January 2, 2016
By Connie Reguli
I am beside myself. Tennessee Court of Appeals has just taken a turn for the worse against the constitutional right to parent. On December 30, 2015, the Tennessee Court of Appeals entered an opinion which upheld the trial Court in allowing the foster parents to file a termination proceeding against the Father and allowing them to succeed in the adoption of a child in their care and in the custody of the Department of Children’s Services.
The opinions of In re R. L. M., E2013-0273-COA-R3-PT (Jan 29, 2015) and In re Rainee M., E2015-00491-COA-R3-PT (Dec 30, 2015) shed little light on the underlying facts of the case. All that can be gleaned from these opinions is this child was placed in foster care September 2012 and the Court adjudicated the child dependant and neglect December 6, 2012. The opinion gives no factual basis to justify placing the child in foster care. The Department of Children’s Services then filed a petition to terminate the father’s parental rights on the grounds of (1) abandonment by failure to provide a suitable home T.C.A. § 36-1-113(g)(1) and T.C.A. § 36-1-102(1)(A)(ii) and (2) persistence of the conditions that led to the child’s removal T.C.A. § 36-1-113(g)(3).
The Juvenile Court had a hearing and entered an order terminating father’s parental rights December 9, 2013. The Father filed an appeal. In this appeal, DCS conceded that an essential element of its case was not established by the proof. DCS contended that the judgment must be reversed because they failed to establish an essential element for grounds for termination in that they did not file a copy of the order adjudicating dependant and neglect from the prior proceeding.
For termination of parenting rights under “failure to establish a suitable home”, DCS must establish that the child was removed from the parents’ home by order of the court in which the children were found to be…dependant and neglected…at least four months prior ot the filing of the petition to terminate the parent’s rights. In re Zmaria C. M2009-02440-COA-R3-PT (Aug. 24, 2010)
For termination of parental rights under persistence of conditions, DCS must establish that a prior court order removing the child from the a parent’s home was based on a judicial finding of dependency, neglect, or abuse. In re Audrey S. 182 S.W. 3d 838, 874 (Tenn. App. 2005)
Since DCS did not file an order adjudicating the child dependant and neglected, they had not established a essential element required by law. The Court of Appeals agreed and reversed the Trial Court’s termination order. See In re R. L. M., E2013-0273-COA-R3-PT (Jan 29, 2015) An interesting note is put in the last page of the opinion that states, “Lest there be any doubt, we emphasize that this decision has absolutely no effect on the child’s custody.”
Although not specifically stated within these opinions, DCS must have known this was coming down the pike. Pending the appeal on the termination, the foster parents went to Chancery Court and filed a petition for termination of parental rights and adoption. The Father’s counsel made several legal arguments to attempt to dismiss this Chancery Court proceeding. He argued (1) the Court lacked subject matter jurisdiction because the termination of parental rights was on appeal; (2) that the issues were not justiciable; (3) that the doctrine of res judicata applied and the petitioners should be precluded from proceeding against the father; and (4) that the doctrine of collateral estoppel would bar relitigation on the issue of terminating his parental rights.
The trial Court denied the Father’s motion to dismiss and conducted a hearing on October 27, 2014. The Court took the matter under advisement.
As described above, the Court of Appeals reversed the first termination proceeding in an opinion entered January 29, 2015.
On February 23, 2015, the Chancery Court entered an order terminating father’s parental rights on the very same grounds (1) abandonment for failure to provide a suitable home; and (2) persistence of conditions that lead to the removal of the child from the home. Neither opinion offers any factual summary, and it appears from the dates provided that the two hearings were about a year apart, so we cannot tell what evidence was offered against the Father.
The Father filed a appeal to the Court of Appeals and his counsel raised the same issues on appeal and added (5) that the trial court failed to comply with the mandate provisions in T.C.A. § 36-1-113(k) to provide written findings within 30 days of the hearing.
The Court of Appeals dismissed the Father’s arguments in short order.
Subject matter jurisdiction while on appeal: The Court of Appeals said that because this was a different case than the one filed in Juvenile Court that the argument did not apply.
Justiciability: The Court found this argument to be “unavailing.” The justiciability argument is based on the matter being “ripe” – whether the controversy warrants judicial decision – and “moot” – whether the matter continues to warrant judicial intervention.
Res Judicata and Collateral estoppel: The Court of Appeals found that because the foster parents were different parties seeking to terminate the Father’s parental rights and the judgment was “not final” in the Juvenile Court, that these principles did not apply.
Final Ruling: The Court of Appeals also found that there was no articulated harm done in the trial Court’s failure to enter a final ruling within 30 days of the hearing.
Besides smelling really bad, this series of events places all parents dealing with a child protective agency at risk. If DCS does not get it done one way, they will try another. There remains a fatal flaw in this case and hopefully Father’s attorney will take this to the Tennessee Supreme Court.
You see, in my opinion, the foster parents did not have standing to file the petition, and therefore the Chancery Court lacked jurisdiction to hear the case. Jurisdiction is always a matter to be considered by the Court and so even though Father’s attorney did not raise this issue before, he can still do it.
Number One: Foster parents are under a contract with DCS that they will not take any legal action in regard to seeking adoption independent of DCS. Although we might not be able to get that in the Court record at this level, I wish Father’s counsel would have requested a copy of that contract.
Number Two: And more important, is that the adoption statute does not provide that a person in mere possession of a child can file a petition for termination of parental rights and adoption. T.C.A. § 36-1-115 requires that for a person to have standing to bring an adoption action, they must have at physical custody of the children or the right to receive it. “Custody” is a legal term and cannot be preempted by mere possession. When a statute creates a cause of action and designates who may bring an action, the issue of standing is interwoven with that of subject matter jurisdiction and becomes a jurisdictional prerequisite. Osborn v. Marr, 127 S.W.3d 737, (Tenn. 2004) If the foster parents did not put into the record an order adjudicating them as the legal custodians of the child, this case must be dismissed.