Tag Archives: law

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.

TENNESSEE FAMILY RIGHTS LEGISLATION: IMMEDIATE ACTION NEEDED TO STOP A DANGEROUS AND INCONSISTENT LAW

HB2936 (Amendment #017296) is called the “Families’ Rights and Responsibilities Act” and is being promoted as protecting parental rights, but it fails in many ways and introduces potential harm.

Currently, parents have fundamental rights under the Fourteenth Amendment of the United States Constitution. This bill does NOT codify what already exists, it establishes a platform to continuously trim away parental rights.

Nineteen states have passed legislation that puts the fundamental rights of parents into their state laws. Most of these laws codify parental rights as fundamental (meaning protected by the Fourteenth Amendment).

SEE THE CALL TO ACTION BELOW

HB2936 differs from states providing for fundamental parental rights.

See the FULL BILLTEXT HERE.

Tennessee’s HB 2936 enumerates parental rights and then makes exceptions for other existing statutory law, case law, and court orders, and protects certain government agencies and other entities with carve outs and exemptions. The unintended consequences will do more harm than good.

While the bill looks good on the surface, with this:

“The liberty of a parent to the care, custody, and control of the parent’s child, including the right to direct the upbringing, education, health care, and mental health of the child, is a fundamental right.”

The definition of ‘parent’ should give a first pause as it expands parenthood to include an “individual who has been granted decision-making power over the child”.

THEN language throughout the bill continues to carve away those rights:

Section 1 provides an avenue for future laws to usurp parental rights just by saying so with the language:

“State law enacted after July 1, 2024, is subject to this chapter unless the law explicitly excludes such application by reference to this chapter.”

SECTION 2 creates § 63-1-173(b) and specifically addresses medical care. The section includes:

“Except as otherwise provided by statutory law, case law, or court order.

If existing laws are exempted and all future laws can be exempted from this proposed act, then what exactly does the bill do? Here is our analysis:

