Facts: Child was born to unmarried parents. At age 5, Aunt and Uncle obtain custody of Child.
Nine months later, Aunt and Uncle petition for termination of parental rights and adoption.
Father consented to the termination and adoption. Mother, who was incarcerated, contested the termination.
A guardian ad litem, who is a lawyer, was appointed to represent Child.
At the trial, Mother, who was still incarcerated, participated by phone. Counsel for Aunt and Uncle informed the court that the guardian ad litem was absent and believed to be on maternity leave.
After questioning by the trial court, Mother consented to proceed without the presence of the guardian ad litem. The trial court warned the parties that going forward without the guardian ad litem might be reversible error. Everyone wanted to proceed.
The trial court terminated Mother’s parental rights.
Mother appealed.
On Appeal: The Court of Appeals reversed the trial court.
Tennessee Supreme Court Ruled 13 requires trial courts to appoint guardians ad litem for all children who are the subject of contested parental termination proceedings. The appointment of a guardian ad litem is not discretionary.
The guardian ad litem plays an essential role in termination cases, advocating for the best interest of the child. The guardian ad litem functions independently of other parties because the child’s best interest may not coincide with the interests of all other parties. It is the duty of the guardian ad litem to take all legally permissible actions to ensure that the child’s best interests are protected.
As the trial court warned might happen, the Court found it was reversible error for the trial to proceed without the guardian ad litem:
If the guardian ad litem were present, the overall outcome may have been altered. The record is devoid of any evidence that would lead this court to know the position of the guardian ad litem. [Child] was left without representation and without a voice at the most pivotal time during the proceedings. We therefore find that the absence of a guardian ad litem to represent the best interest of the child at the trial was reversible error.
The termination of Mother’s parental rights was vacated, and the case was remanded for a new trial.
In re Aliyah C. (Tennessee Court of Appeals, Eastern Section, June 26, 2019).