The Process of an Ordinary DCS D&N Case

Your kids are removed by DCS. What happens next? In cases where the allegations are Dependency and Neglect (parent is unfit, unwilling or unable to have custody) and NOT severe abuse the process usually goes like this.

 

DCS files a petition for custody (or to transfer custody to another person). Parents are served a copy of the petition and given a court date.

Usually at that first court date parents will be asked if they have attorney or want the court to appoint attorneys for them. If they want attorneys appointed usually parents have to fill out a form detailing their financial situation or the judge questions the parent about their financial situation. The judge decides whether or not to appoint attorneys and will usually give another court date so the attorneys can get up to speed. At the end of this hearing you SHOULD have an attorney appointed to you and be working ACTIVELY to contact them OR you should be going out to hire one a.s.a.p.

 

Usually the next court date is the preliminary hearing. At this hearing DCS ONLY has to prove that they had “probable cause” to believe the allegations they have made against you. They do NOT have to actually prove the allegations at this point. Which means DCS almost always wins at this stage because they put on a caseworker who repeats whatever is in the petition and if you can’t basically PROVE them wrong they win the preliminary hearing. Chances are your attorney will NOT want you to testify because if caseworker says one thing and you say the opposite DCS is still going to win at this stage. Also DCS usually has to put on at least one witness so you learn something about their case and your attorney gets to lock that witness into their testimony.  WHY would your attorney want to SHOW DCS your case or lock you into testimony? Sometimes your attorney may want to waive the preliminary hearing. For example if you have criminal charges your attorney may not want to take the chance of DCS calling YOU to testify and asking you questions the answers of which would damage you in your criminal case. And so your attorney may want to waive the preliminary hearing. At the end of the hearing or after you have waived the hearing the judge will usually give another court date for what is called an “adjudication”.

The adjudication is the single most important hearing in your case. At this hearing DCS has to prove the allegations (not that they had cause to believe) by clear and convincing evidence. The Rules of Evidence apply which limits the sort of proof that DCS can put on. For example if the caseworker tried to testify that somebody, somewhere, at some time told the caseworker something bad about you, your attorney can object and that testimony, (which in most cases is hearsay) should not be allowed unless it fits into one of the hearsay exceptions. All of which means that if DCS wrongfully took your kids this is your best chance to get the kids back because if DCS doesn’t prove the allegations then the court should return the kids to the parent. If the court finds that DCS did prove the allegations the judge can immediately hold a disposition hearing or set another date for disposition. Most of the time the judges in my area go ahead and do the disposition at the adjudication. Disposition simply means determining WHO is to have custody of the kids. If nobody else has filed an Intervening Petition then usually the judge has two choices. 1. He/she can do what DCS is asking for (give DCS custody or give custody to the person(s) DCS is trying to transfer custody to). OR 2. give the parent custody.  The judge CAN find that the child was dependent and neglected but that the parent has “remedied” the conditions which led to removal (usually involves the parents doing whatever is required of them in the permanency plan). So at the adjudication your attorney could have TWO strategies/arguments the first being “DCS can’t prove their case” and the second being “Even though there was cause for removal my client has remedied the conditions which led to removal so the court should return the kid”. I have had cases where I used BOTH. After this hearing usually DCS drafts the order and circulates it to all the attorneys so they can check to make sure it accurately reflects what happened in court. For the attorneys when reviewing the order it is not a question of “was the judge wrong”. Instead the question is ‘does the order accurately reflect the proof offered and what the judge did”. When the attorneys give their ok the order goes to the clerk for the judge’s signature. When the judge signs the order, the order is “entered” (filed) and the time to appeal begins to run. You can appeal an adjudicatory order to the Circuit Court for a brand new hearing but usually you HAVE TO appeal the order within ten (10) days of its entry so if you want to appeal it is important at this point to stay in contact with your attorney so you know WHEN the order is entered. If you do not appeal the order then the order is FINAL and you cannot later argue anything that was decided at the adjudication.

From the filing of the petition to the end of the disposition (whether at the adjudication or a later date) is called Phase I or the disposition phase of the case. From here the case goes into “review” mode.

