IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
________________________________________
IN THE MATTER OF:
RENEE CARMON VALLE, d/o/b
6/6/96, OBED VALLE, d/o/b 5/31/95, Shelby County Juvenile No. J2905
Minor Children, C.A. No. W1998-00617-COA-R3-CV
_____________________________________________________________________
FROM THE SHELBY COUNTY JUVENILE COURT
THE HONORABLE GEORGE BLANCETT, SPECIAL JUDGE
FILED
Debra N. Brittenum and Webb A. Brewer
Memphis Area Legal Services February 17, 2000
For Appellants, Cynthia and Gilberto Valle
Cecil Crowson, Jr.
Garland Erguden of Memphis Appellate Court Clerk
For Appellee, Court Appointed Special Advocates
REVERSED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD, P.J., W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
HOLLY KIRBY LILLARD, JUDGE
This is a termination of parental rights case. The parents, Gilberto and Cynthia
Valle, appeal the order of the juvenile court terminating their parental rights to Obed
Valle and Renee’ Valle. For the reasons hereinafter stated, we reverse the juvenile
court order.
Obed was born on May 11, 1995. On June 6, 1995, Obed was found to be
dependent and neglected and placed in the custody of the Tennessee Department of
Children’s Services (DCS). Renee’ was born on July 6, 1996, and on July 9, 1996, she
was placed in DCS custody as a dependent and neglected child. Both children were
placed in foster care, and court approved plans were adopted for both with the goal of
reunification of the family.
On March 4, 1997, Court Appointed Special Advocate (CASA) was appointed
after DSC recommended that the children stay in foster care. On February 20, 1998,
CASA filed a petition for termination of parental rights pursuant to T.C.A. § 36-1-113
(c) alleging that: (1) the children had been abandoned pursuant to T.C.A. § 36-1-
113(g)(1) as defined in T.C.A. § 36-1-102; (2) pursuant to T.C.A. §§ 36-1-113(g)(2)
and 37-2-403 appellants failed to substantially comply with the plans of care; (3)
pursuant to T.C.A. § 36-1-113(g)(3)(A)(I-iii) the children were removed from appellants’
home by court order for a period of six months, and that the conditions that led to
removal persist with little likelihood of an early remedy; and (4) that termination was in
the best interest of the children.
On April 15, 1998, CASA was granted a default judgment by Judge McDowell
when appellants failed to answer calendar call because they were in the hall. Later that
day the judgement was set aside. Judge McDowell agreed that an attorney should be
appointed to represent Mrs. Valle due to her history of mental illness and that a
guardian ad litem was needed to represent the needs of the children. On April 29,
1998, orders were entered appointing an attorney ad litem to protect the lawful rights
of Mrs. Valle and a guardian ad litem was appointed for the protection of the children’s
rights.
A report and recommendation was filed by both the guardian ad litem and
attorney ad litem. The guardian ad litem interviewed Mrs. Valle twice and stated in his
report that “[a]lthough the mother appears to be a caring mother and wants to have
custody of her children, neither she nor her husband seemed to be in a position to take
care of the minor children at this time.” The guardian ad litem recommended that the
custody remain with DCS with further efforts to assist the Valles in parenting, and that
termination of parental rights is premature at this time.
The attorney ad litem stated in her report1 that “[i]t is not apparent that DCS has
made every attempt to work with Mrs. Valle to accomplish reunification of the family.”
The attorney ad litem further reported that she does not believe that the decision by
1
It is unclear to this Court why the attorney appointed to assist Mrs. Valle was
an attorney ad litem, and further why she filed a report , a task usually accomplished
by the guardian ad litem in actions concerning parental rights.
2
DCS to terminate the parental rights of Mrs. Valle is based on factual evidence but
rather on the fact that Mrs. Valle was incarcerated, and because she suffers from a
mental illness. The attorney ad litem also recommended that the petition for termination
of parental rights be dismissed at this time.
The matter was heard on May 28, 1998, by Special Judge George Blancett. Ms.
Fannie Lamar, the children’s DCS case manager, testified on behalf of CASA.
Ms. Lamar testified that Obed came to the attention of DCS shortly after his birth
when the hospital contacted DCS to express concern about releasing him with Mrs.
