Department of Childrens’ Services (DCS)

IF YOU HAVE QUESTIONS ABOUT ANY OF THE FOLLOWING PLEASE CONTACT WILTON MARBLE AT (423) 303-8469 OR  wilmarble@gmail.com.

Child Custody Cases Involving the State

If the State of Tennessee has taken custody of your children, you need to know your rights. Having your child(ren) taken is one of the most stressful things that can happen to a parent. In the heat of the moment mistakes can be made that will cost you later. Also, adding to the stress, the Department of Childrens’ Services (DCS) is a bureaucratic arm of the State of Tennessee which means they can be difficult to deal with and the process can take a long time.

If your child(ren) have been taken by DCS there are several things that you need to do. Usually the first thing you need to do is CALM DOWN. Your first contact with DCS will almost certainly be with a caseworker. This caseworker is extremely important to your case and so, even if they are rude to you, you should try to be polite to them. I know this is contrary to what would be a parent’s normal reaction but it is so important. I have had several cases where the fact that the caseworker “liked” my client was instrumental in getting the child(ren) returned to the parent.

While you should try to “get along” with the caseworker or be polite to them you should also be very careful about what you say to them. Anything you say to the caseworker can and will be used against you. If you want a “shoulder to cry on” seek professional help or talk to someone other than the caseworker or DCS personnel. You also should not lie to the caseworker as that will be used against you.

You should immediately consult with an attorney. In many cases, if you cannot afford one, you have a right to a court-appointed attorney. You need to go to the Juvenile Court Clerk of the county where the child(ren) was taken and ask for a court-appointed attorney. They will usually give you a form (oath of indigence) to fill out. It is extremely important that you are TRUTHFUL on this form. It is a criminal offence to falsify this form and even if you are not prosecuted lying on this form will harm your case. You may have to come back to court with the completed form and ask for an appointed attorney. You need to do this or retain an attorney a.s.a.p. as the early stages of your case are critical.

You should be very careful about what you say on Facebook and other social media. Lawyers and DCS love Facebook because of some of the incredibly stupid things parents will say on Facebook. And even if you do not say something stupid someone else can say it on your page and you can be harmed by it. For example if your visitation with the child is supposed to be supervised and one of your Facebook “friends” posts a picture of you and the child alone at the mall that could come back to haunt you. You should not be talking about the case at all on Facebook or to anyone other than your lawyer.

DISCLAIMER: The above is generalized advice and given for informational purposes only. The above is no substitute for the services of a qualified attorney. Every case is fact dependent and there are exceptions to every statement above. 

Therefore, rather than relying on the above alone, you should seek the services of a qualified attorney.

Typically when children are taken, DCS will file a petition with the court spelling out their allegations against the parents. Typically DCS will get a “protective custody order” on the same day and set the case for a preliminary hearing at a later date. Usually the preliminary hearing will be within a week or two of when the child(ren) were taken. At this hearing DCS has to show the court that they had “probable cause” to believe that the allegations against the parents are true. This is a very low standard and DCS almost always wins at this stage. By way of example if a police officer observed me weaving as I drove down the road he would have “probable cause” to think I was driving under the influence. That doesn’t prove I was DUI but it is “probable cause”. Even though DCS typically wins at the preliminary hearing, the hearing can be an important tool for your attorney to figure out exactly what DCS is alleging and to “lock in” the testimony of DCS’s witnesses so you need an attorney even at this early stage.

Also at the preliminary hearing the court will usually set a date for the “adjudicatory hearing” which is like a criminal trial. This is where DCS must prove that the allegations are true (not just that they had reason to believe). This is perhaps the single most crucial point of the case because if DCS cannot prove the allegations then they have to return the child(ren). If DCS does prove the allegations then usually custody is awarded to them and the parent must take steps (usually spelled out in a “permanency plan”) to regain custody of their child(ren) or, at some point in the future, face the termination of their parental rights.

