Reasonable Efforts Required in Tennessee Termination of Parental Rights Cases

February 24, 2011 by The McKellar Law Firm, PLLC

In a recent Tennessee Court of Appeals case, the Court reversed a Juvenile Court's termination of parental rights based on DCS's failure to provide reasonable efforts to reunite the family in light of the father's addiction to methamphetamine. In re April F., 2010 WL 4746245, (Tenn. Ct. App. Nov. 22, 2010). In Tennessee termination cases, the Department of Children's Services is required to show by clear and convincing evidence that it made reasonable efforts to help the parents address their issues and reunite the family.

Gavel.jpgIn this case, the Juvenile Court awarded the termination of parental rights on the basis of persistence of conditions necessitating removal and substantial noncompliance with the permanency plan. These grounds trigger a requirement of reasonable efforts by DCS. When determining reasonableness, the Court looks to the reasons for separating the parents from their children, the parents' mental and physical capabilities, the resources available to parents, the parents' efforts to remedy the conditions that led to removal, and the closeness of the fit between the conditions that led to the children's removal, the contents of the permanency plan, and DCS's efforts.

Here, DCS expected the Father to manage his own recovery. DCS did not provide the Father with a list of treatment services or counseling options, and no one from DCS ensured that the Father obtained treatment after he elected to enter a rehabilitation center. The Court held that DCS did not meet their burden. DCS has an "affirmative duty to help a drug-addicted parent become drug free, even if the parent does not ask for help." Further, the Court stated that DCS must take reasonable steps to address the parents' issues and prevent termination when possible.

This case shows that an affidavit from DCS saying that they exercised reasonable efforts will not always be enough. When the adequacy of DCS's efforts is in dispute, the Department must prove that it did in fact provide reasonable efforts.


Dividing Marital Estate in Tennessee Divorce Is A Three Step Process

February 23, 2011 by The McKellar Law Firm, PLLC

Anytime a divorce comes before a Judge in Tennessee, the distribution of the estate begins with a classification of the property involved. This classification is left up to the trial judge, and is based upon the facts presented in the courtroom. If the property involved is determined to be marital, it is subject to equitable division. If the property is determined to be separate, then it stays with that spouse. Once classified, the court must place a value on that property before deciding how to distribute the assets between the parties.

In a recent Court of Appeals case entitled Pope v. Pope, 2010 WL 4272690
(Tenn.Ct.App.Oct. 28, 2010) the decision highlights the importance of the trial court's classification and valuation of property. In this case, the Husband owned a business at the time of the marriage, which Wife began to work for as well, even starting an online version of the business which she managed. Other property included a home in North Carolina that was bought and sold during the marriage, leaving a substantial profit. The trial court determined that the funds derived from the sale of the residence were marital property per T.C.A. $36-4-121(b)(1)(a), which the Appellate Court found to be proper. Regarding the business, the trial court decided this was also marital property, for a number of reasons: that although Husband owned the business prior to the marriage, he sold it during the marriage; that during the marriage, both parties conducted and managed a comparable business, though online instead of as a storefront; and that both parties involvement in the operation became a factor in the success of the business. The trial court then classified gifts of jewelry given to the Wife by the Husband during the marriage as her separate property, which is also proper per T.C.A . §36-4-121(b)(2)(D), which states that gifts, regardless of when given, are separate property.
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However, the trial court then failed to classify additional, outstanding property, including four vehicles, inventory from the business, bank accounts, the business names and some personal property. The Appeals Court found that the trial court erred in doing this, because all property must be classified prior to an equitable division. Having not classified this property, the court also failed to assign a value to it as well. T.C.A §36-4-121(b)(1)(A) requires that all marital property be given a value determined as close in time to the finality of the divorce as possible. Because the appellate record did not contain sufficient information for a value to be determined, the trial court must go back and assign values for these items. Because of the less than complete classification and valuation, the trial court's division of property was also overturned and sent back to the trial judge for a new adjudication of all property issues.

Therefore, when going through a divorce trial in Tennessee, it is imperative that all items of marital property are classified, valued and then distributed to avoid additional costly litigation.


Tennessee Courts Have Limited Options When Dealing With Orders of Protection

February 18, 2011 by The McKellar Law Firm, PLLC

A Tennessee Court of Appeals decision issued earlier this week, Carr v. Allen (No. E2010-00817-COA-R3-CV), highlights the exceptionally small amount of discretion that our courts have when faced with Orders of Protection ("OPs"). This is important to be aware of because these types of orders affect more people than one might think. Although many parties to a divorce in Tennessee will also request an OP from the divorce court, they extend beyond the realm of just divorce.

Stop.jpgThe OP statute found at T.C.A. §36-3-601 authorizes these orders for a wide-ranging category of people: adults or minors who are current or former spouses; adults or minors who live together or who have lived together; adults or minors who are dating or who have dated or who have or had a sexual relationship (as used herein, "dating" and "dated" do not include fraternization between two (2) individuals in a business or social context); adults or minors related by blood or adoption; adults or minors who are related or were formerly related by marriage; or adult or minor children of a person in a relationship that is described above.

