Permanency Plan Meetings

As a parent if your child is taken there will be a meeting at DCS not too long after the removal. Caseworkers call these meetings “CFTM” or “Permanency Plan” meetings. Technically the terms are different but “CFTM” & “Perm Plan” are used interchangeably by the caseworkers. The purpose of the meeting is to develop a plan of things the parent(s) needs to do to get the children back. I say “develop” and that implies that the parent has input but the reality far too often is that the meeting consists of DCS TELLING the parent(s) what they will have to do to get the child back.

First, if you have an attorney you should notify him/her immediately when you find that the meeting has been scheduled. He/she should be there if possible. If he or she cannot make that date then he or she AND YOU should be contacting the caseworker to ask that they reschedule. If he or she is there let he or she do the talking.

Second, the meeting will begin with DCS passing around a “confidentiality” agreement. You will have to sign it or the meeting will not take place. You need to get a copy of that agreement. Also see my blog on confidentiality. Even though they WILL tell you that the meeting is confidential it is routine for them to testify in court about what you said at the meeting so you need to be wary of what you are saying and say as little as possible.

Third, at the end of the meeting they will ask you to sign the permanency plan. Most of their form signature pages will have approximately four boxes for you to check. It is OK to check the box that says “I was present”. It is OK for you to check the box that says “I participated”. But if you disagree with ANY of the requirements and ever want to argue in court about them then, for the love of god, DO NOT CHECK the box “I agree with this permanency plan”.  I’ve had many cases where I argue in court against some patently ridiculous requirement only to be told by the court, “Marble, your client agreed to it”. You also need a copy of the permanency plan AND the signed signature pages which you need to keep and give a copy to your attorney.  By the way if you disagree with a particular proposed requirement at the meeting you should tell them you disagree and calmly give your reason. Do not get mad and argue because the courtroom, not the meeting, is the place to argue and if you get too argumentative at the meeting they’ll kick you out and later testify that you were being uncooperative. I once had a client who behaved so badly at the meeting that DCS added a requirement that he do anger management counselling. You are being watched and if you act badly some caseworker will later testify about it in court.

Finally DCS WILL tell you that you have to do everything on the permanency plan or you will never get your children back. This is HALF true. Many times the meeting is BEFORE any adjudication. An adjudication is like a criminal trial in that the State MUST prove the allegations which led to removal. And if the State can’t prove their case at adjudication then they have to return the child regardless of whether you have done anything on the permanency plan. The reality though is that the State wins the VAST MAJORITY of adjudications so, if it were me, I’d go ahead and start doing many of the things on the permanency plan even if I was going to fight the adjudication. For example one of the requirements is almost always visitation. No one would have to tell me to visit my kid and so I’d be doing that regardless. Also some of the requirements are fairly simple and can be done very quickly. For example they usually require a copy of your driver’s license, proof of auto insurance and title to a car OR a transportation plan. If you have the DL, auto insurance and title then go ahead and give them a copy and ask that they note that you have done so on the permanency plan. If you don’t then write a short statement (transportation plan) about who will transport you and the child in the event of an emergency. This requirement takes like 5 minutes to complete so you should go ahead and do so.

Also, as a parent you have the RIGHT to challenge any of the requirements as being unreasonable. You do this in court because the court has to rule that EACH of the requirements are reasonable AND related to the causes that led to removal of the child or prevent the safe return of the child to the parent. In re Valentine, 79 S.W.3d 539 (Tenn. 2002) is the best Tennessee case on this topic. In that case DCS had a requirement that a mother get a GED or a vocational degree. The court said that while getting a GED or vocational degree would be a good idea for mother it had nothing to do with why the child was removed and therefore the court ignored it. Obviously, as mentioned above, if you sign a statement that you agree with the plan you are going to have a hard time challenging it so be careful about what you are signing.

So at the permanency plan hearing you need to BEHAVE, get copies of everything and be VERY CAREFUL about what you sign. If you have a doubt about signing tell them that your attorney wants to see anything before you sign and then get a copy to your attorney and follow their advice.

