News

Johnson City Lawyer Remembered for Mentoring Others

Johnson City attorney Janie Lindamood died Aug. 13 at the age of 65. She is being remembered by colleagues as a fierce advocate for the children she represented in court as a juvenile and family law attorney and as a generous mentor to young lawyers. Prior to becoming a lawyer, Lindamood worked as a hairstylist, as a florist and in healthcare administration. She earned her law degree in 1996 from the Oklahoma City University Law School. The family is planning a celebration of life next month. In lieu of flowers, donations may be made to Coalition for Kids in Johnson City, which is part of the GoFund Me account set up in her name. The Johnson City Press has more on her life.

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Court Square 2016 Debuts in Columbia

This year’s Court Square CLE series will launch Sept. 7 at First Farmers Bank in Columbia. Nathan Ridley, Jeff Carson and Roger Maness will address legislative updates, estate planning for digital assets and family law in mediation. Learn more or register online.

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Funeral Services This Week for LAW Founder

Nashville lawyer and TBA senior counselor Mary Frances Lyle died Saturday (Aug. 6). She was 80. A 1979 graduate of Vanderbilt University Law School, Lyle began her career lobbying the state legislature on behalf of the Nashville Women’s Political Caucus. During the 25 years she worked with the caucus, she helped draft and pass some of the most important legislation affecting women in Tennessee, including changes in alimony, maternity leave, sexual harassment and domestic violence law. Lyle also was a co-founder of the Lawyers Association for Women (LAW), Peace to End Abuse through Counseling and Education (PEACE) and Women in Business Inc. For many years Lyle operated her own family law practice but later joined Corley Henard Lyle Levy & Langford. Visitation will take place Friday from 1-6 p.m. at Horner-Roesch-Patton Funeral Home in Brentwood and Saturday from 9-10 a.m. at Christ Church Cathedral in Nashville. A time of remembrance with friends and colleagues will follow at 10 a.m. with the funeral service set for 11 a.m. Interment will be at Harpeth Hills Cemetery in Nashville. The Tennessean has more on her life.

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Lawyers Sought for Women’s Empowerment Conference

Volunteer lawyers are needed for an upcoming Women’s Empowerment Conference organized by Women Overcoming Many Battles Ministries, a faith-based nonprofit that seeks to help women overcome life’s challenges. The conference will take place July 30 from 10 a.m. to 1 p.m. at Mt. Lebanon Missionary Baptist Church in Nashville. Attorneys are needed to lead 15-minute presentations on child support enforcement and wrongful eviction and participate in a general question and answer session. Lawyers also are needed to provide brief legal advice in one-on-one meetings with the women. Those interested in helping should contact AOC Pro Bono Coordinator Patricia Mills

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Washington County Family Justice Center Opens

Thursday marked the grand opening of the Family Justice Center in Johnson City, News Channel 11 reports. The center serves victims of domestic violence, sexual assault, and abuse, bringing victims’ services together under one roof, site coordinator Heather Brack said. Agencies with representatives at the center include the Johnson City Police, Washington County Sheriff, Safe Passage, a local domestic violence shelter, Sexual Assault Center of East Tennessee, Legal Aid of East Tennessee and the First Judicial District Attorney General’s office.

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State Leaders Participate in National Child Safety Initiative

Tennessee was one of eight states selected to participate in the Three Branch Institute to Improve Child Safety and Prevent Child Fatalities. The Florida event included sessions on identifying and assessing at-risk populations, parental substance abuse and opioid impact on child welfare. Attendees from Tennessee included Amy Coble and Michael Cull; Rep. John DeBerry Jr., D-Memphis; Sen. Ferrell Haile, R- Gallatin; and AOC Director Deborah Taylor Tate. The AOC has more.

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CASA Hosts Summer Wines Party

CASA of East Tennessee will host its Summer Wines Party Aug. 6 from 5:30 to 8:30 p.m. at the Brabham Home, 621 Scenic Dr., Knoxville, 37919. The evening will feature summer foods, chilled drinks, raffle prizes and live music. Tickets are $75 per person and $125 per couple and may be purchased on the group’s website. For sponsorship information, contact Britney Sink, 865-329-3399.

