News

Opinions Differ on Jailing Domestic Violence Victims

Prosecutors and defense attorneys differ on the wisdom of jailing domestic violence victims who fail to appear in court. That question is being played out in the case of a Johnson City woman who could not get a ride to court to testify against her abusive spouse. She was jailed and said she was beaten there, the Johnson City Press reports.

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Read About Estates, Torts, Family Law … and Dodge Ball?

Murfreesboro lawyer Josh McCreary examines last wills and testaments, writing that "in the wake of the 2015 Court of Appeals opinion in In Re: Estate of Morris, the Tennessee legislature has stepped in and amended Tenn. Code Ann. §32-1-104 to lessen the formalities of Wills executed before July 1, 2016." Read in the September Tennessee Bar Journal what this will mean for estate practice. Columnist John Day writes about the two times in the past five years that the statute of limitations applicable to personal injury claims filed on behalf of persons with mental impairments has been changed. Columnists Marlene Eskind Moses and Manuel Benjamin Russ look into finding and defining income available for child support and alimony, and humor columnist Bill Haltom writes about his dubious experiences with junior high sports, particularly Dodge Ball.

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House Approves Rights for Sexual Assault Survivors

The U.S. House of Representatives voted unanimously Tuesday for legislation outlining a federal bill of rights for survivors of sexual assault. The legislation would ensure that survivors in federal criminal cases have a right to a sexual assault evidence collection kit, to be told of the results and to be notified in writing before the kit is destroyed. Lawmakers said they are troubled by the number of untested rape kits that remain in the country, despite efforts to reduce a national backlog. The bill now heads to the Senate, where similar legislation was approved this spring. WRCB-TV has the Associated Press story.

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ETSU, Family Justice Center Host Rape Education Event

East Tennessee State University and the Johnson City Family Justice Center are hosting a rape education and prevention conference Sept. 15 at the Millennium Center. Registration will begin at 8 a.m. with the program following from 9 a.m. to 5 p.m. The conference is designed to eliminate misconceptions about rape and foster better care for victims and survivors. Representatives from the Tennessee Coalition to End Domestic and Sexual Violence, First Judicial District Attorney General’s office and the Johnson City Police will educate attendees on prevention, response, advocacy and treatment for assault victims. The Erwin Record has details.

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Tennessee CASA to Recognize Attorney, State Rep.

The 2016 Tennessee CASA Annual Meeting will be held Sept. 20 from 10 to 11:30 a.m. at the Nashville Public Library Downtown Branch. The Light of Hope Award will be given to Commissioner Bonnie Hommrick of the state Department of Children’s Services, the Champion for Children Award will be given to Nashville attorney Meagan Frazier with Smith Harris Carr, and the President’s Award will be presented to State Rep. Charles Sargent, R-Franklin. For more information and to register before the Sept. 13 deadline, visit CASA’s event page.

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Court Solicits Comments on 2017 Rules Package

The Tennessee Supreme Court today published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence. Proposals include changing the place for filing a notice of appeal to the appellate clerk’s office, requiring payment of fees and taxes to the appellate court clerk at the time of initiation of an appeal, and changes to the Juvenile, Criminal and Evidence rules. Six TBA sections – Appellate Practice, Litigation, Tort and Insurance Law, Criminal Justice, Family Law and Juvenile and Children’s Law – will be asked to review the recommendations and propose comments on behalf of the association. Comments on the proposals are due Nov. 23.

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New Family Law CLE Videos Online

If you missed the TBA Family Law Section's annual family law forum, the sessions are now available online. Speakers focused on legislative updates, criminal implications in divorce and using digital evidence to win your case.

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Court Issues Order Amending Rule 40A

The Tennessee Supreme Court today issued an order amending Rule 40A of the Rules of the Supreme Court to remove “contested private guardianship cases” from the definition of “custody proceeding.” The court said that including guardianship cases in the definition is an apparent conflict with Rule 40A(6)(b) and Tennessee code section 34-1-107(d)(1). The court solicited comments on this proposed change between May 16 and July 15 but reports that it did not receive any comments.

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Judge Celebrates 1st Graduate of Trafficking Court

Davidson County’s sex and human trafficking court celebrated its first graduate this week, the Tennessean reports. For years, the woman was trafficked, sold to others for sex by her husband. She used drugs, leading to an addiction, and was stabbed several times during an attack. Instead of languishing in jail, she became one of the first participants in the Cherished H.E.A.R.T.S. intervention court, which provides resources and treatment to women who are arrested for crimes such as prostitution or drug offenses. A dozen women currently are participating in the program, which is overseen by Judge Casey Moreland.

