Five Often Overlooked Legal Issues in Memphis & Shelby County Juvenile Court
Quick tips when practicing in Juvenile Court.
"Dependency and Neglect" attaches to a child, not to the parents.A finding of Dependency and Neglect is a finding that pertains to the status of the child and does not attach to the parents, either individually or collectively.
T.C.A. 37-1-102(b)(12) defines the ways in which a CHILD is determined to be found Dependent and Neglected. Some attorney may have cases in which one parent was solely responsible for the abuse or neglect of a child. Attorneys is some instances would would request the court to "find the child dependent and neglected as to one parent, but not as to the other."
While it might sound logical to only allocate blame to the offending parent, the law does not envision this, as Tennessee Code defines a child to be D&N when certain actions occur.
From a practice standpoint, even if a child is found D&N, the case then moves to the dispositional phase. At that point the "non-offending" parent can still make a request for custody
DCS v. Huffines-Dalton, No. M2008-01267-COA-R3-JV, 2009 WL 1684679 (Tenn. Ct. App. June 15, 2009)
The Court MUST Find a Child Dependent and Negelcted in Order to Make a Disposition.Despite the fact Juvenile Court is an "informal" court, (on any petiton alleging D&N)custody of a child cannot be changed from a parent unless there has first been a finding of D&N. That finding has to be shown by clear and convincing evidence.
From a practical standpoint, if there are earlier orders that change cusody (that arose from D&N petitions) without a finding of D&N, that attorney would be wise to challenge the validity of that order.
"[O]nce the Circuit Court determined that the children were not dependent and neglected, it was required to dismiss the petition. T.C.A. ? 37-1-129(a)(1). It was not authorized and had no subject matter jurisdiction to move to the dispositional phase and determine the custody of the four children." In re E.P., No. W2004-02821-COA-R3-CV, 2005 WL 3343807 (Tenn. Ct. App., December 09, 2005)
Timeliness of Dependency and Neglect Allegations[C]ourts may and should consider past conduct to the extent that it assists in determining a person's current parenting skills or in predicting whether a person will be capable of having custody of a child, the consideration of past conduct may be tempered by considering, inter alia, the nature and severity of the past conduct in relation to the welfare of the child, when the conduct occurred, and what remedial actions, if any, the parent has taken.
In essence, if a parent has engaged in some sort of bad behavior, the court shoud take into consideration when the actions took place, and what relation they have to the present.
An attorney who wishes to allege dependency and neglect based upon a parent's bad behavior will need to ensure that the behavior in question was either so horrendous that it cannot be overlooked, or that the behavior still affects the parent or child presently.
In Re: D.J.R., No. M2005-02933-COA-R3-JV, 2007 WL 273576 (Tenn. Ct. App. January 30, 2007).
The Court's failure to notify a party about their right to a rehearing waives appeal deadline.It is undisputed that the Referee inadvertently failed to comply with the requirements of Tenn. R. Juv. P. 4(c)(2) by not informing Mother of "the time limits within which a request for a rehearing must be perfected."
If a Magistrate fails to instruct a party of their stautory right to a reahearing, that party may come back after the deadline to request a rehearing has lapsed and request that hearing.
State, Dept. of Children's Services v. S.A.M.H., No. E2004-02543-COA-R3-PT, 2005 WL 850356 (Tenn. Ct. App. April 13, 2005).
A De Novo hearing requires actual testimony and proof and is not just a perfunctory examination of tTennessee Code Annotated ? 37-1-159(a) unambiguously contemplates a de novo trial which includes "testimony of witnesses." A de novo trial is "[a] new trial on the entire case-that is, on both questions of fact and issues of law-conducted as if there had been no trial in the first instance." Black's Law Dictionary 1544 (8th ed.2004). Unsworn statements made by counsel and a guardian ad litem in chambers constitute neither "testimony" nor trial. See Kelly, 43 S.W.3d at 515-15; Wyatt v. Lassiter, 299 S.W.2d 229, 237 (Tenn.App.1957).
Courts should view the De Novo hearing (either through a rehearing or an appeal to Circuit Court) as an examination of the previous court's record only. The court that hears the De Novo hearing should treat the matter as a brand new hearing and take testimony from witnesses. Failure to do so may lead to a remand.
Kissick v. Kallaher, No. W2004-02983-COA-R3-CV, 2006 WL 1350999 (Tenn. Ct. App. May 18, 2006).