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.
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.
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.
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.
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.