Tennessee Administrative Hearings on Child Abuse substantiation – Motion to Dismiss


By Connie Reguli


Now comes the Defendant, ______, by and through Counsel, and files this Motion to Dismiss on constitutional grounds.  Movant would show:


The definitions of abuse and neglect set forth in Chapter 0250-07-09.01 are unconstitutionally vague as written and as applied.

  • Abuse exhibits when a person under the age of eighteen is suffering from, has sustained, or may be in immediate danger of suffering from or sustaining a wound, injury, disability or physical or mental condition caused by brutality, neglect or other actions or inactions of a parents, relative, guardian or caretaker.

(6) Neglect means a child: (G) who is suffering from abuse or neglect.

These rules are unconstitutionally vague and do not define for a parent what conduct it prohibits or the culpable mental state.  Can a parent spank a child for misbehavior?  Can a parent put their hands on a child who is acting out?  In spite of the DCS policies stating that reasonable discipline is not child abuse, the parents are left without guidelines for appropriate conduct.


The definition of the standard of proof, preponderance of the evidence, is also unconstitutional as it fails to consider the totality of the evidence.  See.  0250-07-09-.05 which states that “Proof of one or more of the following factors, link to the abusive act to the alleged perpetrator, may constitute a preponderance of the evidence, (a) medical and/or psychological information from a licensed physician, medical center, or other treatment professional, that substantiates the physical abuse, sexual abuse, or severe physical abuse occurred; (b) an admission of the perpetrator, (c) statement of a credible witness that the abuse occurred, (e) physiological indicators or signs of abuse or neglect, including, but not limited to, cuts, bruises, burns, broken bones or medically diagnosed physical conditions; and (f) physical evidence that could impact the classification decision.”  This standard fails to consider the totality of the evidence and a tribunal’s obligation to weigh the evidence.


The administrative review uses an unconstitutional standard of review.  The indication of abuse upon a parent substantially impacts their constitutional right to parent and therefore, nothing less than clear and convincing evidence is appropriate.

It is well established that “parents have a fundamental right to the care, custody, and control of their children.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)).


The use of a child abuse registry which prohibits ones constitutional right to work without a showing of ongoing harm is unconstitutional.  0250-07-09-.02 (Scope of Rules)  T.C.A. § 37-1-401 et seq; 37-1-601 et seq; 49-1-1101 et seq; 71-3-501 et seq; and 68-11-1002(b)(2).


The Fourteenth Amendment to the United States Constitution prohibits states from depriving any person of life, liberty, or property, without due process of law. Tenn. Const. art. I, § 8 provides an identical protection. The “law of the land” proviso of the Tennessee Constitution is synonymous with the “due process of law” provisions of the federal constitution. Due process of law requires, among other things, notice of what the law prohibits. Laws must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Criminal statutes must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited. A statute is unconstitutionally vague, therefore, if it does not serve sufficient notice of what is prohibited, forcing men of common intelligence to necessarily guess at its meaning. City of Knoxville v. Entertainment Resources, LLC, 116 S.W.3d 650, (Tenn. 2005)

A two tier system applies for evaluating classifications by state legislatures. If the classifications do not interfere with the exercise of a fundamental right or operate to the peculiar disadvantage of suspect classes there must simply be a rational basis for the legislation. However, if it would infringe on a fundamental right or class then the classification must withstand strict scrutiny. The question of bona fide residential requirements for governmental personnel falls within the rational basis category. City of Memphis et al v. International Brotherhood of Electrical Workers Union, 545 SW 2d 98 (Tenn. 1976)


Due process, the right to parent, and the right to work are all fundamental constitutional liberties which should not be impinged by the government without strict scrutiny in passing constitutional muster.


