence to be immediately listed for sale. The MDA allowed Husband to occupy the marital residence until it sold. The MDA provided:

If the house and land are not sold within four years of the date of the entry of the Final Judgment of Divorce, Husband shall have an additional two years to sell the property but shall begin paying a monthly payment to Wife equal to a monthly portion of the prime interest rate on $460,000.

rent in tennesseeThe MDA further provided that the property would be sold at auction if it had not otherwise sold after six years. As long as Husband resided in the marital residence, the MDA required him to be responsible for its maintenance and upkeep as well as the property taxes and insurance.

Many years later, and after a trip to the Court of Appeals when the sale of the property fell through because Husband objected to it, Wife asked the trial court to impose a monthly rental obligation of $10,000 per month for Husband’s continued occupancy of the property.

After a hearing, the trial court ordered the property to be sold at auction and imposed a rental obligation on Husband in the amount of $3000 per month.

Husband appealed.

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

Husband argued the trial court’s imposition of a monthly rental obligation was an impermissible modification of the MDA. Specifically, Husband argued the trial court erred by imposing a rental obligation in excess of the amount provided for in the MDA, i.e., a monthly portion of the prime interest rate on $460,000, which comes to $1245.83 per month.

In Tennessee, a marital dissolution agreement incorporated into a final judgment of divorce is a contract that is binding on the parties.

When Tennessee courts interpret contracts, the words expressing the parties’ intentions are to be given the usual, natural, and ordinary meaning. If the language of a written instrument is unambiguous, the court must interpret it as written rather than according to the unexpressed intention of one of the parties. Courts cannot make contracts for parties but can only enforce the contract which the parties themselves have made.

After reviewing the record, the Court agreed with husband, explaining:

Under the clear language of the MDA, Husband was given the right to reside in the marital residence until the Property is sold. His right to occupy is subject to a monthly payment “equal to a monthly portion of the prime interest rate on the $460,000.00,” effective upon the expiration of four years following the entry of the judgment of divorce. In her appellate brief, Wife characterized this “monthly payment” as an obligation to pay rent. We agree with this characterization; however, the Parties explicitly provided for the amount of the obligation. To the extent that the court’s imposition of rent exceeds this amount, the court was in error. Accordingly, we modify the judgment to reflect an imposition of rent that conforms to the MDA. In so holding, we further conclude that the obligation to pay rent is in addition to Husband’s obligation to remit payment for the property taxes and insurance and to ensure the reasonable maintenance and upkeep of the Property pursuant to the terms of the contract.

Accordingly, the trial court’s rental obligation was reversed and modified to conform to the marital dissolution agreement.

Granoff v. Granoff (Tennessee Court of Appeals, Eastern Section, March 16, 2016).

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

Posted by: koherston | April 1, 2016

Photo of the Week: April Fool’s Kidding Around

Step 1: Take aim

Step 1: Take aim

Step 2: Follow through!

Step 2: Follow through!

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

Facts: Child was born to unmarried parents in April 2013. From birth, Child resided continually in Mother’s custody.

Father testified he had no knowledge of Child’s birth or existence until June 2013, when Child was approximately three months old. Mother and Child began residing with Father at his sister’s home in July 2013. According to Mother, she and the child were soon forced to leave the home because of Father’s alcohol and marijuana use.

paternity tennesseeIn mid-August 2013, Mother discussed the possible adoption of Child with an adoption agency. Mother informed the adoption agency that Father was the biological parent.

Shortly thereafter, Mother voluntarily surrendered her parental rights and named Father as the biological parent in a sworn affidavit. Child was placed with a pre-adoptive family on August 19, 2013.

On September 20, 2013, Father was contacted about the possible adoption of Child. Father unequivocally objected to Child’s adoption. Despite instructions on how to do so, Father failed to establish paternity or obtain DNA testing showing him to be the biological parent of Child.

In October 2013, the adoption agency petitioned to terminate Father’s parental rights on grounds set forth in Tennessee Code Annotated § 36-1-113(g)(9)(A), namely that Father failed to establish paternity, failed to manifest an ability and willingness to assume custody of Child, and failed to provide reasonable support.

