Tennessee Supreme Court Says DCS Has No Duty to Make “Reasonable Efforts” at Reunification in Termination of Parental Rights Cases: In re Kaliyah S.

Knoxville family law attorneys
Are these DCS case workers and trial lawyers after this opinion was released?

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 for the child’s welfare.

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 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.

In a 2-1 decision, a divided Court of Appeals reversed the trial court.

The Tennessee Supreme Court granted permission to appeal.

On Appeal: The Court of Appeals was reversed.

In the courts below, the issue was when DCS was relieved of its duty to make reasonable efforts to reunify families.

On appeal to the Tennessee Supreme Court, however, DCS argued for the first time that Tennessee Code § 37-1-166(g) — which requires DCS to make reasonable efforts to unify the family after a child is removed from the home based on dependency and neglect — is generally not applicable in proceedings to terminate parental rights.

The Tennessee Supreme Court exercised its discretion to address the larger issue of whether DCS is required to prove that it made reasonable efforts under Tennessee Code § 37-1-166 as a precondition to termination of parental rights.

The Supreme Court begins its analysis with a detailed history of the law on termination of parental rights in Tennessee and the statutory references to “reasonable efforts” in both dependency and neglect and termination of parental rights matters.

The Supreme Court concludes that Tennessee Code § 37-1-166(g) imposes a duty on DCS in dependency and neglect proceedings to make reasonable efforts to prevent the removal of children from their homes and to reunify parents and children if removal becomes necessary. This statute does not impose a duty on DCS in termination of parental rights matters.

The only statutory reference to “reasonable efforts” in termination of parental rights matters comes from Tennessee Code § 36-1-113.

Tennessee Code § 36-1-113(c) provides that, in order to obtain termination of the parental rights of a biological parent, a petitioner must prove two elements by clear and convincing evidence: (1) at least one of the listed grounds for termination, and (2) that termination of parental rights is in the child’s best interest.

Tennessee Code §  36-1-113 does not include DCS’s reasonable efforts to reunify as a required element to be established along with grounds and best interest. Rather, reasonable efforts is referenced in one of the factors to be weighed in determining whether termination of parental rights is in the child’s best interest. Specifically, § 36-1-113(i)(2) directs a court to consider whether the parent “has failed to effect a lasting adjustment after reasonable efforts” have been made.

Apart from the reference in one of the best-interest factors, the phrase “reasonable efforts” appears only tangentially in § 36-1-113. The definition of one ground for termination, abandonment by failure to provide a suitable home, mentions reasonable efforts at §§ 36-1-113(g)(l) and -102(1)(A)(ii). In addition, § 36-1-113(h)(2)(C) provides that DCS may elect not to file a petition to terminate parental rights if it has not yet made reasonable efforts to reunify the parent and child. Section 36-1-113 does not otherwise refer to DCS’s obligation to make reasonable efforts to reunify the child with the parent.

As mentioned above, Tennessee Code § 37-1-166(g)(1), found in the dependency and neglect statutes, defines “reasonable efforts” and outlines DCS’s obligation to make reasonable efforts to assist the biological parent in order to reunify the parent with the child. Section 37-1-166 does not explicitly reference the termination statute.

After reviewing the record, the Supreme Court reasoned:

[N]othing in the plain language of Section 36-1-113 indicates that a petitioner in a proceeding to terminate parental rights is in fact required to put on proof of DCS’s reasonable efforts to assist the respondent parent. Rather, the language of the statute indicates only that the trial court is to consider DCS’s reasonable efforts, or the lack thereof, in determining whether termination of the parent’s rights is in the child’s best interest. Likewise, Section 37-1-166, which details DCS’s obligation to make reasonable efforts in a dependency and neglect proceeding, contains no language indicating that proof of reasonable efforts is required in a termination proceeding. In cases in which DCS removes a child from the home, Section 37-1-166 generally directs DCS to make reasonable efforts to reunify the parent with the child unless DCS can show that it is not required to do so. Nothing in Section 37-1-166, however, addresses proof on reasonable efforts in a termination proceeding….

Section 37-1-166 does not apply to “any proceeding,” but rather it applies only in “any proceeding of a juvenile court.” While the juvenile court has exclusive original jurisdiction over dependency and neglect proceedings, circuit and chancery courts have concurrent jurisdiction with the juvenile court in actions to terminate parental rights. Limiting the application of Section 37-1-166 to juvenile court actions indicates legislative intent that it apply only in dependency and neglect actions….

In addition, Section 36-1-113 does not include reasonable efforts in the grounds for termination or otherwise require proof of reasonable efforts as a precondition to termination….

The Legislature’s choice to include reasonable efforts only in the factors to be considered in the best-interest analysis evidences an intent not to make proof of reasonable efforts a precondition to termination of parental rights. This is so even if reasonable efforts to reunify were required in the related dependency and neglect proceedings. We read Sections 37-1-166 and 36-1-113 in pari materia, but we must also respect the clear language of each provision. Accordingly, we overrule the holding [of a previous case to the extent it] required DCS to prove by clear and convincing evidence, as a precondition to obtaining termination of parental rights, that it made reasonable efforts to reunify the family.

