SUBJECT: TERMINATION OF PARENTAL RIGHTS
TOPIC: Times have changed the attitudes and decisions in the reviewing Courts in the State of Tennessee.
Court of Appeals vacates an order terminating parental rights on the ground of persistent conditions – 2003.
By Connie Reguli, Attorney at Law
I have stated many times that in my over twenty years of practicing law, I have witnessed a dramatic shift in the judiciary’s attitude about parent rehabilitation and government interference into family affairs in Tennessee.
In the first half of my legal career, I watched cases roll out of the Court of Appeals, time after time in which rulings that terminated parental rights were overturned.
Beginning in about 2007-08, the tide began to shift. This was ten years after the Adoption and Safe Families Act was signed by President Bill Clinton. The federal legislation, known as ASFA, put a bonus check on the head of every child in foster care. Since 2007, I have seen the legal standard of “clear and convincing” evidence against parents deteriorate. The Court’s rule on judicial clichés such as “best interest of the child”, “contrary to the welfare of the child”, and “reasonable efforts” without articulating the detailed history of the case. I have seen them ignore facts that in favor of parents and exaggerate facts that support the State’s position. These clichés are words articulated in 42 USC 671. 42 USC 671 and 42 USC 673 are the federal directives that every state should have a “state plan” incorporating Court findings consistent with these clichés. Now the emphasis on “cliché” finding have consumed any discussion on the constitutional right of family integrity. The attorney’s defending parents and children and the judges who ultimately make the law with their published decisions on a case by case basis have successful redirected the conversation in family law. To be fair, every TPR decision commits a paragraph or two about Santosky v. Kramer or Stanley v. Illinois, but the emphasis has now turned to upholding the trial Court’s termination of parental right instead of scrutinizing the State’s interference with family rights.
Let me take you back a few years and show you how the state courts in Tennessee would defend parents against government interference. Now, this would be a rare occurrence.
In 2003, the Tennessee Court of Appeals reversed the trial Courts termination of the parental rights of a father we will call “Rip, Sr.” His baby, Rip, Jr., was a mere four months old when a report came into the DCS that Rip, Jr. was suffering from chronic asthma. Their apartment was without electricity, it was cold and dark. Rip, Jr.’s mother was missing. The DCS worker said the baby felt “warm” and was wheezing and insisted on taking the baby to the doctor. Shortly thereafter DCS filed a petition against Rip, Sr. and the baby was placed in foster care. About a year and a half later, DCS filed a petition to terminate Rip, Sr.’s parental rights.
DCS filed their petition alleging three grounds for termination (1) abandonment; (2) substantial noncompliance; and (3) persistent conditions. The trial court dismissed the first two grounds but found persistent conditions and terminated the father’s parental rights.
In today’s appellate courts this would have been the end of any real due process, since today the appellate process is almost perfunctory and meaningless. I have received opinions that it is apparent that the court did not review the record, and I have even doubted that they read my briefing in defense of parents. But in the case of Rip, Sr., it was 2003 and something different occurred.
Court of Appeals Judge Houston M. Goddard wrote the opinion and it was joined by Judges Charles Susano and Hershel P. Franks. Of these three, Judge Susano continues to sit on the Court of Appeals bench in East Tennessee.
Judge Goodard provided an in-depth scrutiny of the grounds of persistent conditions providing what seems today as shocking leniency to the parents, but by his words the state’s proof did NOT rise to clear and convincing evidence that the “the conditions which led to child’s removal or other conditions which in all reasonable probability would cause the child to be subjected to further abuse and neglect and which, therefore, prevents the child’s safe return to the care of the parents..” TCA 36-1-113(g).
The trial Court found that the child had been removed because the Father could not care for the child; he did not have adequate money and could not provide a suitable home. There was “some concern” about the father’s ability to provide proper medical attention, to provide food and shelter, the basic necessities of life. The trial Court then found that the (1) Father’s employment had been checkered and he had apparently voluntarily left two jobs because he did not have transportation. Neither parents had a high school education; the child was special needs for speech and hearing therapy; visitation had been inconsistent; the parents continued to be separated; and both parents driver’s licenses were suspended. The trial Court said the separation of the parents, the failure to have steady employment, and the failure to have an adequate stable home were the conditions that persisted for two years.
