State v. Atkison, No. W2003-02109-COA-R3-PT (Tenn. App. 4/30/2004)
| Decision Date | 30 April 2004 |
| Docket Number | No. W2003-02109-COA-R3-PT.,W2003-02109-COA-R3-PT. |
| Parties | STATE OF TENNESSEE DEPT. OF CHILDREN'S SERVICES v. PAMELA ATKISON, et al IN THE MATTER OF T.J., DOB 2/15/99 A Child Under Eighteen Years of Age |
| Court | Tennessee Court of Appeals |
Richard W. Vaughn, Jr., Milan, TN, for Appellant
Paul G. Summers, Attorney General and Reporter, Juan G. VillaseZor, Assistant Attorney General, Nashville, TN, for Appellee
OPINION
This case involves the termination of the parental rights of Mother and Father over Child. Only Mother appeals the Juvenile Court's decision. Specifically, the Juvenile Court found clear and convincing evidence to terminate Mother's parental rights on the basis of abandonment, persistent conditions, and noncompliance with the permanency plan. In addition, Mother appeals the trial court's denial of her motion to transfer the case and have the issue presented to a jury. Finally, Mother asserts the trial court judge erred when he did not recuse himself. For the following reasons, we affirm the decision of the trial court.
Pamela Atkison ("Mother") and Claude Jackson ("Father") are the parents of T.J. ("Child"), who was born on February 15, 1999. In November 2000, Mother, who had custody of Child, gave Child to Father because of Mother's financial problems at that time. After approximately three months, in January 2001, Father filed a petition in the Juvenile Court of Madison County requesting temporary custody of Child, citing Mother's actions and stating she had not called or returned for Child. The Juvenile Court issued an order granting Father temporary custody of Child. However, in August 2001, the state began an investigation concerning the use of methamphetamine in Father's home. This investigation resulted in Father's arrest for such use, and the Tennessee Department of Children's Services ("DCS") filed a petition alleging Child was dependent and neglected and requesting temporary legal custody of Child. DCS's petition cited Father's arrest and Mother's lack of a stable home or finances, as well as her irregular visits to Child for cause. The Juvenile Court issued an order bringing Child into the court's protective custody. In addition, the lower court placed Child with Michael and Chastity Jackson, Father's brother and sister-in-law.
On October 17, 2001, DCS and Mother established the initial permanency plan for Child. The initial permanency plan, which was approved by the Juvenile Court judge, stated that the goal of the plan was to return Child home, rather than termination of parental rights and adoption. The plan also identified a number of requirements which Mother was to meet: seeking counseling to address Mother's mental health issues, securing and maintaining safe and appropriate housing for no less than six months, securing and maintaining financial stability for no less than six months, understanding Child's developmental needs, and not abandoning Child.
Over the next year from the point at which Mother entered into the permanency plan, she visited Child sporadically, and, in fact, DCS lost all contact with Mother from April 2002 to August 2002 despite efforts to contact her. The county case manager with DCS and Child's foster mother, Kelly Lovall, supervised these visits and observed that Child neither recognized Mother as his real mother nor exhibited any signs of attachment. Since Child has come into the care of his foster parents in October 2001, Kelly and Terry Lovall (collectively the "Lovalls"), he has referred to them as "mom" and "dad." In addition, Mother admitted that, since August 2001, she has held eight different addresses, staying with friends and family. The longest period of time Mother has held on to a job since August 2001 is approximately four to five months, and she has worked for numerous different employers. In addition, Mother asserts she sought and completed counseling in February 2003, however, no documentation of successful completion was presented at trial. Mother admitted that, despite knowing about various housing authorities and employment agencies, she has been unable to maintain a stable job and home. After the initial permanency plan was established and requirements were set, DCS offered Mother counseling services in October 2001 and again in January 2003, offered Mother transportation to her visits with Child, relocated visits to Jackson, Tennessee, for Mother's convenience, and referred Mother to a number of shelters.