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Grants Available for Pro Se Litigant Initiatives

The AOC is seeking proposals for the development or continuation of initiatives that help divorcing, divorced or never married self-represented litigants resolve parenting and visitation issues in child support cases. The AOC reports it has approximately $200,000 in grant funding available for such efforts, which may include self-help centers, pro se clinics, unbundled legal services and mediation programs. To be considered, proposals must be received by the AOC by 4:30 p.m. Central Daylight Time on Aug. 12. Learn more or download the application.

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Lawyers Sought for Women’s Empowerment Conference

Volunteer lawyers are needed for an upcoming Women’s Empowerment Conference organized by Women Overcoming Many Battles Ministries, a faith-based nonprofit that seeks to help women overcome life’s challenges. The conference will take place July 30 from 10 a.m. to 1 p.m. at Mt. Lebanon Missionary Baptist Church in Nashville. Attorneys are needed to lead 15-minute presentations on child support enforcement and wrongful eviction and participate in a general question and answer session. Lawyers also are needed to provide brief legal advice in one-on-one meetings with the women. Those interested in helping should contact AOC Pro Bono Coordinator Patricia Mills, 615-741-2687.

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New Managing Attorney to Lead Legal Aid’s Gallatin Office

The Legal Aid Society of Middle Tennessee and the Cumberlands has promoted family law attorney Allison Cooley to managing attorney of its Gallatin office. Cooley has been serving in the organization’s Nashville office since 2011. She earned her law degree from the Charlotte School of Law. In her new role, she will manage a staff of four, including two other attorneys, and oversee services to low-income individuals in Macon, Smith, Sumner, Trousdale and Wilson counties. Read more about Cooley in this release.

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New Adoption and Termination Laws

What You Need to Know

*By Dawn Coppock

Two major adoption and termination of parental rights bills passed in Tennessee this year and are now in effect. These bills include both the mundane and monumental. I have included each new section.  I have put the important and monumental provisions in bold, and included just enough context to flesh out why the changes were made.  But, I have included the mundane as well.  Complete citations are included to permit deeper study.

Pub. Ch. 636 – Administration Bill   Effective March 23, 2016

T.C.A. § 36-1-111(j)  Adds deputy warden and notary at a prison to be surrender witnesses in addition to the warden.

The primary goal of the following 4 sections is to clarify the adoption code sufficiently to fully implement the three-tiered system for classification of fathers, legal, putative and biological. T.C.A. § 36-1-117(a) and (c) requires that legal parents and putative father’s parental rights must be terminated before an adoption can occur. If there is not a legal or putative father, the adoption may proceed without termination of a father, even though obviously there must be a biological father.

Also original to the 1996 complete redraft of the adoption code but until now largely inoperable, was a two-tiered system of grounds for termination of parental rights. In addition to the grounds for termination of parental rights that apply to all parents, putative fathers are subject to a set of grounds that are aimed at the man’s failure to grasp the opportunity to parent his child as described in Lehr v. Robertson 463 U.S. 248; 103 S. Ct 2985; 77 L. Ed. 2d 614; 1983 U.S. LEXIS 92; 51 U.S.L.W. 5010 (June 27, 1983).  A Tennessee Supreme Court 2010 case, Bernard T. 319 S.W. 3d 586, (Tenn. 2010) ruled that the (g)(9), “putative father” grounds only applied to men who were not putative fathers.  Bernard T. has been a difficult case to apply and was directly critiqued for being opposed to the plain language of the statute. In Re. Ashton B. (W.S. Ct. App., March 15, 2016).  The combined effect of the following four legislative changes is to further clarify the law on classes of fathers and the grounds applicable to each, and to thereby legislatively overrule Bernard T.

T.C.A. § 36-1-102  Defines “Putative Father” as biological or alleged biological father of a child who, at the time of the filing of a petition to terminate the parental rights of such person or, if no such petition is filed, at the time of the filing of a petition to adopt a child, meets at least one (1) criteria set out in 36-1-117 (c) and is not a legal parent.

T.C.A. § 36-1-117   Deletes “biological” before the word putative in all T.C.A. § 36-1-117 references in order to clarify that “biological” and “putative” are two different classes of parents that may or may not occur together.

T.C.A. § 36-1-102 (28)  Legal parent definition modified – if a presumption of legal parentage is rebutted then they need not be noticed and the person’s parental rights need not be terminated.

