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Posted by: Barry Kolar on Mar 19, 2014

Court: TN Court of Appeals

Attorneys 1:

Melanie Lane, Jamestown, Tennessee, for the appellants, Jeff and Melissa Fitzpatrick

Attorneys 2:

Robert E. Cooper, Jr, Attorney General and Reporter, Mary Byrd Ferrara, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee Department of Children’s Services

Judge(s): HIGHERS

The petitioners are foster parents who were indicated by the Department of Children’s Services as perpetrators of child neglect for “lack of supervision” and also for “environmental neglect.” The lack of supervision allegation arose out of an incident in which a foster child who was placed in the petitioners’ home was found fondling the private parts of a younger foster sibling on two occasions during the same evening. The environmental neglect allegation was due to the condition of the petitioners’ home when the DCS investigator arrived to look into the report of child-on-child sexual abuse. The petitioners requested an administrative hearing. After a four-day contested case hearing before an administrative law judge, the indication for environmental neglect was deemed unfounded, but the indication for lack of supervision was upheld. The petitioners filed a petition for judicial review in chancery court, and upon reviewing the record, the court upheld the indication for lack of supervision. The petitioners appeal to this Court, arguing that there is no substantial and material evidence to support their indication for lack of supervision, that they have been denied procedural and substantive due process, and that they are entitled to an award of attorney’s fees incurred in defending against the allegation of environmental neglect that was deemed unfounded, as well as the allegation of lack of supervision. For the following reasons, we affirm the decision of the chancery court in part, and we reverse in part and remand for further proceedings.