What I Would Do if My Children Were Taken by the State

First and foremost talk to someone who knows these types of cases. Also known as a lawyer. What follows is a generalized statement. Your facts almost certainly are different and you need a lawyer advising you about YOUR facts. In my example I’d:

  1. Be nice to the caseworker who shows up on my doorstep. In the vast majority (probably 99% or so) they did NOT pick you. Instead they got a “referral” which, by law, means they HAVE TO investigate and so they are starting at the logical place to start. You must understand caseworkers are human too. Lawyers dream of arguing that big case and winning that big verdict. Caseworkers dream of having that case where they are recognized as going above and beyond (as in caseworker made herculean efforts to help decent, but misfortunate parent, recover). But in their day-to-day lives they deal with multiple cases of deadbeat parents who NEVER do what they say they are going to do. All while the child or children are in a foster home. And so the caseworker (like a cop) gets tired of being lied to constantly and eventually forms the opinion that “all parents (people) are liars.”  Which presents an opportunity because if I actually only promise what I can do and DO IT, then I stand out from the vast majority of caseworker’s other cases. Given that caseworker has a ton of cases where the parents ARE liars, the caseworker is FAR MORE LIKELY to want to expend efforts in a case where the parent is truthful. The caseworker is the single most important person in any case (sorry attorneys et. al. but it really isn’t even close) and so I want that caseworker to want to help me. I’m going to kiss her (or his) a$$ and I am going to only promise that which I can do and DO IT.
  2. Do not mistake your caseworker for a psychiatrist.  I am going to be nice to caseworker and I am going to co-operate (especially with respect to visitation) but I am not going to confuse my caseworker with a shrink or even a drinking buddy. I’m not going to be holding conversations about why I did something, or some trauma I suffered in childhood with my caseworker. The caseworker will be asking questions and there are some I will answer but I won’t be volunteering unasked information.
  3. I’d have a lawyer. Stevie Wonder is a brilliant musician but I wouldn’t get in a cab if Stevie were driving. Same with Ray Charles. Brilliant musicians but they can’t SEE. Why would you want to try to navigate a passage when you ARE blind? You do not know the rules nor the process and if common sense is your guide you are in for a surprise. Get someone who does know the rules and the process. Stay in contact with them. Make sure they can always contact you (i.e. update them on any new contact info) and provide them with the documentation I am about to talk about. Matlock couldn’t do a good job for you if he is not updated on your case.
  4. I would document everything. Dollar General will sell you a pack of ten manila folders for $1.99. I would get them, or any folder for that matter, and keep EVERY PIECE OF PAPER I had concerning my case. So when caseworker gives me that copy of the permanency plan it goes into folder. When I complete my A&D Assessment, I ask for documentation and, it goes in that folder. When I get new documentation I notify lawyer and he/she copies it. The dirty little secret is that you’d stand a better chance of getting President Obama to answer a phone call than a DCS caseworker. And so you should get their email. Generally, they do respond to email and, even if they don’t, later on, you can prove you sent an email.  So you AND lawyer should have the caseworker’s email and be scanning and sending any new documentation via email to the caseworker. You should then go to your “sent file” folder and print out the sent email and put in it the folder. That way, six months later, when the caseworker testifies that you never sent the documentation you can show the sent email demonstrating that you have.
  5. I’d be visiting the child (or children) as much as was allowed and I would rearrange my schedule to get more visitation. Your kids have just been ripped from the only world they have known for god’s sake. Do the right thing. You have to drive 45 minutes to visit in the presence of some foster parents? Big f&cking deal! Compared to what the kids are going through that isn’t sh&t. And yes, I realize I am using some non-legal  (some would say “unprofessional”) terms but it is the truth. Also it helps your case in that the caseworker sees that you care. Also, at visitation I would not be complaining IN THE PRESENCE OF THE CHILDREN about anything (DCS, foster parents etc). You argue your case in court not at visitation and although DCS routinely talks about the case to the children you should not do do. If you do the caseworker, or visitation supervisor, will testify that you did and the court will NOT like that. Instead, the visit would be about the children. I would be ACTIVELY engaged with the children. This is their only opportunity to see me. I’d also be bringing  things (food, diapers, wipes, clothing, school supplies or other gifts) for the children at EVERY VISIT.  If the caseworker or foster parent refused such gifts I’d want written documentation. You do not have to be rude about it. Instead I’d say “OK you are telling me not to bring gifts for my children. Can you please write that down because I want to support my children in any way I can and there is not a child support order or any other way I can do so?” In Tennessee, a parent has a duty to support his/her children regardless of whether there is an order to do so and so if you do nothing to support your children for four months or more the State can TERMINATE your parental rights for abandonment-failure to support. Before there is a child support order the only way you can support the children is by bringing stuff for the children at the visits. I would KEEP ALL receipts and put them in that documentation folder so two years later I could prove HOW MUCH I was supporting my children.

