Recently approved by the Tennessee General Assembly, the new Rule 32A of the Tennessee Rules of Juvenile Procedure will become effective on July 1, 2009.

The new TRJP Rule 32A will provide procedures for each hearing in the permanency planning process for children in foster care, specifically the ratification hearing, judicial review, foster care review board hearing, and permanency hearing. The procedures provide for safeguarding the rights of the parties, applicable evidentiary standards, and judicial oversight of the permanency process. The court is required to: ensure the permanency plan is in the best interest of the child; monitor compliance of the parties; and modify the permanency plan to ensure timely permanency for the child. The result of proper judicial oversight is a beneficial permanency plan that comprehensively addresses the needs of the child and family while charting a timely course for the child to have a permanent, safe, and healthy home.

Rules 32A provides that in dependent, neglect and abuse cases, the child must be represented by a guardian ad litem at all stages of the permanency planning process until the child is no longer in foster care. Additionally, a parent has a right to representation at all stages of the proceeding and the right to a court-appointed attorney if indigent. At each hearing where a parent appears and is not represented by counsel, the court must advise the parent of the right to representation and proceed only upon the parent waiving this right as provided by Rule 30.

At each hearing, the court must determine whether all necessary persons (e.g. child, parents, DCS, CASA, caretaker) are present. The Rule specifies that a parent includes a putative father. If a necessary person is not present, the court must determine whether notice was provided and whether reasonable efforts have been made to locate an absent or unknown parent.

As in dispositional hearings pursuant to Rule 32, only evidence that has been formally admitted and the juvenile court record of the child are to be considered at ratification, judicial review, and permanency hearings. The rules of evidence apply, except that reliable hearsay may be admitted. The standard of proof at these hearings is preponderance of the evidence.

A signed written order must be entered at the conclusion of each hearing. The order must include the persons present at the hearing and whether notice was provided to an absent necessary person. In addition to findings required by state and federal law, it must demonstrate a finding of the facts that support the permanency plan is in the best interest of the child and that the agency has or has not exercised reasonable efforts toward reunification or another permanency goal. If applicable, the order must reflect that an unrepresented parent has waived the right to counsel pursuant to Rule 30 and a finding of reasonable efforts to identify and locate an absent parent.

At the ratification hearing, the court must review the permanency plan for each child in foster care and take any action necessary to ensure the plan is in the child’s best interest. Ratification of the initial permanency plan must occur within sixty (60) days of a child’s foster care placement and be reevaluated and updated at least annually. The court must advise the parents of the consequences of failure to comply with the plan, or the failure to visit or support the child. If the permanency plan has been agreed upon by the parties, the court may ratify the plan only if it is in the child’s best interest.

If the parties do not agree to the permanency plan or the court finds it is not in the child’s best interest, then an evidentiary hearing is mandated to develop and ratify a plan. If the court ratifies a permanency plan without modifications and the parent is neither present, nor a participant in the development of the plan, the order must include a finding of the efforts made by the agency to notify the parent of the plan’s requirements. If the court modifies the permanency plan and the parent is absent from the hearing, the order must include an instruction to the agency to timely notify the parent of the plan’s provisions.

Additional procedures for judicial reviews and foster care review board hearings are outlined. The court must establish procedures to receive the report from the foster care review board. At a subsequent court hearing, a determination has to be made whether the recommendations are in the child’s best interest and should be incorporated in the permanency plan. Procedures are required to docket and conduct hearings on direct referrals submitted by the foster care review board pursuant to T.C.A. § 37-2-406.

A permanency hearing must be conducted within twelve (12) months of the child’s foster care placement or within thirty (30) days of a determination that reasonable efforts to reunify the family are not required. Findings of fact as to whether reasonable efforts have been made to reunify the family or to finalize another permanency goal must be included in the order. Continuation of the goal of reunification should be allowed only when the parent has substantially complied with the permanency plan. In determining substantial compliance the judge must consider whether reasonable efforts have been provided by the agency.

The new Rule 32A is a result of the Court Improvement Work Group appointed by the Supreme Court. For additional information, contact Leslie Barrett Kinkead, Administrative Office of the Courts at 615-741-2687. View the 2009 amendments to court rules.

Leslie Barrett Kinkead is the Court Improvement Program Coordinator with the Administrative Office of the Courts in Nashville. Rae Anne Seay is an attorney with Oasis Center in Nashville and will serve as the Chair of the Juvenile & Children's Law Section during the 2009-2010 bar year.

TennCare is one of the juvenile justice system’s best kept secrets. Many lawyers, juvenile judges and child service agencies know that TennCare is the state-run health and mental health program that covers a third of Tennessee’s children. They know that it includes almost all of the children who are failing in schools, encountering the juvenile justice system or are otherwise at risk of being removed from their families. What few people realize is that TennCare is potentially a rich resource for meeting those children’s needs and diverting them from state custody.

