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When Can Reports of Abuse to DCS Be Disclosed in Tennessee?

December 20, 2013 by The McKellar Law Firm, PLLC

In an opinion (No. 13-93) handed down by the State of Tennessee Office of the Attorney General on November 27, 2013, Tennessee family law attorneys learn when and under what circumstances Department of Children's Services files can be disclosed to third parties in regards to a confidential complaint of child abuse and what these records can and/or cannot contain when being disclosed.

T.C.A. §§ 37-1-409, 37-1-612, and 37-5-107 cover access to confidential records. These records may be subpoenaed or subject to discovery mechanisms in a state civil court proceeding pursuant to exceptions in Tenn. Code Ann. § 37-1-612. Most of these exceptions involve divulging information to parties that need to provide services to the abused child. These would include, but are not limited to, a court, administrative board, and/or hearing officer. There is no provision that allows for disclosure of confidential information when the Department finds the allegations of abuse to be unfounded. However, per Tenn. Code Ann. § 37-1-413, making a false report is a Class E felony.

T.C.A. §37-5-107(b) sets forth the circumstances in which the Department has discretion to release confidential information while T.C.A. § 37-5-107(c)(7) provides that the Department may release records upon written request "to any person who is the subject of a report made to the department, or to the person's parent or legal guardian if the person is a minor and the parent or legal guardian is not the alleged perpetrator..." However, this provision does not permit the department to disclose the person making the report of abuse. T.C.A. § 37-1-409(a)(2) states specifically that a person making a report of abuse "shall be irrelevant to any civil proceeding and shall, therefore, not be subject to disclosure by any order of the court."

T.C.A. §§ 37-1-409(a)(2) and 37-1-612(g) provide that the name of a person reporting sexual abuse of a child may only be released "to employees of the department or other child protection team members responsible for child protective services, the abuse registry, or the appropriated district attorney general upon subpoena of the Tennessee bureau of investigation without written consent of the person reporting." Applying these statutes, the District Attorney General for Tennessee concluded that the office could obtain the name of a person reporting child abuse so long as they do so via a subpoena issued by the Tennessee Bureau of Investigation for the purposes of conducting a criminal investigation. Id. It further found that the District Attorney may also disclose the reporter's name to a grand jury for investigation and/or an indictment. Id. This disclosure is also permitted when there is an investigation and/or prosecution of a false report of child abuse in accordance with T.C.A. §§37-1-413, 37-1-409(b), and 37-1-612(b).

Once a person has legally gained access to these types of records, T.C.A. §§37-1-612(a) & (b) state that the records must be kept confidential and the person may only use the records for the specific purposes as outlined in the statute. Also, any indentifying information must be redacted from the records before they are disclosed.

While these laws are followed in Tennessee state courts, they do not necessarily protect confidentiality in federal courts in regards to civil rights actions. In the case of Farley v. Farley, 952 F. Supp. 1232 (M.D. Tenn. 1997) a plaintiff filed a complaint against the state averring she had been deprived of her civil rights as outlined in 42 U.S.C. § 1983. The plaintiff alleged the state took her children from her care without a hearing or legal authority. As part of the case, the plaintiff requested access to the Department's files and requested the ability to publish said files to third parties in order to conduct fact-witness interviews. Id. at 1234. In order to determine what weight the state statutes had on a federal civil rights action, the federal district court had to apply Fed. R. Evid. 501 to Tennessee's state laws that govern the confidentiality of the Department's records in order to determine if the files could be disclosed. Id. at 1235.

According to Farley in regards to Fed. R. Evid. 501 "...in civil actions arising under federal law, the presiding federal judge has greater liberty to fashion evidentiary privileges based upon 'reason and experience,' even when the pendent state law claims are incorporated in a cause of action." Id. at 1236. Over the years, most states have interpreted this to mean that in the interest of full disclosure most state laws must yield to federal interests in a matter. Id. at 1235-36. However, state laws may not be completely ignored when applying Fed. R. Evid. 501 to discovery issues in a federal matter. Id. at 1236. The court further found that Tennessee laws were clear in the assertion that the state takes the prevention of child abuse very seriously, and the scope of the state's laws were purposely broad, "prohibiting disclosure or use of any information for unauthorized purposes where directly or indirectly derived from DCS sources." 952 F. Supp. at 1238.