Damages for Mental Anguish in Contract

img_2860Connie Reguli

Subject to some exceptions, there can be no recovery for mental anguish suffered by a plaintiff in connection with an injury to his or her property. Where, however, the act occasioning the injury to the property is inspired by fraud, malice, or like motives, mental suffering is a proper element of damage.  Whaley v. Perkins, 197 S.W.3d 665 (Tenn. 2006)

However, contract damages in Tennessee are NOT limited to the monies paid to engage services under contract.  Tennessee has long recognized consequential damages in contract.  The courts have held that in addition to damages for diminution in value and cost of repairs for contractual breaches, the courts may also award all damages that are normal and foreseeable.  Holladay v. Speed, 208 S.W.3d 408, 415 (Tenn. Ct. App. 2005) (citing Morrow v. Jones, 165 S.W.3d 254 (Tenn. Ct. App. 2004)) These types of damages include incidental and consequential damages. Id.  The long-established standard to determine damages in a breach of contract action in Tennessee is whether the damages are naturally arising or if the damages were within the contemplation of the parties at the time of contracting. Chisholm & Moore Manufacturing Co. v. United States Canopy Co., 111 Tenn. 202, 77 S.W. 1062 (Tenn. 1903) (citing Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854)) The court in Hadley went further in saying “if special circumstances were communicated by the plaintiff to the defendant, and thus known by both parties, the damages resulting from the breach of such a contract which they would reasonably contemplate would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated.” Id.

The Court must ascertain whether or not the damage itself was so remote, imaginary or speculative as to be unascertainable or whether it is only the amount of damages that is at issue.  “Uncertain and speculative damages are prohibited only when the existence of the damage is uncertain and not when the amount of damage is uncertain.” Cummins v. Broadie, 667 S.W.2d 759,765 (Tenn. Ct. App. 1983) A Court will allow damages for breach of contract “even where it is impossible to prove the exact amount of damages so long as there is proof with a reasonable degree of certainty.”  Moore Construction Co. Inc. v. Clarksville Dept of Electricity, 707 SW2d 1 (Tenn. App. 1985)

An illustration is found in Johnson v. Woman’s Hospital, 527 SW2d 133 (Tenn. App. 1975) where a mother lost her unborn child and after the fetus was removed she contracted for the disposition of the body.  She later found out that the child had been placed in a jar of formaldehyde.  When presented with this garish image, she suffered nightmares, insomnia, and depression for which she was awarded emotional damages.

            Also see Southeastern Greyhound Lines, Inc. v. Freels, 176 Tenn. 502, 144 S.W.2d 743 (Tenn. 1940) In Southeastern the court allowed a passenger to recover for punitive damages from the harm by the carrier in failing to provide him with the passage after he had purchased the ticket.  The Court stated that Tennessee is in line with the rule that “the tendency of modern authority is to allow damages for mental anguish where it is clearly within the terms of the contract or transaction and was negligently or wantonly caused by the defendant.” Id. at 507 The Court continued to affirm that the question is for the jury as to whether or not the conduct of the defendant was extreme enough to aggravate the damages and justify additional recovery beyond the actual damages.  Id. at 508 The Court quoted “punitory damages cannot be claimed as a matter of right; but it is always a question for the jury, within its discretion, no matter what the facts are.” Id. (citing Railroad Co. v. Satterwhite, 112 Tenn. 185, 79 S.W. 106, 112 (Tenn. 1903))

Punitive damages are available where a defendant has acted either intentionally, fraudulently, maliciously or recklessly. A person acts intentionally when it is the person’s conscious objective or desire to engage in the conduct or cause the result. A person acts fraudulently when (1) the person intentionally misrepresents an existing, material fact or produces a false impression, in order to mislead another or to obtain an undue advantage, and (2) another is injured because of reasonable reliance upon that representation. A person acts maliciously when ill will, hatred, or personal spite motivates the person. A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances. Metcalf v. Waters, 970 S.W.2d 448, (Tenn. 1998)

The courts in two states have permitted adoptive parents to assert negligent misrepresentation claims against adoption agencies for failing to supply them with information in the agency’s possession regarding the biological parents’ genetic information and medical background. Roe v. Catholic Charities of the Diocese of Springfield, 225 Ill. App. 3d 519, 588 N.E.2d 354, 361, 167 Ill. Dec. 713 (Ill. App. Ct. 1992); M.H. v. Caritas Family Servs., 488 N.W.2d 282, 287-88 (Minn. 1992).  Hodge v. Craig, 382 S.W.3d 325, 345  (Tenn. Oct. 1, 2012)