Subsequent DNA testing in March 2014 established Father as the biological parent of Child. Thus, at the time the termination petition was filed, Father had not established that he was the legal parent of Child.

The trial court found none of the grounds contained within Tennessee Code Annotated § 36-1-113(g)(9)(A) were applicable because Father “timely exercised any knowledge that he had as far as the process and procedure that was necessary for him to establish parentage of the minor child and [has] taken the necessary steps to establish parentage.” Thus, Father’s parental rights were not terminated.

The adoption agency appealed.

On Appeal: The Court of Appeals begrudgingly affirmed the trial court.

The issue concerns the applicability of the grounds for termination of parental rights provided for in Tennessee Code Annotated § 36-1-113(g)(9)(A). The adoption agency argued they apply to Father because he was not the child’s legal parent at the time the termination petition was filed. Father argued those particular grounds cannot be used to terminate the rights of a person who is a child’s biological parent, legal parent, or putative biological father at the time the termination petition is filed.

The grounds outlined in Tennessee Code Annotated § 36-1-113(g)(9)(A) are limited to termination proceedings involving a person who is not the legal parent of the child or putative biological fathers.

“Putative father” was defined by the Tennessee Supreme Court in In re Bernard T. as follows:

A biological father will be considered to be a child’s “putative biological father” only if (1) he has filed a petition to establish his parentage of the child, (2) he has filed a timely statement with the putative father registry, (3) the child’s mother has identified him as the child’s biological father in a sworn, written statement, (4) he has been identified as the child’s biological father by information that the court deems to be credible and reliable, (5) he has claimed to certain individuals that he believes that he is the child’s biological father, (6) his name is recorded on the child’s birth certificate, (7) he is living openly with the child and holding himself out to be the child’s father, or (8) he has entered into a permanency plan or plan of care under Tennessee law or under similar laws of other states or territories.

In other words, where a biological father engages in any of the actions outlined above, he will be considered the child’s putative father. The Bernard Court went on to specifically hold that the “grounds for termination in Tennessee Code Annotated § 36-1-113(g)(9) cannot be used terminate the rights of a person who is a child’s biological parent, legal parent, or putative biological father at the time the termination petition is filed.”

Put simply, the Bernard Court clearly and unequivocally held that the grounds contained in § 36-1-113(g)(9)(A), which includes the ground of failure to establish paternity, may not apply to putative biological fathers.

The Court of Appeals clearly disagreed with the Bernard Court’s holding, explaining:

Section 36-1-113(g)(9)(A) expressly states that it applies not only to “any person who . . . is not the legal parent or guardian of such child,” but also to “any person . . . who is described in § 36-1-117(b) or (c).”  The Bernard Court held that the descriptions contained within Sections 36-1-117(b) and (c) are used to determine whether a purported father is a putative biological father. Thus, the Bernard Court indicated that the descriptions under Sections 36-1-117(b) and (c) are essentially synonymous with the legal status of putative biological father. Because the language of Section 36-1-113(g)(9)(A) expressly indicates that the grounds contained therein may apply to any person “described in § 36-1-117(b) or (c)[,]” we can only conclude that the Tennessee General Assembly intended that the less stringent grounds contained in Section 36-1-113(g)(9)(A) must apply to putative biological fathers. Stated another way, the language of (g)(9)(A) declares that the grounds listed apply to putative biological fathers, while the holding of Bernard provides otherwise.

Nonetheless, the Court of Appeals is bound to follow the ruling of the Tennessee Supreme Court. The Court reasoned:

In sum, the Tennessee Supreme Court in Bernard deemed a putative biological father on par with a legal parent or guardian and, therefore, declined to apply the grounds contained in Tennessee Code Annotated Section 36-1-113(g)(9)(A) to putative biological fathers. In so holding, the Bernard Court relegated the grounds contained in Section 36-1-113(g)(9)(A) to applying only to those parents whose claims to children are so gossamer as to be virtually non-existent. Regardless of our concerns regarding the Bernard Court’s interpretation of Tennessee Code Annotated Section 36-1-113(g)(9)(A), however, we are not free to depart from the Tennessee Supreme Court’s unequivocal holding….

