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.