Valle due to her mental condition. Ms. Lamar testified that on June 6, 1995, she filed
a petition and a protective order in an effort to bring Obed into state custody. On July
7, 1995, an order was entered finding Obed dependent and neglected and placing
Obed in state custody. Ms. Lamar stated that an effort was made through the
organization, Home Ties, to keep Obed in Mrs. Valle’s home, but that she was
uncooperative and noncompliant with her medication and treatment of her mental
illness. According to DCS policy a plan was developed for the care of Obed shortly
after he came into state custody. The goal of the original plan was reunification with
the family. Ms. Lamar testified that although parents generally participate in developing
these plans, the Valles did not take part because DCS did not know where Mrs. Valle
was, and Mr. Valle was incarcerated.
According to Ms. Lamar, under the plan Mrs. Valle was to attend parenting
classes, maintain her medication, and to maintain contact with the department to
facilitate arrangements for visitation. Under the plan Mr. Valle was to attend parenting
classes and to indicate to DCS when he would be available for visitation. Obed’s plan
was updated sometime around the end of December, 1995 by Ms. Lamar and Mrs.
Valle. The update included medical releases from Mrs. Valle and Mr. Valle was
referred to Alcoholic’s Anonymous due to excessive drinking. Mr. Valle was also
referred to Martin Luther King Center for alcohol treatment, however DCS never
received any indication that he had been treated for alcohol abuse.2
As to Renee’, Ms. Lamar testified that she came into the custody of the state in
much the same that Obed had come into custody, when the hospital called DSC
expressing concern that Mrs. Valle could not care for Renee’. Ms. Lamar filed a petition
on July 9, 1996, when Renee’ was three days old, to bring her into state custody.
Shortly thereafter an order was entered bringing Renee’ into state custody and ordering
2
Ms. Lamar testified that alcohol treatment became one of Mr. Valle’s tasks in
the plan because he came in for visitations smelling of alcohol.
3
Mr. Valle to pay $105.00 monthly child support by income assignment. Mrs. Valle
participated in developing the plan for Renee’.
Ms. Lamar further testified that during the three years that the children have
been in custody, DCS has not received any reports that Mrs. Valle was under
psychiatric care, and that neither Mr. or Mrs. Valle have completed parenting training.
Neither parent has contributed monetary child support to either child.
Regarding visitation, Ms. Lamar testified that at all times the Valles’ visits with
their children were supervised. DCS initially allowed them a good deal of liberty in
scheduling the visits, however, due to hostility between Mr. and Mrs. Valle, they were
required to have separate visitations. Over the three year period visitations were
sporadic for both parents and at times DCS would not know the location of Mrs. Valle.
In a foster care review hearing Mr. Valle’s visits were limited to once a month. In March
of 1997, orders were entered directing that Obed and Renee’ stay in foster care with
the goal changed to adoption and appointing CASA. Ms. Lamar testified that goals
were changed due to circumstances including Mrs. Valle’s history of mental illness, her
noncompliance in taking her medication, and both parents’ failure to complete tasks
under the plans of care for Obed and Renee’. Ms. Lamar states that she informed Mr.
Valle of the goal change and he indicated that he understood and would get a lawyer.
Ms. Lamar further testified that she has observed the Valle family since 1992.
She is of the opinion that neither Mr. or Mrs. Valle fulfilled their responsibilities under
the plan of care and believes that the conditions that led to the removal of Obed and
Renee’ still exist and are unlikely to be remedied. Ms. Lamar states that there where
no efforts on the part of DCS to work with Mr. Valle on his language barrier.
At the conclusion of proof the judge asked Mrs. Valle if she would like to testify
when he noticed that she was holding up her hand. Mrs. Valle said that she would, and
her testimony followed. Mrs. Valle stated that she believed “that her human and civil
rights have been violated because –”3 Mrs. Valle testified that she is currently being
closely monitored by her physician, Dr. Roa, and after being observed will be given a
prescription. Mrs. Valle further testified that she had family members that had an
interest in the children and have expressed to her that they would be willing to assist
her in child care and in providing for the children. Mrs. Valle stated that she was
interested in supporting her children and in maintaining a close relationship with them.
Mrs. Valle testified that she was willing to attend parenting classes and to see that her
3
At this point the record reflects that Mrs. Valle was interrupted by the court,
and we are unable to ascertain the specific violation claimed by Mrs. Valle.
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medical problems were treated.
The trial court ruled from the bench that the parental rights would be terminated.
The order terminating parental rights was entered June 24, 1998, and provides in
pertinent part:
FINDINGS OF FACT
1. That Obed Valle has been removed from the custody of
the Respondents by order of this Court for more than two
years, and that Renee’ Valle has been removed from the
custody of the Respondents by order of this Court for more
than one year.