In Farley, the federal district court ultimately found that the state laws limiting disclosure of these types of files are secondary to federal interests in a civil rights matter. Therefore, disclosure of these files can be ordered produced and used in a federal civil rights action. However, the district court further opined that it had "no authority under state law to order production of DCS records and their dissemination in the discovery and trial phases of federal civil rights litigation. Rather, this authority comes from the broad discovery and admissibility mandates of federal laws and the prioritization of federal privileges doctrine in federal questions matters under Rule 501." Id. at 1242.

Therefore, per Tennessee statute, it is possible to for a person to gain access to DCS files in regards to a report of child abuse under the following circumstances:

• Upon written request by the abused or his or her parent or legal guardian if they are a minor, a person may gain access to DCS files so long as they are not the abuser. However, the files will have the name of the reporter redacted.
• Many offices, courts, and/or persons may have access to the files in order to provide services to the child pursuant to Tennessee statute.
• In a federal civil rights action, federal law trumps state law and can order disclosure of DCS files pursuant to Fed. R. Evid. 501.
• The District Attorney General for Tennessee may gain access to DCS files and the name of a reporter in furtherance of a criminal investigation for child abuse or a false report of child abuse upon a subpoena issued by the Tennessee Bureau of Investigation. Once obtained, the District Attorney General may also disclose this information to a grand jury in furtherance of an investigation and/or indictment.



Recent Case Explains Juvenile Court Custody Appeals Go To Appeals Court, Dependency and Neglect Cases are First Appealed to Circuit Court

March 20, 2013 by The McKellar Law Firm, PLLC

In the case of Clark v. Clark, No. E2012-00684-COA-R3-CV (Tenn. Ct. App. March 18, 2013), Tennessee family law attorneys learn that appeals of custody matters are heard by the Court of Appeals, but appeals of a dependency and neglect action must be first appealed to the Circuit Court.

Summary: Father voluntarily gave custody of the minor child to the Grandparents. Mother then filed seeking custody, but her requests were denied. The Juvenile Court had described the case as both a custody case and as a dependency and neglect matter at different points throughout the litigation. Mother appealed from Juvenile Court to Circuit Court, but her request was denied based on the holding that the case was a custody matter which should have therefore been appealed to the Court of Appeals instead of Circuit Court. Mother then appealed that ruling. The Court of Appeals held that the trial court was correct in concluding that the case was a custody matter and that the Circuit Court therefore had no jurisdiction to hear Mother's appeal, but her appeal should have been transferred to the Court of Appeals instead of being dismissed.

Facts: After establishing paternity, the parties entered an agreed order giving custody to the grandparents. Mother then filed a motion requesting a hearing, which was denied. At that hearing, the Juvenile Court stated that the action was a visitation and/or custody case, not dependency and neglect. Mother then filed several subsequent requests for custody and visitation, which were denied. However, in denying these subsequent motions, the Juvenile Court classified the action as a dependency and neglect case when the grandparents received custody, thus contradicting the earlier ruling. Mother then appealed to Circuit Court. The Circuit Court found the matter to be a custody case and therefore dismissed the appeal.

Analysis: The issue is whether the Circuit Court erred in denying Mother's appeal because the action sounded in custody rather than dependence and neglect. A case of dependency and neglect is directly appealable to Circuit Court, whereas a custody action is only appealable to the Court of Appeals. Here, the Juvenile Court first labeled this case custody and later labeled it dependence and neglect. The Appeals Court noted that "the nature and substance of a proceeding cannot be transformed simply by the filing of a petition with a different caption." Therefore, the Court looked to the nature of the action. From the record, there was no evidence that this was ever a dependency and neglect action. Instead, the only issue that ever came before the court was a custody arrangement. Therefore, the Circuit Court correctly held that the case sounded in custody. However, the Mother's appeal should not have been dismissed. The appeal should have been transferred to the Court of Appeals. Anytime a court is lacking jurisdiction to hear an appeal, the proper step is a transfer, not a dismissal. Therefore, the Circuit Court is directed to do so upon remand.