Based upon the holding in Bernard, the grounds contained within Tennessee Code Annotated Section 36-1-113(g)(9)(A) do not apply where the defendant parent is a putative biological father. Here, there is no dispute that Father qualifies as a putative biological father. Therefore, the trial court did not err in declining to terminate Father’s parental rights under any of the grounds contained in Section 36-1-113(g)(9)(A).

Accordingly, the trial court was affirmed.

K.O.’s Comment: It is rare to see the Court of Appeals say “we think the Tennessee Supreme Court got it wrong.” By itself, that makes this case noteworthy.

The Court of Appeals specifically notes that Justice Kirby heard the Bernard case when she was on the Court of Appeals and filed a dissenting opinion in which she said she would have terminated parental rights in that case. In other words, the Court of Appeals suggests Justice Kirby agreed with their interpretation when she sat on the Court of Appeals. They seem to be not-so-subtly suggesting to the adoption agency that there is at least one (powerful and persuasive, especially regarding family law) vote on the Tennessee’s Supreme Court to overturn the holding in Bernard should the adoption agency choose to request permission to appeal from the Supreme Court.

In re Ashton B. (Tennessee Court of Appeals, Western Section, March 15, 2016).

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

Facts: Father’s children were adjudicated dependent and neglected and put in the custody of the Department of Children’s Services (“DCS”) after Father committed domestic assault against Mother.

criminal recordsDCS petitioned to terminate Father’s parental rights to the children on grounds of, inter alia, wanton disregard for the welfare of the children.

Father was incarcerated at the time the petition was filed. He has a lengthy criminal history, most of which occurred 5 to 6 years prior to the filing of the petition to terminate his parental rights. Father is a Mexican national who now lives in Mexico.

After a trial, the trial court refused to terminate Father’s parental rights because it held there was insufficient evidence to establish grounds for termination.

The children’s guardian ad litem appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court and terminated Father’s parental rights.

Tennessee Code Annotated § 36-1-102(1)(A)(iv) defines “abandonment” to include when

A parent . . . is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent . . . has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and . . . the parent . . . has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child[.]

An incarcerated or recently incarcerated parent can be found guilty of abandonment only if the court finds, by clear and convincing evidence, that the parent’s pre-incarceration conduct displayed a wanton disregard for the welfare of the child. Thus, the parent’s incarceration serves only as a triggering mechanism that allows the court to take a closer look at the child’s situation to determine whether the parental behavior that resulted in incarceration is part of a broader pattern of conduct that renders the parent unfit or poses a risk of substantial harm to the welfare of the child.

Tennessee courts have repeatedly held that probation violations, repeated incarceration, criminal behavior, and substance abuse can, alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare of a child.

It does not matter whether that conduct occurred during the four months immediately preceding the parent’s incarceration or at some earlier point in time.

After reviewing the record, a majority of the Court of Appeals concluded:

The statute now under discussion pertains to “conduct . . . that exhibits a wanton disregard for the welfare of the child[ren].”This part of the statute focuses as much on a parent’s state of mind vis-à-vis his children, as it does on the conduct itself. In other words, what does the bad conduct tell us about a parent’s concern for the welfare of his children or lack thereof? If you really love and care for your children, would you repeatedly get drunk and drive or batter your wife in your children’s presence?

The evidence in this case clearly shows a man who has no qualms about engaging in criminal conduct….

Over the course of time, the father in this case was arrested for theft, multiple D.U.I. offenses, repeated traffic offenses, domestic violence against the biological mother of the children central to this appeal, multiple illegal border crossings, and even extortion. These arrests resulted in multiple incarcerations and/or deportations. When viewed in their totality, these offenses clearly indicate that the “parental behavior that resulted in incarceration is part of a broader pattern of conduct that renders [father] unfit or poses a risk of substantial harm to the welfare of the child[ren].”