Upon receiving a petition for an OP, a Judge will either sign an ex parte order giving the petitioner a temporary order or simply set the case for hearing without any accompanying temporary order. Within fifteen (15) days of the issuance of an ex parte order, a hearing must be held. In the case of Carr v. Allen, the Court held a hearing after issuing an ex parte order and as a result issued a mutual restraining order and taxed the costs equally to both parties involved.

The Petitioner then appealed, alleging that the trial court was not allowed to issue such an order and erred in taxing the costs. The Court of Appeals agreed, explaining that trial courts have only two options under T.C.A. §36-3-605(a) & (b) - to dissolve the ex parte order or extend the order for a specific period not to exceed one year. The trial court's mutual restraining order, although seemingly a prudent option, is not allowed under the statute. The Court further explained that under T.C.A. §36-3-617, the costs of any OP proceeding, whether extended or dismissed, must be taxed to the Respondent and can never be assessed to the victim. Accordingly, the trial court's decision was vacated and sent back for additional adjudication consistent with the statute.


Military Retirement Not Subject to 50% Distribution Cap In Tennessee Divorces

February 16, 2011 by The McKellar Law Firm, PLLC

In a recent Tennessee Court of Appeals case titled Gonzales v. Gonzales, 2011 WL 221888, (Tenn.Ct.App. Jan. 24, 2011), the Court addressed an issue of first impression regarding military retirement and divorce. The question was whether the Uniformed Services Former Spouse Protection Act ("USFSPA") capped a Tennessee divorce court's ability to award retirement benefits, and the Court decided it did not.

Flags.jpgThe Court described how the USFSPA was passed by Congress as a response to the Supreme Court's decision in McCarty v. McCarty, 453 U.S 210 (1981). The McCarty case held that the relevant statutes in force at the time contained an implied pre-emption that disallowed state courts from applying state divorce laws to military retirement pay. Basically the USFSPA was an attempt to directly negate the McCarty decision and even went so far as to create a mechanism for direct payment of up to 50% of disposable military retirement earnings from the federal government to the receiving spouse.

However, since the USFSPA became effective, state courts have rendered decisions that are all across the board on this issue. For example, courts in Missouri and Idaho have held that only 50% of a spouse's military retirement is subject to distribution in the divorce. Other courts in Georgia and Minnesota allow for distribution that is over 50%, but those additional amounts cannot be paid directly from the government and must come from the actual spouse.
In finding that Tennessee divorce courts may allocate more than 50% of a spouse's military retirement, the Court relied heavily upon the military's own interpretation. The Court cited articles disseminated by the Defense Finance and Accounting Service, such as "Dividing Military Retried Pay 6 (2006)" and "Uniformed Services Former Spouse's Protection Act 2-3 (2010)." Both documents seem to assume that collection over 50% is allowed, just not through the direct payment system of the USFSPA.

Therefore, the underlying Martial Dissolution Agreement in Gonzalez that gave 100% of Husband's military retirement to his Wife was upheld, with 50% being paid through the USFSPA garnishment and the remainder having to be paid by the Husband directly to the Ex-Wife.


Grounds for Terminating Parental Rights in Tennessee

February 9, 2011 by The McKellar Law Firm, PLLC

When a child is born, its natural parents automatically have certain rights and responsibilities to that child. After a court terminates one's parental rights, the legal parent-child relationship is permanently severed, and the parent no longer has any rights or duties with regard to the child. There are several grounds a court can use to terminate parental rights in Tennessee. These grounds are set forth in Tennessee Code Annotated §§36-1-113(g)-(h).

Grounds include:
Abandonment
Substantial noncompliance with permanency plan
Persistence of conditions necessitating the removal of the child from the home after six months
Severe child abuse
Parent imprisoned under a sentence of ten or more years and child is under the age of eight
Parent convicted or found civilly liable for the wrongful death of the child's other parent
Mental incompetence

When termination is based on abandonment, noncompliance with permanency plan, or persistence of conditions, the Department of Children's Services must show by clear and convincing evidence that it made "reasonable efforts" to keep the family together. If defense counsel can effectively argue that the Department of Children's Services failed to provide reasonable efforts, the termination petition will be vacated.

When considering termination, a court must find by clear and convincing evidence that grounds for termination exist and that termination is in the best interest of the child. At the heart of these proceedings is the ultimate goal of ensuring that the child has a safe and stable environment to grow up in.


Understanding "Imputed Income" for Child Support Purposes in Tennessee

February 7, 2011 by The McKellar Law Firm, PLLC

calculator_3.jpgWhen litigation in Tennessee involves either a divorce with children or paternity and/or custody for parents who were never married, eventually the parties end up in a child support hearing. The purpose of this hearing is to determine who has an obligation to pay child support and what the amount will be. In Tennessee courts, the child support Referee, Magistrate or Judge (depending on the county) is obligated to rely upon the Tennessee Child Support Guidelines issued by the Department of Human Services, and found at Tenn. Comp. R. & Regs. §1240-2-4.

