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In re Ashton B.

Court of Appeals of Tennessee, Jackson

November 7, 2017

IN RE ASHTON B.

          Session September 20, 2017

         Appeal from the Chancery Court for Shelby County No. CH-13-1503-3 Walter L. Evans, Judge

         The partial guardian of the child appeals the trial court's order assessing the totality of the guardian ad litem's fees to it following the denial of the partial guardian's termination of parental rights petition. Because guardian ad litem's fees may be assessed against parties pursuant to Rules 17.03 and 54.04 of the Tennessee Rules of Civil Procedure in parental termination proceedings, we affirm the decision of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

          Kevin W. Weaver, Cordova, Tennessee, for the appellant, Bethany Christian Services of West Tennessee, Inc.

          Janika N. White, Memphis, Tennessee, Guardian Ad Litem.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Andy D. Bennett and Brandon O. Gibson, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         On October 4, 2013, Appellant Bethany Christian Services of West Tennessee, Inc. ("Bethany") filed a petition to terminate the parental rights of a child in its custody. The petition alleged that the child's mother had previously surrendered her rights to Bethany, resulting in an order of partial guardianship of the child to Bethany. The petition further alleged several grounds for termination of the child's father's ("Father") parental rights. On October 16, 2013, Father filed a pro se answer generally denying that termination was appropriate. On October 18, 2013, Bethany filed a motion requesting that the trial court appoint a guardian ad litem for the child pursuant to Tennessee Supreme Court Rule 13, section 1(d)(2)(D). The trial court thereafter entered an order appointing Appellee Janika White ("the GAL") as the child's guardian ad litem, citing Tennessee Supreme Court Rule 13, section 1(a)(2)(D). Counsel was later also appointed to represent Father.

         An evidentiary hearing on the petition to terminate parental rights occurred in July 2015. The GAL was present at the hearing on behalf of the child. Eventually, on August 28, 2015, the trial court entered an order denying the petition, finding no grounds to support termination. The order specifically asserted that the GAL would be awarded a reasonable fee as a court-appointed attorney. Following the denial of the termination, the GAL continued to be involved in the litigation, making recommendations as to a transition plan for the return of the child to Father as directed by the trial court. Bethany appealed the trial court's denial of the termination petition to this Court, which affirmed the decision of the trial court. See In re Ashton B., No. W2015-01864-COA-R3-PT, 2016 WL 981320 (Tenn. Ct. App. Mar. 15, 2016), perm. app. denied (Tenn. July 6, 2016).

         Following this Court's decision, the GAL filed a motion in the trial court to be awarded attorney fees pursuant to Tennessee Supreme Court Rule 40A. The GAL requested a total of $9, 615.00 in fees, as well as $104.81 in travel expenses to be paid by Bethany.[1] The trial court heard the motion on July 1, 2016; counsel for Bethany was not present. Bethany filed a response in opposition to the fees on July 7, 2016, asserting that the motion was improper because fees in this case were governed by Tennessee Supreme Court Rule 13, rather than Rule 40A. On July 8, 2016, the trial court entered an order awarding the GAL the full amount of her requested fees. In its order, the trial court noted that counsel for Bethany had previously informed the trial court that he could not be present for the scheduled hearing date, but that he wished to be present. The trial court also stated that "[a]fter review of the [c]ourt's pleadings, it appears to the [c]ourt that no objections to the [] motion have been filed[.]"

         On July 13, 2016, Bethany filed a motion to alter or amend the trial court's award of fees, arguing that the fees were improperly awarded and that the GAL had been informed prior to the July 1 hearing of Bethany's objection to the requested fees. Thereafter, the trial court entered an order setting aside its July 8 order awarding guardian ad litem fees. The parties convened for a second hearing on the motion for guardian ad litem fees on July 22, 2016. On January 13, 2017, the trial court, without citing any specific rules or statutes in support of the award, entered an order again awarding the GAL the entire amount of her requested fees and expenses to be paid solely by Bethany.[2]From this order, Bethany appeals.

         Issues ...


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