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New Fee Could Fund Advocacy Centers

Two organizations helping victims of abuse may get additional financial assistance through a new fee assessed by the courts, the Tullahoma News reports. A Coffee County committee recently approved a $45 victims’ assistance fee to benefit the local Children’s Advocacy Center and Haven of Hope. The proposed fee would be collected from individuals convicted of or entering a plea of guilty to a crime that imposes a fine of over $500 and possible imprisonment. The county would keep $3 while the rest would be split between the groups. The full commission will vote on the issue in September.

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Celebration of Life Set for Johnson City Lawyer

The family and friends of Johnson City attorney Janie Lindamood will honor her memory on Sept. 11 at 4 p.m. at the Barn at Boone Falls, 1770 Old Gray Station Rd., the Washington County Bar Association announced today. Visitors are asked to use the entrance at 110 Kim Dr. The celebration will be casual and include live entertainment, food and beverages. Lindamood died Aug. 13 at the age of 65. In lieu of flowers, donations may be made to Coalition for Kids in Johnson City, which is part of the GoFund Me account set up in her name.

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Johnson City Lawyer Remembered for Mentoring Others

Johnson City attorney Janie Lindamood died Aug. 13 at the age of 65. She is being remembered by colleagues as a fierce advocate for the children she represented in court as a juvenile and family law attorney and as a generous mentor to young lawyers. Prior to becoming a lawyer, Lindamood worked as a hairstylist, as a florist and in healthcare administration. She earned her law degree in 1996 from the Oklahoma City University Law School. The family is planning a celebration of life next month. In lieu of flowers, donations may be made to Coalition for Kids in Johnson City, which is part of the GoFund Me account set up in her name. The Johnson City Press has more on her life.

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Court Square 2016 Debuts in Columbia

This year’s Court Square CLE series will launch Sept. 7 at First Farmers Bank in Columbia. Nathan Ridley, Jeff Carson and Roger Maness will address legislative updates, estate planning for digital assets and family law in mediation. Learn more or register online.

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Funeral Services This Week for LAW Founder

Nashville lawyer and TBA senior counselor Mary Frances Lyle died Saturday (Aug. 6). She was 80. A 1979 graduate of Vanderbilt University Law School, Lyle began her career lobbying the state legislature on behalf of the Nashville Women’s Political Caucus. During the 25 years she worked with the caucus, she helped draft and pass some of the most important legislation affecting women in Tennessee, including changes in alimony, maternity leave, sexual harassment and domestic violence law. Lyle also was a co-founder of the Lawyers Association for Women (LAW), Peace to End Abuse through Counseling and Education (PEACE) and Women in Business Inc. For many years Lyle operated her own family law practice but later joined Corley Henard Lyle Levy & Langford. Visitation will take place Friday from 1-6 p.m. at Horner-Roesch-Patton Funeral Home in Brentwood and Saturday from 9-10 a.m. at Christ Church Cathedral in Nashville. A time of remembrance with friends and colleagues will follow at 10 a.m. with the funeral service set for 11 a.m. Interment will be at Harpeth Hills Cemetery in Nashville. The Tennessean has more on her life.

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Lawyers Sought for Women’s Empowerment Conference

Volunteer lawyers are needed for an upcoming Women’s Empowerment Conference organized by Women Overcoming Many Battles Ministries, a faith-based nonprofit that seeks to help women overcome life’s challenges. The conference will take place July 30 from 10 a.m. to 1 p.m. at Mt. Lebanon Missionary Baptist Church in Nashville. Attorneys are needed to lead 15-minute presentations on child support enforcement and wrongful eviction and participate in a general question and answer session. Lawyers also are needed to provide brief legal advice in one-on-one meetings with the women. Those interested in helping should contact AOC Pro Bono Coordinator Patricia Mills

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Washington County Family Justice Center Opens

Thursday marked the grand opening of the Family Justice Center in Johnson City, News Channel 11 reports. The center serves victims of domestic violence, sexual assault, and abuse, bringing victims’ services together under one roof, site coordinator Heather Brack said. Agencies with representatives at the center include the Johnson City Police, Washington County Sheriff, Safe Passage, a local domestic violence shelter, Sexual Assault Center of East Tennessee, Legal Aid of East Tennessee and the First Judicial District Attorney General’s office.