T.C.A. § 36-1-113 (g)(9)(A)  If a person is a putative father at the time the termination of parental rights or adoption is filed his parental rights may be terminated based upon (g) (9) grounds.

Pub. Ch. 919 – Attorney’s Bill   effective July 1, 2016

This chapter was prepared and passed by the collaborative efforts of termination and adoption practitioners across Tennessee, and corrects errors and provides escapes from some legal rabbit holes.  While some of the changes are monumental in terms of adoption practice, this section does not change Tennessee termination and adoption policy.

T.C.A. § 36-1-102 (1)(A)(iv)This change addresses the difficulty of pursuing the abandonment ground against the frequently incarcerated. The change permits the accumulation of periods of liberty between incarcerations to accrue to create the four (4) month abandonment period when four (4) uninterrupted months of liberty do not exist.  

T.C.A. § 36-1-102  Codifies the ordinary meaning of physical custody to end the occasional litigation of the point.

T.C.A. § 36-1-111(a)(1)  Standardizes inconsistent language and affirms that homestudies are required prior to surrenders.

T.C.A. § 36-1-111(r)(1)(A)(i)  Ends a birth parent’s child support obligation upon surrender, rather than upon adoption, to remove a disincentive to settle a contested termination of parental rights by surrender.

T.C.A. § 36-1-111(x)  Creates a method in the adoption context, for a father to rebut the presumption of paternity created by being married to the mother, provided that he is not the biological father. He may sign a form before a notary and that, plus “other credible proof,” which may include a sworn statement of the mother, allows the adoption to proceed without termination of his parental rights. The form is set out in the statute.

T.C.A.§ 36-1-112 (a)(1)(A)  Establishes a standardized method of counting the three (3) day surrender revocation period as set out in TRCP 6.01, excluding weekends and holidays, and requiring that the last day be a business day.

T.C.A. § 36-1-113(b)(1)  Adds “physical” to “having custody of the child” along with the definition of physical custody. This removes ambiguity about whether licensed child-placing agencies and others with children in their care may be legally active on behalf of the children.

T.C.A. § 36-1-113(g)(9)(A)(vi)Deletes, “by the child’s mother” from a notice provision, permitting wider sources of notice that a woman may be expecting a man’s child.

T.C.A. § 36-1-113(g)(9)(B)(i)  Sets out the technical requirements of notice to a man that he may be the father of a child.  This section clarifies that this notice can be given at any time after conception. Notice, plus his inaction for 30 days, particularly failure to file a parentage action, serves as a basis for termination of his parental rights under existing law.  The law is now clear that, in many cases, a man should file a pre-birth parentage action to protect his parental rights.

T.C.A. § 36-1-115(d)  Allows non-residents to petition for adoption in the Tennessee County where they received guardianship of a child.

T.C.A. § 36-1-116(a)  Standardizes inconsistent language and affirms that homestudies are good for one year.

T.C.A. § 36-1-116(h)  Standardizes inconsistent language and affirms that UCCJEA does not apply to adoptions in Tennessee. Also adds that UCCJEA does not apply to voluntary consents either, and affirms prior law that UCCJEA applies to involuntary terminations of parental rights.

T.C.A. § 36-1-117(w)(a)  Answers to termination actions shall be signed by the respondent and sworn, like original petitions.

T.C.A. § 36-1-118  “Prospective adoptive parents” changed to “prospective adoptive parents or a licensed child-placing agency,” and

T.C.A. § 36-1-118(c)(2) “The persons” is changed to “ the persons or entity.” Removes inadvertent barriers to licensed child-placing agencies being legally active on behalf of children.

T.C.A. § 36-1-124 (d)  Notice of appeal filed in termination of parental rights actions shall be signed by the appellant.  This prevents appeals without the appellant’s knowledge or consent.

T.C.A. § 36-1-123  Restraining orders and protective orders, protective of children who are adopted, will not be automatically dissolved by a final order of adoption. Those orders may be enforced in the court that issued the order or the adoption court.

T.C.A. § 36-1-116 (e)  Petitioners’ counsel may review documents filed by public or private agencies in an adoption action upon order of the court. Any party may move for such an order. The agency may, upon good cause and with a court order, restrict such information.  This permits attorneys for petitioners in DCS and private agency adoptions to conduct a review of the foundational termination documents before adoptions are finalized.