Selection of Primary Residential Parent, Transfer of Petitions, and Definition of "Material Change in Circumstances" in the Context of Custody Disputes

October 2, 2012 by The McKellar Law Firm, PLLC

In In re: Jada C.H., No. W2011-02542-COA-R3-JV (Tenn. Ct. App. Sept. 18, 2012), Tennessee divorce attorneys learn the manner in which courts select the primary residential parent, decide whether a petition should be transferred to a different county, and define a "material change in circumstances."

The facts of the case are as follows: Mother (who had three other children in addition to the child involved in this case) and Father had a child out of wedlock in 2008. Father filed a Petition for Custody of the minor child in 2009. The Special Judge dismissed the petition because the court had not confirmed his paternity. The Juvenile Court Judge later agreed to Father's request for a hearing. Father affixed a paternity test to his motion to alter or amend the prior dismissal and established that he had attempted to petition the Court "to enter an agreed order of paternity" on an earlier date. Father later filed a petition to preclude Mother's potential relocation to another state. Father also filed a Contempt petition for interference with his parenting time. In a judicial order, Mother and Father were given joint custody, but the court designated Father as primary residential parent. The case was continued, but a new order granted Father temporary parenting time and designated Mother as primary residential parent. The final custody hearing involved allegations of dependency and neglect, and the expert testified that efforts of reconciliation "w[ere] fruitless." The judge stated that Mother refused to call the child when the child was with Father, that three different men fathered her four children (some of whom have been in prison and none of whom want to be a father to their children), and that Mother had a criminal history. The judge did not believe Mother's testimony regarding sending her older children to school and noted that she was "secretive" and "hostile", that she was seriously dating another man, and that she had difficulties controlling the behavior of her oldest daughter. Further, Mother was opposed to cultivating a relationship between the child and her Father. The court gave both parties joint custody but awarded Father primary residential parent but failed to find any dependency and neglect on Mother's part.

Later, Mother alleged inappropriate sexual contact on the part of Father and his new wife and therefore filed a Petition for Dependency and Neglect. In accordance with Tenn. Code Ann. § 37-1-112, the Special Judge entered an order transferring the petition to Lake County, sua sponte and on Father's verbal motion. Father alleged that these "unfounded allegations of sexual abuse were detrimental to the child" in his Petition for Modification, Supervised Visitation, and Contempt. The Special Judge granted Father's petitions, resulting in supervised visitation for Mother.

The appellate court decided the following issues: "(1) whether the trial court erred in naming Father primary residential parent; (2) Mother's dependency and neglect petition should be transferred to Lake County; and (3) whether there was a material change in circumstances to justify modifying Mother's parenting time to supervised."

First, the appellate court asserted that Tenn. Code Ann. § 36-6-106 provides factors that guide courts in selecting the primary residential parent and in assessing the best interests of the child, including: "stability of the family unit", "character and behavior of any other person who resides in or frequents the home of a parent" and "each parents' 'willingness and ability... to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents." After reviewing the evidence from the hearing and in light of the above factors, the appellate court affirmed the trial court's designation of Father as the primary residential parent. Second, the appellate court reversed the trial court regarding the transfer of Mother's neglect and dependency petition to Lake County Juvenile Court since Tenn. Code Ann.§ 37-1-112 provides that the juvenile court must make a finding of fact prior to transferring the case to the county where the child resides. Since in this case the trial court made no findings of fact, the appellate court must "vacate... and remand."

Third, the court definitively found that the order awarding Mother unsupervised visitation "was final for purposes of modification." Modification of a final order requires "a material change in circumstances," and it occurs when: "(1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child's well-being in a meaningful way." In this case, the court found no material change in circumstances or "facts not in existence or reasonably foreseeable when the decision was made." Finally, the appellate court recommended that Father's Petition to Modify Mother's parenting time and Mother's Petition for Dependency and Neglect should be combined and potentially transferred to Lake County Juvenile Court (assuming the court provides adequate findings of fact).