These Guidelines have a special provision for "imputing income." This allows courts to assign an income level to a party for the purpose of calculating child support, even though that party may not earn that amount in reality. There are three circumstances where a court is allowed to impute income: when the court finds the party is willfully and/or voluntarily underemployed or unemployed; when the party cannot produce any reliable evidence of income; and if the party has non-income producing substantial assets, the court may impute income determined by a reasonable rate of return on the assets.

To determine if an individual is voluntarily unemployed or underemployed, a variety of factors are used, including: past and current employment; education, training and ability; whether a party acted as a full-time caretaker for children while the parties lived together (which includes the length of time that party remained out of the workforce and age of the children); lifestyle and valuables owned; whether one cared for a handicapped or ill child or parent; whether the lack of work was due to additional training or education; and any other variable the tribunal believes to be relevant. Also, if a parent is in jail, a court may find the parent is voluntarily unemployed.
However, Tennessee courts have added some explanation for when such imputation is appropriate. For example, the Court in Owensby v. Davis, No. M2007-01262-COA-R3-JV, 2009 WL 3295123 (Tenn. Ct. App. Oct. 14, 2009) stated that imputation is not proper when it is found that a party works at a lower-paying job in good faith and for a rational reason. Further, the Court in Wilson v. Wilson, 43 S.W.3d 495 (Tenn.Ct.App.2000) explained that such a finding must result from the party intentionally reducing or terminating their income.

Tennessee courts may also impute income if the party does not produce any documentation of income (paystubs, taxes, etc.) and there is no other reliable evidence of that person's income. In that case, the amount of income assigned to the party is $37,589.00 per year for males and $29,300.00 per year for females.

Therefore, understanding the documentation needed for a child support hearing in Tennessee is very important to your case and could dramatically affect the outcome of the child support obligation.


Number of neglected children in Tennessee increases due to methamphetamine

February 4, 2011 by The McKellar Law Firm, PLLC

The number of children taken into Tennessee state protective custody due to meth increased substantially in 2010. In 2009, 288 children affected by meth were placed in protective custody. In 2010 that number jumped to 484. In most of these cases, the children were considered severely neglected.

According to the Knoxville News Sentinel, there was a 45% increase in the number of meth labs seized in 2010 compared to the year before. The new "shake and bake" method of manufacturing meth has caused more users to make their own meth, turning even more homes into potentially deadly meth labs at risk of fires or explosions.

Unfortunately, children are often the silent victims of their parents' crimes. Children who grow up in meth labs are exposed to toxic vapors and fumes, the long term effects of which are not yet known. These children no doubt are neglected. Parents using meth often become careless and violent and lose the ability to nurture their children. They often fall into a deep sleep lasting several days, leaving the children to fend for themselves. In addition, meth labs are usually booby trapped and adults in the home are usually heavily armed. Children living in these dangerous and chaotic conditions often develop emotional and mental health problems, not to mention the obvious safety concerns.

Whether parents are using or manufacturing meth, they are not competent caregivers and their children should be placed in protective custody. Many complain about the cost of having a child in protective custody, but considering the alternative, it is a necessary expense until the meth problem in Tennessee is under control.


Lengthy Marriage Not Required for Alimony Award in Tennessee Divorce

February 2, 2011 by The McKellar Law Firm, PLLC

Many people believe that for alimony to apply in Tennessee, your marriage must have lasted over ten years. Although the length of a marriage is one factor in the decision to award alimony, it is less of a rule of thumb than what is widely believed. Several types of alimony exist in Tennessee, including in solido, rehabilitative, in futuro and transitional. When a court considers any of these forms of support, a relatively short marriage is not necessarily a bar to such an award.

With all alimony awards, the divorce court must consider a variety of factors, including: the parties' earning capacity and resources; education and training; length of marriage; the parties' age and mental status; any physical limitations; needs of the children involved; separate assets; division of martial property as part of the divorce; standard of living; contributions to the marriage; relative fault; and other factors the court deems relevant. The most important consideration is always the need of the disadvantaged spouse. Once that is shown, the Court will next look to the obligor's ability to pay.

In a case from Gibson County, Tennessee,Crocker v. Crocker, 2006 WL 3613591 (Tenn. Ct. App. Dec. 11, 2006), the Court awarded alimony in futuro to the Wife even though the marriage had only lasted for five years, due to her status as disabled in light of the Husband's six-figure gross income and real property holdings. Further, the Tennessee Appeals Court in Montgomery v. Silberman, 2009 WL 4113669 (Tenn. Ct. App. Nov. 24, 2009), upheld an award of transitional alimony after a seven-year marriage, citing the high standard of living and relative fault as contributing factors. In another seven year marriage, described in Lassiter v. Lassiter, 2000 WL 1425235 (Tenn.Ct.App Sept. 28, 2000), the Court again upheld a decision giving the Wife alimony in futuro based upon her meager income from Social Security and her disability that prohibited her from entering the workforce, even though the Husband only showed gross income of approximately $1,400-$1,600 per month.

Therefore, depending upon the specific facts and circumstances in each case, the ten-year rule of thumb is not reliable. Tennessee divorce courts will consider a multitude of factors ranging from financial resources to child support payments. If you are contemplating divorce, alimony may be a consideration regardless of the length of your marriage.