Prior to an adoption, the court must be assured that the parental rights of all of the child’s parents and/or guardians have been terminated.  Because the right to parent is based in the constitutional right to liberty, when an attempt is made to interfere with that right, the parents are entitled to court-appointed counsel if they cannot afford to hire an attorney.   In 2016, the Tennessee Supreme Court decided a case that changed the way appellate courts evaluate cases and clarified the standards for lawyers in parental termination cases.

The In Re: Carrington H. case involved a mother whose parental rights had been terminated after abusing her six children. After efforts to reunify the family were not successful, the Tennessee Department of Children’s Services (DCS) filed a petition to terminate her parental rights. Because the mother could not afford a lawyer, the court appointed one to advocate for her at no cost to her. The lawyer argued that the mother’s rights should not be terminated and presented evidence to show that she was improving her parenting. Despite this, the trial court agreed with DCS and terminated the mother’s parental rights.

The mother appealed to the Tennessee Court of Appeals. The Court of Appeals agreed with the trial court and affirmed its decision to terminate the mother’s parental rights.

Still trying to fight for her parental rights, the mother appealed to the Tennessee Supreme Court. She filed the paperwork to appeal without the help of a lawyer. The Tennessee Supreme Court then appointed another lawyer for the mother. The court explained that in parental termination cases in Tennessee, every parent who shows he or she cannot afford a lawyer will receive one at no cost to the parent.

This right to a lawyer in parental termination cases is part of Tennessee statutory law. In the Supreme Court, the mother argued that this right includes the right to effective assistance of counsel. However, the Supreme Court disagreed and explained its concern that if parents could argue about their lawyer’s performance, it would prolong the process of terminating rights and harm the child. Rather than focus on the parent’s lawyer, the Court wanted to stay focused on the child’s best interest.

In addition to determining that the parent cannot argue ineffective assistance of counsel, the Court also explained how a reviewing court should judge cases that have been appealed. Parental rights may be terminated if DCS proves at least one of the grounds required by the statute.  Sometimes, there are multiple grounds. The parent might appeal the case and only argue about one or two of the grounds instead of mentioning every reason the trial court used. The Court of Appeals now must review the trial court’s findings of fact and conclusions of law as to each ground for termination, even if the parent did not argue about it on appeal. This provides more protection for the parent’s fundamental rights.

The Tennessee Supreme Court highlighted the right to parent. This right, however, is not absolute and will give way when necessary to protect the child’s best interest.

We are always happy to discuss issues regarding termination of parental rights.  Contact the Adoption Law Center today at 615-543-8640.

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