 

Basically in the cases where DCS has custody after Phase I is complete the court will schedule “review” hearings usually three or four months apart. In these hearings the court is usually going to want to hear about how the children are doing and if the parents are doing the requirements of their permanency plans. I have discussed in more detail what a permanency plan is but the simple definition is it spells out what the parents have to do to get their children back. At this point in the case unless you have appealed the adjudication you are not going to be able to talk about how DCS was wrong to take your kids. Instead your focus should be on talking about (and DOCUMENTING) how you have done everything required on the permanency plan. And if you haven’t then it is NOT your lawyer’s fault that the court won’t return your kids. If you do your permanency plan requirements eventually in most case DCS will agree, or even recommend, a Trial Home Placement (THP).  The kids will be placed in your PHYSICAL custody for usually 75 to 90 days and if NOTHING goes wrong at the end of that period legal custody of the kids will be returned to you. If you do not do your permanency plan requirements then usually in most cases at some point DCS will file a petition to terminate (TPR) your parental rights to free the kid up for an adoption. This review period is called Phase II or the review phase of a case.

If DCS files a petition to terminate it must be served on the parent. Usually the first hearing of a TPR is called a TPR 1st hearing. At this hearing the court is going to ask about attorneys for the parents just like the court did in the first hearing of the D&N case. The Court will set a later date for trial. After trial an order is going to be entered much like what happens at the adjudication. It can be appealed to the Court of Appeals by filing a Notice of Appeal with the Court of Appeals within thirty (30) days of the entry of the TPR order.

DCS cases a realistic timeframe

Your kid has been taken. You want him back and of course you want that yesterday. Given that children are involved this should be enough of an “emergency” for the courts to move fast, you’d think. You may even look up some of the Tennessee Rules of Juvenile Procedure or statutes and see time deadlines. Preliminary  hearing within 72 hours of removal. Adjudication within 30 days of removal etc. And so you’d think this should move pretty fast and you are right that it SHOULD.

And then reality rears its ugly head. At the preliminary you ask for an attorney. The court appoints one and continues the preliminary. Of course that has to  be scheduled with at least three  attorneys in mind (yours, the State’s and the Guardian ad Litem). Scheduling attorneys is like herding cats so if you’re lucky it might be scheduled within a month of the first hearing. That pushes the adjudication back and there are all kinds of other things that can delay the adjudication so  you might have an adjudication anywhere from 2 months out to a year or so.

All the while your kid is in State’s custody. It IS extremely frustrating (sometimes even for your attorney) but here are a few suggestions on how to deal with it.

First, realize that if you are going to effectively “fight for your kid” that may take time. Yes the Rule says an adjudication within 30 days but it also includes an exception that the adjudication can be continued (rescheduled for later) for “good cause shown”. Some examples include the State is seeking medical records for proof or to depose someone or even one of the attorneys or parties did not show up. Your attorney also  needs time to gather evidence, talk to witnesses etc. And then there is what we lawyers call the “vagaries of the court docket”. It is also known as there are a ton of cases and even if I attempt to set something “as soon as possible” often that is months away. You might as well adopt the mindset that this is going to take awhile.

Second, complaints about the court time frame are for your attorney NOT THE CASEWORKER. The caseworker has virtually no control over when court hearings are scheduled and in complaining to the caseworker you will alienate the caseworker (make them like you less) and often say stupid things that they will then use against you. Notice I said “complaints”. Often the caseworker may be  the person who first tells you about a court date. And that is fine although you should then contact your attorney and make sure they are aware of  the date. But don’t complain to the caseworker about the court date. Don’t go on some diatribe about how they are violating your rights etc.

Third, use the time wisely. For example, be visiting your kid as much as possible. It is the right thing to do and it even benefits your case. Talk to your lawyer. There will almost certainly be evidence you can be getting yourself like medical and/or school records, your check stubs, proof of housing etc. There are probably also things you can do to help your case. If you have a permanency plan you can be doing many of those requirements and getting the documentation to your lawyer. At the adjudication your lawyer can ask the court to return the child even if the court finds the allegations to be true. In such as case the lawyer argues to the court, “my client has remedied the conditions which led to removal”. I have used that argument to get children returned on the day of the adjudication. But it does NOT work if the parent hasn’t done anything. So talk to your lawyer. Depending on your facts this may be a good strategy to get your kid back but it is going to require action on YOUR PART.

Rome wasn’t built in a day and, even though your kid was taken quickly, chances are they will not be returned nearly that quick. If you are going to fight, contact your attorney early, do what they say and realize that you are in it for the “long haul”.

