SHARING THE BLISS OF FAMILY LAW IN TENNESSEE

JULY 26, 2017 – Connie Reguli

I had lunch today with one of my favorite members of the Davidson County Bar who also suffers through juvenile court on a regular basis like I do. We both like to challenge the perspectives of the Juvenile Court judges, we both stand up for clients in difficult situations, and we both have watched judges in the Courtrooms do some strange things.

We always share what has been going on in our cases from the legal perspective. How we challenge the government is one our favorite topics.

Topics of discussion today:

Evidence – Rule 803(25) – the hearsay exception on allowing children's statements though other persons. The rule specifically allows this in dependency, termination, and custody proceedings. Therefore, if you are in a administrative hearing contesting an child abuse indication, this hearsay exception does not APPLY.

Termination of parental rights and Adoption – We discussed how the Court of Appeals decided this year that foster parents have the right to file for termination of parental rights and adoption. EVEN though 37-1-129 give DCS total control over placement once the child is in DCS custody and 37-1-130 gives DCS the authority to return a child to the parents. It begs the question that if foster parents file for termination why DCS doesn't go get the child and move him/her. A termination and adoption proceeding is NOT a custody proceeding. Therefore, the tpr/adoption court does NOT have jurisdiction to award custody.
In 2015, the Court of Appeals ruled that "former foster parents" have NO standing to seek termination of parental rights and adoption against a parent. But in 2016, the Court ruled that current foster parents DO have standing to file a contest termination and adoption petition against DCS.
Put this back to back with the rule that grandparents have NO standing (right) to intervene in a termination proceeding filed by DCS when children are in foster care. The Court of Appeals in Tennessee has ruled that the only relief that can be granted in a TPR is termination of parental rights and guardianship, therefore, grandparents can not intervene. Of course they do not discuss that the grandparents could be awarded guardianship in that same proceeding.
Okay, so one more twist to this. I represented a Mother who lived in Texas and the children lived in Tennessee with their Father. Father dropped dead suddenly. Stepmother rushed to Juvenile Court and got an ex parte custody order saying the Mother abandoned the children. Then, she ran over the Chancery Court and filed to termination and adoption, so she could get the survivor benefits of Social Security. Mom came to Tennessee to fight for her children. Under the abandonment statute, the stepmother was going to show that Mom did not pay child support so therefore, there were grounds for termination. I wrote three briefs that the stepmother lacked standing at the request of the Sumner County Chancery Court. The judge made us come back three times just to argue the legal standard. Finally, he agreed with me and dismissed stepmother's petition. Even after he FULLY dismissed her petition, he refused to give the kids back immediately. He said the kids needed time to say goodbye and gave the stepmother two more weeks to turn the kids over. I asked him put the exact date and time in the order. Sure enough, stepmother did not show up. At least the Mother had a court order and she was able to get law enforcement to help get them back.

ICPC – Interstate Compact for the Placement of Children. First of all, this document created by a third party is total HEARSAY. Several years ago, guardian ad litems used to file reports with the court. In Toms v. Toms, the Tennessee Supreme Court finally said that these are HEARSAY and cannot be admitted in the court file. HOWEVER, DCS and CASA continue to file ex parte hearsay reports with the juvenile court ALL THE TIME. And the ICPC report it total hearsay. Well it doesn't matter much if your client PASSES the ICPC. But if your client FAILS the ICPC, you are flat out of luck. I had a client/Mother who moved to Kentucky and her case was in Tennessee. DCS told her she had to get an ICPC passed before she could get her kids back. Okay, we say, bring it on. A Kentucky social worker shows up at her home. I told Mother to record everything. So she recorded the entire 20 minute visit by the social worker. As she walked out the door, the social worker was asked, Is everything Okay? "Y'all have nothing to worry about." She said. Then the client failed the ICPC in the report because she did not have central air conditioning and they said her boyfriend was "too controlling." I filed a petition for custody and the Juvenile Court judge in Sumner County would not even let us be heard. DCS said that the Mother did not even have the right to a hearing if she did not pass the ICPC. In 2016, the Court of Appeals told my client, a father who never harmed or abused his child, that since he failed the ICPC (because he lived with his mother) that he was not entitled to seek custody. They also said that since he was not married to the Mother, he NEVER had any custodial rights. In 2015, the Court of Appeals said the relatives who failed the ICPC were NOT entitled to seek custody even after the judge held an evidentiary hearing and found that it was in the best interest of the child to go with the relatives. Recently, the Court of Appeals has ruled that a parent does not have to comply with ICPC, but only if there are no allegations against that parent.

