DCS Advocates for Foster Parents Over Relatives

January 19, 2016                         Attorney Connie Reguli

connieTennessee 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.

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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.

henry haslamFunding 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

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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.