T.C.A.§ 36-1-116(f)(2) Adoptions and terminations suspend custody, visitation and guardianship regardless of the stage of adjudication.  This section re-states and clarifies very similar language in the same section that was not enforced in a recent court opinion. In re Hailey S., 2015 Tenn. LEXIS 924 (Tenn. Nov. 16, 2015).

T.C.A. § 36-1-113(g)(14)  A new ground for termination of parental rights is established:  “A legal parent or guardian has failed to manifest, by act or omission, an ability and willingness to personally assume legal and physical custody or financial responsibility of the child, and placing the child in the person’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child.”

Are these bills good? Absolutely. Like commercial paper law, in termination of parental rights cases the cost of uncertainty in the law is too high to tolerate. In Tennessee termination law, the cost is primarily a cost to children rather than a cost to banks. Standardizing and restating provisions, while dull, minimizes uncertainty. The provisions around classifying fathers and clarifying what grounds apply to what father provides certainty and a balanced approach that has eluded Tennessee for 20 years, and may counter the long-term, lackadaisical approach some men take to their children or possible children. Proceeding to adoption without terminating the rights of unknown fathers, and a two-tiered system of grounds for fathers, legal vs. putative were original objectives of the 1996 adoption code redraft that was not fully operational until now.  The Tennessee approach to unwed fathers substantially exceeds the minimum due process floor set by the U.S. Supreme Court in Lehr v. Robertson 463 U.S. 248; 103 S. Ct 2985; 77 L. Ed. 2d 614; 1983 U.S. LEXIS 92; 51 U.S.L.W. 5010 (June 27, 1983).  Sound and workable law, balancing the interests of multiple parties, took a while, but it has happened.

_________________________

*Dawn Coppock is the author of Coppock on Tennessee Adoption Law, the next edition will be available from Celtic Cat Publishing by December 2016. Dawn practices adoption law from Strawberry Plains, Tennessee.

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Journal Columns This Month: ADR, Crime, Mohammad Ali

Columns in the July Tennessee Bar Journal cover subjects from alternative dispute resolution all the way to boxing. Russell Fowler delves into the history of ADR in his column, "History's Verdict" and Wade Davies explains defining and limiting the community caretaking exception in his column, "Crime & Punishment." In "But Seriously, Folks!" Bill Haltom looks at the long, unlikely and complicated relationship between Mohammad Ali and the lawyer, Howard Cosell. Marlene Eskind Moses and Benjamin Manuel Russ update their "Family Matters" column that was published in May with new information after the General Assembly took action that significantly changed the advice rendered in that piece. Read "Legislative Actions Alter QDRO Advice."

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Fetal Assault Law Expires

A controversial law that charged new mothers with assault if they took opiates during pregnancy and their babies were born addicted has expired. Critics of the measure, including the ACLU and Addiction Campuses, argued that the law made women afraid to reach out for help. News Channel 5 has more.

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Disability Rights Tennessee Wants to Hear From You!

Disability Rights Tennessee has launched a survey aimed at gathering information from people with disabilities, family members, service providers and professionals to help shape the work of the organization.

The organization is looking for as much information as possible, so please feel free to share the survey with partners, colleagues and friends, so that an accurate picture of the needs of those with disabilities in the State of Tennessee can be compiled. Take the survey now. The deadline to respond is July 11.

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Judge Denies Parental Rights in Same-Sex Divorce

A Knox County judge ruled today that in the case of a divorcing same-sex couple, only the biological mother would retain parental rights. The Knoxville News Sentinel reports that although Erica Witt and Sabrina Witt’s daughter was conceived via artificial insemination and born during the couple’s marriage, Judge Greg McMillan opined that the non-biological parent, Erica Witt, has no "contractual" relationship with the child. After making the decision, Judge McMillan put the divorce on hold to allow Erica Witt’s attorney to appeal to the Tennessee Court of Appeals. "Given the novelty of this issue, the court thinks it appropriate to see if the appellate courts want to address this," he said.

