Melanie Gayle King (Lyon), et al. v. James David King

The mother and stepfather of two minor children filed a petition against the father of the children to terminate the father’s parental rights. The petitioners alleged, inter alia, that the father abandoned the children by failing to exercise any of the residential time and vacation time awarded to the father in the divorce and that he had willfully failed to visit the children during the four months preceding the filing of the petition. Following a bench trial, in which the mother and stepfather were represented by counsel, but the father was pro se, the trial court dismissed the petition to terminate based upon the finding that “due to the costs of transportation between the parties respective homes in Giles County and Cannon County and due to [the father’s] limited income,” the petitioners had failed to establish the ground of abandonment. The mother and stepfather have appealed, contending the trial court failed to correctly apply the law to the facts of this case and that the evidence clearly and convincingly proves that the father’s failure to visit was willful due to the fact he had a vehicle, for which he could afford insurance, and the cost of driving the approximately sixty miles between their homes was within his financial means. We have determined that the trial court committed reversible error when it failed to appoint a guardian ad litem to represent the best interests of the minor children, which is mandated by Tenn. S. Ct. R. 13 § 1(d)(2) in proceedings to terminate a parent’s rights when the petition is contested. We have also determined that if the father was indigent, which fact may be significant to the issue of willfulness, he had a constitutional right to appointed counsel. As Tenn. S. Ct. R. 13 § 1 (c) and (e) mandates, when the father appeared without counsel, the trial court had an affirmative duty to advise the father of his rights and to conduct an indigency hearing to determine if he was without sufficient means to pay reasonable attorney fees for representation in this case and, if so, to appoint counsel to represent him. We therefore vacate the judgment of the trial court and remand this matter to the trial court for further proceedings consistent with this opinion, including if necessary a new trial on the merits of the issues raised in the petition filed in this matter.