DCS cases: Silence is Golden

In pretty much any case when you are around the other side the main rule to remember is that silence is golden. This is because in pretty much any case anything you say can be used against you. In any DCS case when you are around the caseworker (or other DCS workers) you ARE around the other side. You should be very wary of what you are saying and, if possible, shouldn’t be saying anything. I’ve lost a lot of cases but have yet to lose one because my client said nothing. And, in fact, I have lost a lot of cases because of something my client said.

The only exceptions to this rule are 1. if your attorney tells you to talk or 2. to arrange visitation with your children. You should have an attorney (see my earlier blog posts on this subject) and you should be doing what they tell you. Also you will want to arrange visitation with your kids early in the case and this will require talking to the caseworker. Often this will occur before you have an attorney and it is EXTREMELY IMPORTANT that you visit your children so you will need to do so. Keep the conversation limited to arranging the visitation. This is not the time to “vent” or discuss with the caseworker how “wrong”  DCS is for taking your children etc. That time will be later when you are in court arguing your case.

Which brings up a point. It is often to your advantage NOT to testify in court. Contrary to what you see on “Matlock” these cases are NOT won because the client’s testimony “proved they were innocent” or “moved the court to tears”. The court system is a strange beast and no matter how many episodes of “Judge Judy” you watch you do not know the rules. Whether you like it or not, when in court, you are like Stevie Wonder driving a cab. You need to be listening to someone who can actually see the road.

By way of example, I once had a client who the State called to testify at trial. The State asked her about a termination of her parental rights (to another of her kids) that had occurred ten years prior. I objected arguing that it was not relevant. The judge sided with me and sustained my objection which meant my client didn’t have to answer the question and the issue of her prior termination would not be “in evidence”. But my client really wanted to explain that she really hadn’t failed to drug test ten years ago for meth (it was her sister’s fault) and blurted all of this out even after I had told her she didn’t have to answer. Which meant that the prior termination and the fact that she had failed a drug test for meth ten years prior was “in evidence”. Of course the current termination/removal was based on drug use and my client in one single answer had proven that she was a long time drug user which is exactly what the judge found even going so far as to mention the previous termination/failed drug test in his order.

All of which is to say if your lawyer is telling you not to testify they usually have a good reason and you should listen to them. Silence is golden.

Guardian ad Litems

If DCS takes your child usually the court will appoint a guardian ad litem.

The guardian ad litem is the attorney for the child. Their job is to investigate and advocate for the child’s best interest. They are supposed to “argue” their case (put on witnesses etc) just like the other lawyers involved. It is not their job to “protect” your parental rights. Instead they are to focus on their client (the child).

The courts I practice in give a good deal of weight to what the guardian ad litem says.

For this reason it pays to be nice to them. As part of their investigation they may want to talk to you. If you have an attorney the arrangements to do this should be made through them and they should be present when you talk to the guardian ad litem because the guardian ad litem (like the caseworker) can use anything you say against you. If you do not have an attorney you should be aware that anything you say can be used against you and say as little as possible.

Which brings up a point. Your discussion with the guardian ad litem is not the time to be shit-talking the other parent. The other parent may be a lousy parent and a worse person. But it is YOU, not them, who you are trying to get your kid returned to. Think about it this way. If you spend the whole discussion complaining about the other parent what REASON have you given the guardian ad litem have to want to return the child to YOU? If the guardian ad litem asks about the other parent and you have concerns about the other parent then mention them BRIEFLY but do not focus on them. You are trying to convince the guardian ad litem that YOU are an appropriate parent.

Also, the guardian ad litem may want to visit your home. Again, if you have an attorney they should be involved. But, at any rate, you need to be sure that 1. you are actually there when you say you are going to be there and 2. your house is CLEAN and free of any obvious safety hazards. I once did a home visit where the parent had a gasoline container sitting right beside a radiator heater. If your house is clean you can ask the guardian ad litem to take pictures of your clean safe home (everyone these days has cell phones that can take pictures) and the pictures can be shown to the judge in court to give them a better idea of what kind of home you are asking the child to be returned to.

At the end of the day what the guardian ad litem wants carries a lot of weight with the court and you should want them to want to return your child.

