dependency and neglect proceedings in juvenile court matthew r. muenzen special advisor to the...

Dependency and Neglect Proceedings in Juvenile Court

Matthew R. MuenzenSpecial Advisor to the Deputy Commissioner

and Director of Community PartnershipsOffice of Child Safety

Tennessee Department of Children’s Services

Abuse and Neglect Referrals

Who must make a child abuse/neglect referral? • §37-1-403(a)(1)

– Any person who has knowledge of or is called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition shall report such harm immediately if the harm is of such a nature as to reasonably indicate that it has been caused by brutality, abuse or neglect or that, on the basis of available information, reasonably appears to have been caused by brutality, abuse or neglect.

• §37-1-409(a)(1)– Reports of harm and the identity of the reporter are confidential, except

when the juvenile court, in its discretion, determines the testimony of the person reporting to be material to an indictment or conviction

Abuse and Neglect Referrals

• §37-1-409(a)(2)– The name of any person reporting child abuse shall not be released

to any person, other than employees of the department or other child protection team members responsible for child protective services, the abuse registry, or the appropriate district attorney general, without the written consent of the person reporting.

– Such person's identity shall be irrelevant to any civil proceeding and shall, therefore, not be subject to disclosure by order of any court.

• DCS Child Abuse and Neglect Hotline– (877) 237-0004– https://reportabuse.state.tn.us

• Contains examples of priority assignments

Physical Abuse Referrals

• Any child under the age of 18• Alleged perpetrator:– Parent, caretaker, relative, other person living in

home– Educator, volunteer or employee of an

educational/recreational/ organizational setting who is responsible for the alleged victim

– Any individual providing treatment, care, or supervision for the alleged victim

Sex Abuse Referrals

• Under 13 – any sexual abuse• 13 to 18 – only sex abuse when alleged

perpetrator is:– Parent, caretaker, relative, other person living in

home– Educator, volunteer or employee of an

educational/recreational/ organizational setting who is responsible for the alleged victim

– Any individual providing treatment, care, or supervision for the alleged victim

Allegations of Harm

• Physical Abuse and Drug Exposed Infant/Child• Environmental Neglect, Nutritional Neglect,

Medical Neglect, Educational Neglect, Lack of Supervision, Abandonment

• Child Sexual Abuse• Psychological Harm• Child Fatality/Near Fatality

Assessing Risk of Harm

• History of Abuse and Neglect Factors• Child Factors• Parent/Caretaker Factors• Environmental Factors• Service Provision Factors

After the Referral

• After investigation or assessment begins:– Open DCS Case with services– Non-Custodial Placement– Remove into DCS Custody

Indication (Substantiated)

• As of January 1, 2014, cases will be classified as “substantiated” instead of “indicated.” Also, cases will be classified as “unsubstantiated” instead of “unfounded.”

Immediate Protection Agreements

• Having the child stay with relatives or friends• Suspending or restricting visitation• Having the alleged perpetrator leave the home• Walk-through of placement home• Drug tests for safety placement if drug-related case• DCS and Criminal background checks• Physical custody to safety placement, legal custody

remains with parents, unless DCS requests legal custody transferred to safety placement

• Must have a custodial parent to sign the IPA

Immediate Protection Agreements

• Restraining orders– Detrimental/harmful to child – Usually when there is a good parent and a bad parent

• Legal must approve IPA• Petition filed with Juvenile Court• No out of state placement• Must include risks and tasks to overcome the risks• Cannot terminate parental rights because no legal

custody

Custodial Removals

• Reasonable grounds to remove– Must prove:• Least drastic alternative• Reasonable efforts were made to avoid removal

– Or reasonable efforts not necessary

• Best interests of child

• Legal must approve removal• Exigent Circumstances

Custodial Removals

• 48 hours after removal to file petition• 72 hours after removal to have preliminary hearing– Probable Cause that child is dependent and neglected– Placement is decision of DCS, not Court– Can still place child with family under kinship care

program– ICPC– Court must approve by clear and convincing evidence

that it is safe for child to return home– DCS seeks child support while children in custody

DCS Custody Cases

• Other Ways a Child Can be in DCS Custody– Dependent and Neglected• Private Party Petition• Guardian ad Litem Petition• Court Order