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State Leaders Participate in National Child Safety Initiative

Tennessee was one of eight states selected to participate in the Three Branch Institute to Improve Child Safety and Prevent Child Fatalities. The Florida event included sessions on identifying and assessing at-risk populations, parental substance abuse and opioid impact on child welfare. Attendees from Tennessee included Amy Coble and Michael Cull; Rep. John DeBerry Jr., D-Memphis; Sen. Ferrell Haile, R- Gallatin; and AOC Director Deborah Taylor Tate. The AOC has more.

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CASA Hosts Summer Wines Party

CASA of East Tennessee will host its Summer Wines Party Aug. 6 from 5:30 to 8:30 p.m. at the Brabham Home, 621 Scenic Dr., Knoxville, 37919. The evening will feature summer foods, chilled drinks, raffle prizes and live music. Tickets are $75 per person and $125 per couple and may be purchased on the group’s website. For sponsorship information, contact Britney Sink, 865-329-3399.

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Grants Available for Pro Se Litigant Initiatives

The AOC is seeking proposals for the development or continuation of initiatives that help divorcing, divorced or never married self-represented litigants resolve parenting and visitation issues in child support cases. The AOC reports it has approximately $200,000 in grant funding available for such efforts, which may include self-help centers, pro se clinics, unbundled legal services and mediation programs. To be considered, proposals must be received by the AOC by 4:30 p.m. Central Daylight Time on Aug. 12. Learn more or download the application.

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Lawyers Sought for Women’s Empowerment Conference

Volunteer lawyers are needed for an upcoming Women’s Empowerment Conference organized by Women Overcoming Many Battles Ministries, a faith-based nonprofit that seeks to help women overcome life’s challenges. The conference will take place July 30 from 10 a.m. to 1 p.m. at Mt. Lebanon Missionary Baptist Church in Nashville. Attorneys are needed to lead 15-minute presentations on child support enforcement and wrongful eviction and participate in a general question and answer session. Lawyers also are needed to provide brief legal advice in one-on-one meetings with the women. Those interested in helping should contact AOC Pro Bono Coordinator Patricia Mills, 615-741-2687.

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New Managing Attorney to Lead Legal Aid’s Gallatin Office

The Legal Aid Society of Middle Tennessee and the Cumberlands has promoted family law attorney Allison Cooley to managing attorney of its Gallatin office. Cooley has been serving in the organization’s Nashville office since 2011. She earned her law degree from the Charlotte School of Law. In her new role, she will manage a staff of four, including two other attorneys, and oversee services to low-income individuals in Macon, Smith, Sumner, Trousdale and Wilson counties. Read more about Cooley in this release.

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New Adoption and Termination Laws

What You Need to Know

*By Dawn Coppock

Two major adoption and termination of parental rights bills passed in Tennessee this year and are now in effect. These bills include both the mundane and monumental. I have included each new section.  I have put the important and monumental provisions in bold, and included just enough context to flesh out why the changes were made.  But, I have included the mundane as well.  Complete citations are included to permit deeper study.

Pub. Ch. 636 – Administration Bill   Effective March 23, 2016

T.C.A. § 36-1-111(j)  Adds deputy warden and notary at a prison to be surrender witnesses in addition to the warden.

The primary goal of the following 4 sections is to clarify the adoption code sufficiently to fully implement the three-tiered system for classification of fathers, legal, putative and biological. T.C.A. § 36-1-117(a) and (c) requires that legal parents and putative father’s parental rights must be terminated before an adoption can occur. If there is not a legal or putative father, the adoption may proceed without termination of a father, even though obviously there must be a biological father.

Also original to the 1996 complete redraft of the adoption code but until now largely inoperable, was a two-tiered system of grounds for termination of parental rights. In addition to the grounds for termination of parental rights that apply to all parents, putative fathers are subject to a set of grounds that are aimed at the man’s failure to grasp the opportunity to parent his child as described in Lehr v. Robertson 463 U.S. 248; 103 S. Ct 2985; 77 L. Ed. 2d 614; 1983 U.S. LEXIS 92; 51 U.S.L.W. 5010 (June 27, 1983).  A Tennessee Supreme Court 2010 case, Bernard T. 319 S.W. 3d 586, (Tenn. 2010) ruled that the (g)(9), “putative father” grounds only applied to men who were not putative fathers.  Bernard T. has been a difficult case to apply and was directly critiqued for being opposed to the plain language of the statute. In Re. Ashton B. (W.S. Ct. App., March 15, 2016).  The combined effect of the following four legislative changes is to further clarify the law on classes of fathers and the grounds applicable to each, and to thereby legislatively overrule Bernard T.