2. The Respondents have for a period of four (4)
consecutive months immediately preceding the filing of this
Petition, abandoned said children in that they have failed to
visit and willfully failed to support or make reasonable
payments toward the support of said children.
3. The respondent, Cynthia Valle, failed to seek and
successfully complete a treatment program to address her
mental illness issues and stabilize on her medication, failed
to complete parenting classes, and failed to maintain
contact with the Department of Children’s Services as
required in the ratified Permanency Plan.
4. The respondent, Gilberto Valle, failed to maintain
contact with the Department of Children’s Services, failed
to complete parenting classes, and failed to attend and
participate in an Alcoholics Anonymous program as
required in the ratified Permanency Plan.
5. Any conclusion of law hereafter recited which should be
deemed a finding of fact is found to be true in all respects
and is hereby adopted as such.
Based on the foregoing findings of fact, the Court
concludes as follows:
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this proceeding pursuant
to TCA. § § 36-1-113(a) and 37-1-104.
2. The Respondents have abandoned the children as
defined in TCA § 36-1-102(A).
3. The Respondents have substantially failed to comply
with the statement of responsibilities in the ratified
Permanency Plan as defined in TCA § 37-2-403.
4. Said children have been removed from the custody of
the Respondents by the Court for at least six (6) months
and the conditions which led to the removal or other
conditions which in all reasonable probability would cause
said children to be subject to further abuse or neglect and
which, therefore, prevent said children’s return to the
Respondents’ care still persist and there is little likelihood
that the conditions will be remedied at an early date so that
said children can be returned to the Respondents in the
near future. Further, the continuation of a relationship with
the Respondents, greatly diminishes said children’s
chances of early integration into a stable and permanent
home.
5. In accordance with TCA § 36-1-113 (c)(2), the
termination of the Respondents’ parental rights is in the
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best interest of said children.
6. In accordance with TCA 36-1-113(c)(1), there is clear
and convincing evidence to support the termination of the
Respondents’ parental rights regarding said children.
7. Any finding of fact which should be deemed a
conclusion fo law is hereby adopted as such.
The Valle’s have appealed the juvenile court’s ruling and present in their brief
the following issues:
I. Whether Article I, § 8 of the Tennessee Constitution
precludes non-attorney judges from presiding over
termination of parental rights cases.
II. Whether Article VI, § 4 of the Tennessee Constitution
requires that the termination of parental rights case be
heard by an elected judge.
III. Whether T.C.A. § 17-2-118(f)(2) contravenes Article VI,
§ 4 of the Tennessee Constitution.
IV. Whether the due process clause of the Fourteenth
Amendment to the United States Constitution and Rule 39
of the Tennessee Rules of Juvenile Procedure required the
appointment of counsel for appellant Gilberto Valle.
V. Whether due process requires that a translator be
provided a non-english speaking parent in a termination of
parental rights case.
Since this case was tried by the trial court sitting without a jury, we review the
case de novo upon the record with a presumption of correctness of the findings of fact
by the trial court. Unless the evidence preponderates against the findings, we must
affirm, absent error of law. T.R.A.P. 13(d).
In appellants’ issues I and II they contend that Article I, § 8 and Article VI, § 4
preclude a non-attorney judge from presiding over termination of parental rights cases
and that such actions are to be heard by an elected judge. In issue III Appellants
contend that T.C.A. §§ 17-2-109(c) and 17-2-118(f)(2), regarding the appointment of
special and substitute judges, are unconstitutional. In issues I, II, and III the Appellants
raise constitutional issues that were not raised at trial.
Generally, issues not raised at trial may not be raised for the first time on
appeal.” State Dept. of Human Services v. Defriece, 937 S.W.2d 954, 960 (Tenn.
Ct. App. 1996) (citing Simpson v. Frontier Community Credit Union, 810 S.W.2d
147, 153 (Tenn. 1991); Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983)).
See also Chadwell v. Knox County, 980 S.W.2d 378, 384 (Tenn. Ct. App. 1998)
(appellate court declines to consider a theory relating to the Tennessee Solid Waste
Disposal Act, (T.C.A. § 68-211-101), as the theory was not raised at trial); and Presley
v. Hanks, 782 S.W.2d 482, 490 (Tenn. Ct. App. 1989) ( appellate court declines to
construe the term “legal issue”).
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In Lawrence v. Stanford, 655 S.W.2d 927 (Tenn. 1983), the Court said:
We express no opinion respecting the constitutional
validity or invalidity of T.C.A., Sec. 63-1234, and hold that
the Court of Appeals erred in considering that issue. It was
error for that court to adjudicate the constitutional issue
because that question had not been raised at any point in
the proceedings in the trial court.