DCS cases Court-Appointed Attorneys

In DCS cases the parents usually have a right to a court-appointed attorney if they cannot afford one. If you cannot afford a lawyer you need to ask the court to appoint you one the FIRST time you are in court. There are a lot of important things that happen early in the case.

Court-appointed attorneys are just like other attorneys in that some are good and some bad. Some know their stuff well because they do a LOT of these cases and some don’t. Some care and some don’t. And, by the way, it is usually a bad idea to begin the relationship by telling court-appointed counsel that when you save some money you’ll hire a “real” lawyer. I was told this by a client AFTER I had been arguing and appealing these cases for five years and had argued in front of the Tennessee Supreme Court on one of these cases.

The point is you don’t know what you get when you get a court-appointed attorney just as you probably don’t know what you are getting when you hire a private attorney. You really don’t have much control over this.

But you do have control of the client (a.k.a. you).

The client and lawyer have to work together whether they like it or not. The best lawyer can’t save the worst client’s case. So what can you do to NOT be the worst client?

  1. Give the lawyer your contact information and keep him updated any time it changes. When the lawyer calls you,  answer the phone. He is not calling you to discuss last week’s Vols game. He’s calling about your case. He needs to be able to get a hold of you on pretty short notice.
  2. Keep any and all documentation and get copies of it to your lawyer.
  3. Contact them early. Usually you can get their contact info from court when they are appointed. If you wait till Thursday to contact your lawyer about a court hearing that is happening the next day the lawyer is far more likely to be unprepared.
  4. Don’t talk about your case to people other than your lawyer or as they direct. You may think of your plea for mercy to the caseworker as being touching and moving but, chances are, the caseworker thinks of it as the buffet of evidence because you are giving her all kinds of statements she can use against you in court.
  5. Actually DO the things you tell your lawyer you are going to do or don’t tell your lawyer you are going to do them. I know it’s hard to believe but court-appointed attorneys are human too and when you continually lie to them they become jaded. This is especially true of visitation with your children. If you say you are going to visit, then actually visit. ‘
  6. Listen to your lawyer. You are in a world that you do NOT know the rules of. Common sense is no guide. You can’t just talk your way out of it because this ain’t “Matlock”. There may be a damn good reason, of which you are totally unaware, for you to NOT testify so if your lawyer is advising it you had better listen.
  7. If you want to appeal let the attorney know as soon as possible. For example, at trial after the order is a good time. You have thirty (30) days to appeal most orders and if you wait till day 29 to even tell your attorney, you may be out of luck.
  8. At least act like you care about your case. At a minimum this means actually showing up for court. If your face belongs on a milk carton or there should be an Amber Alert out on you how can you expect your lawyer to do a good job for a client that is never there?

 

 

DCS cases: Document Everything

Imagine you are the judge. Every week you hear testimony from caseworkers. Over time you become familiar with the caseworkers. They seem like nice enough people, they are usually dressed nicely and they have no apparent motive to be “less than truthful”.

Now on the other side of the courtroom you have some parent. You’ve never seen them before (if you have it is even worse because that means they have been in trouble). The only thing you know about them is that the State has had to remove their children (i.e. they are probably somehow bad parents). They are usually dressed poorly and have a powerful motive to be “less than truthful” because they want their kids back.

Who would YOU believe?

The judges will usually believe the caseworkers.

For that reason I tell my clients that what they say in court will not help them. Rather it is what they can PROVE in court.

Which is why you need to document everything. For example if you go and do an alcohol and drug assessment there will usually be one to two pages of paperwork generated. You need to keep a copy of that paperwork because 6 months later when you testify that you did the alcohol and drug assessment and the caseworker testifies that she never got any paperwork documenting this the court is going to believe that you NEVER did the alcohol and drug assessment. It is NOT enough to do it and then say you did it. You must prove it. So you get the documentation. You give copies to your attorney and the caseworker (if the caseworker is honest and you do this then this never becomes an issue at trial because the caseworker will say you did the alcohol and drug assessment).

So if there is any documentation associated with anything you have done you KEEP the document so you can PROVE it later.

However there are things for which there is no documentation. For example, phone calls to the caseworker. I have seen countless times where the caseworker testifies that they never heard from the parent while the parent is frantically whispering into my ear, “I tried to call her numerous times. She wouldn’t answer the phone”. And the parent can get on the stand and testify that they called numerous times and got no answer. Guess who the judge will believe.