  1. Expands the constitutional definition of “parent” by providing that “an individual who has been granted decision-making authority over the child under state law”.
    • This expansion is nowhere in constitutional law. Under United Supreme Court cases, a parent is a legal parent. Period.
    • This puts “parental rights” in the hands of any judge who has taken subject matter jurisdiction over the child, juvenile, divorces, guardianship, truancy, delinquents, and children in state’s custody.
    • Attorneys are appointed to serve as a guardian ad litem for a child in juvenile and some divorce cases. This would allow a judge to give an attorney ‘decision-making’ authority over a child, thus making the attorney the ‘parent’ gaining all ‘parental rights’ listed under § 36-8-103(c), created in SECTION 1 of the bill.
    • This section does not restrict who can grant “decision-making authority”, “under state law”. The vague language would permit a parent to grant decision-making authority, and perhaps a state agency, such as DCS.
  2. Excludes parental rights regarding “Biometric Data” under HIPPA and for all law enforcement purposes, potentially expanding the ability of medical establishments and law enforcement agencies to prohibit access or deny consent to parents. The bill does not require law enforcement or a state agency to make a showing or probable cause of abuse or neglect by the parent. The Fourth Amendment protects persons against unreasonable search and SEIZURE. Obtaining biometric data is a “taking” and constitutionally requires probable cause of a crime.
  3. Fails to detail what process is due when the government claims they are “burdening” a parent’s fundamental rights because of “a compelling governmental interest of the highest order.” United States Supreme Court opinions require a finding that a parent is “unfit” by clear and convincing evidence before burdening or interfering with parental rights.
  4. Fails to include the word “informed” when mentioning “consent.” Especially in medical care, without adequate formation, true consent cannot be granted. Informed consent is a human right. This is the second TN bill this session that is attempting to drop the word “informed” from “informed consent.”
  5. Potentially expands DCS’s authority:
    • To exclude parents from important information regarding their child.
    • To ignore parental fundamental rights during investigations and when children are in their custody, even when the legal parent retains their decision-making rights regarding the child.
  6. Higher Education Exclusion. Parental rights and the legal recourse provisions of this bill do not apply when a parent enrolls their child in higher education before the child is eighteen, such as dual enrollment for high schoolers or when a minor graduates from high school early and starts college at 16 or 17.
    1. This loss of parental rights means a minor child is left navigating an adult environment and the influences of academia alone.
    2. Federal programs such as FERPA and Title X already encroach on parental rights – this bill removes parental rights entirely, leaving the minor functionally emancipated.
  7. Blanket Consent Exclusion.The rights and legal recourse provisions of this bill do not apply when a parent gives blanket consent authorizing a person or entity “to perform an activity listed” in subsection (c), the list of parental rights. Parents commonly sign consent forms for schools, health care facilities, clubs and sport organizations, and more. This legislation would expand and increase the use of contractual blanket consent provisions to avoid lawsuits. Parents will sign these forms without fully understanding the rights they are waiving.
  8. Mature Minor Clarification Act (MMCA) of 2023 Vaccination Consent Concerns
    1. MMCA clarified that federal law mandates and case law upholds that healthcare providers must obtain informed consent from parents prior to vaccination.
    2. The National Childhood Vaccine Injury Act (NCVIA) of 1986 (42 U.S.C. § 300aa-26) removed financial liability from vaccine manufacturers and healthcare providers for injury or death caused by any vaccine recommended by the CDC to children or pregnant women.
    3. Congress mandated that healthcare providers ensure and document that parents receive a current Information Statement (VIS) prior to the administration of every dose of a vaccine to a minor.
    4. There is a conflict of law in this legislation with last year’s Mature Minor Clarification Act (MMCA).  Under the MMCA, a healthcare provider is required to get parental consent prior to administering a vaccine to a minor.  There is no exception.  Under this parental rights legislation, parental rights are forfeited if a child is enrolled in higher education.  Therefore, college medical clinics may vaccinate minors without parental consent.  
  9. “Mistakes” Exclusion. Excludes parental rights and prevents recourse to the civil action portion of the bill when “a government entity or any other person” makes a mistake and accepts the consent of someone “in good faith” who does not actually have the legal the right to consent regarding your child.
  10. Conflicts Within the Bill. The two sections of the bill are in conflict regarding parental medical consent rights.Under the rules of statutory construction, where there is a general law and a more specific law, the more specific law will trump all provisions in the general law, therefore, Section 2 Title 63 regarding a parent’s right to give medical consent will trump Section 1; § 36-8-103(c)(3). There is also a conflict in the relief available in a lawsuit.
    • SECTION 1, § 36-8-103(c)(3) provides that parental rights are preserved for “all physical and mental healthcare decisions for the child and consent to all physical and mental health care on the child’s behalf, as provided in § 63-1-173. This section includes various exceptions, however, it DOES NOT say “Except as otherwise provided by statutory law, case law, or court order”.
    • SECTION 2 Is specifically about the parental right to informed consent regarding medical treatment of their minor child, and it DOES say “Except as otherwise provided by statutory law, case law, or court order.”
    • For children in state’s custody, they will continue to be subjected to laws that allow DCS to make medical decisions, notwithstanding the fact that the parent’s have not lost their parental rights under the language of § 63-1-173 with says, “except as otherwise provided by statutory law, case law, or court order…”
  11. What will litigation look like?
    • Neither section permits a JURY trial, therefore, there is no right to a jury trial since the constitution only provides for jury trial for suits in common law.
    • Neither section specifically permits punitive damages.
    • § 36-1-103(f)(2) in SECTION 1 permits declaratory relief and injunctive relief (restraining order) along with monetary damages. § 63-1-173(f) in SECTION 2 does not provide for declaratory relief or injunctive relief.
    • Damages: Although this section provides for compensatory damages (pain and suffering), it does not provide for punitive damages. There is no standard for what pain and suffering damages should be allowed. These cases will be ruled on by local judges who are unlikely to award substantial damages for pain and suffering.
    • Attorney’s fees: These cases will be lucrative for predatory law firms.
    • Vicarious liability/government: Most assume that the target of this legislation will be the individual who committed the violation against parental rights. The bill is silent as to whether or not the employer (school, county, state, etc) will have vicarious liability for the acts of the individual. There is no vicarious liability in civil rights cases and there are limitations for local governments (county/city) for liability for negligent acts of employees in the Government Tort Liability Act TCA 29-20-101 et seq. Generally INTENTIONAL TORTS do not trigger government entity liability, such as malicious prosecution.
    • Vicarious liability/medical-mental health providers: Generally, the employers are liable for the negligent acts of their employees under the theory of respondeat superior or vicarious liability. However, an entity may not be liable for intentional torts or if there is a determination that the act was not within their scope of duty.
    • Who Pays: Even if compensatory (pain and suffering) damages and attorney’s fees are awarded, who is going to pay?
    • This bill does not directly extend liability to the entity, whether the government tort liability limitation would apply remains a question.
  12. FISCAL NOTE: The fiscal note in this bill says that current state resources are sufficient for implementation of this act.
    • The fiscal note DOES NOT consider the damages and attorney fees that a could be assessed against state and county governments, i.e., the taxpayers.

