Posted by: koherston | December 30, 2013

Change of Custody Reversed in Memphis Dependency and Neglect Case: In re K.A.P.

Facts: Never-married Mother and Father have one Child, who resided primarily with Mother for approximately the first five years of his life. In February 2011, Father petitioned the Juvenile Court to declare Child dependent and neglected in Mother’s care. The petition included an allegation that Mother left Child with Father for seven weeks, during which Mother had no contact with Father or Child and Father did not know of Mother’s whereabouts. Father asked the Juvenile Court to designate him as Child’s primary residential parent.

The Juvenile Court ordered both parents to undergo drug testing. Mother’s drug test was positive for marijuana.

After a hearing, the Juvenile Court ruled that Mother was unfit “in that [Mother] uses marijuana in violation of the law.” The Juvenile Court sustained Father’s dependency and neglect petition and placed Child in Father’s custody.

Mother appealed to the trial court, where a hearing was held in December 2011. The trial court found that Mother admitted using marijuana one time per week while Child was in her custody and that the trial in Juvenile Court was “a wake-up call to [Mother].” The trial court further found that Mother had negative drug screens each week since the initial drug test ordered by Juvenile Court. Nonetheless, the trial court found Child to be dependent and neglected “due to [Mother] having a drug test that was positive for marijuana and [Mother] admitting that she had used marijuana when Child was in her legal custody.”

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

The Juvenile Court has “exclusive original jurisdiction” to determine whether a child is dependent and neglected. An allegation that a child is dependent and neglected must be established by clear and convincing evidence. For evidence to meet the clear and convincing standard, it must eliminate any serious or substantial doubt about the correctness of the conclusions to be drawn from the evidence. The evidence should produce a firm belief or conviction as to the truth of the allegations sought to be established. Clear and convincing evidence should demonstrate that the truth of the facts asserted is “highly probable” as opposed to merely “more probable” than not.

Parents have a duty to provide, and children have a corresponding right to be provided with, a safe environment, free from abuse and neglect. The primary purpose of dependency and neglect proceedings is to provide for the care and protection of children whose parents are unable or unwilling to care for them. If a child is deemed dependent and neglected, the child is often removed from the custody of the parent who is responsible for the dependency or neglect.

After reviewing the record, the Court reasoned:

The statute does not permit a court to hold that any bad behavior whatsoever by a parent must inevitably lead to a finding that the child is dependent and neglected. The term “dependent and neglected child” is a defined term under the statute, so the [Trial] Court below was obliged to ascertain — and state — the subsection or subsections of the statute that it deemed applicable to the facts as found by the [Trial] Court. This was not done….

In this case, the [Trial] Court found only that, at some point prior to the Juvenile Court trial and for an undetermined period of time, Mother engaged in once-per-week marijuana use, and that Mother’s drug test in the September 2011 Juvenile Court proceeding was positive for marijuana. The [Trial] Court also indicated that Mother responded favorably to the Juvenile Court’s “wake-up call” and made the factual finding there was no evidence of illegal drug use since the Juvenile Court trial….

We must conclude that the fact that Mother at some point in the past engaged in once-per-week marijuana use and had a single positive drug test in September 2011, without more, does not amount to clear and convincing evidence that Mother is “unfit to properly care for [Son]” or that Son is dependent and neglected under any subsection in Section 37-1-102(b)(12).

Accordingly, the holding that Child was dependent and neglected was reversed.

In re K.A.P. (Tennessee Court of Appeals, Western Section, December 17, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.


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