Category Archives: DCS in Tennessee

The Department of Children’s Services was called by one caller the “Department of Baby Snatchers”. What you need to know when they show up at your door.

The Right to Defend Oneself in Court. Kansas Sup. Ct. calls out the kangaroo court for what it is. And why is matters.

By Connie Reguli, J.D.

As a family law attorney defending parents against over aggressive state agencies for three decades, I have always worked with parents on how to defend themselves in court. These days, parents contact me from all over the country and say that their court-appointed attorneys are not preparing them for court and are not even allowing them to speak in the courtroom. Parents, sadly, do not have all of the constitutional protections that are provided to criminals, like Miranda rights and the right to confront their accuser, however, the ability to speak and be heard in dependency cases is precious and paramount to winning for parents.

On May 10, 2024, the Kansas Supreme Court released an opinion in the criminal case of State of Kansas v. John R. Cantu which found that the trial court judge had denied the constitutional rights of criminal defendant Cantu by removing him from the witness stand and striking his testimony. Cantu’s convictions were reversed.

Kansas Reflector

This case is worth the read, and begins like this:

Facts and Procedural History

John R. Cantu was charged in Reno County District Court with two counts of felony stalking, two counts of violation of protection from stalking orders, criminal damage to property, criminal trespass, and felony criminal threat. State v. Cantu, 63 Kan. App. 2d 276, 276, 528 P.3d 265 (2023). He was tried before a jury, and he testified on his own behalf as the sole defense witness. On direct examination, Cantu denied all of the allegations against him and gave an uncorroborated alibi for his whereabouts on the night in question. The substance of Cantu’s direct testimony and his demeanor on the stand appear to have been overall appropriate. He responded to all of his counsel’s questions directly with one interruption and one irrelevant comment. There was no admonishment from the judge or objection from the State during his direct examination. Yet a very different situation unfolded on cross-examination.

The State’s cross-examination of Cantu was cut short when the judge removed him from the stand on grounds that he was being uncooperative. Early in the State’s questioning of Cantu, he interrupted the prosecutor by attempting to explain a previous answer, after which he ignored multiple admonishments from the judge to wait for a question. During a back-and-forth exchange with the judge, Cantu repeatedly asked if he was limited to answering only “yes” or “no,” but the judge ignored his question. Instead, after several warnings, the judge removed Cantu from the stand and, at the prosecutor’s request, struck his entire testimony from the record.

The following transcript excerpt depicts the relevant exchange:
“[STATE]: You would agree that there was a protection from stalking that was filed against you, correct?
“[DEFENDANT]: No.
“[STATE]: You also agree?
“[DEFENDANT]: For the record, for the record—
“COURT: You need to wait for a question.
“[DEFENDANT]: I didn’t finish.
“COURT: You need to wait for a question.
“[DEFENDANT]: I didn’t finish answering the first one.
“COURT: I said it two times now. You need to wait for a question.
“[DEFENDANT]: She asked if I agreed.
“COURT: Sit back and wait for a question.
“[DEFENDANT]: May I be allowed to explain? Do I have to say yes or no?
“[STATE]: Mr. Cantu?
“COURT: Mr. Cantu, if you don’t cooperate I’m going to ask you to go back to the table.
“[DEFENDANT]: May I ask a question?
“COURT: You need to listen to the questions.
“[DEFENDANT]: Am I supposed to respond yes or no?
“COURT: Go sit at the table right now. Absolutely right now.
“[DEFENDANT]: I don’t understand. Can I object to this?
“COURT: Sit at your table.
“[DEFENDANT]: I mean, she asked me a question.
“COURT: Officers, would you remove Mr. Cantu from the courtroom?
“[DEFENDANT]: Is this going to be on the record? Dawn Hicks—my water. You—
“DEPUTY: Grab your water.
“[COUNSEL]: Is that sufficient, Your Honor?
“COURT: If Mr. Cantu will remain compliant it is. Otherwise I will require his removal. He’s indicating by his posture and returning to his seat that he will remain compliant. Do you have any other evidence.”

The transcript record shows the judge warned Cantu four times to wait for or listen to the prosecutor’s question before ordering him removed. The record also shows the judge repeatedly ignored Cantu’s questions about how he was allowed to respond to the prosecutor’s questions. Upon the prosecutor’s motion and in front of the jury, the judge ordered Cantu’s entire testimony stricken from the record, justifying this decision on grounds that “Mr. Cantu would not cooperate when I told him to only answer questions on cross-exam. I believe the State’s request is valid. His testimony is stricken.” The court made no further record of Cantu’s conduct while he was on the stand, such as his body language, demeanor, or tone of voice.