CHILD AS A PARTY / CHILD AS A WITNESS – Is the child a party to a dependency and neglect action in Juvenile Court under 37-1-103? Children, especially, those over 12 years old, are often the reporters of abuse and neglect against their parents. They may or may not be legitimate claims. If the child is going to testify in a hearing, the parents' attorneys should have access to the child for deposition testimony. Now how does that occur. Most Courts will allow the testimony of the child in chambers or outside of the presence of the parents. However, the attorneys and the court reporter are allowed to participate. There is no direct authority on whether or not the parents should be allowed to participate in the child's deposition. I have had the parents across the table from child for purposes of deposition without objection. I understand that Williamson County Juvenile Judge Guffee denied counsel the right to depose the minor accuser/witness.

VANDERBILT CHILDREN'S HOSPITAL AND DR. DEBORAH LOWEN – For those who don't know, Dr. Lowen is the child abuse expert at Vanderbilt – the go-to hospital for child abuse referrals. We both agreed that this doctor is the ultimate profession henchman for DCS. Everything she sees "could have only happened from abuse." I have dealt with her inflexible and unwavering opinions regarding her "medical diagnosis" of "child abuse." We also discussed the legal standard for a "reasonable degree of medical certainty." Attorney John Day recently reported that the Third Restatement on Torts has rejected the "reasonable degree of medical certainty" standard because "the reasonable-certainty standard provides no assurance of the quality of the expert’s qualifications, expertise, investigation, methodology, or reasoning."
Added to the complexity of this cliche legal standard is the contrast between the preponderance of the evidence standard and the clear and convincing standard required in a dependency proceedings.
In all cases, parents' attorneys should be requiring "child abuse experts" to provide the medial research, literature, case studies, and review articles that support their opinion. Remember that most medical opinions are formed from "medical literature" and NOT medical RESEARCH. Know the difference. Literature is just an opinion. Medical literature changes over time and so do medical opinions. It takes substantial preparation on the part of the defense attorney to understand how to defeat these medical experts.

MANY MANY PARENTS find themselves in the abyss of the family court system. And often they wonder why we can not give them black and white answers on questions related to parental rights.

The system needs a major overhaul.

In defense of parents in the child welfare system

This says is all…….

2016 presentation to the indigent task force

In 1997 Pres. Bill Clinton, with the acknowledged assistance of his wife Hillary Clinton, signed the
Adoption and Safe Families Act, also known as ASFA.

In essence, this legislation put a price tag on the head of every child that came into contact with the child welfare agencies across this nation.

This was a knee-jerk response to the decades of lost children in the child welfare system which had resulted in class action lawsuits in several states, including the Brian A class-action in the state of Tennessee in 1994.

When the federal courts determined that the child welfare agencies had lost children in the system, the federal government reacted by determining that a quick transition for children from foster care into new adoptive homes would be the solution. To promote compliance with its agenda, the federal government put a bonus check on every child for being adopted into a home of strangers.

On the surface this seemed like a resolution to a problem that had evolved over three decades of the government’s attempt to manage child safety through a government agency.

 Instead, it became a marketing frontier for the state agencies and for private contractors to remove children from homes and to engineer a new environment and a new family structure for children.

These funds are derived from the Social Security Act Title IV E funding that has driven the child welfare system for now more than 20 years. This bonus system which started as a $4000 reward for the finalization of an adoption has burgeoned into an entitlement program which now exceeds the foster care program by nearly double.

It is not only the child welfare agencies that have benefited from this financial strategy. What is developed over two decades is an entire system of government sanctioned child trafficking.

How does this affect indigency in the dependency actions brought in the juvenile court system of Tennessee?

On the surface, it would seem that attorneys who are appointed to defend the constitutionally protected rights of parents and the safety and welfare of children, would do their best to defend family integrity while rehabilitating and re-unifying families in need.

Unfortunately the opposite has occurred.

In a dependency action brought under Title 37 of the Tennessee Code the parents are entitled to a court-appointed attorney if they are indigent. Under Tennessee Supreme Court rule 13 these funds are limited to a compensation of $750 unless the attorney is able to get the court to sign an order that the case is “extended and complex.”  Under the circumstances and attorney is able to claim $1500 from the administrative office of the courts.

