I used to think of permanency/review hearings as “show up and look pretty”. After all there was virtually no argument to be made as they usually consisted of a caseworker testifying about how the kids are doing and what the parent has or has not done. Also the rules of evidence DO NOT apply and so many times the evidence consisted of “somebody somewhere said something bad about parent” and if I objected the State, and the Court, would say “reliable hearsay” is allowed and overrule my objection. At these hearings the court almost always makes a finding that DCS used “reasonable efforts” and that the parent was “non-compliant”. And given that I had learned that no amount of argument would change this I thought it futile to argue.
THAT WAS A MISTAKE.
In re D.R.S., No. E2015-01991-COA-R3-PT (Tenn. CT. App. 2016) is a recent case from the Court of Appeals. In that case at the termination trial the State introduced a Criteria for Termination of Parental Rights that was NOT signed by the mother and the caseworker testified that she had explained it to mother even though mother did not sign. Mother argued that the State had not proved that they had explained it and therefore could not terminate her rights based on abandonment grounds. The Court of Appeals, like a pig hunting for a truffle, rooted through the record and found three permanency hearing orders that stated that the form had been given to mother AND that mother’s lawyer had signed off on the orders AND none of the orders said that any objection had been raised at the hearings. Therefore the Court of Appeals held that mother had WAIVED the issue. Which brings up two issues for parents attorneys.
- The attorney should have objected to the introduction of the permanency hearing orders at the termination trial. See my blog on the admissibility of the juvenile file at termination. These are not final orders and are not appealable and so CANNOT be given a res judicata effect. Also the evidentiary standard is much lower at permanency/review hearing than at a termination trial. In other words they should not be admissible at termination. I am awaiting an opinion on this very topic (In re Dustin T. et. al.) from the Court of Appeals and so it will be interesting to see how they resolve it.
- At those permanency hearings the attorney should have objected to the finding that the form had been provided to mother and the attorney should have made sure the orders reflected that he/she had objected. Now, as an attorney, you pretty much KNOW you are going to be overruled on that objection but if the orders had noted the objection then the Court of Appeals could NOT have relied upon them to find that mother WAIVED the argument. And so I now will “show up and look pretty”, but I am going to be objecting to pretty much any finding made and making sure that my objection is noted in the order. At the end of the day you may lose the case but you don’t want it to be because your SILENCE was equated to your client WAIVING the issue.