So how do you document a phone call that isn’t answered? Email. Each of the caseworkers has an email. It is usually their first name period last name @tn.gov    So caseworker Susan Smith would usually have an email susan.smith@tn.gov  At the start of the case ask the caseworker for their email. When you email something to the caseworker go to your “sent” folder and click on the email you just sent and print it out and keep it. Email also has the advantage in that the caseworkers will usually actually answer it (you should be printing and keeping their answers). If you do have a phone call with the caseworker, follow it up with an email confirming whatever you discussed on the call. That way six months later when caseworker testifies that you never contacted her you can whip out the emails and PROVE that you did. You can also use texts as well to do this but you have to KEEP the texts and the phone if you want to do this.

If you are documenting everything you will quickly have a lot of paperwork. You need to buy a folder to keep all of the paperwork in one spot. Dollar General sells ten manilla folders for $1.99. It is a small price to pay if you are serious about getting your kids back…..

The Child Support Contradiction (a.k.a. support your kids)

If your child goes into State’s custody eventually another division of the State (Child Support) will get an order setting child support.  Without being too simplistic, pay it! Perhaps you truly can’t afford to pay all of it but you can afford to pay, at least some, and should do so because 1. it is the right thing & 2 it is helpful to show that you were trying to pay support not WILLFULLY failing to support.

But the problem often arises that it takes Child Support forever to get a child support order and until there is an order there is usually no one to pay to and no amount to pay. So if you CAN”T pay support for over four months can the State terminate your parental rights? They do it all the time. The parent raises the argument that there is no one to pay and the court replies with “every parent is presumed by Statute, to know of their duty to support their kids”. That statement is true but misses the point of the argument, specifically, if you CAN’T do something then your failure to do it is not “willful”.

There are a couple of alternatives that might help a parent support their kid.

  1. bring gifts (diapers formula, clothes etc) to each visit and keep the receipts until there is a child support order then pay per the order.
  2. sometimes you can’t bring gifts so set up a bank account for the kid and make monthly deposits so that when eventually the child support order is entered you can pay down the arrearage (which will be higher the longer it takes to get the order).
  3. Ask the juvenile court to enter a temporary child support order setting child support at a nominal amount so that you can be paying as you go along until a final child support order is entered.

If you sit back and do nothing it will often take child support longer than four months to get a child support order and your parental rights can be terminated if you willfully failed to pay (a.k.a did nothing) for four months or longer.

 

You’ve Been “Indicated” (You Dirty Rotten Child Abuser)

How would you like to wake up one day and find out that the State had put your name on a PUBLIC list of child abusers for all of your neighbors, employers, friends, relatives and fellow citizens to see?

You might think the idea preposterous. After all they can’t do that without telling you beforehand of the accusations against you and giving you a chance to argue your side. I’m innocent until proven guilty right?

WRONG!

The State CAN, and often does, put people’s names on the Tennessee Child Abuse Registry without informing the people of the accusations/evidence against them or giving them a change to argue their side.

The process is called being “indicated”. It usually begins when you receive a letter informing you that you have been indicated as a perpetrator of child abuse/neglect and that if you disagree with the decision you have 14 days to write the State and tell them you disagree. I’ve seen many of these letters and they contain no indication (pun intended) whatsoever of WHAT you allegedly did to be labelled a dirty rotten child abuser. If you do not reply within 14 days the “indication” is “upheld” and your name goes on the Tennessee Child Abuse Registry (PUBLIC list of dirty rotten child abusers).

If you do reply within 14 days the State “reviews” your file which basically means someone else at the State looks at the file. At this juncture you still do not have the right to see the evidence against you and so, even if you want to present an argument denying, you are kind of like Stevie Wonder trying to drive a cab. Not surprisingly the “review” almost always results in the “indication” being “upheld”.

At this point you will receive a second letter. If you work in a job that provides you access to children (i.e. teacher, day care worker etc) the letter will inform you that if you disagree you must request in writing a hearing within 30 days. If you do not work in a job that provides you access to children the letter will usually say something along the lines of “this completes your review process” and your name goes on the registry even though you still haven’t seen the evidence against you or been given the chance to argue your case.

Seems blatantly unconstitutional to me so what do you do?