In addition, from the same pool of attorneys, the courts will select attorneys to serve in the capacity of Guardian ad litem under Title 37.  Under this provision, the attorneys are subject to the same compensation schedule.

These attorneys are often new and naive in the practice of law.  They are fighting against the sophisticated legal staff of the state of Tennessee Department of children services. In the event of appeal, they are now faced with the overwhelming battle against the resources of the Tennessee Atty. Gen.’s office.

Even this does not touch on counsel’s responsibility to advocate for these parents and children through the course of the DCS reunification and investigation process. What this means is counsel is often faced with the task of attending meeting after meeting after meeting. Ultimately the attorneys become exhausted with the process and spend little time in the real defense of their clients.

These issues are sad but true.

In the past 18 months two important cases have been ruled upon by the Tennessee Supreme Court affecting the rights of parents and making effective counsel at the trial court level more important than ever.

In January 2015, the Supreme Court entered an opinion in In re Kaliyah.  In this case the court determined that the STATE was not required to show that reasonable efforts had been made to reunite a family in a termination of parental rights proceeding. This means that a parent’s attorney must be vigilant in making sure that the state has complied with the reasonable efforts requirement in the dependency proceeding. The requirement of reasonable efforts is not merely a state requirement, it is the basis of the federal funds received by the state upon which the agency depends to balance its budget.  As an attorney who defends the right to parent, the removal of the reasonable efforts requirement in a termination of parental rights proceeding is devastating.

In January 2016, another blow came to parents in the Tennessee Supreme Court decision of In re Carrington. In this case a brave mother had presented her case to the Tennessee Supreme Court in stating that her counsel had not properly represented her in the trial court action. The Tennessee Supreme Court considered the issue important enough to be accepted for review and appointed counsel for the process of briefing. The result to parents is devastating. The Tennessee Supreme Court has effectively ruled that any deficiency in the trial court level can be cured by the Court of Appeals reviewing the entire record and every conclusion in the trial court order regardless of whether that issue is briefed by the parents counsel. This totally ignores the deficiency of counsel at the trial court level who are not trained and are overwhelmed by the resources of the state.

In addition it cannot be ignored that the Council who rotate through the juvenile courts taking appointments as their main source of income are reluctant to defeat the state child welfare agencies or displease the juvenile court judges by causing long and protracted litigation and often fall on the sword, or rather cast their client upon the sword of dependency Court, telling the parents they can never beat the State.  Or bargaining away their due process rights with the promise of reunification.  Giving the STATE agency a “WIN” against the parent.

What evidence do I have that this occurs? Let me tell you about Evelyn. Evelyn and her family are victims of the child welfare system. In 2014 a child welfare service worker came to her home. Evelyn was upset and angry about the intrusion. She got in her car and backed out of her drive and collided with the DCS worker’s car. The DCS worker called the police who came to the home of Evelyn, went inside Evelyn’s home, and then arrested Evelyn within her own home for public intoxication, she was cuffed place in the back of the police car, and her children were stolen and put in foster care because there was no parent available to care for them based solely on the arrest.

Within a month, her court-appointed attorney had convinced Evelyn that she should stipulate that the children were dependent neglect based on this arrest. That was March 2014.  As I stand here today in August 2016, Evelyn is still fighting the Department of children services for the return of her children. A competent attorney would’ve defended her position to have a home in which she could protect her children and bring to the courts attention the illegal arrest.

This is but a mere sample of the tragedies that I have seen in the dependency court system.

Another issue related to indigency and the right to parent is the termination of parental rights based on abandonment for failure to support. Although that is not the subject of this forum, it is a social issue that must be addressed. Poverty is a social issue and not grounds for termination of parental rights.

I have recently defended a parent at multiple court levels for his simple inability to make an income that is satisfactory to the child welfare agency. Even though he admits that he is in need of assistance from his family and doesn’t intend to try to raise the child on his own, the state agency has insisted that he be able to provide his own home, his own utilities, and that he have full-time employment before he can parent his child. This young man who suffers from Asperger’s syndrome does not have a high school diploma, does not have a drivers license, and has been able to maintain employment for more than a few weeks at a time. And yet the state was able to terminate his parental rights forever because he was unable to provide financial support to his child who was in foster care. It is important to note that this father had never abused or harmed or neglected his child AND he attended every visitation he was allowed.

