By Connie Reguli

Update May 2020: Since I first wrote this Motion to Dismiss in 2016, DCS has updated the Regs found in Chapter 0250-07-.09 and changed the definition of “neglect”. It is now found as item (10) under definitions and reads: “Neglect” means the actions or omissions of a parent, relative, guardian, or caregiver which subject a child victim to actual or threatened harm, including, but not limited to conduct which leads to a child suffering from any of the conditions listed in the definition of “dependent and neglected child set out at TCA 37-1-102(b)(13).

This changes the nature of the objections, but the appellant should required the State agency to “elect” how they intend to proceed. That is, are they proceeding under “abuse” (definition 1) or “neglect (definition 10). And if they elect neglect, they must elect a subsection of TCA 37-1-102(b)(13).

The category that the state sees as their “shoe in” is Neglect and psychological harm, but they claim that anything a parent does the harms the self esteem of the child is psychological harm notwithstanding any real harm or evidence of harm.

2016 THE MOTION TO DISMISS READ AS FOLLOWS:

DEFENDANT’S MOTION TO DISMISS ON CONSTITUTIONAL GROUNDS

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

ABUSE AND NEGLECT

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.

STANDARD OF PROOF

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.

FUNDAMENTAL RIGHT TO PARENT

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)).

CHILD ABUSE REGISTRY

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).

CONSTITUTIONAL REVIEW

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)

CONCLUSION

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.

Connie 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

 

 

 

 

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.

COURT RECORDINGS AND VIDEOS CONTROLLED BY THE JUVENILE COURT JUDGE.

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?

TERMINATING PARENTING RIGHTS OVER POVERTY

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 FAMILY STEALS YOUR CHILDREN

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.  

WHEN YOUR ATTORNEY THROWS YOU UNDER THE JAIL AND WALKS AWAY, HERE IS WHAT YOU GET. 

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