Aside from granting the State’s motion to strike Cantu’s testimony in the presence of the jury, the judge did not specifically explain how the jury should treat Cantu’s stricken testimony. But at the close of evidence and before jury deliberations, the court issued written instructions to the jury which explicitly advised: “In your fact finding you should consider and weigh everything admitted into evidence. This includes testimony of witnesses, admissions or stipulations of the parties, and any admitted exhibits. You must disregard any testimony or exhibit which I did not admit into evidence.”

State of Kansas v. John R. Cantu, Supreme Court of Kansas, May 10, 2024

Cantu was convicted by the jury and sentenced to 24 months in prison. Thankfully, Cantu and a brave attorney filed on appeal raising the issue that “the court’s decision to strike his entire testimony from the record deprived him of his constitutional right to testify, which was structural error requiring automatic reversal.”

The Cantu opinion explains the right to testify and provides a history of precedential opinions:

The right to testify on one’s own behalf at a criminal trial is a fundamental right grounded in multiple provisions of the United States Constitution. Rock v. Arkansas, 483 U.S. 44, 49-55, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); Ferguson v. Georgia, 365 U.S. 570, 582, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961). In Rock v. Arkansas, the United States Supreme Court found this right is guaranteed by the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment, and necessarily implied by the Fifth Amendment privilege against self-incrimination. 483 U.S. at 51-53. These constitutional provisions apply to state proceedings through the Fourteenth Amendment. See Washington v. Texas, 388 U.S. 14, 17-19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (incorporating the Sixth Amendment Compulsory Process Clause); Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964) (incorporating the Fifth Amendment’s protection against compelled self-incrimination).

At its most basic level, the right to testify allows a defendant to respond directly to the State’s charges by “present[ing] his own version of events in his own words.” Rock, 483 U.S. at 52. Thus, the Court has identified the right to testify as one in a bundle of minimum due process rights guaranteed by the Fourteenth Amendment that are essential to a fair trial. Rock, 483 U.S. at 51 (listing a criminal defendant’s basic due process rights at trial as including, at a minimum, the right to confront witnesses, to offer testimony, and to be represented by counsel) (quoting In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 92 L. Ed. 682 [1948]).

The Court has also found the right to testify derives from the Sixth Amendment’s Compulsory Process Clause, which grants a defendant the right to call favorable, material witnesses. Rock, 483 U.S. at 52 (noting “the most important witness for the defense in many criminal cases is the defendant himself”). In this way, the Court recognized the right to testify is part of the broader personal right to present a defense, designating it as even more fundamental than the right of self-representation. 483 U.S. at 52 (citing Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 [1975]).

Finally, the Court has interpreted the Fifth Amendment’s privilege against self-incrimination as implying an affirmative right to testify. Rock, 483 U.S. at 52-53 (“’Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.’”) (quoting Harris v. New York, 401 U.S. 222, 230, 91 S. Ct. 643, 28 L. Ed. 2d 1 [1971]).

FOR CANTU, THIS WAS NOT A HARMLESS ERROR.

The appellate court held that denying the right to testify was a constitutional error, but it was harmless. The Kansas Supreme Court said that “structural errors” occur where the error at issue compromised the fundamental fairness of the trial mechanism, both from the perspective of the court’s function and the defendant’s right to due process. In this case, the judge’s decision to remove Cantu from the witness stand and strike his entire testimony was a structural and reversible error.

The Court largely relied on the analysis provided by the United States Supreme Court in Illinois v. Allen, 397 U.S. 337, 343 (1970) which permitted the removal of the defendant from the courtroom for disruptive behavior, but cautioned that even “once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” The Cantu opinion concluded that courts are to ‘indulge every reasonable presumption against the loss of a defendant’s constitutional rights.” Citing Allen.