Part of this panels endeavor is to determine where the money will be found for proper representation of parents in the dependency system. And as this process continues, the panel should always consider that it is not just the right to parent, it is the right to familial Association. What that means is that the child as well, has a constitutional right to the generational continuity of family ties.

The panel must understand that the money is already in the system. The job now is to reallocate funds from the distorted and inappropriate bounty placed on each child’s head with the Adoption and Safe Families Act, and to provide those funds as resources that rehabilitate and re-unite families who have been brought into the child welfare system.

Pending before the United States Senate is the Family First Act introduced by Senators Hatch and Wyden. This bill having passed the House of Representatives is now pending before the United States Senate. The goal of this bill is to address and reallocate funding so that children are more able to stay with family and relatives, as opposed to rehoming them into the homes of strangers and social engineering generations to come.

We must also be mindful of the conflicts of interest that have been created in the child welfare agency and its contractors.

The child welfare agencies serve TWO antagonistic functions. Their duty is to provide services to families and children that best lend to the welfare and development of children. In addition, they serve as an investigative and prosecutorial arm of the state government for child abuse. These functions cannot coexist in the same agency without conflicts of interest.

Child welfare agencies, including our own Department of Children Services, have contracted with private providers that proclaim to offer services both for foster care and for reunification. This cannot be tolerated. These two service arms are diametrically opposed and cannot come from the same provider network.  This conflict of interest is detrimental to families and does not serve the public interest.

Gov. Haslam appointed James Henry to serve as the commissioner of the Department of children services in 2011. Mr. Henry is the CEO of Omni, the largest private contractor of foster care services in the state of Tennessee. Mr. Henry served in the role as Commissioner from 2011 to 2015 when he was transitioned into the role of Chief of Staff for Gov. Haslam. During the course of his tenure at the Department of children services his company acquired over $200 million from the taxpayers.

With no oversight of the Department of children services, the spending by private contractors, or the legal services provided to parents in the dependency system, the system can only fail.

And fail it has.

As leaders of the state and of your communities, you must create alternatives.

Number one: all conflicts of interest must be forbidden.

Number two: parents must have qualified and competent legal staff to defend proceedings against them, including access to experts, legal professionals, and support staff.

Number three: parents must have competent advocates for the process of rehabilitation and reunification. This cannot be substituted by persons who hold themselves out as protecting the best interest of the children. For these entities have lost the perspective of familial integrity and the child’s right to generational family ties.

Number four: the state child welfare agencies must have effective oversight and reporting mechanisms available not only by court and supervisors within the system; but the parents and children of the system must have an effective means of reporting their deficiencies and getting resolutions.

Number five: there must be a reexamination of the issues of  IMMUNITY, TRANSPARENCY, and DUE PROCESS at every level in the child welfare system.

Number six: the funding must change. The Families First Act before the United States Senate is a move in the right direction. Our country has spent 40 years on a social experiment that the government is the best substitute parent for the child. This is false thinking. Families and extended families are the best source of nurturing for children.

Thank you for your time and I would like to introduce you to some victims of the system.

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DCS Advocates for Foster Parents Over Relatives

January 19, 2016                         Attorney Connie Reguli

Tennessee DCS attorney Tracy Hetzel stated in Macon County Circuit Court that it would be “barbaric” to remove a child from foster care after 30 months of placement in the home of Brandon Givens and Dana Davis who wish to adopt the child, even though the relatives of the child have been fighting for kinship foster care placement for over two and a half years.

Michigan residents, Bobbi DuBoise and her husband Will DuBoise, Jr. contacted DCS in November 2013 telling them that they would like to be considered a placement for their nephew’s child who was placed in foster care on June 23, 2013.  They immediately began the process of interstate approval completing all steps they needed to take in Michigan in “record time.”  In spite of their diligence, it took the bureaucratic institutions six months to achieve approval.  By May 2014, they had the required ICPC (interstate compact for the placement of children) completed.  Even though the aunt and uncle had done everything required by the State for placement, Judge Witcher opposed moving the child to the State of Michigan alleging that it was not in her “best interest.”  DCS worker Lindsey Kenyon testified in Court last week that in the summer of 2014 DCS was in favor of placing the child with relatives.  However, due to DCS interfering, the hearing on the appeal before Judge Clara Byrd did not occur until January 2016, 2 ½ years after this child was placed in custody.  Now, in January 2016, DCS worker Kenyon now tells Judge Byrd that DCS is opposed to placing the child with her relatives because of the amount of time that has passed.  Kenyon admitted that the only change was the amount of time the child has now spent in foster care.   During this proceeding, DCS attorney Hetzel held valiantly to the position that the child should not be placed with her relatives in Michigan while State attorneys Sofia Crawford and Rachel Rieger watched the proceedings.