– Unruly– Delinquent

Permanency Plans

• Permanency plan is document that explains what parents need to do to get their child back

• Plan within 30 days, ratification within 60 days, expire in 6 months or 12 months

• Services, Needs, Visitation• Goals/Dispositions for children in custody

– Return to parent– Exit custody to relative– Adoption– Permanent guardianship– Permanent Planned Living arrangement (stay in foster care until 18)

DCS and Juvenile Court

• Court Hearings in General– Due Process requires GAL, attorneys for parents, and

preliminary hearing– Children 13 and older must testify unless unavailable– Exclusive Original Jurisdiction after petition filed

• ALL other court orders i.e. visitation, custody are SUSPENDED during DCS case

– Preliminary/Adjudication/Disposition/Review– Reliable Hearsay allowed at preliminary/dispositional

hearings– Rules of Evidence §803(25) – statements made by child about

child abuse are not hearsay

Permanency Planning Hearings

• Permanency Hearings– Plan Ratification

• Every 6 months or 12 months, depending on length of plan, can be extended

• New ratification if new goal established• Reasonable Efforts• CASA Report

• Foster Care Review Board– Held every 6 months– Hotsheets– Extension of Foster Care Services

Discovery

• Rule of Juvenile Procedure – Informal Discovery– TPR – Rules of Civil Procedure

• Subpoenas– Subpoenas Duces Tecum

• Depositions• Interrogatories• Records

Adjudications

• Trials• Removal – 30 days from entering custody• IPA – 30 days from filing petition• Clear and convincing evidence• §37-1-102(b)(12)– Dependent and Neglected

• §37-1-102(b)(23)– Severe Abuse

• Findings of Fact/Conclusions of Law

Dispositions

• Occurs right after finding of dependency and neglect is made unless bifurcated

• “Sentences” if it were Criminal Court• Settlements• Preponderance of the Evidence – BEST INTERESTS OF

THE CHILD• Final Order• Appeals to Judge, Circuit Court, Court of Appeals, and

Supreme Court

Review Hearings

• Check on status of services and reasonable efforts

• Varies from Court to Court• Check on the status of the case• Post-dispositional review hearings• Optional

Caretakers of Children in Tennessee

• Legal Parent• Permanent Guardian• Temporary Custodian• Power of Attorney

Power of Attorney

• §34-6-302– Temporary for hardships including, but not limited to:

• Serious illness or incarceration of parent/guardian• Physical/mental condition of parent/guardian/child is such that

care and supervision of the child cannot be provided

– School not required to enroll a student with a power of attorney stating other hardships

• §34-6-303– One parent with legal custody – only one to sign– Two parents, other parent must consent– If consent unavailable, must write why in document

Power of Attorney

• §34-6-304– May authorize to perform:

• Enroll the child in school and extracurricular activities• Obtain medical, dental and mental health treatment for the child• Provide for the child's food, lodging, housing, recreation and travel• Any additional powers to caregiver

• §34-6-305– If parent/guardian disagrees with the decision of the caregiver or

chooses to make any healthcare or educational decisions for child, the parent must:• Revoke the power of attorney• Provide the health care provider and local education agency either:

– Written documentation of the revocation– Court order

Power of Attorney

• §34-6-308– No school liability for honoring power of attorney

Custody

Physical Custody• Who has a child the majority of the time• Legal authority to make major decisions for

the child is very limited

CustodyLegal Custody • Who has the right to make important decisions regarding a child

– Education, Health, Religion• Responsibility to provide:

– Food, Clothing, Education, Housing, Care• Parents are financially responsible for child• §37-1-140

– Temporary Legal Custody from Juvenile Court• Same as sole legal custody• Lasts until someone challenges it in court

– Until parent/guardian reasonably remedies conditions• Significant changes• Best interests of the child

– Any person with a close/significant relationship

Custody

Custody Rights Between Unmarried Persons • No court order identifying a father:

– Mother automatically has physical and legal custody– Alleged father has no custody/visitation rights

• Father can get a court order establishing parentage if:– DNA test– Signed acknowledgement of paternity