Until these issues have been fully resolved to the benefit of the citizens of this state, this bill should not become law.

*State law cannot preempt requirements of The National Childhood Vaccine Injury Act of 1986 (42 U.S.C. § 300aa-26)

HB2936 (Amendment #017296) BILLTEXT

SECTION 1. Tennessee Code Annotated, Title 36, is amended by adding the following new chapter:

36-8-101. This chapter is known and may be cited as the “Families’ Rights and Responsibilities Act.”

36-8-102. As used in this chapter:

(1) “Biometric data”:

(A) Means data generated by automatic measurements of an individual’s biological characteristics, such as a fingerprint, voiceprint, eye retina or iris, or other unique biological pattern or characteristic, that is used to identify a specific individual;

(B) Does not include a physical or digital photograph, a video or audio recording, or data generated from the recording, or information collected, used, or stored for healthcare treatment, payment, or operations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d et seq.); and

(C) Does not include data or information collected, used, or stored for law enforcement purposes;

(2) “Child” means an unemancipated, unmarried individual who has not attained eighteen (18) years of age;

(3) “Decision-making authority” means the power granted by the state to a nonparent to make important decisions regarding a child, including decisions regarding the child’s education, religious training, health care, extracurricular activities, and travel;

(4) “Government entity” means any branch, department, agency, commission, or instrumentality of state government, any official or other person acting under color of state law, or any political subdivision of the state; and

(5) “Parent” means a biological, legal, or adoptive parent or an individual who has been granted decision-making authority over the child under state law.

36-8-103.

(a) The liberty of a parent to the care, custody, and control of the parent’s child, including the right to direct the upbringing, education, health care, and mental health of the child, is a fundamental right.

(b) A government entity shall not substantially burden the fundamental rights of a parent as provided under this section unless the government entity demonstrates that the burden, as applied to the parent and the child, is required by a compelling governmental interest of the highest order and is the least restrictive means of furthering that compelling governmental interest.

(c) All parental rights are exclusively reserved to a parent of a child without obstruction by or interference from a government entity, including the following rights and responsibilities:

(1) To direct the upbringing of the child;

(2) To direct the moral or religious training of the child;

(3) To make all physical and mental healthcare decisions for the child and consent to all physical and mental health care on the child’s behalf, as provided in § 63-1-173;

(4) To access and review all health and medical records of the child;

(5) To direct the education of the child, including the right to choose public, private, religious, or home schools, and the right to make reasonable choices within public schools for the education of the child;

(6) To access and review all educational records of the child maintained by the school, including those maintained in accordance with § 49-1-704 of the Data Accessibility, Transparency and Accountability Act and the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g);

(7) To have the child excused from school attendance for religious purposes;

(8) To participate in parent-teacher associations and school organizations that are sanctioned by the board of education of a local education agency;

(9) To be notified promptly if an employee of the state reasonably believes that abuse, neglect, or any criminal offense has been committed against the child by someone other than the parent, unless doing so would interfere with a criminal investigation or department of children’s services investigation, or unless an employee of the state, a political subdivision of the state, a local education agency, a public charter school, or any other governmental entity is required by law to withhold such information;

(10) To consent before the collection, storing, or sharing of any individual biometric data, data relative to analysis of facial expressions, electroencephalogram brain wave patterns, skin conductance, galvanic skin response, heart-rate variability, pulse, blood volume, posture, and eye-tracking, as specified in §§ 49-1-706 and 49-2-211;

(11) To consent before any record of the child’s blood or deoxyribonucleic acid (DNA) is created, stored, or shared, unless authorized by law or pursuant to a court order; and

(12) To consent before any government entity makes a video or voice recording of the child, unless the video or voice recording is made during or as a part of:

(A) A court proceeding;

(B) A law enforcement interaction;

(C) A forensic interview in a criminal or department of children’s services investigation;

(D) The security or surveillance of buildings or grounds;

(E) A photo identification card; or

(F) A public event where the child has no reasonable expectation of privacy.