Is this the conduct of a man who is concerned with his children’s welfare? The question is rhetorical in nature. He says he illegally crossed the border on multiple occasions in an attempt to see his children. Where is the proof of this other than his own self-serving statement? During the five years his children have been in DCS custody, where is the proof that, outside of a couple of phone conversations, he made any real attempt to maintain a meaningful relationship with his children?…

Father’s criminal conduct in fact led to a number of incarcerations and deportations. He must have known — or is certainly charged with knowledge — that his conduct could land him in jail or ensure a one-way ticket back to Mexico. He apparently did not care how all of this could and would affect the welfare of his children….

The evidence on the issue of best interest is clear, convincing, and overwhelming. It is in the best interest of the children to terminate father’s parental rights and allow these children to be adopted by a family who will love and care for them.

Accordingly, the trial court’s judgment was reversed and Father’s parental rights were terminated.

Dissent: Judge Swiney dissented from the majority opinion, writing:

[T]he majority accurately outlines Father’s record of criminal misdeeds. I do not in any sense belittle the wrongness of Father’s offenses. However, going back five or six years to dredge up DUIs, for example, is a stretch when it comes to terminating a parent’s right to his or her child, a fundamental right….

Clearly, in every case there is some point in time at which prior conduct so far in the past becomes irrelevant or at least its impact lessens as to whether a parent has displayed wanton disregard for the welfare of his or her child. This reasoning applies to a single incident of domestic violence, even though it is indeed a loathsome act. I submit that an additional legion of parents may well be at risk of losing their parental rights under such a sweeping interpretation of wanton disregard as adopted today by the majority.

Thus, Judge Swiney would affirm the trial court’s decision declining to find wanton disregard.

K.O.’s Comment: I have long been critical of the scope of the “wanton disregard” ground for termination of parental rights. See my comment in this post from February 2014.

In the In re Anthony R. opinion, the Middle Section was (I think) critical of the jurisprudence on this issue when it wrote, “By defining [wanton disregard] by examples, Tennessee courts have recognized ‘wanton disregard’ in much the same way as Justice Potter Stewart identified pornography: ‘[we] know it when [we] see it.'” I am glad to finally see some critical analysis of the scope of this particular ground for termination of parental rights. I think courts should apply a more critical eye when petitioners rely on wanton disregard.

In re K.F.R.T. (Tennessee Court of Appeals, Eastern Section, March 10, 2016).

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

Posted by: koherston | March 25, 2016

Photo of the Week: Bald Eagle

bald eagle

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

Facts: Mother and Father married in 2009 and had one child. They divorced in September 2013. An agreed parenting plan was entered in December 2013 awarding 210 days of parenting time to Mother and 155 days to Father.

Much post-divorce litigation ensued. Of interest here is Mother’s petition to modify the parenting plan to reduce Father’s parenting time and obtain sole decision-making authority.

The trial court modified the parenting plan after finding the parties had proven unable and unwilling to communicate effectively and co-parent in the child’s best interest. The trial court rearranged the parenting schedule but left the number of parenting days the same as before. Notably, the trial court made the following ruling:

In the event that the parties are unable to settle future co-parenting issues among themselves, they shall complete the parenting classes again and they shall complete mediation before filing any additional motions before the court.

Mother appealed.

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

Regarding parenting classes, Tennessee Code Annotated § 36-6-408(a) provides, in relevant part, as follows:

In an action where a permanent parenting plan is or will be entered, each parent shall attend a parent educational seminar as soon as possible after the filing of the complaint.

After reviewing the record, the Court reasoned:

We agree that the statute permits successive attendance in cases where numerous parenting plans are entered. However, the statute does not require attendance before a party may seek relief from the court. Such a requirement unnecessarily hinders a party’s access to justice. Accordingly, the court erred by requiring attendance in an education seminar before seeking further relief from the court.

Thus, the trial court’s requirement that the parties attend a parent education seminar before seeking relief from the court was reversed.

Hawk v. Hawk (Tennessee Court of Appeals, Eastern Section, March 9, 2016).

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

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