No matter what you see on Matlock,  court is not what you SAY! The State is not going to just admit that you did everything you were supposed to do. Hell, they filed, and are trying to prove, a petition that you DID NOT do what you were supposed to do. In a contest between a caseworker the court knows and a “bad parent” the court does not know, the court is almost always going to side with the caseworker. Unless you can PROVE that the caseworker is wrong. We say the State must prove it’s case but the reality is if you can’t prove yours then you almost always LOSE.

Admissibility of Entire Juvenile File at Termination

So it is the first day of your termination trial. The State gives its opening argument. You give yours. And then…..invariably… the State says something like “Your honor we’d like to enter into evidence as Collective Exhibit 1 a certified copy of the juvenile file from the dependency and neglect phase of this case.”

You should be objecting. The juvenile file is chocked full of inadmissible hearsay (letters from counselors or teachers, the state and any third-party petitions and other motions etc.)

Speaking on this, apparently, widespread practice of admitting the entire juvenile file the Court of Appeals has stated:

Like many other appeals from decisions to terminate parental rights under Tenn.Code Ann. § 36-1-113, the record in this case contains many extraneous documents that are not properly includable in the record on appeal. In re M.J.B. 140 S.W.3d 643, 650 (Tenn. App. 2004)

After explaining that this was occurring apparently based on a mistaken notion held by court clerks the court went on to say:

Accordingly, the appellate record in an appeal from a final termination order should consist only of (1) the petition to terminate parental rights and all pleadings and other papers subsequently filed with the lower court, (2) a transcript or statement of the evidence of the termination proceedings in the lower court, (3) the original of all exhibits filed in the lower court in the termination proceeding, and (4) any other matter designated by a party and properly includable in the record on appeal. Id. at 652

The entire juvenile file is NOT admissible. And so the question becomes what is?

Certainly the adjudicatory order is admissible. A certified copy is irrebutable proof of the ground of severe abuse. And that makes sense. An adjudicatory order is a final order and is appealable as of right (first to Circuit then to the Court of Appeals). It can be, and is, given a res judicata effect. Also the adjudicatory hearing actually has very similar evidentiary requirements to a termination of parental rights trial. For example hearsay is inadmissible in both unless it meets an exception spelled out in the rules of evidence.

What about other orders? All of the other orders, prelim, review, perm plan ratification are NOT final orders and are not appealable as of right. “Reliable” hearsay is allowed at these hearings. Should they be allowed into evidence? What if the unappealable review order had a parenting assessment attached to it? The “expert” who did the assessment would never have to be subject to cross-examination because the report would “piggy-back” on the review order into evidence at the termination whether the expert had testified or not.  Name me even one other civil action that allows an expert’s report into evidence without the expert having ever been questioned on it or his own qualifications.

What if the review order recites some of that “reliable” hearsay? For example the caseworker is not allowed to testify at the termination trial regarding X and yet X comes into evidence through the review order at which hearing “reliable” hearsay (X)  was admitted.

Call me crazy but I’d think the admissibility of review orders should be extremely limited. It if was a fact based on personal knowledge of the court (i.e. so and so was (or was not) present) I’d think that could come in. Certainly if it contained a statement (or position) of one of the parties that may, under some facts, be admissible. But any sort of unappealable “findings” or the recitation of blatantly inadmissible (at termination) evidence should not be admitted.

