CHILD DEPENDENCY BENCHBOOK - tncourts.gov

1 ICHILD DEPENDENCY BENCHBOOK Sixth Edition 2008 William M. Barker Elizabeth A. Sykes Chief Justice Director Tennessee Supreme Court Administrative Office of the Courts Leslie Barrett Kinkead, , Coordinator Nyasha N. Justice, , Court Improvement Attorney Tennessee Court Improvement Program Produced under the auspices of the Tennessee Court Improvement Program of the Tennessee Supreme Court, Administrative Office of the Courts, and the provisions of Section 13712 of Subchapter C, Part I of the Omnibus Budget Reconciliation Act of 1993: Grants for State Courts ii CHILD DEPENDENCY BENCHBOOK Sixth Edition 2008 Edited by: Leslie Barrett Kinkead, , Coordinator Nyasha N.

2 Justice, , Court Improvement Attorney Stacy L. Miller, , Former Court Improvement Specialist Mary Rose Zingale, , Former Court Improvement Specialist Cindy Wood MacLean, , Former Coordinator Tennessee Court Improvement Program Produced under the auspices of the Tennessee Court Improvement Program of the Tennessee Supreme Court, Administrative Office of the Courts, and the provisions of Section 13712 of Subchapter C, Part I of the Omnibus Budget Reconciliation Act of 1993: Grants for State Courts. The Tennessee Supreme Court, Administrative Office of the Courts, and the Court Improvement Program are grateful to the following persons and entities for their contributions to the first edition of this manual: Karen Dennis, Jane Jarvis, David Kozlowski, Jeanah McClure, Janet Richards, Andrew Shookhoff, Mary Walker, and the Tennessee Association of Legal Services.

3 For more information about the Court Improvement Program, contact: Leslie Barrett Kinkead, Court Improvement Coordinator 511 Union Street, Suite 600, Nashville, TN 37219 Phone: (615) 741-2687; FAX: (615) 253-3423 iCHILD DEPENDENCY BENCHBOOK TABLE OF CONTENTS PART I: PRACTICE AND PROCEDURE The Right to Representation in Juvenile DEPENDENCY and Termination of Parental rights DEPENDENCY Proceedings: Causes of Action, Jurisdiction and Initiation of DEPENDENCY Cases: Petition; Summons; Referral to Emergency Reasonable Efforts Inquiry; Reasonable Efforts Requirement; Exceptions to Reasonable Efforts Preliminary Hearing Following Emergency Discovery ..28 Assessment, Evaluation, and Treatment of a CHILD Pending The Adjudicatory The Dispositional Review of Decisions of the Referee in DEPENDENCY The Permanency Permanency The Permanency Petitions to Modify or Vacate Appeal to Circuit Court.

4 58 Termination of Parental rights Proceedings: Causes of Action, Jurisdiction and Initiation of Termination of Parental rights Proceedings ..67 Pretrial Procedures in Termination of Parental rights ; Discovery; Authorization to Order Examination of CHILD and/or Conduct of Termination of Parental rights Appeals in Termination of Parental rights Cases; Procedures for Expediting Appeals ..72 PART II: CASE LAW (Current through December, 2005) Jurisdiction of Juvenile Court in DEPENDENCY and Termination of Parental rights Fundamental Liberty Interests of Evidentiary and Procedural Legal Grounds for Finding of DEPENDENCY and Termination of Parental PART III: RESOURCES Department of Children s Services Flexible Department of Children s Services Health Unit Department Of Children s Services Independent Living Department Of Children s Services Education Specialists/Education Summary Of The Brian A.

5 Brian A. Implementation Interstate Compact on the Placement of Children (ICPC) Regulation Power of Attorney for Care of a Minor CHILD PART IV: SAMPLE FORMS Sample Motions and Orders for Compensation and Reimbursement of Appointed Counsel Order Appointing Counsel for Indigent Party in DEPENDENCY or Termination of Parental rights Proceeding ..1 Order Appointing Guardian ad Litem and Allowing Discovery ..2 Uniform Affidavit of Indigency ..3 Order Authorizing Reimbursement for Costs of Trial Transcript ..5 Order Declaring Case Complex and/or Extended ..6 iiiSample Motions and Orders for DEPENDENCY Litigation (cont.) Protective Custody Order ..7 Bench Order Custody to DCS ..9 Adjudicatory/Dispositional Order ..12 Permanency Hearing Order ..15 Permanency Hearing Order Adoption Status Hearing ..20 Direct Referral For Judicial Review By Foster Care Review ICPC Priority Placement Notice of Appeal to Circuit Court for De Novo Hearing Pursuant to ' 37-1-159.