• Court order must be signed by a judge• Alleged father can still get custody rights even if not listed

on birth certificate

Custody

• Either parent can file petition to establish parentage– Once petition is filed, court will:• Order DNA test• Accept voluntary acknowledgement of paternity

– Even if court declares a man as the father, can still order:• Supervised visitation• No visitation

Custody

• Court has option of:– Giving both legal and physical custody to one

parent– Giving joint legal and joint physical custody to

both parents– Giving legal custody to one parent

• Once child is legitimated, court can order child support

CustodyCustody Rights Between Married Persons • Both parents have equal rights and access to children if there is no custody

order• Whoever has physical possessions of child has custody until there is a court

order• Custody can be legally determined:

– In a divorce action– In a dependency/neglect action– In an order of protection case

• Court has option of:– Giving both legal and physical custody to one parent (shared parenting)– Giving joint legal and joint physical custody to both parents (shared parenting)

• Giving legal custody to one parent and physical custody to the other parent

Guardianship

• All rights of legal custodian• Permanent caretaking responsibilities for child without TPR• Duty and responsibility to make important decisions in

matters having a permanent effect on the life and development of the child

• Not responsible of child’s expenses• Child not able to be legally taken away without consent• Until substantial change of material circumstances AND best

interests of child• Right to receive public benefits on behalf of the child• Same rights as parents

Guardianship

• §37-1-802– Child has been previously adjudicated d/n, unruly, or delinquent– Child has been living with proposed guardian for at least 6

months– Best interests of the child– Reunification is not in best interests of the child

• §37-1-803– Does not end parental rights to:

• Inherit from parents• Visit or contact• Consent to adoption• Provide financial, medical, or other support to child

Guardianship

• §37-1-804– Rights and Responsibilities:

• Protect, nurture, discipline, and educate the child• Provide the child with food, clothing, shelter, education, and

health care• Authorize release of information that would require consent

of parent• Consent to social, school activities, military enlistment, and

marriage• Obtain legal representation for the child in legal actions• Decide who the child can socialize with and when and where

the child can travel

Termination of Parental Rights

Alternatives to TPR

• Subsidized Permanent Guardianship• Voluntary Surrender• Waiver of Interest• Effects of Alternatives to TPR


Parties to Termination • Alleged Father/Legal Father– Birth Certificate/Voluntary Acknowledgement of

Paternity– Married– Court Order

• Petitioners


Statutory Grounds

• Abandonment - Failure to Visit• Abandonment - Failure to Support• Abandonment - Failure to Provide a Suitable Home• Abandonment by Incarcerated Parent – Wanton Disregard• Abandonment by Incarcerated Parent – Failure to

Visit/Support• Abandoned Newborn• Substantial Non-Compliance With Permanency Plan• Persistence of Conditions


• Severe Child Abuse of Child/Sibling• Severe Child Abuse Conviction With Sentence of 2 or

More Years• 10 Year Prison Sentence if Child Under 8• Intentional/Wrongful Death of Other Parent• Mental Incompetence• Failure to Legitimate• Aggravated Rape From Which Child Conceived• Convicted of Trafficking for Commercial Sex Act and

Child was Victim


Best Interests of Child • Adjustment of Circumstances• Lasting Adjustment after Reasonable Efforts• Regular Visitation• Meaningful Relationship• Change of Custody Effect• Abuse by Parent• Safe Home• Mental Stability• Child Support


Reasonable Efforts

• Specific Grounds• Relief from Making Reasonable Efforts


DCS Required to File TPR Petition • Foster care 15/22 months• Abandoned Infant• Murder/Manslaughter of Child/Sibling• Severe Abuse of Child/Sibling• Unless:– Relative– Compelling reason documented in permanency plan– DCS has not made reasonable efforts


Appeals

• Court of Appeals/Supreme Court• Final Order/30 Days• File Transcript/45 Days• Appellant Brief/30 Days After Record Filed and Appellee

Brief/20 Days• Oral Argument/1-4 Months after Briefs• Ruling/3 Months• Permission to Appeal to Supreme Court/60 Days

Matthew R. Muenzen

• Desk Phone– 615-741-3411

• Cell Phone– 615-210-5366

• Email– [email protected]

• Twitter– @mattmuenzen

dependency and neglect proceedings in juvenile court matthew r. muenzen special advisor to the...

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