 

Admissibility of Drug Test results DCS

So I had this case where I (mom’s attorney) and the other parent’s attorney objected to  a hair follicle drug test result being admitted. After acting “shocked” that such an objection would be raised the State was granted a continuance to get its witnesses present.

Interestingly enough hair follicle testing involves two branches as in my county there is a “collection site” that then sends the sample to a lab in Ohio for analysis. So the caseworker testified that she took the kid to the drug lab. An employee of the “collection site” drug lab testified as to the lab’s procedure on handling samples etc. although said employee could not verify that they had anything to do with this particular sample. An “expert” from the Ohio lab testified via phone about that lab’s procedures and the methodology and accuracy of the hair follicle test. He also testified that he had nothing to do with the storage or testing of the particular sample.
We (parents’ attorneys) cited to the caselaw about “chain of custody” and how everyone involved in the handling of the evidence must verify their “link” in the chain and that the State had verified no links as none of their witnesses (except the caseworker) testified that they handled this sample at all.
It was pointed out that these were criminal cases that we were citing to and we were overruled.
So…
In a civil context what is the standard for “chain of custody”?
Also, while we’re at it, in many cases the only evidence of any drug test is the testimony of the caseworker. Caseworker gives a “pee in the cup” urine screen, “reads”/discerns the results and promptly throws away the pee-stained cup/test. A month, and even years, later the caseworker is testifying in court “I gave her a drug screen and she failed for X,Y,Z”. Sometimes the caseworker will “document it” by having the parents sign a form and I could see that being admissible but most of the time they don’t. So you have no test, no test results and thus no evidence of the efficacy of the test (and urine tests are notoriously unreliable).
Which brings up an interesting question.Should it be harder for the State to get entered into evidence the results of the far more accurate test (hair follicle)?

DCS “Confidential” means “Blab it all over court”

The old saying is “what happens in Vegas stays in Vegas” and one would rationally think that if one were signing an “agreement” to keep confidential what was said then it couldn’t be used against you in court.

But in the context of a CFTM meeting with DCS one would be mistaken.

CFTM meetings routinely start with DCS passing around a “confidentiality agreement” and explaining that it means that with the exception of reports of abuse anything that is said at the meeting stays at the meeting and cannot be repeated elsewhere. The “confidentiality agreement” has to be signed or the meeting cannot take place. And if the meeting does not take place then the parent, whose child(ren) is in the department’s custody is obviously “not cooperating” with the department. Cooperating with DCS is almost always a requirement of the permanency plan and so the parent if the parent wants their child(ren) back the parent must sign. And then a few months, or even years, later a caseworker testifies in court as to what the parent said at the meeting. Invariably it is always something damaging to the parent’s case.

I’ve been objecting to this practice. Some judges have sustained my objection. Some have not. I recently had one require further briefing of the issue and then decided to overrule the objection and allow the testimony. His rationale was that a permanency plan was the natural result of such meetings and it is admissible so the statements made in the formation of the plan (i.e. at the meeting) should also be admissible.

My argument in the brief was, first, the plain meaning of the language of the agreement is that the statements cannot be repeated in court unless they are reports of abuse. Interestingly enough when I went to the State’s website to get a copy of the confidential agreement form it was not there. (And this website was chock full of every form of literary sominex put out by the department). My second argument was fraudulent inducement as the State had gained my client’s signature telling them that what was said in the meeting would not be repeated elsewhere unless it was a report of abuse. My third argument was that even if the court could twist the meaning of the agreement to mean that the State could use the statements the agreement was unconscionable (one-sided) and thus unenforceable. After all the bargaining position of the parties was about as unequal as one could get given that the parent’s kids were in State’s custody and the parent HAS TO do the permanency plan (i.e. cooperate) to get their kids back.

I think they were good arguments but I have not been able to get them addressed by the Court of Appeals. From my research I can’t see where anyone else has been able to get them addressed by the Court of Appeals.