In Hodge v. Craig, the Court also stated, We recognize that “[t]he inexhaustible and ever-changing complications in human affairs are constantly presenting new questions and new conditions which the law must provide for,” Box v. Lanier, 112 Tenn. at 408, 79 S.W. at 1045(quoting Woodman v. Pitman, 79 Me. 456, 10 A. 321, 322 (Me. 1887)), and that, as a common-law court, we are obligated to revise, or even abolish, court-made rules in light of these changed conditions. Broadwell ex rel. Broadwell v. Holmes, 871 S.W.2d 471, 473 (Tenn. 1994); Dupuis v. Hand, 814 S.W.2d at 345-46.  Hodge v. Craig, 382 S.W.3d 325, 346,  (Tenn. Oct. 1, 2012)

Plaintiffs’ rights to compensation for mental anguish is often overlooked or ignored in cases where the relationship appears to be one of contract.  However, Plaintiffs should be willing to assert these rights when available.

A question has been posed whether a Plaintiff who is suing their attorney for malpractice can keep mental anguish damages.  When there is such a confidential, trusting and special relationship, the Court’s should look to the lose and damages occurring due to the negligence of counsel.  This question remains outstanding.

May 2018





Tennessee Court of Appeals Listening Tour


AS AN ATTORNEY who has participated in over forty appeals in the State of Tennessee, I am saddened at the state of law in protecting families and their constitutional right to family integrity.  – CONNIE REGULI

Here are some oral arguments in the Court of Appeals for you to ponder.


IN 2014, Connie Reguli challenged the Williamson County Juvenile Court Local Rule which allowed Juvenile Court Judge Sharon Guffee to veto any request for courtroom videos.  This went to the Court of Appeals who upheld the Judge’s ability to deprive parents and their attorneys of the videos.  Here is the Argument before the Court of Appeals.  You can see how circular it is.  Question:  Why NOT give the parents and their attorneys the videos?


IN 2015, Connie Reguli argued before the Tennessee Court of Appeals on a termination of parental rights case in which the Father had NEVER harmed his child.  The Department of Children’s Services terminated his parental rights because he did not pay child support, in spite of many limitations that prevented him from working.  The result,  his rights were terminated anyway.  This system is a disaster and parents are being stripped of their rights.   As an attorney I have stood up for many parents arguing that poverty is NOT a reason to terminate parental rights.


When a family gets caught up in juvenile court, it seems that they can never get out of court.  I argued at the Court of Appeals for this family that when parents are expending thousands of dollars to get their kids back and enforce orders for reunification, they should not be required to pay child support.  Guess what?  NOPE……even when strapped with attorney’s fees and your kidnappers refuse to obey court order….even when they go behind your back and get ex parte orders to cut you off from visiting your kids….YA STILL GOTTA PAY THEM CHILD SUPPORT.  


I represent a Mother who went through a divorce in 2006.  Her attorney had her file a sworn answer to a criminal contempt petition (WRONG) and failed to deliver the Mother’s discovery to opposing counsel which was required by a Court order.  In one pendente lite hearing, the Mother went to jail, was kicked out of her house, and lost her children.  The attorney was dishonest with the Court about the discovery and Mother’s pleadings were stricken.  The attorney THEN failed to follow through with the appeal.  She finally had to settled just to see her kids.  We sued her attorney in 2007 and the case is still pending.   The trial Court dismissed her case saying oh well, you settled your divorce case so you have no damages.  The appeal is pending.

May 6, 2018


Termination of Parental Rights – Changing times on the Court of Appeals


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


TENN. SUP. CT. TPR REVERSAL – not in the best interests of the child

By Connie Reguli

2017 – September 29

In Re Gabriella D.  E2016-000139-SC-R11-PT, Filed 9/27/17

Tennessee Supreme Court reversed the termination of a mother’s parental rights finding that Mother had been “able to make the necessary adjustments.”  This opinion written by Justice Cornelia Clark provides new light for parents suffering in the child welfare system.