The Court of Appeals (COA) stated that the record showed that the reasons for removal were that the home did not have power and the father lacked transportation to take the child to the doctor. The COA disagreed that that the child was removed for lack of adequate food, noting that the father had a note on the refrigerator door that posted the times the baby was fed. The COA stated, “The problem is that [Rip, Sr.] at that particular time didn’t seem ot have skills to take care of a baby and keep that baby safe and healthy. It wasn’t that he did not care about the child.”
The COA summarized the reasons for removal as the father’s ignorance of parenting skills, the financial inability of the father to provide certain basic necessities for his child and the absence of the mother as a result of the parents’ separate and the resultant instability in the home.
Then the COA detailed the parents history over the past two years in a manner that has been lost in the appellate process in Tennessee.
First, the COA said that the father had had five residences since the removal and the mother had had seven residences since the removal. The COA said, “we do not agree that the mere fact that the parents were living in multiple locations during the eighteen-month period preceding trial denotes the existence of a condition that in all reasonable probability would cause [the child] to be subject to abuse of neglect. There is no proof than any of the residences in which either [parent] lived during this period of time presented any environment risk or that either was unsafe or unhealthy for their child.”
Second, the COA found that both parents had had trouble with their driver’s license being suspended, but found that Mother’s license had been resinstated by the date of the trial and father had paid the ticket which caused the suspension. The failure to have a valid driver’s license had interfered with their employment, an issue which was now on the mend. The COA agreed with the trial Court that the record confirmed the fact that the parents had a sporadic work history, but stated “we do not agree that the Department has presented clar and convincing evidence that the sporadic employment of the parents would in all reasonable probability cause [the child] to be subject o abuse or neglect.”
Next the COA examined the effect of the parent’s inconsistent visitation. The COA found that the Department had worked on expanding visitation with the parents, even providing overnight visitation (which they NEVER do today) and even a three-day weekend. A few months after providing extended visitation, the Department informed that parents that they were going to proceed to termination of their parental rights and the parents became very distressed. The parents visits ceased for several months and then commenced against shortly before the trial began. The COA agreed that the parents’ visitation had been sporadic but stated, “we do not agree that their failure in this regard was so extreme under the circumstances as to constitute clear and convincing evidence of a condition which would in all reasonable probability cause [the child] to be subject to abuse and neglect.”
Finally, the examined the relationship of the mother and father, and how the instability of this relationship could effect their future parental relationship with their child. The COA agreed that the record did support a finding that there was instability in the relationship of the parents and stated, “we do not agree that this instability constitutes a condition which in all reasonable probability would cause [the child] to be subject to abuse or neglect.” The Department had admitted that the Father had a bonded relationship with the child and had appeared to be the primary care giver.
At the conclusion of the opinion, the COA noted that the Department claimed that there had been instances of domestic violence in the home between the parents. The father had admitted to pushing the mother and to hitting her on one occasion. However, the father testified at trial that now he tries to avoid any fights with the mother. The COA stated, “while we condemn any violence which may have occurred between these parents, we do not find that the Department has presented clear and convincing evidence that domestic violence is a persisting condition in the home that in all reasonable probability will subject [the child] to abuse or neglect.
The COA vacated the judgment of the trial Court restoring the parental rights of the Father.
State of Tennessee, Department of Children’s Services v. T.L.C. et al., M2003-00509-COA-R3-JV, (Tenn. Ct. App. Dec. 2003) Arising out of Coffee County Judge Timothy R. Brock.
I encourage all parents involved with DCS in Tennessee to pull this case out and give it to their attorneys and get it in their court file. The times have changed. Parents are now under a higher scrutiny than they were 15 years ago.
I encourage all attorneys and guardian ad litems working in termination of parental rights cases or dependency cases to use this case to defend the integrity of the family.
Date: December 24, 2017