Judge Byrd commended DCS for doing a great job.  She agreed that the aunt and uncle appeared to be “great parents” and if the foster parents ever changed their mind, DCS should place the child with the aunt and uncle.  But because of the amount of time the child had been in foster care, Judge Byrd refused to grant the request of the relatives to take custody of the child and take her home to Michigan.

Under Tennessee law, and federal guidelines, the state child welfare agency is required to place with a relative when the child cannot be returned to a parent.  Kinship foster care is codified in Tennessee Title 37 and is also a requirement put down by the United States Department of Health and Human Services under Title IV E of the Social Security Act for any state child welfare agency receiving federal funds.

There is no dispute that Tennessee falls under this requirement.  The 2014 published budget for DCS shows the State of Tennessee receiving over 74 million dollars from the Title IV E federal funds. Along with the foster care funds received from the Federal government, many people don’t know that Tennessee receives a bonus check for each child adopted by foster parents out of foster care.  In addition, the foster parents, even after adoption continue to receive funds until the child is 18 years old.  Tennessee’s “adoption assistance” budget exceeds 3 million dollars annually.

2014 budget oday

The question of why DCS would be so motivated to keep children in foster care rather than facilitate the placement with relatives is not a torch carried only by Bobbi DuBoise and Will DuBoise, Jr.  Other Tennessee DCS cases demonstrate that this is occurring across the State.  In Gibson County, grandmother Barbara Buffaloe has been seeking a relative placement of her three grandchildren since November 2014.  And in Sullivan County, grandmother Whitney Manning has been seeking a relative placement of her three grandsons since 2012.  For Manning, it is particularly painful since DCS first told her she could take her grandchildren home to Virginia in September 2011 and then DCS got a court order shortly thereafter requiring her to return the children to Tennessee where they were put in foster care.

Funding issues and leadership could be the source of the problem.  Governor Haslam appointed James Henry to serve as Commissioner of the Department of Children’s Services in 2011 when Commissioner Day stepped down after the report of child deaths in the foster care system hit the news.  Henry led private contractor Omni Visions as president and CEO from 1997 until January 2011 when he was appointed by Haslam as the Commissioner of the newly formed Department of Intellectual and Developmental Disabilities.  Curiously, Omni was known to be the provider of choice for adults with disabilities.  Soon thereafter, Haslam appointed Henry to serve as Commissioner of the Department of Children’s Services who contracts with Omni Visions to provide foster care and support services to DCS.  The State budget shows that Omni Visions received over 236 million from the Department of Children’s Services during the time of Henry’s term which ended in July 2015.

2014 policy manual federal funds

In addition to the refusal to comply with Tennessee law and effect the relative placement of the child, the father, Mr. Marble brought a Federal lawsuit in May 2015 for the violations of the Americans with Disabilities Act for the manner in which the Department of Children’s Services treated him during the time that he was trying to seek custody of his daughter.  In spite of the fact the DCS knew Marble had suffered from a seizure disorder, suffered from cognitive distortion and memory loss, was a high school dropout, and had no driver’s license, DCS told him that he would need to provide a home and a full time job before he would be considered as a placement of the child.  In fact, when he could not do these things, DCS sought to terminate his parental rights.  DCS has never alleged the Marble did anything to harm his child.

151006 – first amended complaint final TO FILE

The Federal lawsuit follows the allegations made in the State of Massachusetts where a disabled Mother was not allowed to parent her child because she had developmental delays.  Even when the maternal grandmother stepped up to say that she would assist in the parenting responsibilities, the State welfare agency chose to direct their attention to terminating the Mother’s rights and placing her child for adoption.  The United States Department of Justice and the United States Department of Health and Human Services stepped in and investigated the circumstances.  They determined that the state welfare agency had violated the Americans with Disabilities Act (ADA) by not considering the resources the Mother had, including the maternal grandmother.  This case has become known as the Sarah Gordon case and its opinion is easily accessible on the internet.

