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.