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In re Jackson H.

Court of Appeals of Tennessee, Nashville

October 28, 2016

In re JACKSON H.

          Session: September 15, 2015

         Appeal from the Circuit Court for Williamson County No. 2014205 Robbie T. Beal, Judge

          Connie Reguli, Brentwood, Tennessee, for the appellant, Elizabeth H.

          David R. Grimmett, Nashville, Tennessee, for the appellee, Dawn Michelle Lipford.

          W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.

          OPINION

          W. NEAL McBRAYER, JUDGE

         I. Factual Background and Procedural History

         A. Proceedings Before the Juvenile Court

         Jackson H.'s involvement with the juvenile justice system began in May of 2013, when he was thirteen. His mother, Elizabeth H. ("Mother") filed a petition in the Juvenile Court for Williamson County, Tennessee, alleging that Jackson was an unruly child.[1]The juvenile court placed Jackson on in-home detention, but many other petitions[2] followed. Ultimately, Jackson made several appearances in juvenile court.

         The juvenile court appointed Michelle Lipford (the "GAL" or "Ms. Lipford") as guardian ad litem on June 3, 2013. As required by Tennessee Code Annotated § 37-1-126, [3]the court also assessed a nonrefundable administrative fee of $50. But the court made no determination regarding whether Jackson's parents possessed the financial resources to contribute to the cost of a guardian ad litem.

         On July 15, 2013, a magistrate held a review hearing in which Jackson, his counsel, his parents, the GAL, and a representative of the Department of Children's Services participated. Although new petitions alleging criminal impersonation and violation of county probation had been filed only three days prior, the magistrate relieved Ms. Lipford of her responsibilities as guardian ad litem.

         On December 6, 2013, Jackson's counsel filed a motion to withdraw. The motion alleged that counsel had "received a handwritten note at his office (presumably delivered by the child's mother) purporting to be the communication of Jackson [] stating [his] wish to terminate the attorney-client relationship." The motion further alleged that counsel "suspect[ed] that the communication in question may not have been the knowing and voluntary act of [Jackson]."

         Three days later, on December 9, 2013, the juvenile court entered an order reappointing Ms. Lipford as guardian ad litem. In addition to noting the numerous petitions filed against Jackson, the court found that Jackson "may be a dependent, neglect[ed] or abused child" and directed the GAL to investigate the dependency, neglect or abuse issues. The court further ordered the GAL to "file a dependency petition if the investigation warrants." Like the previous order, the order reappointing Ms. Lipford assessed an administrative fee to Jackson's parents but was silent as to whether his parents were indigent.

         On December 17, 2013, Ms. Lipford filed a petition to adjudicate Jackson dependent and neglected. In the petition, the GAL alleged that "almost all" of the charges against Jackson "accrued while the child was in Mother's care" and that it was "practically impossible for Mother to supervise" Jackson. Mother and Jackson's father ("Father") divorced in 2010, and the GAL claimed Jackson's behavior was "better when he [wa]s in Father's care." The GAL requested that Jackson "remain in the legal custody of his Mother and Father and the physical custody of his Father, and reside in Father's home under his close supervision, pending [Jackson's] acceptance into residential placement and pending the final disposition of [the dependency and neglect petition]."

         Mother initially requested a continuance of the preliminary hearing on the petition to obtain counsel, but at a hearing held on January 8, 2014, both Mother and Father waived their right to counsel and signed written waivers to that effect.[4] Following the hearing, the juvenile court entered an order[5] continuing the preliminary hearing but also restricting Mother's communications. Specifically with respect to Mother, the order provided as follows:

4. With the exception of communications with her attorney(s), Mother shall not convey in any form the statements, opinions, or legal positions of the Guardian ad litem to any person or entity without the Guardian ad litem's prior permission. Mother shall direct any persons seeking or requiring the statements, opinions, or legal positions of the Guardian ad litem to the Guardian ad litem. The intent of this order is to avoid miscommunication and/or misrepresentation, whether intentional or otherwise, and is not intended to infringe on mother's communication with her attorney.
5. Mother shall not seek publicity or media attention which may compromise the child's right to privacy and confidentiality in these proceedings. The intent of this Order is to maintain the child's confidentiality and to protect the child from unwanted attention or embarrassment.

         On January 13, 2014, the GAL filed an amended petition to adjudicate Jackson dependent and neglected. In her amended petition, the GAL again alleged that Jackson's behavior was "better when he [wa]s in Father's care than when he [wa]s in the care of his Mother." But the GAL also alleged that "Mother's actions and/or inactions with regard to the child's care and supervision pose a threat to the child's safety and well-being to the extent that allowing him to remain in Mother's custody places him at substantial risk of harm."

         On January 31, 2014, the juvenile court held a hearing on the amended petition. As reflected in the court's subsequently entered order, Mother and Father and their respective counsel attended the hearing. Among other matters, the order addressed the issue of the fees of the GAL. The order provided as follows: "Neither parent is indigent. Consequently, the Guardian ad litem fees should not be submitted to the Administrative Office of the Courts for payment by the state, but instead should be paid by [Father] and [Mother], with each bearing responsibility for fifty percent of the fees." The court directed the GAL to "submit an Affidavit of Fees either at the conclusion of the Adjudicatory Hearing or upon the final disposition of the case."

         Thereafter, on February 20, 2014, the GAL filed a petition for criminal contempt against Mother. The GAL alleged that Mother had willfully violated prior juvenile court orders "by sending an email with medical records attached to a number of people and/or entities, not all of whom have legitimate professional interest in the child's medical or psychological care or treatment, and not all of whom are known to the [GAL]." The GAL also alleged that the email "attributed a number of statements, positions, actions and/or inactions to the [GAL], many or most of which were inaccurate or fabricated."

         At a hearing held on March 4, 2014, the GAL announced her intention to voluntarily dismiss the amended petition to adjudicate Jackson dependent and neglected. The reasons for the voluntary dismissal are not known, although the order memorializing the dismissal reflects that a plea agreement involving Jackson placed him in the care of his Father. The order memorializing the dismissal also directed the GAL to "submit a record reflecting the time expended on this case for which she is seeking compensation, along with an Affidavit of Fees." The order also relieved Ms. Lipford of her responsibilities in the case.

         On March 10, 2014, the GAL filed an affidavit of her fees, which reflected her hourly rate and the total number of hours for which she was seeking compensation. The GAL attached to the affidavit a detailed statement showing the dates services were rendered, the time devoted in rendering the service on the date in question, and a description of the services rendered.

         The juvenile court entered an order awarding the GAL fees of $5, 454 for the period from December 5, 2013, to March 7, 2014. The court found, having reviewed the GAL's affidavit, that the fees were reasonable. In accordance with its previous order finding the ...


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