It has long been the general rule that questions not
raised in the trial court will not be entertained on appeal
and this rule applies to an attempt to make a constitutional
attack upon the validity of a statute for the first time on
appeal unless the statute involved is so obviously
unconstitutional on its face as to obviate the necessity of
any discussion. (Citations omitted).
Id. At 929.
The record is silent concerning Judge Blancett’s appointment, and this Court is
called upon to guess the source of his appointment. Our Supreme Court noted in
Lawrence v. Stanford, supra, “when the validity of [the statute] was not raised in the
trial court no opportunity was afforded for the introduction of evidence which might be
material and pertinent in considering the validity of the statute.” 655 S.W.2d at 929.
Certainly, this situation prevails in this case, and we decline to consider this issue.
Since the case is to be remanded, the deficiency can be remedied.
The appellants next raise the issue whether the due process clause of the
Fourteenth Amendment to the United States Constitution and Rule 39 of the
Tennessee Rules of Juvenile Procedure required the appointment of counsel for
appellant Gilberto Valle.
Under the United States Constitution, parents do not have an absolute right to
counsel in termination of parental rights proceedings. Lassiter v. Dept. of Social
Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). The Lassiter Court,
however, recognizing that the requirements of due process vary from case to case,
determined that the nature of the proceeding and the interests involved are
determinative factors in what due process requires. 101 S.Ct. at 2158. In State ex rel.
T.H. by H. H. v. Min, 802 S.W.2d 625 (Tenn. Ct. App. 1990), the parents of a minor
child filed a complaint and petition for writ of habeas corpus, against the Commissioner
of the Department of Human Services, seeking a declaratory judgment that their due
process rights were violated by failure of the juvenile court to appoint counsel to
represent them at various custody hearings. This Court noted that the issue on appeal
is whether the due process provisions of the state and/or federal constitutions require
the juvenile court to appoint counsel for the parents in a proceeding in which the
parents face the possibility of losing custody of the child. Id. at 625. The Court noted
that it is well established “that the parental right to raise one’s children is a fundamental
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liberty protected by the due process clause of the Fourteenth Amendment.” Id. at 626.
The Court further noted that the Lassiter Court and the Circuit Court of Appeals in
Davis v. Page, 714 F.2d 512 (5th Cir. 1984) listed several factors to determine whether
an indigent parent in a hearing affecting parental rights may be entitled to the
assistance of counsel as a matter of due process. The Court stated:
To help assess the risk of an unfair proceeding resulting in
an erroneous decision, the courts in Lassiter and Davis
have listed several factors that bear on the question. They
include: (1) whether expert medical and/or psychiatric
testimony is presented at the hearing; (2) whether the
parents have had uncommon difficulty in dealing with life
and life situations; (3) whether the parents are thrust into a
distressing and disorienting situation at the hearing; (4) the
difficulty and complexity of the issues and procedures; (5)
the possibility of criminal self-incrimination; (6) the
educational background of the parents; and (7) the
permanency of potential deprivation of the child in question.
Lassiter, 101 S.Ct. at 2161-2163; Davis, 714 F.2d at 516-
517.
Id. at 627.
Rule 39 of the Tennessee Rules of Juvenile Procedure prescribe the procedures
for termination of parental rights cases. Rule 39(f) provides in pertinent part:
(f) Adjudicatory Hearing on Termination
(1) The court shall conduct an adjudicatory hearing to
determine the issues raised by the petition and by any
answer(s) filed. Notice of the hearing shall be provided in
the summons.
(2) At the beginning of the hearing, any party who appears
without an attorney shall be informed of the right to an
attorney, and in the case of an indigent respondent, the
court shall consider the facts and circumstances alleged
and make a determination as to whether an attorney should
be appointed.
* * *
In State, Dept. of Human Services v. Taylor, 1997 WL 122242 (Tenn. Ct.
App.), this Court held that the procedures of Rule 39(f) (2) concerning the right to have
an attorney, appointed or otherwise, are mandatory. In so holding, the Court said:
Our present Rules of Juvenile Procedure became
effective July 1, 1984. Since these rules postdate
Lassiter, it would appear that in order to insure that the
conditions therein stated are properly considered, the
Tennessee Supreme Court and the General Assembly, by
the adoption of the Rules of Juvenile Procedure, provide
minimum requirements which the trial court must follow
when a parent appears at a termination hearing without an
attorney.