T.C.A. § 36-1-102  Defines “Putative Father” as biological or alleged biological father of a child who, at the time of the filing of a petition to terminate the parental rights of such person or, if no such petition is filed, at the time of the filing of a petition to adopt a child, meets at least one (1) criteria set out in 36-1-117 (c) and is not a legal parent.

T.C.A. § 36-1-117   Deletes “biological” before the word putative in all T.C.A. § 36-1-117 references in order to clarify that “biological” and “putative” are two different classes of parents that may or may not occur together.

T.C.A. § 36-1-102 (28)  Legal parent definition modified – if a presumption of legal parentage is rebutted then they need not be noticed and the person’s parental rights need not be terminated.

T.C.A. § 36-1-113 (g)(9)(A)  If a person is a putative father at the time the termination of parental rights or adoption is filed his parental rights may be terminated based upon (g) (9) grounds.

Pub. Ch. 919 – Attorney’s Bill   effective July 1, 2016

This chapter was prepared and passed by the collaborative efforts of termination and adoption practitioners across Tennessee, and corrects errors and provides escapes from some legal rabbit holes.  While some of the changes are monumental in terms of adoption practice, this section does not change Tennessee termination and adoption policy.

T.C.A. § 36-1-102 (1)(A)(iv)This change addresses the difficulty of pursuing the abandonment ground against the frequently incarcerated. The change permits the accumulation of periods of liberty between incarcerations to accrue to create the four (4) month abandonment period when four (4) uninterrupted months of liberty do not exist.  

T.C.A. § 36-1-102  Codifies the ordinary meaning of physical custody to end the occasional litigation of the point.

T.C.A. § 36-1-111(a)(1)  Standardizes inconsistent language and affirms that homestudies are required prior to surrenders.

T.C.A. § 36-1-111(r)(1)(A)(i)  Ends a birth parent’s child support obligation upon surrender, rather than upon adoption, to remove a disincentive to settle a contested termination of parental rights by surrender.

T.C.A. § 36-1-111(x)  Creates a method in the adoption context, for a father to rebut the presumption of paternity created by being married to the mother, provided that he is not the biological father. He may sign a form before a notary and that, plus “other credible proof,” which may include a sworn statement of the mother, allows the adoption to proceed without termination of his parental rights. The form is set out in the statute.

T.C.A.§ 36-1-112 (a)(1)(A)  Establishes a standardized method of counting the three (3) day surrender revocation period as set out in TRCP 6.01, excluding weekends and holidays, and requiring that the last day be a business day.

T.C.A. § 36-1-113(b)(1)  Adds “physical” to “having custody of the child” along with the definition of physical custody. This removes ambiguity about whether licensed child-placing agencies and others with children in their care may be legally active on behalf of the children.

T.C.A. § 36-1-113(g)(9)(A)(vi)Deletes, “by the child’s mother” from a notice provision, permitting wider sources of notice that a woman may be expecting a man’s child.

T.C.A. § 36-1-113(g)(9)(B)(i)  Sets out the technical requirements of notice to a man that he may be the father of a child.  This section clarifies that this notice can be given at any time after conception. Notice, plus his inaction for 30 days, particularly failure to file a parentage action, serves as a basis for termination of his parental rights under existing law.  The law is now clear that, in many cases, a man should file a pre-birth parentage action to protect his parental rights.

T.C.A. § 36-1-115(d)  Allows non-residents to petition for adoption in the Tennessee County where they received guardianship of a child.

T.C.A. § 36-1-116(a)  Standardizes inconsistent language and affirms that homestudies are good for one year.

T.C.A. § 36-1-116(h)  Standardizes inconsistent language and affirms that UCCJEA does not apply to adoptions in Tennessee. Also adds that UCCJEA does not apply to voluntary consents either, and affirms prior law that UCCJEA applies to involuntary terminations of parental rights.

T.C.A. § 36-1-117(w)(a)  Answers to termination actions shall be signed by the respondent and sworn, like original petitions.