Usually in the first month or so after removal DCS will call a “permanency plan meeting”. This is usually held at DCS’s office and is where the parents, the caseworker, the foster-parents and other interested parties meet to develop a permanency plan which details what the parents have to do to regain custody of their child(ren) and what DCS is supposed to do to help the child(ren) and the parents. Your attorney needs to be present because DCS often includes things in the permanency plan that are not related to why the child(ren) were taken and this makes it more difficult for the parents to regain custody. For example, if the child was removed due to allegations of drug abuse by the parents DCS may try to put in a requirement that the parents attend domestic violence counselling. If there is no history of domestic violence then that is an unnecessary requirement and the attorney should object to it. You also need your attorney because DCS will often get you to sign all kinds of paperwork including statements that you agree with the permanency plan. If you sign saying that you agree with a permanency plan that includes a domestic violence counselling requirement it is much harder for your attorney to later argue that the domestic violence counselling was not needed. Making sure that the permanency plan is correct is crucial because doing what it says it may be the only way you ever regain custody your child(ren).

DISCLAIMER: The above is generalized advice and given for informational purposes only. The above is no substitute for the services of a qualified attorney. Every case is fact dependent and there are exceptions to every statement above. 

Therefore, rather than relying on the above alone, you should seek the services of a qualified attorney.

You need to be very wary of signing documents. I usually advise my clients that I want to see any document they are asked to sign before they sign it. You should not have to be rude in refusing to sign documents. I tell my clients to blame me and tell the caseworker, “My lawyer has told me not to sign anything he didn’t see first.” Some of the documents (releases so a doctor can treat the child for example) I will advise them to sign but I want to see them first. This is yet another reason you need an attorney early in the process.

You need to arrange to visit your child(ren). This is usually done through the caseworker. It has been my experience that it is almost impossible to get a caseworker on the phone. For that reason I use email as most caseworkers do answer their email. Most caseworkers have an email address that consists of their first name, followed by a period, then their last name followed by @tn.gov. So if the caseworker is named Joan Smith her email address would usually be Joan.smith@tn.gov. If you email to that address and do not get a reply then you probably need to go in person to DCS’s office and ask to speak with her or for her email address.  Email also has the advantage that you can document it. For every email you send a caseworker you need to print it off after you send it and save it. That way two months later when the caseworker testifies in court that you did not try to contact her you can prove that you did. When you visit you child(ren) you need to make the visit about the child(ren). In other words interact with the child, Do not be distracted by playing games, or posting on your cell phone. Do not talk about the case with the child(ren) or talk bad about DCS, the caseworker or the foster parent to the children. You are being watched and is extremely damaging to your case for DCS to be able to later testify in court that you spent your visitation distracted or talking about inappropriate things to the child(ren).

You need to document everything. If, for example, you are required to do an Alcohol and Drug Assessment and you do it then you will need the documentation. If you show up for court and say you did the assessment and the caseworker says “I never got documentation” then the court will act as if you did not do it. You must have documentation and you should be giving it to your attorney.

You need to support your child(ren) even when they are in the custody of DCS. Many parents tell me that they were not ordered to support their children but Tennessee courts have consistently held that every parent is aware of their obligation to support their children regardless of if there is a court order. If you fail to support your children for four months or longer your parental rights can be terminated and this is a ground that the State often uses to terminate parental rights. If you have an order pay it. If you do not then bring things for the child(ren) when you visit and keep the receipts. For example, if your child is a baby then you should be bringing diapers, wipes, formula etc. pretty much every time you visit. If your child is older bring toys, clothes, school supplies, food etc.  You should save the receipts for these things or give them to your attorney. If the foster parents tell you that  they do not want you to bring anything for the child then get it in writing. You can even hand write  on a piece of notebook paper “Please do not bring anything for the child” and have them sign and date it. Usually in matters of support it is not enough to tell the court “I did it”. The court wants documentation. It may seem a small matter but it could be the thing that prevents your parental rights from being terminated.

You should not “waive” your right to an attorney or to any hearings without having spoken with your attorney. Day in a day out I see parents at a preliminary hearing waive their right to an attorney and to the hearing. I have a strong urge to stand up and take the shovel out of their hands as they are digging their own grave. I think many of these parents are trying to “get along” with the department and while I can understand that motivation it is often a mistake. Before you “waive” any rights you should at least talk to an attorney. The attorney may agree that you should waive but you should talk to the attorney first as you may be making a critical mistake.

IF YOU HAVE QUESTIONS ABOUT ANY OF THE ABOVE PLEASE CONTACT WILTON MARBLE AT (423) 303-8469 OR  wilmarble@gmail.com.

DISCLAIMER: The above is generalized advice and given for informational purposes only. The above is no substitute for the services of a qualified attorney. Every case is fact dependent and there are exceptions to every statement above. 

Therefore, rather than relying on the above alone, you should seek the services of a qualified attorney.