Well first, you need to make sure that when you get that first letter you respond in writing asking for a review. And you need to A.S.A.P. consult with a lawyer that handles these types of matters. I and a few other attorneys in Tennessee do these types of cases. If you are one of the “lucky” minorities whose job provides them with access to children your attorney will want to get with the State to schedule a hearing when your “review” is “upheld”. Your attorney will want to get “discovery” from the State so you can see the evidence against you and prepare a defense to be presented at the hearing. If your job doesn’t provide you access to children your attorney may have to file a federal lawsuit just to get you the hearing and then prepare for the hearing as described above.

The process is blatantly unfair as it takes lot of work and time just to get you the RIGHTS we ALL supposedly have and once that is accomplished you basically have to prove you are innocent. But it is the current process and once your name is tarnished with the label “dirty rotten child abuser” there’s not much you can do to restore your good reputation.

Terminations on the Increase

Tennessee parents lose kids as opioid crisis rages on

Knoxville County Juvenile Court Judge Tim Irwin presides over more terminations of parental rights cases than any other judge in Tennessee.

Every week, he makes decisions on whether a parent gets another chance to keep their children — or lose them forever.

His court docket in recent years has become so crowded with parents addicted to painkillers, his decisions have become quicker and surer.

“Those cases used to take several hours in court,” he said. “Now they take a matter of minutes. I just look at the medical records and the case goes pretty quickly.

“It’s a terrible thing that we do here on a weekly basis,” Irwin said. “But you can’t trust active opiate addicts to be parents. They’ll put their addiction first every time. You hate to sever the bond between a mother and child, but it doesn’t end there because a lot of time the mother has another child and you have to go through it all over again. It’s the saddest thing I do.”

The number of parents permanently losing their rights to a child has grown significantly in Tennessee, a Tennessean analysis found.

Between 2010 and 2014 (the most recent year data is available), there was a 51 percent increase in the number of parents who have had their relationship legally and permanently severed from a child.

In the same time period, the number of children in Tennessee waiting to be adopted increased by 56 percent.

Related: Nashville startup aims to protect babies from opioid abuse

The Department of Children’s Services, which initiates most actions to terminate a parent’s legal rights, says it is unclear what accounts for the increase and many factors may be behind those outcomes.

But judges, temporary guardians appointed to defend the children’s rights, lawyers who work for DCS to terminate parental rights and lawyers who defend parents against those actions all said the state’s opioid addiction epidemic is a key driver.

Opioid epidemic sweeps Tennessee

Opioid overdoses claimed the lives of 1,451 Tennesseans last year. The state has the second-highest rate of opioid prescriptions in the nation. Opioid abuse, unlike prior waves of drug abuse epidemics such as crack and methamphetamines, often inflicts entire families, making it impossible to place children with other relatives such as a grandparent or uncle or aunt because they are often addicted, too. There are limited treatment options available, especially for poor and uninsured parents.

The result has been a strain on local courts, DCS and the Tennessee Court of Appeals, which has seen its caseload of appeals of parental terminations nearly double, from 76 appeals in 2010 to 135 thus far this year.

It also is a burden on taxpayers because parents who cannot afford legal counsel are appointed attorneys by the estate. Appointed attorneys last year cost taxpayers more than $500,000.

Legal advocates for parents say DCS and the courts are now shifting in an overreactive mode, penalizing parents who have had addictions but are working toward overcoming them and taking more punitive measures in the past for parents who are addicted to other drugs.

“Once the judges hear a parent failed a drug test for methamphetamines or opioids, dependency and neglect findings are pretty automatic,” said Wilson Marble, a Cleveland, Tenn.-based lawyer.

Dependent and neglected is the legal term for a child who has been neglected by a parent or guardian, and a finding a child meets that definition is regularly cited by judges in terminating parental rights.

Marble represented a mother in Bradley County identified only as April L.T. in court documents in order to protect the identity of her three children. The mother’s children were taken into custody after police found two baggies of Xanax in a jewelry box in her home. Xanax is in a different class of drugs than opioids but can be abused. She was charged with possession with intent to distribute, and her children were placed in foster care.

The reason she lost her rights to her children, however, was not the original drug charge. It was a series of steps required by DCS that she did not fully complete, including failing to keep DCS informed of her change in phone numbers, her change in employment and change in residence in a timely matter. She also had been arrested for driving on a suspended license. At the time of her termination trial she was jailed for failing to pay fines imposed in 2014 for the possession of Xanax. She did not fail any drug tests.