WHY IT MATTERS

This case provides a detailed analysis of the constitutional right to testify in order to defend oneself, however, there is an element of the jury trial process that is ignored in this opinion. That is the effect on the jury of the judge’s arrogant and corporal treatment of the defendant in the courtroom. The jury enters into the criminal justice process believing that it will be fair and honest and that the judge is the person in the room with the greatest intelligence, the most deference to the constitutional rights of the defendant, and the most empowered by the people. In many ways this is incorrect and often the judges are NOT the most intelligent in the room, however that is not the point today. When the jury experiences a judge criticizing a witness or defendant in the courtroom, it makes a distinct negative psychological impact on their impression of the person testifying. Judges know this. You can see it in your observations of them. I have seen it myself.

Cantu is important and the ruling here should race across the country to apply to criminal and dependency cases. After all, dependency cases are quasi-criminal and each parent is facing allegations that are also defined in the criminal code. The results are similar. While a criminal court can take away your freedom, a dependency court can separate you from your children forever, remove their lineage, and take away their birth name. Both are devastating.

Connie Reguli, J.D. worked with families for three decades in Tennessee until falsely charged with a fake crime invented by a corrupt judge and district attorney. Those charges were reversed and a civil rights lawsuit has been filed. Reguli et al, v. Hetzel, et al, Case No. 3:24-cv-00541. Follow on Facebook, YouTube, TikTok, LinkedIn, and Instagram for more. Facebook. Connie Reguli and Family Forward Project.

ABA publishes resource for parents and family integrity for children

By Connie Reguli

So it’s a mixed topic for today, but we must always be thinking, sharing, educating, and blasting knowledge into cyberspace about the devastating after math of wrongful child removals and the parents’ struggle to survive.

While state legislators are operating under a belief that ‘parents are bad’ and that ‘they would rather see children wrongfully removed from loving parents than miss one abused child’, state laws continue to focus on ‘bad parent’ termination laws, instead of the rights of children to family integrity.

Afterall, termination of parental rights is termination of children’s rights as well. And although children are appointed attorneys to protect the ‘best interest of the child’, these guardian ad litems never, I mean never, protect the substantive due process rights of the children to family integrity which has been recognized by the United States Supreme Court.

One legal scholar (besides me) said this:

Despite this support for the existence of a child’s independent right to family integrity, children rarely assert this right. As a result, children are virtually shut out of legal proceedings that affect their families and stability—usually based on allegations against their parents, not themselves. This may be due in part to the fact that the legal landscape is not clear. But it is also likely due to the confusing role of children’s advocates in civil proceedings and the fact that children in many of these proceedings have no advocate at all. If a parent fails to assert her fundamental right to her children in those proceedings or is unable to do so because of a finding of unfitness, family integrity may never be considered—even though the implications for the child can be devastating. The Supreme Court has noted that “[d]irecting the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.” Yet the Court has not given this observation legal force by overtly recognizing a child’s right to family integrity or clarifying its parameters.

Until children are appointed legal advocates to protect their constitutional rights, we will never have liberty and justice for all.

AMERICAN BAR ASSOCIATION MAKES AN EFFORT TO GIVE PARENTS DIRECTION

In the meantime, I am watching other scholars, organizations, and professionals voice their concern for policing of families and imprisonment of children through fake-foster placement.

The American Bar Association has finally published state resources for parents in the link found here.

This link will direct you to a list of every state with a link to a summary sheet on the process of child protective services in your state. The ‘one sheet’ analysis is simple and not thorough but will give each parents a chance to be educated in the process before they are caught off guard in court. The Tennessee page looks like this:

This documents will tell you that you have a right to an attorney, to review CPS/DCS records, to attend child and family team meetings, to make medical decision, to make placement recommendations, and to visit your children. HOWEVER, the language at the bottom of this document is clear: A court or judge can limit these rights.

Therein lies the problem. Even though parental ‘unfitness’ requires the high burden of proof of clear and convincing evidence, there is no such elevated burden of proof to remove your rights one by one.

STATE OF ILLINOIS – 2024 LEGISLATION SUGGESTS BETTER PEDIATRIC PRACTICES

In the State of Illinois SB378 is making significant changes which could help redirect child abuse referrals to an ‘assessment’ path instead of an ‘investigative’ path resulting in removal. This could have only happened with the hard efforts of many advocates, including Family Forward Project, who helped to move the Family First Prevention and Services Act of 2018 (now Family First Act) through Congress. This bill allowed for federal funds to assist with services prior to removal, a provision which was ignored under CAPTA (Child abuse prevention and treatment act of 1974) and subsequent legislation which created the perverted funding scheme.

