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.