“My experience is the department pours in everything but the kitchen sink in requirements,” Marble said. “They maybe have 20 requirements. A lot of them might be good ideas, but they don’t have anything to do with why the kids were removed.”

The mother lost her appeal of her termination of parental rights earlier this month.

‘Losing your child … nowhere near hitting bottom for addicts’

Other attorneys tasked with representing parents accused of prescription pain abuse take a dimmer view.

Jennifer Bjornstad, a Knoxville-area attorney often appointed to represent parents in termination cases, said she has seen parents addicted to opioids fail over and over in their efforts to recover from their addictions — even when faced with losing their children.

“Apparently losing your child to foster care is nowhere near hitting bottom for addicts,” Bjornstad said.

Bjornstad said she spends a lot of time helping parents get clean only to have them fail and lose their children.

On the day she talked to a reporter, she had just learned that a mother she represented would not be able to make a meeting with DCS the next day to go over further preconditions for getting her children back.

The mother of four had just been found dead in her shower from an overdose.

The experience as a parents’ legal advocate in a battle with DCS to get their children returned has made Bjornstad cynical at times.

“I tell parents I’m never going to work harder than you,” Bjornstad said. “If they have no interest in finding treatment or getting help, I don’t work like crazy. But if they are really trying, I will do everything I can to help them.”

DCS faces increases in termination proceedings

Susan Kovac, regional general counsel for DCS and a supervising attorney for more than 25 years, said she has seen a sharp rise in the number of opioid-addicted parents in the past five to seven years.

The cases lead more often to severing parents’ rights than other types of cases, such as abuse and neglect, she said.

“When we have a child who comes into foster care because of physical or sexual abuse, we generally can find a family who can take that child,” Kovac said. “But in the opioid story, the expectation is not there because our experience is that if you get Mom or Dad using, grandparents are using and the siblings are using. It’s hard to find a family.”

It’s also harder to get parents who want treatment. Part of DCS’ job before terminating parental rights is to provide services to the family to make them better parents or improve living conditions. Those include things like parenting classes, providing transportation to counseling or providing poor families with cribs and formula.

But with opioid addiction, the availability of resources is bare.

“We absolutely don’t have the resources,” Kovac said. “If you don’t have insurance and you don’t have TennCare, how do you get treatment? If you have a parent who wants to get into treatment, the response is that you can get on a waiting list but it might be four to five months before you can get into detox. Then there’s another month before you can get on a waiting list for outpatient treatment.”

Then there is the problem of the disease itself. “You’re also talking about addicts, so being ready to engage in treatment.”

Kovac’s office in East Tennessee has had to add staff to cope with the increase in termination cases. In 2000, the office had two full-time and one part-time attorney. Today it has seven full-time attorneys.

“They’re sad,” she said. “It makes me frustrated and angry. In all the time I’ve worked with the department, the families we are seeing now are more and more dysfunctional. The children are more and more damaged, so the chances they are going to be successful in being reunited are less than they were 20 years ago.”

In West Tennessee, one adoptive mother of two children born to the same opioid-addicted mother said she sees the devastation firsthand on children caught up in the cycle of addiction.

The woman, who did not want to be named to protect her children’s privacy, said she adopted her first child as a newborn from a mother addicted to Loritab and Percocet at birth.

She fostered a second child from the woman — who has had 12 or 13 babies — three years later. The second child the woman fostered was allowed to return home to the birth mother for three months but is now in foster care.

“Our son is so weak, and he screams bloody murder at times,” said the woman, who is in the midst of termination proceedings against the child’s mother to be able to adopt him as her own.

She has gotten to know the birth mother through visits with the child but has no faith she will ever be able to battle her addiction to be a good mother.

“That’s the thing,” she said. “As much as we love him, I’ve known her for two years now and I love her, too. I think if she ever got it together that would be great — incredibly sad for us but great. But I don’t think that will ever happen. And this child deserves so much more.”

Reach Anita Wadhwani at 615-259-8092 and on Twitter @AnitaWadhwani.

Tennessee children with parental terminations

2014: 864

2013: 734

2012: 646

2011: 500

2010: 569

Permanency/Review Hearings (Show up and Look Pretty?)

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.

  1. 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.
  2. 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.