The jury is still out as to how and when this will be fully implemented because Illinois is long suffering in the child welfare department. Over the last three years, its director was held in contempt of court on multiple occasions for failing to account for the incompetence of the department that left children in harm’s way.

I will review this bill closer and follow up. Have a blessed day.


The rights discussed in this document can be limited by the court. This document should not be considered legal advice and is for informational purposes only. For legal
advice talk to your attorney.
© 2018 American Bar Association Center on Children and the Law
Your Responsibilities to the Court and DCS
– Provide all relevant information to DCS.
– Attend all juvenile court hearings and team meetings.
– Cooperate with your DCS case worker. Stay in touch with your worker. Be sure that the worker always
has your current address and telephone number.
– Participate in the services that are offered and work on your child’s permanency plan, including all
activities and services the Court may order you and other family members to complete.
– Provide your DCS case worker with information about your progress towards completing your
responsibilities in your family permanency plan and any changes in your life.
– Visit and communicate with your child as agreed upon.
– Pay child support if ordered by the court.
MoreMoreMoreMore informationinformationinformationinformation ccccan be found:an be found:an be found:an be found:
American Bar Association Center on Children and the Law Parent Representation
http://www.americanbar.org/groups/child_law/what_we_do/projects/parentrepresentation.html
Rise Magazine for Parents http://www.risemagazine.org/
Birth Parent National Network http://bpnn.ctfalliance.org/
1 Tenn. Code Ann. § 37-1-126

https://www.americanbar.org/groups/public_interest/child_law/project-areas/parentrepresentation/parent-know-your-rights-resources

Stop Separating American Families

Connie Reguli and Catherine Wang Anderson

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

Child Welfare Statistics

Federal payments – our tax dollars – go to states to support the entire foster care and group home system. Payments begin the moment a child is taken with bonuses for “special needs” such as medication, then more bonuses to state agencies for termination of parental rights or adoption of children even if parents are still fighting for custody in Family Court. The most recent estimates are that foster care in America is a $1,000+ billion per year industry. See annual expenditures; https://www.acf.hhs.gov/cb/research-data-technology/statistics-research

As last reported in August 2019, 437,238 children nationally were removed from their families and placed in foster homes according to the federal government Adoption and Foster Care Analysis and Reporting System. https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport26.pdf

This traumatization of US children has reached epidemic proportions. According to a 10-year study by the American Public Health Association, an alarming estimate that 37.4% of all children experience a child protective services investigation by age 18 years. That results in 27.7 million children investigated based upon the current U.S. population census of approximately 75 million children under age 18 https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2016.303545 or 49 million parents being investigated according to the latest 2019 U.S. Census Bureau findings. https://www.census.gov/data/tables/2019/demo/families/cps-2019.html

What’s even more alarming is that a staggering 84% of all child removals are not related to any physical harm to the child whatsoever as reported to the US Congress in the AFCARS report above. Furthermore, 61% of the placements were considered neglect, which is based purely on social worker discretion, which basically translates to the freedom to do whatever the caseworker wants. What they see as “neglect” is often just what poverty looks like. Instead of getting help to parent, the parents get their children taken. Please see the annual U.S. Department of Health & Human Services report. https://www.acf.hhs.gov/sites/default/files/cb/cm2018.pdf

In June of 2018, the Children’s Defense League and 540 organizations from all 50 states, the District of Columbia and Puerto Rico which have well-recognized expertise in the fields of child welfare, juvenile justice and child health, development and safety, reported that the separation of children from their parents will have significant and long-lasting consequences for the safety, health, development, and well-being of children. https://www.childrensdefense.org/wp-content/uploads/2018/08/child-welfare-juvenile.pdf

https://familypreservationfoundation.org/about/cps-statistics

2021 Tennessee proposed legislation – child welfare and families

Published by Connie Reguli for

Family Forward Project and Family Forward Foundation.

See the video description here.

Waiting on Family advocacy bill.

Bills pending as of 2/12/2021 👇

BAM 💥 2.7million kids in care worldwide. Told you so.

By Connie Reguli

pdf.sciencedirectassets.com/271783/1-s2.0-S0145213417X00070/1-s2.0-S0145213416302873/main.pdf

SHARING THE BLISS OF FAMILY LAW IN TENNESSEE

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.

FOSTER PARENTS ALLOWED TO TERMINATE PARENTAL RIGHTS

January 2, 2016                    By  LawCare Family Law Center

Connie Reguli – Tennessee

connie

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.