2015 DOJ Tech assistance for ADA

Tennessee will likely continue to take the position that Mr. Marble is not entitled to be a father even if his relatives are willing to be guardians over her in the State of Michigan. His attorney, Connie Reguli, expects that this will another Sonya McCaul case: a child who was held hostage by the State of Tennessee for nine years until she was allowed to return to her father in Nebraska.  The placement of Sonya in the Tennessee home was also the result of wrongdoing by the State of Tennessee.  When such direct and obvious errors occur, the highest offices in this State should take corrective action.  But they have failed to do so.

Author – Connie Reguli is an attorney practicing family law in the Middle Tennessee. Visit the website for LawCare Family Law Center, P.C.

 

 

FOSTER PARENTS ALLOWED TO TERMINATE PARENTAL RIGHTS

January 2, 2016                    By  LawCare Family Law Center

Connie Reguli – Tennessee

I am beside myself.  Tennessee Court of Appeals has just taken a turn for the worse against the constitutional right to parent. On December 30, 2015, the Tennessee Court of Appeals entered an opinion which upheld the trial Court in allowing the foster parents to file a termination proceeding against the Father and allowing them to succeed in the adoption of a child in their care and in the custody of the Department of Children’s Services.

The opinions of In re R. L. M., E2013-0273-COA-R3-PT (Jan 29, 2015) and In re Rainee M., E2015-00491-COA-R3-PT (Dec 30, 2015) shed little light on the underlying facts of the case.  All that can be gleaned from these opinions is this child was placed in foster care September 2012 and the Court adjudicated the child dependant and neglect December 6, 2012.  The opinion gives no factual basis to justify placing the child in foster care.  The Department of Children’s Services then filed a petition to terminate the father’s parental rights on the grounds of (1) abandonment by failure to provide a suitable home T.C.A. § 36-1-113(g)(1) and T.C.A. § 36-1-102(1)(A)(ii)  and (2) persistence of the conditions that led to the child’s removal T.C.A. § 36-1-113(g)(3).

The Juvenile Court had a hearing and entered an order terminating father’s parental rights December 9, 2013. The Father filed an appeal.  In this appeal, DCS conceded that an essential element of its case was not established by the proof.  DCS contended that the judgment must be reversed because they failed to establish an essential element for grounds for termination in that they did not file a copy of the order adjudicating dependant and neglect from the prior proceeding.

For termination of parenting rights under “failure to establish a suitable home”, DCS must establish that the child was removed from the parents’ home by order of the court in which the children were found to be…dependant and neglected…at least four months prior ot the filing of the petition to terminate the parent’s rights.  In re Zmaria C. M2009-02440-COA-R3-PT (Aug. 24, 2010)

For termination of parental rights under persistence of conditions, DCS must establish that a prior court order removing the child from the a parent’s home was based on a judicial finding of dependency, neglect, or abuse.  In re Audrey S. 182 S.W. 3d 838, 874 (Tenn. App. 2005)

Since DCS did not file an order adjudicating the child dependant and neglected, they had not established a essential element required by law.  The Court of Appeals agreed and reversed the Trial Court’s termination order.  See In re R. L. M., E2013-0273-COA-R3-PT (Jan 29, 2015)  An interesting note is put in the last page of the opinion that states, “Lest there be any doubt, we emphasize that this decision has absolutely no effect on the child’s custody.”

Although not specifically stated within these opinions, DCS must have known this was coming down the pike. Pending the appeal on the termination, the foster parents went to Chancery Court and filed a petition for termination of parental rights and adoption.  The Father’s counsel made several legal arguments to attempt to dismiss this Chancery Court proceeding.  He argued (1) the Court lacked subject matter jurisdiction because the termination of parental rights was on appeal; (2) that the issues were not justiciable; (3) that the doctrine of res judicata applied and the petitioners should be precluded from proceeding against the father; and (4) that the doctrine of collateral estoppel would bar relitigation on the issue of terminating his parental rights.

The trial Court denied the Father’s motion to dismiss and conducted a hearing on October 27, 2014.  The Court took the matter under advisement.

As described above, the Court of Appeals reversed the first termination proceeding in an opinion entered January 29, 2015.