In Gabriella, the family epitomized nearly every destructive behavior one could imagine.  Mother has a child born with methodone in its system and another one suffered withdrawal after birth; her narcotic pill counts was off; she repeatedly returned to a relationship that was destructive; her resident boyfriend smoked marijuana; her child suffered thrush from dirty bottles; law enforcement found drug paraphernalia in her home; one child suffered from malnutrition; and was child was six months old and was so developmentally delayed that he appeared to be a newborn.  In addition, the Mother had her parental rights terminated on two other children.

In March 2012, three children were removed from Mother and placed in foster care.   The Mother was cooperative with the agency and gained unsupervised visitation in September 2012.  The foster Mother complained that Gabriella did not want to visit with her Mother and further complained that the child’s behaviors regressed after visits.

The Mother obtained appropriate housing when her Mother (Maternal Grandmother) and Mother’s brother (Maternal Uncle) moved to Tennessee to assist Mother.  The uncle moved in with the Mother to help with the children.  A trial home visit was to begin on July 31, 2013.

The foster parents went to Circuit Court and filed a petition to terminate the parental rights of the Mother on the same day the children were to be placed back with Mother on this trial placement (July 31, 2013).  In addition, the Mother was arrested for felony child abuse on September 4, 2013 on her way to juvenile court for a hearing, due to the severe malnutrition of her child in March 2012.  Therefore, DCS did not place the children back with the Mother.

In October 2013, the Juvenile Court judge found that the foster parents had voided their contract with DCS by filing a petition for termination of parental rights and DCS left the child in an inappropriate placement (the fosters) for too long.  The judge found that the children should have been placed with the Mother July 31, 2013 as planned.

The Mother plead guilty to child neglect (a misdemeanor) and was sentenced to a year of probation which included included drug screens.  Mother had a positive drug screen for hydrocodone while on probation.

The foster parents had been dissatisfied with the goal of reunification from the beginning.  They made repeated complaints about the Mother and claimed that the children had thrived in their care.  They claimed that the mutual affection between the fosters and the children had developed and deepened.

Before the TPR trial started Mother broke a bone in her foot and had dental surgery.  On both occasions, she was prescribed narcotic pain medication and failed in inform the treating professionals that she had a history of narcotic drug abuse.

At the trial, Mother offered the testimony of two expert witnesses.  Dr. Alice Greaves who did a parenting assessment on the Mother and Dr. Irene Ozbek, who performed a bonding study on the Mother by making direct observations of her interactions with her children.   Dr. Gleaves testified that Mother’s improvements were commendable.  Dr. Ozbek testified that the Mother handled the children well and used appropriate discipline.

The Supreme Court opinion goes through a detailed analysis of the factors to be considered in the best interest of the child.  Tenn. Code Ann. 36-1-113(i)(1).

In summary, the Sup Ct found that “almost all of the statutory factor weigh heavily against finding that terminating Mother’s parental rights is in the best interests of the children.  “THE COURT OF APPEALS ERRONEOUSLY PLACED OUTCOME-DETERMINATIVE WEIGHT ON STATUTORY FACTOR SIX, AND MORE SPECIFICALLY, ON THE PROOF REGARDING MOTHER’S SEVERE NEGLECT OF THE CHILDREN IN THE PAST.”

The Sup Ct acknowledged that the Mother may relapse in the future, “yet, the risk that Mother may relapse is a possibility only and does not amount to clear and convincing evidence that termination is in the best interests of these children.”    The Sup Ct said, “Our decision instead results from an objective and comprehensive review of the record to determine whether the facts presented satisfy the constitutionally mandated heightened standard of proof. This heightened standard is designed specifically to reduce the risk of erroneous decisions depriving parents of their precious and fundamental rights to the care and custody of children.”

Is this a new day for parents?  Perhaps.

By Connie Reguli


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

connieThis 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.

henry haslam

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.