In addition to its reliance on the plain language of the statutory scheme, [DCS] argues that it is anomalous to interpret Section 36-1-113 to require DCS to prove reasonable efforts by clear and convincing evidence, but not require similar proof from a private party who files a petition for termination of parental rights, because the same statute applies regardless of whether DCS is the petitioner. We agree. Nothing in the statutes or the legislative history indicates that the Legislature intended to create an additional barrier to permanency for children in termination cases in which DCS is the petitioner. This is further indication that the Legislature did not intend for Section 36-1-113 to be interpreted to require proof of reasonable efforts in a termination proceeding.

For these reasons, we hold that, in a termination proceeding, the extent of DCS’s efforts to reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable efforts is not a precondition to termination of the parental rights of the respondent parent. As with other factual findings made in connection with the best-interest analysis, reasonable efforts must be proven by a preponderance of the evidence, not by clear and convincing evidence. After making the underlying factual findings, the trial court should then consider the combined weight of those facts to determine whether they amount to clear and convincing evidence that termination is in the child’s best interest….

In a given parental termination case, the best-interest factor regarding DCS’s efforts to assist the respondent parent may be determinative, i.e., DCS’s lack of reasonable efforts may weigh heavily enough to persuade the trial court that termination of the parent’s rights is not in the best interest of the subject child. Nevertheless, the extent of DCS’s efforts remains a factor to be weighed in the best-interest analysis, not an essential element that must be proven in order to terminate the parental rights of the respondent parent.

Accordingly, the Tennessee Supreme Court reinstated the trial court’s termination of Father’s parental rights.

K.O.’s Comment: (1) This case represents a substantial change in the law governing termination of parental rights cases initiated by DCS. It is a must-read for lawyers who handle termination of parental rights cases. DCS trial attorneys should raise a glass in honor of the lawyers who represented the Department in this appeal.

(2) The legal analysis for statutory construction upon which this case relies is based on the fallacy that the Legislature has some coherent vision for how these often inter-connected statutes should work. It doesn’t.

(3) Lawyers and judges may understandably be confused by the differing standards of proof inherent in the best-interest analysis, e.g., factual findings regarding reasonable efforts must be proven by a preponderance of the evidence while the “combined weight of those facts” are analyzed under the clear and convincing evidence standard.

(4) This opinion is the first family law opinion written by Justice Kirby since her elevation to the Tennessee Supreme Court. She remains the reigning “World’s Most Awesome Judge” and has been for two years running. Two years is a long time to hold such a prestigious honor. It is time for the other appellate judges to step up their game.

In re Kaliyah S. (Tennessee Supreme Court, January 22, 2015).

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.

2 thoughts on “Tennessee Supreme Court Says DCS Has No Duty to Make “Reasonable Efforts” at Reunification in Termination of Parental Rights Cases: In re Kaliyah S.

  1. So the question becomes did 37-1-166 really mean it when it says “SHALL” make reasonable efforts? If so, how is that enforced? For the past 15 years parents attorneys could enforce it at termination and DCS was aware of this and thus urged its workers to document their reasonable efforts. What would happen if DCS got an adjudication and then showed up at the next review and announced they weren’t going to make reasonable efforts in violation of 37-1-166? I guess conceivably the parent’s attorney could point to the statute’s language “prior to ordering a child committed to or RETAINED within the custody of the department” and argue that the court HAS to return the child to the parent regardless of what the parent has or has not done to remedy the conditions leading to removal. I do not know of any juvenile court judge that would actually do that. Instead the judge might have a few stern words for DCS but they would leave the child where the child was and set the case for further review three months or so down the road. And how would parent’s attorney appeal such an order as it is NOT a final order? Perhaps the most striking statement the Supremes made in deciding not to read 37-1-166 as not requiring that reasonable efforts be a part of the State’s case at termination was their statement that the purpose of the statute was merely to get money from the feds. While politicians are certainly motivated by a lot of things this totally ignores the purpose of the federal statute it was mirroring (Namely to protect the sanctity of families.) and acts as if a statute can only have one legislative purpose. I made that argument and yet they totally ignored it. I used to think I was the cynical one….

    Oh, and by the way, what about the notice requirement? 37-2-403 requires the department to give notice to parents of the definition and possible consequences of abandonment. Several cases (In re B.L.C. for example which was authored by the chief justice) have held that if the State alleges abandonment as a ground for termination then AT TERMINATION the State must prove compliance with 37-2-403. And yet this notice requirement is not mentioned at all in 36-1-113 or even in the definition of abandonment found at 36-1-102. So if the rational of In re Kaliyah holds then because it is not mentioned in 36-1-113 the State does NOT have to prove it at termination. And if you think the chief justice will not overturn herself think again. In re BLC was one of the main cases I cited in both of my briefs and at oral argument.

    The attorney who argued the case at the Supremes for the State was Alex Rieger and he did do a good job although I think the Supremes got it wrong.

    I would love to here any comments on the points above.

    Thanks
    The Man Who Killed Reasonable Efforts

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