(d)

(1) This section does not authorize or allow any individual to abuse, neglect, or endanger a child as defined by § 39-15-401.

(2) This section does not prevent the department of children’s services from conducting an investigation or otherwise carrying out its responsibilities under state law.

(3) This section does not apply when:

(A) A parent of the minor has given blanket consent authorizing the person or entity to perform an activity listed in subsection (c);

(B) A government entity or any other person reasonably relies in good faith on an individual’s representations that the individual is the parent of a minor or has otherwise been granted authority to make decisions regarding a minor’s care under state law;

(C) A person, including a law enforcement officer, participates or assists in rendering emergency care pursuant to § 63-6-218;

(D) An employee of a local education agency acts to control bleeding using a bleeding control kit pursuant to § 49-2-137; or

(E) Services are provided to or information is received or maintained about a minor enrolled in an institution of higher education or a minor participating in a program for which the minor’s parent has consented to the child’s participation by an employee of the institution of higher education or other school official.

(e) A public employee, other than law enforcement personnel, shall not encourage or coerce a child to withhold information from the child’s parent. A public employee shall not withhold from a child’s parent information that is relevant to the physical, emotional, or mental health of the child unless required by law to withhold such information.

(f)

(1) A parent whose rights have been burdened by a government entity in violation of this section may assert that violation of this section as a claim or defense in any judicial or administrative proceeding, without regard to whether the proceeding is brought by or in the name of the state, a private person, or another party.

(2) A parent who prevails in a proceeding to enforce this section against a government entity may recover the following from a court of competent jurisdiction:

(A) Declaratory relief;

(B) Injunctive relief; and

(C) Compensatory damages, including reasonable costs and attorney’s fees.

(g) A person or entity that is not a parent shall not have standing to raise in any proceeding in this state the fundamental rights of a parent established in subsection (a).

36-8-104.

This chapter must be construed using the following rules:

(1) The protections of the fundamental right of parents to the care, custody, and control of their child afforded by this chapter are in addition to the protections provided under federal law, state law, and the state and federal constitutions;

(2) This chapter must be construed in favor of a broad protection of the fundamental right of parents to the custody, care, and control of their children, including the right to direct the upbringing, education, health care, and mental health of their child;

(3) This act does not give parents a right to medical treatments for their children that have been prohibited by state law; and

(4) State law enacted after July 1, 2024, is subject to this chapter unless the law explicitly excludes such application by reference to this chapter.

SECTION 2. Tennessee Code Annotated, Title 63, Chapter 1, Part 1, is amended by adding the following new section:

63-1-173.

(a) As used in this section:

(1) “Government entity” means the state, any branch, department, agency, commission, or instrumentality of state government, any official or other person acting under color of state law, or any political subdivision of the state;

(2) “Healthcare provider” means a healthcare professional, healthcare establishment, or healthcare facility licensed, registered, certified, or permitted pursuant to this title, title 33, or title 68 or regulated under the authority of either the department of health or an agency, board, council, or committee attached to the department of health or by the department of mental health and substance abuse services, and that is authorized to provide health or medical care or mental health services in this state;

(3) “Medical decision-making authority” means the power granted by the state to a nonparent to make important decisions regarding a child’s health care;

(4) “Minor”:

(A) Means an individual who has not attained eighteen (18) years of age; and

(B) Does not include an individual who:

(i) Is emancipated pursuant to title 29, chapter 31;

(ii) Needs emergency treatment pursuant to § 63-6-222;

(iii) Is or was previously a member of the armed forces of the United States or a member of a reserve or national guard unit; or

(iv) Is the parent of a minor child and has full custody of that minor child;

(5) “Parent” means a biological, legal, or adoptive parent or an individual who has been granted medical decision-making authority over the child under state law; and

(6) “Person” means an individual, corporation, or any other legal or commercial entity, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state.

(b) Except as otherwise provided by statutory law, case law, or court order, a government entity, a healthcare provider, or any other person shall not knowingly take any of the following actions with regard to a minor without first obtaining the consent of a parent of the minor:

(1) Treat, profess to diagnose, operate on, or prescribe for any physical ailment, physical injury, or deformity;

(2) Prescribe, dispense, deliver, or administer any drug or medication;

(3) Render psychological services specified in §§ 63-11-202 and 63-11-203; or

(4) Render counseling services specified in § 63-22-122.