On February 23, 2015, the Chancery Court entered an order terminating father’s parental rights on the very same grounds (1) abandonment for failure to provide a suitable home; and (2) persistence of conditions that lead to the removal of the child from the home.  Neither opinion offers any factual summary, and it appears from the dates provided that the two hearings were about a year apart, so we cannot tell what evidence was offered against the Father.

The Father filed a appeal to the Court of Appeals and his counsel raised the same issues on appeal and added (5) that the trial court failed to comply with the mandate provisions in T.C.A. § 36-1-113(k) to provide written findings within 30 days of the hearing.

The Court of Appeals dismissed the Father’s arguments in short order.

Subject matter jurisdiction while on appeal:  The Court of Appeals said that because this was a different case than the one filed in Juvenile Court that the argument did not apply.

Justiciability:  The Court found this argument to be “unavailing.”  The justiciability argument is based on the matter being “ripe” – whether the controversy warrants judicial decision – and “moot” – whether the matter continues to warrant judicial intervention.

Res Judicata and Collateral estoppel: The Court of Appeals found that because the foster parents were different parties seeking to terminate the Father’s parental rights and the judgment was “not final” in the Juvenile Court, that these principles did not apply.

Final Ruling:  The Court of Appeals also found that there was no articulated harm done in the trial Court’s failure to enter a final ruling within 30 days of the hearing.

Besides smelling really bad, this series of events places all parents dealing with a child protective agency at risk.  If DCS does not get it done one way, they will try another.  There remains a fatal flaw in this case and hopefully Father’s attorney will take this to the Tennessee Supreme Court.

You see, in my opinion, the foster parents did not have standing to file the petition, and therefore the Chancery Court lacked jurisdiction to hear the case.  Jurisdiction is always a matter to be considered by the Court and so even though Father’s attorney did not raise this issue before, he can still do it.

Number One:  Foster parents are under a contract with DCS that they will not take any legal action in regard to seeking adoption independent of DCS.  Although we might not be able to get that in the Court record at this level, I wish Father’s counsel would have requested a copy of that contract.

Number Two:  And more important, is that the adoption statute does not provide that a person in mere possession of a child can file a petition for termination of parental rights and adoption.  T.C.A. § 36-1-115 requires that for a person to have standing to bring an adoption action, they must have at physical custody of the children or the right to receive it.  “Custody” is a legal term and cannot be preempted by mere possession.  When a statute creates a cause of action and designates who may bring an action, the issue of standing is interwoven with that of subject matter jurisdiction and becomes a jurisdictional prerequisite. Osborn v. Marr, 127 S.W.3d 737, (Tenn. 2004) If the foster parents did not put into the record an order adjudicating them as the legal custodians of the child, this case must be dismissed.

Tennessee Supreme Court and retaliation against Attorneys

Fellow citizens…..

I started challenging the retaliatory tactics of the Supreme Court through its Board of Professional Responsibility in 2008 and have been continuously discovering MORE information about how they pick and choose who will be prosecuted under the vague and ambiguous standards and sanctions established by the Tennessee Supreme Court.

In July 2012 I discovered (with the assistance of Jim Roberts) that there were secret email communications that were never disclosed to attorneys against whom the BPR pursued.  When I sought to obtain those emails, the request was denied and the Attorney General’s office (who is appointed by the Supreme Court) defended this secret communication. 

In November 2012 Davidson County Chancellor Lyle told the State they HAD to produce the emails.

The State appealed.

Last week Justice Richard Dinkins on the Court of Appeals (joined by Justice Frank Clement)…..

wrote this opinion that all of the separate units under created under Rule 9 of the Tennessee Supreme Court are ONE UNIT and therefore they can communicate secretly about the attorney that they intend to pursue and discipline.

I have served as a District Attorney in Davidson County so let me give you an analogy.  This is like the District Attorney, the Judge, and the Grand Jury all having free reign to communicate ex parte and secretly about pending cases. 

Do you think that perhaps we have a basic due process problem here?

Let me add this to the mix:

Under TCA 16-4-102 the judges that create the Court of Appeals are to be “elected” every eight years.  Neither Judge Dinkins nor ANY of the 12 members of the State’s Court of Appeals have EVER BEEN ELECTED to hold that office.