Due to Mother's lack of progress and the foster care review board's recommendation of adoption, DCS filed a petition to terminate Mother's and Father's parental rights to Child on October 24, 2002. Subsequently, DCS established a revised permanency plan, which was approved by the Juvenile Court judge, seeking adoption as the goal rather than a return of Child to his parents. After a hearing in May and June 2003, the Juvenile Court terminated the parental rights of Mother and Father. Mother timely appealed to this Court and presents the following issues, as we perceive them, for our review:
I. Whether the trial court erred when it denied Mother's motion for a jury trial;
II. Whether the trial court erred when it found DCS had proven grounds for termination by clear and convincing evidence;
III. Whether the trial court erred when it found DCS had proven by clear and convincing evidence that it had made reasonable efforts to reunify the family; and
IV. Whether the trial court erred when it denied Mother's motion requesting the trial court judge recuse himself.
For the following reasons, we affirm the decision of the Juvenile Court.
When a trial court in a civil action sits without a jury, we review its findings of fact de novo upon the record with a presumption of correctness, and, unless the evidence preponderates against the findings, we must affirm, absent an error of law. Tenn. R. Civ. P. 13(d); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002);In re L.J.C., A.L.C., & J.R.C., 124 S.W.3d 609 (Tenn. Ct. App. 2003). We review issues of law de novo with no presumption of correctness. Valentine, 79 S.W.3d at 546 (citing Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)). Finally, decisions regarding recusal of a trial court judge will not be reversed on appeal unless a clear abuse of discretion appears in the record. Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn. 2001) (citing State of Tenn. v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995)); Memphis Bd. of Realtors v. Cohen, 786 S.W.2d 951, 953 (Tenn. Ct. App. 1989) (citing Wiseman v. Spaulding, 573 S.W.2d 490 (Tenn. Ct. App. 1978)).
Mother first argues that the Juvenile Court erred when it denied her request for a jury trial on the issue of termination of her parental rights. The Middle Section of this Court has addressed this issue as follows:
The right to a jury trial stems from one of two sources. It can be guaranteed by the state or federal constitutions, or it can be based on a statute. The parents have not pointed to any statute giving them the right to a jury trial in a termination of parental rights proceeding. Accordingly, their right to a jury trial, if in fact it exists, must be constitutionally based.
The parents assert that their right to a jury trial derives from U.S. Const. amend. VII. The Seventh Amendment, however, does not . . . apply to state court proceedings. Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211, 217, 36 S.Ct. 595, 596-97 (1916); Eilenbecker v. Plymouth County, 134 U.S. 31, 34-35, 10 S.Ct. 424, 425 (1890); Elliott v. City of Wheat Ridge, 49 F.3d 1458, 1459-60 (10th Cir. 1995). Thus the only possible remaining source of the parents' right to a jury trial must be Tenn. Const. art. I, § 6. See McKeiver v. Pennsylvania, 403 U.S. 528, 547, 91 S.Ct 1976, 1987 (1971) ().
Tenn. Const. art. I, § 6 does not guarantee the right to a jury trial in every civil case. It preserves the right to a jury trial only in those cases where the right existed at common law. Newport Housing Auth. v. Ballard, 839 S.W.2d 86, 88 (Tenn. 1992); Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 541, 354 S.W.2d 464, 467 (1962); Spurgeon v. Worley, 169 Tenn. 697, 701, 90 S.W.2d 948, 949 (1936). Termination proceedings are civil in nature and statutory in origin. Accordingly, parents do not have a common-law right to a jury trial in a proceeding to terminate their parental rights. Mays v. Department of Human Resources, 656 S.W.2d 252, 253 (Ky. Ct. App. 1983); In re Shane T, 544 A.2d 1295, 1297 (Me. 1988); In re Colon, 377 N.W.2d 321, 328 (Mich. Ct. App. 1985); In re C.L.A., 685 P.2d 931, 933-34 (Mont. 1984); In re Clark, 281 S.E.2d 47, 57 (N.C. 1981); In re GP, 679 P.2d 976, 983 (Wyo. 1984).
In re S.M., Jr., No. 01-A-01-9506-JV-00233, 1996 WL 140410, at *5 (Tenn. Ct. App. March 29, 1996). Though Tennessee has recognized that due process requires the heightened burden of proof of clear and convincing evidence and the appointment of counsel for the respondent parents, Tennessee law does not allow a parent the option of having a jury determine if termination of parental rights is proper. Tenn. Code Ann. § 36-1-113(c); Tenn. Sup. Ct. R. 13 §1(d)(7); Valentine, 79 S.W.3d at 546-50; In re S.M., Jr., 1996 WL 140410, at *5. Therefore, we hold the trial court did not err when it denied Mother's motion to transfer in order to obtain a jury trial.
In order for a court to terminate parental rights, that court must find, by clear and convincing evidence, that...
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