Termination of Parental Rights Reversed in Sevierville Because DCS Failed to Make Reasonable Efforts: In re Josephine E.M.C.

Facts: Child was born out of wedlock to Mother and Father. After Mother was arrested while intoxicated and charged with child neglect, Child went into the protective custody of the Department of Children’s Services (DCS). A permanency plan was established and revised a few months later.

Eight months later, DCS petitioned to terminate Mother’s parental rights. The petition alleged four grounds for termination. First, it alleged abandonment by willful failure to support due to the fact that Mother had not provided child support for Child. Second, the petition alleged abandonment for failure to provide a suitable home, specifically alleging that Mother had made no reasonable effort to provide a suitable home for Child since she was removed from Mother’s care, in spite of reasonable efforts by DCS to assist her in establishing a suitable home. Next, the petition alleged that termination was proper due to Mother’s substantial noncompliance with the permanency plans. Finally, the petition alleged the existence of persistent conditions that in all reasonable probability would cause Child to be subjected to further abuse or neglect and that prevented the Child’s safe return to Mother’s care.

After a hearing, the trial court found that all four grounds for termination had been proven by clear and convincing evidence and that it was in Child’s best interest for termination to occur. Accordingly, the parental rights of Mother and Father were terminated.

Mother appealed.

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

Mother argued DCS failed to make reasonable efforts to reunify her with Child.

Under certain circumstances, DCS has a statutory obligation to use “reasonable efforts” to preserve, repair, and restore a parent-child relationship when DCS intervenes in family matters. Thus, when circumstances require that children be separated from their parents, DCS may be required to use reasonable efforts to make it possible for the child to return safely to the child’s home. In addition, when DCS commences a parental rights termination proceeding, it may be required to demonstrate that it has used reasonable efforts to reunify the family before a court will grant its termination petition.

DCS is not required to use reasonable efforts to reunite a parent with his or her child every time it removes a child from a parent’s custody. For example, reasonable efforts are not required if the trial court determines that certain statutorily defined “aggravated circumstances” exist per Tennessee Code Annotated § 37-1-166(g)(4)(A). The decision to pursue a termination of parental rights on the grounds of abandonment, persistence of conditions, and substantial noncompliance generally invokes DCS’s statutory duty to make reasonable efforts to facilitate the safe return of a child to the child’s home.

“Reasonable efforts” entail more than simply providing parents with a list of service providers and sending them on their way. The Department’s employees must use their superior insight and training to assist parents with the problems the Department has identified in the permanency plan, whether the parents ask for assistance or not. However, DCS does not have the sole obligation to remedy the conditions that required the removal of the children from their parents’ custody. When reunification of the family is a goal, the parents share responsibility for addressing the conditions that led to removal. Reunification is a two-way street, and the law does not require DCS to carry the entire burden of this goal. If parents desire the return of their children, they must also make reasonable and appropriate efforts to rehabilitate themselves and to remedy the conditions that required the Department to remove their children from their custody.

After reviewing the evidentiary record in great detail, the Court concluded:

Based on the totality of the circumstances in this case, we find that DCS failed to present clear and convincing evidence that it made reasonable efforts to assist Mother and to reunify her with [Child]. Basically, DCS supervised Mother’s visits with [Child]; it provided her with transportation to a single visit; it submitted the necessary requests for funding for Mother’s parenting classes, alcohol and drug assessment, and mental health assessment; it provided Mother with the names of providers for domestic violence classes; and it administered Mother’s drug screens. From the evidence before us, it appears that DCS failed to satisfy its responsibility of assisting Mother with transportation to and from visits when needed, despite her reports of transportation problems; it made no effort to help Mother obtain the intensive outpatient treatment recommended by the alcohol and drug assessment; it made no attempt to aid Mother with obtaining counseling or a medication management evaluation as recommended by the mental health assessment; it failed to assist Mother with the requirement that she apply for TennCare and submit her diagnoses for a determination of eligibility; it wholly failed to make an effort to assist Mother or even provide her with guidance concerning her unstable housing and her employment problem; and it made no attempt to communicate with the Georgia agency to request support services for Mother after she moved (aside from sending the request for the ICPC home study, which Mother specifically requested). In our view, there is no clear and convincing evidence that DCS exercised “reasonable care and diligence” to provide the services needed by Mother in order to assist her with accomplishing the requirements of the permanency plan.

Accordingly, the trial court’s judgment was reversed.

In re Josephine E.M.C. (Tennessee Court of Appeals, Eastern Section, April 17, 2014).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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