Under TCA 16-3-401 the Supreme Court is allowed to make rules “for the better disposition of business before it.”  Under TCA 16-3-404, those rules are not effective until they have been approved “by resolutions of both the house and the senate.”  Tenn. Supreme Court Rule 9, the rule that creates the disciplinary procedure for Attorneys and upon which Judge Dinkins is relying, has NEVER BEEN APPROVED by the General Assembly and the Supreme Court doesn’t care.  They have already been confronted on this issue and they have snubbed their nose at the law and said that they had “inherent” power to control the licensure of attorneys.

The Tennessee Constitution provides under Article VI that the Supreme Court is “APPELLATE ONLY” and that ONLY the Legislature can create any lower court and give them jurisdiction.  However, our Tennessee Supreme Court submits that they have the power to create this “Court” called the Board of Professional Responsibility, assign its jurisdiction, appoint its members, and NOW allow them to all communicate secretly. 

In December 2012, one brave State Senator proposed a law that would make this secret communication among appointees of the Supreme Court a misdemeanor.  This bill fell asleep when Sandy Garrett from the BPR appeared before the Legislature and explained that she knew that had happened but she had FIXED the problem and it wouldn’t happen anymore.  And, oh yes, she made a point of telling them that the only person who had complained about this was “an attorney who is being prosecuted by our office”  (that would be me of course)  just to discredit the complaint. 

In 2010, Senator Mae Beavers recognized the inherent problems in the Supreme Court governing itself and its judges and worked with citizens to abolish the Court of Judiciary.  However, her efforts were diverted by Senator Mike Faulk who got his bill creating the “Board of Judicial Conduct” approved.  This NEW creature was a “distinction without a difference”. 

This animal is still controlled by the Judicial Branch.  I attended the meeting of this new ‘oversight’ arm and heard the chief disciplinary officer, Tim Discenza, tell the other members that he had recently attended a meeting of the American Adjudicatory Society and they had the most fun listening to the “stories” that came out of Tennessee regarding judicial misconduct.  This comment gave rise to a chuckle from the other members in the room and on video conference.  The members of this committee include judges from across the State. 

Senator Mae Beavers was then REMOVED from the Senate Judiciary Committee by Lt. Gov. Ron Ramsey:

Mike Faulk received a judicial appointment by Gov. Haslam who is seen here chumming with Supreme Court Justice Gary Wade:

If I haven’t made you cringe yet….let me add this bit of history:

Historian William Meinecke, Jr. wrote:

Nazis gained power by co-opting the justice system through its courts and lawyers. They knew they were dependent on the lawyers operating in the system and wanted to bend them to their way of thinking.

They worked at getting sympathetic leadership in the organized bar; initiated a loyalty oath to Hitler as part of the admission to practice; developed incentives to gain cooperation and heavy handed and brutal disincentives for those who opposed the system.

Do YOU believe that the this new opinion is intended to ‘SILENCE’ attorneys who would speak out about judicial corruption, abuse of power, and constitutional abuse in the courtroom?  Do NOT be blinded.  The trickledown effect of this opinion will certainly further insulate the Judicial Branch of our Tennessee Government. 

What are you going to do?

 

DO THIS:

 

1. 1.  Here are the links to the Senate and House Judiciary committees:

a.  http://www.capitol.tn.gov/Senate/committees/judiciary.html

b. http://www.capitol.tn.gov/house/committees/civil-justice.html

c.   Forward this with your support.

d. Contact the Legislature and let them know that you have had enough.

e.   Remove the control over the licensure of attorneys from the Judicial Branch and place it in the Executive Branch (just like doctors, plumbers, psychologists, and any other profession which requires a license)

 

2.  REMOVE the members of the Court of Appeals, Court of Criminal Appeals and Supreme Court

a.  Tenn. Const. Art VI allows the General Assembly to “remove” judges giving them ten days notice to appear in a joint session and a 2/3 vote.  No impeachment proceeding is required.

b. Solicit the General Assembly to REMOVE these judges

 

3.  VOTE – On August 7, 2014 all members of the Court of Appeals, Court of Criminal Appeals and Tenn. Supreme Court will be on the ballot to “Retain” or “Replace”.   VOTE REPLACE and spread the word.  55% replace will remove them from office.

 

4.  VOTE NO on the constitutional amendment that will be on the ballot in November 2014 to change the constitution and allow the “life-time” appointment of judges in Tennessee.

Yours Truly,

Connie Reguli

Attorney at Law

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