6 24 Order for Publication ..25 Miscellaneous Order Establishing Trust for the Benefit of The Minor Order To Encroach ..27 Power of Attorney for Care of a Minor CHILD ..28 Revocation of Power of Attorney for Care of a Minor PART V: APPENDICES Checklists for DEPENDENCY Proceedings (Adopted from the Resource Guidelines) Emergency Removal Hearing ..1 Ratification of the Permanency Adjudicatory Hearing ..3 Dispositional Hearing ..4 Periodic Review Hearing ..5 Permanency Termination of Parental rights Hearing ..7 Glossary of Selected Reasonable Efforts Checklist ..15 Table of Required Hearings in CHILD DEPENDENCY Timeline of Major Federal CHILD Abuse/Neglect Policy CHILD DEPENDENCY BENCHBOOK Part I: Practice and Procedure i PART I: PRACTICE AND PROCEDURE Contents Section Page The Right to Representation in Juvenile DEPENDENCY and Termination of Parental rights The Parents Right to Counsel.

7 1 The CHILD s Right to Representation ..3 Tennessee Supreme Court Rule 40: Guidelines for Guardians Ad Compensation for Counsel and Guardian ad Litem ..8 Reimbursement of Expenses Incident to Representation ..9 Appointment of Court Appointed Special Advocate ..13 DEPENDENCY Proceedings: Causes of Action, Jurisdiction and DEPENDENCY Causes of Action ..14 Jurisdiction in DEPENDENCY Venue in DEPENDENCY Proceedings; Transfer Between Initiation of DEPENDENCY Cases: Petition; Summons; Referral to The Filing of a Petition; Who May File; Contents ..17 Requirement of Referral in Cases Where DCS is Not Petitioner ..18 Issuance of Service of Summons; Who May Serve ..19 waiver of Service of Summons ..19 Special Summons Endorsements: Requiring the CHILD to Be Taken Into Custody and Brought to Court.

8 19 Attachment Option When Summons Ineffectual ..20 Service by Publication: Diligent Search Requirement; Provisional Hearing Option; Interlocutory Orders ..20 Emergency Conditions Justifying Emergency Removal ..21 Persons Authorized to Make Emergency Notice Requirements Following Emergency Removal: Petition Requirement Setting of Preliminary Hearing ..22 Reasonable Efforts Inquiry; Reasonable Efforts Requirement; Exceptions to Reasonable Efforts Reasonable Efforts Defined ..23 CHILD DEPENDENCY BENCHBOOK Part I: Practice and Procedure ii Reasonable Efforts Exceptions To Reasonable Efforts Requirements ..24 Reasonable Efforts in the Context of the Permanency Legal Consequences of Failure to Make Reasonable Preliminary Hearing Following Emergency Time Limit for Preliminary Hearing.

9 26 Notice of Preliminary Hearing ..26 waiver of Preliminary Hearing; Revocation of Conduct of the Preliminary Hearing ..26 Required Findings and Orders at Preliminary Hearing ..26 Permanency Plan Requirements if CHILD Remains in DCS Custody ..27 Assessment, Evaluation, and Treatment of a CHILD Pending Department of Children s Services Assessment ..29 Court Ordered Medical Examination and Treatment ..29 Court Ordered Evaluation for Mental Illness or Mental Predispositional Evaluation and Assessment with CHILD in Custody of DCS ..30 Predispositional Report/Social History ..30 Evidentiary Issues Regarding Court Ordered Assessments and The Adjudicatory Time Limits for Scheduling of Adjudicatory Conduct of Adjudicatory Hearing.

10 32 Beginning the Adjudicatory Hearing ..32 Hearsay Exceptions ..33 Standard of Proof at the Adjudicatory Required Findings of Fact ..35 Setting the Case for Dispositional Hearing; Time Limits; Predispositional Interim Orders; CHILD The Dispositional Evidence Admissible at the Dispositional Hearing ..37 Dispositional Options ..38 Reasonable Efforts Findings at the Dispositional Hearing; Provisions for CHILD Support for CHILD in State Custody ..38 Special Procedures for Return of Custody Where Brutality or Abuse Authority of Department of Children s Services Over Placement of Children in Custody; Procedures For Return of CHILD to Home By Department ..39 advisement of Right to CHILD DEPENDENCY BENCHBOOK Part I: Practice and Procedure Review of Decisions of the Referee in DEPENDENCY Appealable Manner of Appeal to Juvenile Judge; Time Limits.