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Sullivan County to Establish Family Justice Center

The Sullivan County Commission approved accepting a non-matching $240,000 federal grant that will be used to establish a Family Justice Center for domestic violence victims, the Herald Courier reports. County District Attorney General Barry Staubus applied for the grant and needed the commission’s approval to accept the money, which will fund the services for three years beginning July 1. The center will provide victims of domestic violence with counseling, legal services, orders of protection and other services at one location. 

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Cupcakes for CASA Set for Friday

Dyer-Lake Court Appointed Special Advocates (CASA) will host “Cupcakes for CASA” this Friday from 5:30 to 7:30 p.m. at the Red Brick House on Lake Road in Dyersburg. Tickets are $20 each and are available in advance at First Citizens National Bank or Simmons Bank or the night of the event at the door. To learn more about the organization contact Wendy Smith. The State Gazette has more about the work of CASA.

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Cupcakes for CASA Set for Friday

Dyer-Lake Court Appointed Special Advocates (CASA) will host “Cupcakes for CASA” this Friday from 5:30 to 7:30 p.m. at the Red Brick House on Lake Road in Dyersburg. Tickets are $20 each and are available in advance at First Citizens National Bank or Simmons Bank or the night of the event at the door. To learn more about the organization contact Wendy Smith. The State Gazette has more about the work of CASA.

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Williamson Judge Tosses Same-Sex Marriage Challenge

Williamson County Chancellor Joseph Woodruff has thrown out a suit seeking to overturn last summer’s same-sex marriage ruling, despite calling it one of the worst examples of courts “ignoring their proper role” and legislating from the bench. Nashville Public Radio reports that in a ruling made this week, Woodruff said plaintiffs could not prove they had been harmed by the Supreme Court’s decision. The move puts an end to one of two challenges filed in Tennessee by lawyer David Fowler. Another challenge is pending in Chattanooga.

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Cox-Wilhoit Honored at Greene County Courthouse

Pajan Cox-Wilhoit was honored Friday for her retirement after more than 28 years as a child support magistrate for the 3rd Judicial District. “She always treated litigants with respect and dignity,” Chancellor Douglas T. Jenkins said. Cox-Wilhoit practiced law until March 1988, when she was appointed to the position by the late Circuit Court Judge Ben K. Wexler, The Greeneville Sun reports

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Editorial: Improve Pay for Court-Appointed Attorneys

“Tennessee pays its court-appointed attorneys so little that it threatens to undermine the right of their clients to a fair trial.” A Knoxville News Sentinel editorial argues why the state must increase compensation for court-appointed lawyers, calling the current rate – $40 per hour for work outside the courtroom – “ridiculously low.”   The comments come after the Indigent Representation Task Force held a public hearing in Knoxville last week as part of the group’s statewide listening tour. 

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Judge Asked to Issue Warrant in International Custody Dispute

A pair of Memphis attorneys have asked Chief U.S. District Judge Tom Varlan to issue an arrest warrant for an undocumented immigrant, who is currently missing with her son. The request is on behalf of the boy’s father. Varlan last month ordered the mother, who was living illegally in Knoxville, to return the boy to Mexico in a rare case brought under The Hague Convention of 1980 International Child Abduction Remedies Act. Read more from the Knoxville News Sentinel

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Tennessee Consolidated Retirement System Recognition of Qualified Domestic Relations Orders

Recently adopted rules that go into effect July 1, 2016, will allow the Tennessee Consolidated Retirement System (TCRS) to implement recognition of Qualified Domestic Relations Orders (QDROs). TCRS has developed a form that may be used for these Orders. Find the form here.   

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Report: TDOC Allowed Parolees to Avoid Mandatory Classes

A WSMV investigation revealed the Tennessee Department of Correction allowed for 115 parolees to avoid taking mandated domestic violence classes and hundreds of other criminals are still not enrolled in the classes. A TDOC administrator said there was a backlog of parolees assigned to classes because there were not enough parole officers to teach them. The department later hired a private company to teach the classes, but sentences has already expired for the 115 parolees. 

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Comments Sought on 'Custody Proceedings' Definition Change

The Tennessee Supreme Court, which governs the appointment of guardians ad litem in child custody proceedings, has proposed amending Rule 40A(1)(a) regarding the definition of “custody proceedings.” The change will eliminate the phrase “and contested private guardianship cases” from the phrase’s definition. The court is accepting written comments regarding the proposed amendment. Comments must be received by July 15. 

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