 

So what do you think???

 

 

In re Kaliyah and reasonable efforts in Tennessee

http://www.tsc.state.tn.us/sites/default/files/kaliyahs.opn_.pdf

 

Background: Trial court found that father willfully abandoned child by engaging in conduct that exhibited a wanton disregard for the child. Trial court found that this abandonment was an “aggravating circumstance”(T.C.A. 37-1-166(g) spells out certain “aggravating circumstances” under which the State does not have to make reasonable efforts) and thus DCS was relieved of making reasonable efforts to reunify the child with father all the way back to the beginning of the case. Father appealed arguing that the State was not relieved of reasonable efforts UNTIL a court of competent jurisdiction found that the aggravating circumstance existed and not before. The Appeals Court agreed with father and reversed the trial court and the termination. The State sought permission for an appeal to the Supreme Court which granted the request.

 

At the Supreme Court level the State argued that the State does not generally have to prove reasonable efforts at termination because the statute concerning terminations (T.C.A 36-1-113) only mentions reasonable efforts as a factor in the “best interests” analysis or when the ground alleged is “abandonment-failure to provide a suitable home”. Therefore, to the extent that T.C.A. 36-1-113 does not mention reasonable efforts. the State does not have to prove reasonable efforts at termination. The State also argued that the finding, at any time,  of an “aggravating circumstance” relieves the State of reasonable efforts all the way to the beginning of the case.

 

The Supremes found that the State had raised its first argument for the first time at the Supreme Court level and that the general rule was that issues not raised at trial are not considered on appeal. However the Supremes also noted an exception to that rule “where the manifest interests of judgment require it” and applied the exception. The Supremes then ruled that T.C.A. 36-1-113 does not require proof at termination that the State made reasonable efforts unless the ground relied upon was abandonment-failure to establish a suitable home or as part of the best interest analysis. In doing so the Supremes overruled over a decade of case law In re Tiffany, In re Bernard, In re C.M.M., In Re Georgianna etc.

 

So the real question going forward is:

Even though T.C.A. 37-1-166 expressly requires that the State make reasonable efforts to reunify a parent with his or her kid is there any way to enforce the statute?

Under the old case law the department knew that a parent’s attorney could sink a termination if the department did not make reasonable efforts to reunify parents with their children and so the State encouraged its caseworkers to make reasonable efforts and to document their reasonable efforts. Now that they no longer have to prove this at termination one has to wonder how much effort they will put into it. But they still have to prove it in the dependency and neglect proceeding one might say and the statute does specifically refer to the juvenile court. This assumes there is a dependency and neglect action. In re Kaliyah’s father had the dependency and neglect action “combined” with the termination (i.e. there was NO dependency and neglect action prior to the termination). But even if there is an underlying dependency and neglect action and after the adjudication the State cannot prove that it made reasonable efforts to reunify what then? The statute says “PRIOR to ordering a child committed to or RETAINED within the custody of the department the court SHALL FIRST determine” whether reasonable efforts have been made. From that language one could argue that the child MUST be returned to the parent, regardless of what a parent had done or not done on the permanency plan, because the statute says so. But how many juvenile court judges are going to return a child to a “deadbeat” parent just because the State has not made reasonable efforts? Most, if not all, are going to be inclined to have some stern words for DCS but leave the child where the child is and set the case for further review 3 months or so down the road. And how does a parent’s attorney appeal such a NON-final order?

So is there any real way to enforce the statute’s requirement that DCS make reasonable efforts? and, if not, then why do we have the statute?

Also what happens to the abandonment notice requirement? T.C.A. 37-2-403 requires that a parent be told of the definition and possible consequences (termination) of abandonment. The case law (In re B.L.C. for example) has held that in order for the State to get a termination based on abandonment the State must prove that it complied with 37-2-403. The State now routinely does this by having the parent sign a Criteria for Termination of Parental Rights form and introducing said form at the termination. But if the State does not have to prove anything not found in T.C.A. 36-1-113 then why would they have to prove this requirement which is found in T.C.A. 37-2-403?