Facts: While Father was incarcerated, the Department of Children’s Services (DCS) petitioned to terminate his parental rights on the statutory ground of abandonment by wanton disregard.
The trial court concluded DCS was not required to make reasonable efforts to assist Father regarding reunification with Child because the statutory ground of abandonment by wanton disregard had just been proven by clear and convincing evidence.
The trial court went on to find grounds for termination and that termination was in Child’s best interest. Father’s parental rights were terminated.
On Appeal: In a 2-1 decision, a divided Court of Appeals reversed the trial court.
The issue presented was whether the trial court erred by finding DCS was not required to make reasonable efforts to reunify Father with his Child prior to terminating his parental rights.
Under most circumstances where a child is placed in DCS’s custody, DCS is required to make “reasonable efforts” to assist the parent in matters of family preservation and reunification. This requires DCS to use its superior insight and training to assist parents in remedying the problems that led to DCS’s involvement.
“Reasonable efforts” are not required when a court has determined the parent subjected the child to “aggravating circumstances,” which is defined as “abandonment, abandonment of an infant, aggravated assault, aggravated kidnapping, especially aggravated kidnapping, aggravated child abuse and neglect, aggravated sexual exploitation of a minor, especially aggravated sexual exploitation of a minor, aggravated rape, rape, rape of a child, incest, or severe child abuse….”
“Abandonment” is defined to include, inter alia, when a parent has “engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child.”
After examining the contradictory holdings on this very issue by the Court of Appeals, this Court commented:
A plain reading of the statute demonstrates that reasonable efforts to preserve the family are required to be exercised by DCS both before the child is removed from a parent and after such removal. If aggravated circumstances are found to exist due to, inter alia, abandonment or abuse, DCS can be relieved of its duty to exercise reasonable efforts toward family reunification. A court of competent jurisdiction must make a determination that such aggravated circumstances exist, however, before DCS is relieved of its duty to exercise reasonable efforts to assist the parent….
[W]e conclude that the trial court erred in ruling that DCS did not have to make reasonable efforts to assist Father regarding reunification because DCS eventually proved, at the termination hearing, the allegation that Father abandoned [Child] by engaging in conduct exhibiting wanton disregard for her welfare prior to his incarceration.
In reversing the trial court, the Court noted (hint, hint) “the significance of this issue may sufficiently warrant review by the Tennessee Supreme Court.
Dissent: Judge Swiney dissented, writing:
The majority’s holding means that as to all aggravated circumstances, not just abandonment, DCS will be required to attempt to reunify the parent and the child unless there has been a prior determination by a court that such aggravated circumstances exist. In short, DCS will be required to prove the aggravated circumstances in some court hearing before it has to prove them in the termination proceeding….
I find nothing in the statutes requiring DCS to attempt to reunify the parent and the child in those aggravated circumstances which include not just abandonment but the entire list as detailed above such as aggravated sexual exploitation of a minor, aggravated rape, and incest, among others.
Given the language of the statute, there is no basis for treating the aggravated circumstances of abandonment differently from any of the other aggravated circumstances listed in that statute. If DCS is to be required to attempt to reunify a parent and a child if abandonment is alleged, then DCS also must attempt to reunify the parent and child when any of the other aggravated circumstances are alleged. The majority’s decision means that if DCS is going to rely upon any aggravated circumstances, DCS first must attempt to reunify the parent and the child at least up until the time a court of competent jurisdiction, likely the termination court itself in the termination hearing, makes the determination as to whether or not the aggravated circumstances have been proven by clear and convincing evidence. I do not believe it was the intent of the General Assembly to require DCS to attempt to reunify a child and a parent in those circumstances where aggravated circumstances serve as the basis for the termination.
Judge Swiney agreed with the majority that “this is an appropriate case for consideration by our Tennessee Supreme Court so as to resolve the conflict in the decisions of this Court on this issue.”
K.O.’s Comment: This case seems all but certain to be granted permission to appeal by the Tennessee Supreme Court.
If and when that happens, we’ll see whether pragmatism prevails, i.e., the Majority, or whether the strict construction of an inartfully drafted statute prevails, i.e., the Dissent. My money is on the Majority opinion being affirmed. If so, that will create an extra proceeding for DCS in its termination of parental rights cases.
The better solution would be for the legislature to remove “abandonment” from the list of “aggravating circumstances” that eliminates the requirement for DCS to make “reasonable efforts.” I don’t believe it belongs there.
UPDATE: As predicted, the Tennessee Supreme Court granted permission to appeal on June 6, 2014. Stay tuned.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.