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Termination of Parental Rights

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CaseIn Re Kaliyah S., et al.

Issue:  Must a court find “aggravated circumstances” exist before DCS is excused from making reasonable efforts at reunification?

Facts:  DCS petitioned to terminate the parental rights of Father based on abandonment by wanton disregard. The trial court granted the petition, and concluded that DCS was not required to make reasonable efforts to assist Father in reunification because DCS sufficiently proved the statutory ground of abandonment alleged against him. Father appealed.

Appellate Decision:  The intermediate court reversed and held that DCS was not relieved of the requirement of making reasonable efforts of reunification. Pursuant to T.C.A. § 37-1-166, such reasonable efforts are not required if a court determines that the parent has subjected the child to “aggravated circumstances,” which include “abandonment.” The court held that its previous decisions dictated that “a determination that aggravated circumstances exist must be made by a court of competent jurisdiction before DCS can be relieved of its duty to exercise reasonable efforts toward family preservation and reunification pursuant to the statute.” Thus, the trial court erred in ruling that DCS did not have to make reasonable efforts because DCS later proved abandonment at the termination hearing. A dissent noted conflicting case law and concluded that the General Assembly did not intend to require reunification attempts when aggravated circumstances exist.

Review Granted:  June 6, 2014.

Prediction:  Ben thinks the Supreme Court will reverse and reinstate termination for the reasons offered in the dissent. Although DCS risks uncertainty and having its petition denied if a court does not eventually find aggravating circumstances exist, it makes little sense to require that DCS had previously taken reasonable efforts if aggravating circumstances are eventually found.