Tennessee's Standard for Finding a Child "Dependent and Neglected"

March 31, 2011 by The McKellar Law Firm, PLLC

sad kid.jpgMany people think that the only reason for courts to get involved with parents' right to raise their children is when there is obvious physical abuse, sexual abuse, or neglect. However, the standard for dependence and neglect includes much more than that. Once a child is considered dependent and neglected, a court can determine custody arrangements that would be in the best interest of the child.

In Tennessee, a dependent and neglected child includes the following:
1. A child without a parent or guardian;
2. A child whose parent, guardian, or person the child lives with is unfit to care for the child due to cruelty, mental incapacity, immorality or depravity;
3. A child who is under improper care or supervision by any person, agency, or organization;
4. A child who is unlawfully kept out of school;
5. A child whose parent or guardian neglects or refuses to provide necessary medical care for the child;
6. A child, who because of a lack of supervision, is found anywhere that is unlawful;
7. Any child who is under improper care which would lead to injury or would endanger the morals or health of the child or others;
8. A child who is suffering from abuse or neglect;
9. A child who has been allowed to engage in prostitution or obscene photographing and whose parent fails to protect the child from further activities;
10. A child willfully left in the sole financial and physical care of a relative for more than 18 months, and the removal of the child from the care of the relative would result in substantial harm to the child.
Tennessee Code Annotated §37-1-102(b)(12)

While abuse and neglect is included in the factors for finding dependency and neglect, it is certainly not the only factor. Parents should be aware of the standard for finding a child dependent and neglected, and ensure that they are providing adequate care for their children.


Reporting Child Abuse in Tennessee

March 17, 2011 by The McKellar Law Firm, PLLC

cryingkid.bmpIn Tennessee, all people are required to report suspicions of child abuse, neglect, or exploitation. You can report child abuse in Tennessee though the Department of Children's Services website, or by calling 1-877-237-0004. Once the abuse is reported, the Department can conduct an investigation and suggest appropriate services for the home to ensure the protection of the child.

Child abuse can be physical, emotional, verbal, or sexual. Often children who are abused exhibit a drastic change in behavior, loss of appetite, or declining performance in school. In addition, the children often have repeated injuries without explanation, exhibit sexual behavior inappropriate for their age, and have trouble sleeping.

Parents who abuse their children often have a history of alcohol or drug abuse, were abused as children, have a disorganized home life, and are isolated from society and have no close friends. While parents are not always the perpetrators of child abuse, 85% of perpetrators of child abuse are parents or relatives, so if you notice parents/relatives of children exhibiting the above behavior, it is important to take notice and recognize that their children could be at risk.

If you suspect that a child is being abused or neglected, you must report it to the appropriate authority. Failing to report child abuse is a violation of the law, and you can be held accountable for failing to report it.



Tennessee Fourth in the Nation in Child Abuse Deaths

March 11, 2011 by The McKellar Law Firm, PLLC

cryingbaby.jpgAccording to The Commercial Appeal, Tennessee ranked number four in the nation for the number of child abuse related deaths. Florida ranked number one, followed by Nebraska and New Mexico. Most of these deaths were very small children, usually under the age of 4.

Those responsible for child abuse related deaths usually claim it was stress related, saying the child wouldn't stop crying or was disobedient, and the parent lost his/her temper and struck the child. Factors that may lead to child abuse include alcohol and drug use, teen pregnancy, and mental illness.

According to The National Coalition to End Child Abuse Deaths, approximately 2,500 children die each year as a result of child abuse. The Coalition is composed of prosecutors, child advocates, and social workers who strive to raise awareness of child abuse deaths and increase funding for Child Protective Services workers who investigate child abuse.

With never-ending budget cuts it is harder than ever for the Department of Children's Services and its Child Protective Services division to handle the rising number of children affected by child abuse. However, these departments are crucial in preventing child abuse which too often can lead to the death of a child. In Tennessee, you are required to report suspected child abuse. Without these reports, the Department will have no way of knowing when a child needs protection.


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.