(c) This section does not apply when:

(1) A parent of the minor has given blanket consent authorizing the person or entity to perform an activity listed in subsection (b);

(2) A government entity, healthcare provider, or any other person reasonably relies in good faith on an individual’s representations that the individual is the parent of a minor or has otherwise been granted authority to make decisions regarding a minor’s health care under state law;

(3) A licensed physician performs emergency medical or surgical treatment pursuant to § 63-6-222;

(4) Licensed personnel render appropriate emergency medical care and provide emergency medical services pursuant to § 68-140-309;

(5) A person, including a law enforcement officer, participates or assists in rendering emergency care pursuant to § 63-6-218;

(6) An employee of a local education agency acts to control bleeding using a bleeding control kit pursuant to § 49-2-137; or

(7) Services are provided to a minor enrolled in an institution of higher education by a licensed provider employed by the institution of higher education.

(d) A violation of this practice is an unlawful practice and is grounds for the offending healthcare provider’s licensing authority to suspend, revoke, or refuse to renew the healthcare provider’s license or take other disciplinary action allowed by law.

(e) If the licensing authority of a healthcare provider receives information of a violation or potential violation of this section by the healthcare provider, then the licensing authority shall conduct an immediate investigation and take appropriate disciplinary action.

(f) A parent may bring a civil cause of action to recover compensatory damages, reasonable attorney’s fees, court costs, expenses, and other appropriate relief against an entity or healthcare provider alleged to have violated this section.

(g) If a court in any civil action brought pursuant to this section finds that a healthcare provider knowingly violated this section, then the court shall notify the appropriate regulatory authority and the attorney general and reporter by mailing a certified copy of the court’s order to the regulatory authority and the attorney general and reporter. Notification pursuant to this subsection (g) must be made upon the judgment of the court being made final.

(h)

(1) A civil action commenced against a healthcare provider under this section must be brought within the period required by § 29-26-116.

(2) A civil action commenced against another entity under this section must be brought within one (1) year from the date of discovery of the violation of this section.

(i) This section is declared to be remedial in nature, and this section must be liberally construed to effectuate its purposes.

SECTION 3. This act takes effect July 1, 2024, the public welfare requiring it, and applies to acts committed on or after that date.

Call to Action

OUR MOST IMPORTANT CALL TO ACTION THIS SESSION — WE NEED EVERY SINGLE ONE OF YOU!

THIS ACTION IS EASY because you only have to contact ONE person: Your own Representative.

HB2936 (Amendment #017296) is called the “Families’ Rights and Responsibilities Act” and is being promoted as protecting parental rights, but it massively fails and introduces potential for devastating harm.

Nineteen states have passed legislation that puts the fundamental rights of parents into their state laws. Most of these laws codify parental rights as fundamental (meaning protected by the Fourteenth Amendment). TN’s HB2936 is far different than the laws in those states.

HB2936 differs from those laws in critically important ways that make it dangerous. It must not become law. A full list of problems with the bill is linked HERE.

Contact Tennessee House Members by phone or email. You can find them here. Just click on this link and the list appears. Click on the email to send an email and call the phone number on the list.

PLEASE VOTE NO ON HB2936 – The Family Rights and Responsibilities Act on Thursday, April 11.

  1. Instead of codifying the fundamental rights of parents in TN law, this law creates a platform to trim away those rights. It does this with language throughout the bill that makes exceptions for existing and future statutes, court orders, and case law, as well as carveouts that protect government agencies rather than parents.
  2. The broad definitions of “Parent” and “Person” in the bill would allow governmental and non-governmental agencies and entities to override your rights in many circumstances.
  3. Parents forfeit their parental rights and the right to legal recourse if they enter blanket consent agreements (such as at schools, medical offices, etc.) or for minor children they enroll in higher education.
  4. This new law is likely to put a burden on Tennessee taxpayers when attorneys are awarded massive fees for lawsuits.

The final vote for HB2936 is THURSDAY APRIL 11 during the 9am House Floor Session.

Email, call, and if you can, visit your Representative and tell him or her to VOTE NO!

Tell them the Fundamental Rights of Parents are too important to get wrong. This bill is WRONG. This is not a bill they will be able to boast about.