The Tennessee Justice Center wants to change that. TJC is a non-profit, public interest law firm. It represents all 650,000 TennCare kids in a class action, known as John B., in which TennCare has been ordered to meet federal quality of care standards that guarantee children whatever medical or mental health services they need. Moreover, TennCare is required to coordinate medical and mental health care with whatever educational or social services a child receives from other sources. What kids actually receive too often falls short of these high legal standards, however. TJC realizes that the key to making the promise of the John B. ruling a reality lies in informing advocates, child-serving agencies and parents how they can effectively challenge TennCare when it fails to deliver the care a child needs. Valuable tools for accomplishing that purpose are provided by a separate class action, known as Grier, which establishes important appeal protections that advocates can use to enforce John B. on behalf of individual kids. TJC is conducting outreach to foster parents, Juvenile Courts and attorneys statewide to inform them of these resources.

Last August, TJC staff presented a 3.5 hour continuing legal education session to train counsel how to use the administrative appeals process to win medical or mental health care for TennCare clients. The training was presented in collaboration with the Legal Aid Society of Middle Tennessee and the Cumberlands (LAS), the Tennessee Alliance for Legal Services (TALS) and the Nashville firm of Boult, Cummings, Conners & Berry PLC. In November, TJC and LAS repeated the training, which was attended primarily by members of the Young Lawyers Division of the Shelby County Bar Association. So far, approximately 40 attorneys have received the training – and the free CLE credits that go with it – in return for a pledge to handle at least one pro bono TennCare appeal. TJC is developing plans to present the training in Knoxville in March. If you or your firm would like to host a training or would like further information on how to use TennCare to meet the needs of children you serve, please contact Susanne Bennett at 615-255-0331.

As many of you may know, the Juvenile Court of Memphis and Shelby County recently updated their Local Rules of Court. One new provision the court added stated that parties in custody and visitation matters may be referred to mediation in order to resolve issues in a more empowering and less contentious fashion.

In order to increase the use of mediation in Juvenile Court, the court has partnered with both the University of Memphis and the Tennessee Administrative Office of the Courts to participate in programs to increase the efficiency and use of mediation.

The University has received funding to create a “mediation preparation program,” which is a one-session program to help parents prepare for mediation. Representatives meet with both parties separately in order to make the parties more aware of the mediation process. The parties are referred by a Juvenile Court Referee and choose to participate voluntarily.

The session is created to answer questions about mediation, teach parties about skills that may be helpful in a mediation, and provides information about cooperating as parents when the parties are not living together. Since this is a University sponsored project, there is a research component attached which hopes to determine the effectiveness of the mediation coaching. The sessions are offered free of charge to the parties that are referred to the program.

The Juvenile Court also refers cases to mediation through a grant awarded by the Tennessee Administrative Office of the Courts. The grant provides the court money to fund mediations that initially arise from child support issues. As many know, once a child support case has been established, many other filings involving custody or visitation matters may come before the court, including requests for custody changes or increasing visitation time.

Currently, the court is slowly expanding the referrals for these cases, and will hopefully need a good number of mediators to assist with these cases. One of the main impediments to instituting the mediation program has been the inability to hold mediations in a location that is mutually advantageous to those parties who compromise a majority of these types of cases. Many times, the parties have transportation limitations that require them to be within proximity of major bus routes. Unfortunately, the Juvenile Court does not have the present ability to house mediations, but the court may have some available space at some point in the future.

In addition to the two programs listed above, the Juvenile Court also welcomes mediators who wish to fulfill their pro bono requirements by mediating a case from the custody and visitation docket. Generally, the parties are pro se and may need issues mediated such as visitation, pick up and drop off situations, vacation and holiday visitation, and respect for differing parenting styles.

The court looks forward to the implementation and expansion of it’s mediation program and hopes that it can count on the vast experience and knowledge of the local mediation community to assist with this vision.

If you would like to mediate the cases that are referred to the University of Memphis program, contact Drs. Katherine Kitzmann & Gilbert Parra with the University’s Department of Psychology at (901) 678-2908.

If you have interest in assisting with the child support mediation program, please contact Yolanda Joshua at (901) 405-8447. You will need to fill out a Shelby County vendor form and receive a vendor number in order to be paid for your mediations.

Finally, if you wish to conduct pro bono mediations, the court will contact Linda Warren Seely when those spots are needed.

Linda Warren Seely is the Director of Operations & Private Attorney Involvement at Memphis Area Legal Services, Inc.and chairs the Juvenile & Children's Law Section.

The new Supreme Court Rule 40A will become effective May 1, 2009 through April 30, 2010. This is a provisional rule that governs appointment of guardians ad litem in custody proceedings. Custody proceedings are defined as divorce, paternity, domestic violence, contested adoptions and contested private guardianship cases. Supreme Court Rule 40, which has not been modified, will continue to apply to appointment of guardians ad litem in all dependency, neglect or abuse proceedings, whether the petition is filed by the Department of Children’s Services or a private party.

The Supreme Court order establishing Rule 40A provides that the Court may solicit comments regarding the Rule’s operation, effect and efficacy. For further information, contact General Counsel David Haines at (615) 741-2687.