T.C.A. § 36-1-118  “Prospective adoptive parents” changed to “prospective adoptive parents or a licensed child-placing agency,” and

T.C.A. § 36-1-118(c)(2) “The persons” is changed to “ the persons or entity.” Removes inadvertent barriers to licensed child-placing agencies being legally active on behalf of children.

T.C.A. § 36-1-124 (d)  Notice of appeal filed in termination of parental rights actions shall be signed by the appellant.  This prevents appeals without the appellant’s knowledge or consent.

T.C.A. § 36-1-123  Restraining orders and protective orders, protective of children who are adopted, will not be automatically dissolved by a final order of adoption. Those orders may be enforced in the court that issued the order or the adoption court.

T.C.A. § 36-1-116 (e)  Petitioners’ counsel may review documents filed by public or private agencies in an adoption action upon order of the court. Any party may move for such an order. The agency may, upon good cause and with a court order, restrict such information.  This permits attorneys for petitioners in DCS and private agency adoptions to conduct a review of the foundational termination documents before adoptions are finalized.

T.C.A.§ 36-1-116(f)(2) Adoptions and terminations suspend custody, visitation and guardianship regardless of the stage of adjudication.  This section re-states and clarifies very similar language in the same section that was not enforced in a recent court opinion. In re Hailey S., 2015 Tenn. LEXIS 924 (Tenn. Nov. 16, 2015).

T.C.A. § 36-1-113(g)(14)  A new ground for termination of parental rights is established:  “A legal parent or guardian has failed to manifest, by act or omission, an ability and willingness to personally assume legal and physical custody or financial responsibility of the child, and placing the child in the person’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child.”

Are these bills good? Absolutely. Like commercial paper law, in termination of parental rights cases the cost of uncertainty in the law is too high to tolerate. In Tennessee termination law, the cost is primarily a cost to children rather than a cost to banks. Standardizing and restating provisions, while dull, minimizes uncertainty. The provisions around classifying fathers and clarifying what grounds apply to what father provides certainty and a balanced approach that has eluded Tennessee for 20 years, and may counter the long-term, lackadaisical approach some men take to their children or possible children. Proceeding to adoption without terminating the rights of unknown fathers, and a two-tiered system of grounds for fathers, legal vs. putative were original objectives of the 1996 adoption code redraft that was not fully operational until now.  The Tennessee approach to unwed fathers substantially exceeds the minimum due process floor set by the U.S. Supreme Court in Lehr v. Robertson 463 U.S. 248; 103 S. Ct 2985; 77 L. Ed. 2d 614; 1983 U.S. LEXIS 92; 51 U.S.L.W. 5010 (June 27, 1983).  Sound and workable law, balancing the interests of multiple parties, took a while, but it has happened.

_________________________

*Dawn Coppock is the author of Coppock on Tennessee Adoption Law, the next edition will be available from Celtic Cat Publishing by December 2016. Dawn practices adoption law from Strawberry Plains, Tennessee.

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Journal Columns This Month: ADR, Crime, Mohammad Ali

Columns in the July Tennessee Bar Journal cover subjects from alternative dispute resolution all the way to boxing. Russell Fowler delves into the history of ADR in his column, "History's Verdict" and Wade Davies explains defining and limiting the community caretaking exception in his column, "Crime & Punishment." In "But Seriously, Folks!" Bill Haltom looks at the long, unlikely and complicated relationship between Mohammad Ali and the lawyer, Howard Cosell. Marlene Eskind Moses and Benjamin Manuel Russ update their "Family Matters" column that was published in May with new information after the General Assembly took action that significantly changed the advice rendered in that piece. Read "Legislative Actions Alter QDRO Advice."

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Fetal Assault Law Expires

A controversial law that charged new mothers with assault if they took opiates during pregnancy and their babies were born addicted has expired. Critics of the measure, including the ACLU and Addiction Campuses, argued that the law made women afraid to reach out for help. News Channel 5 has more.

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Disability Rights Tennessee Wants to Hear From You!

Disability Rights Tennessee has launched a survey aimed at gathering information from people with disabilities, family members, service providers and professionals to help shape the work of the organization.

The organization is looking for as much information as possible, so please feel free to share the survey with partners, colleagues and friends, so that an accurate picture of the needs of those with disabilities in the State of Tennessee can be compiled. Take the survey now. The deadline to respond is July 11.

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