In re Kaliyah and reasonable efforts in Tennessee


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?