Id. at *2. From our review of the record, it appears that the mandate of Rule 39 was not
met. Although at the April 15, 1998 hearing, the court appointed an attorney ad litem
to represent Mrs. Valle because of her mental condition, the record indicates some
confusion as to the duties expected of the appointee. It appears that the attorney ad
8
litem did not assume a strict adversary stance but acted more in the nature of a
guardian ad litem. In any event, Mr. Valle was without any representation, and both
Mr. and Mrs. Valle should have been accorded the protection of Rule 39. Failure to be
provided this protection results in reversible error.
Appellants assert in the last issue that due process required that Mr. Valle be
provided an interpreter. Tenn.R.Civ.P. 54.04 (3) provides:
(3) The court may appoint an interpreter of its own selection
and may fix reasonable compensation. The compensation
shall be paid out of funds provided by law or by one or more
of the parties as the court may direct, and may be taxed
ultimately as costs in the discretion of the court.
Tenn.R.Crim.P. 28 provides essentially the same except as to the taxing of costs.
In State v. Thien Duc Le, 743 S.W.2d 199 (Tenn. Crim. App. 1987), the Court
considered the alleged error of the trial court in not appointing a Vietnamese language
interpreter. Finding in that case that there was no indication of a language barrier, the
Court held that the trial court did not err in failing to appoint an interpreter. However, the
Court said:
it is the duty of the court to provide the necessary means for
the defendant to understand the nature of the charges
against him, the testimony of the witnesses, and to
communicate to the court. Failure to do so would be a
violation of one’s constitutional right to be heard, to know
the nature and cause of the accusation, and to be
confronted by the witnesses.(Citations omitted)
Id. at 202.
Generally, the appointment of an interpreter is in the discretion of the court before
which a cause is on trial. 88 C.J.S. Trial, § 42, p. 101 (1995).
While we have found no case dealing with the precise issue before us, we
generally recognize that the party litigant is entitled to be present in all stages of the
actual trial of the case. Warren v. Warren, 731 S.W.2d 908, 909 (Tenn. Ct. App. 1985).
Thus, a party must be in a position to understand the nature of the case and the
testimony of the witnesses. When this question presents itself, the trial court must
determine whether an interpreter is necessary, based upon the nature and extent of any
alleged disability of the parties. Considering the drastic nature of a termination of
parental rights case, it is particularly incumbent upon the trial court to be careful in
exercising discretion for the appointment of an interpreter. The record in this case
reflects that no inquiry was made concerning the need for an interpreter primarily, we
presume, because the Valles did not have counsel acting in their behalf. On remand,
the trial court can proceed as required to protect the rights of the parties.
We should also note that the trial court’s ruling was, in part, based on
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abandonment of the children as defined in T.C.A. § 36-1-102 (1)(a). In Tennessee
Baptist Children’s Home, Inc. v. Swanson, 2 S.W.3d 180 (Tenn. 1999), released by
the Supreme Court in October 1999, the Court held that the statutory definition of
“willfully failed to support” and “willfully failed to make reasonable payments toward the
support of the children” are unconstitutional. The Court said:
Since the statutory definitions of “willfully failed to
support” and “willfully failed to make reasonable payment
toward such child support” in effect create an irrebuttable
presumption that the failure to provide monetary support for
the four months preceding the petition to terminate parental
rights constitutes abandonment, irrespective of whether that
failure was intentional, we hold that those definitions are
unconstitutional. The statutory definitions simply do not
allow for the type of individualized decision-making which
must take place when a fundamental constitutional right is
at stake. Therefore, they impermissibly infringe upon a
parent’s right to the care and custody of his or her children.
Id. at 188. The Court directed that until the definitions were amended by the legislature,
the definition in effect under prior law shall be applied. Id. at 189. The Court noted that
the definition of “abandoned child” under prior law, as it existed in 1994, included an
“element of intent both in failures to visit and failures to support.” Id. at 189 & n. 14
(citing T.C.A. § 36-1-102(1)(A)(i) (Supp. 1994)).
Accordingly, the order of the trial court is reversed. This case is remanded to the
trial court for further proceedings consistent with this opinion. Costs of the appeal are
assessed to the appellee, Court Appointed Special Advocates.
___________________________________
W. FRANK CRAWFORD, P.J., W.S.
CONCUR:
_________________________________
ALAN E. HIGHERS, JUDGE
_________________________________
DAVID R. FARMER, JUDGE
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