Denying Due Process “For the Children”

Note: Although the following is a true story, the names, locations, and dates have been changed to protect parties involved.–CLS 

It was bad enough when Maria took her granddaughter to the hospital. It was worse when the Sullivan County Department of Children’s Services took her granddaughter out of the hospital and placed her into foster care.

It was worse when Maria received a letter months later from the Department of Children’s Services accusing her of child abuse.

Dear Maria Randall:

During a Child Protective Services Investigation, you were identified as a person who committed child abuse or child neglect against Janelle Marla Banks in Sullivan County.  Based on the information gathered and the findings of the investigation, you were identified as the perpetrator, or person who committed the abuse…

You have the right to a formal file review…To request a formal file review, complete the attached form and return it to the address listed on the form within ten business days of the date on this letter…If you do not request the review within ten (10) business days of the date of this letter, you will give up your right to a Formal File Review…

If you fail to request the case file review within ten (10) business days, your name will permanently remain in DCS records showing that you committed child abuse and you will have no further right to a hearing to present evidence on your behalf. (emphasis added)

Sound crazy?  When I first got wind of this case, I thought so too, especially given no charges of Dependency and Neglect or child abuse had been filed against Maria Randall.  This is what the Tennessee Department of Children’s Services refers to as an “indication letter,” and it’s apparently an often-used tactic to deprive parents, grandparents, and other parties associated with children in DCS care of their right to notice and a hearing before their children (or grandchildren) are spirited away to foster homes without a second thought.

I have a colleague now in private practice who used to be a DCS attorney.  I consulted with him on this letter, and he wasn’t surprised it happened.  DCS uses this as a means of getting parents, grandparents, or whomever they deem necessary in a bind and listed as child abusers in their records without actually having to file charges or bring the matters before a magistrate. You see, in cases where the Department doesn’t have probable cause to bring the matter to a three-day hearing, they send these letters to the parties they want to accuse of child abuse or child neglect, hoping they won’t answer or respond after the ten day time period.  It’s sloppy work and circumnavigates the traditional legal system, but the department does it anyway and the repercussions are devastating for people who get these letters.

There is no standard of review applied when discussing these “formal file reviews,” because the Department considers this an “internal memo.”  Because it’s an “internal memo,” the Department doesn’t have to tell people who conducts the “formal file reviews.” If the review will affect a person’s employment status (such as if someone is a registered nurse or teacher who works with children), people have the right to request an administrative hearing, but only after the Department’s mysterious “file review” has concluded and the parties in question disagree with the findings of the file review. DCS workers proudly trumpet their “file reviews” as being upheld in every occasion which one occurs, and those questioned regarding the administrative review simply clam up and tout their “indications” never get overturned.  Because, you see, the Department does their job and they make sure they have their investigations conducted “properly” and “in order.”

Worse still for parties who receive these letters is the shocking use of these “indication letters” as evidence in court proceedings.  Maria Randall filed a petition for custody of her two grandchildren, including the hospitalized one, because the children’s mother was a drug-addicted sex worker with no sign of ever recovering.  During a hearing in Sullivan County Juvenile Court, the letter was used as evidence Ms. Randall was “probably guilty” of child abuse over her attorney’s repeated objections concerning the letter’s admissibility before the Court.  The letter got in a second time over the attorney’s repeated objections regarding admissibility when the Department’s Child Protective Services worker was allowed to read her TFACTS notes concerning the letter in as a “business record,” which is an exception to the hearsay rule.  Never you mind the glaring fact the “business records” were being used and prepared in preparation for a trial.  When the Department wants something, the Department gets to ignore the rules of evidence and procedure, because they’re doing what’s best for the children.

The term “due process” gets used quite a bit in this country.  The basic principles come from the Magna Carta, and the term “due process” is in the Fifth and Fourteenth Amendments to the United States Constitution.  We don’t like people having stuff taken from them in this country without notice it could happen and an opportunity for the person to present evidence on their behalf.  Tennessee even likes due process too; in Article One, Section Eight of the Tennessee Constitution we spell out the same notions of justice for the citizens of this state.  Until the case of Maria Randall, I had yet to hear of a situation where the Department of Children’s Services could simply declare someone guilty of child abuse or child neglect by fiat and have it stick in a court of law.  Due process be damned, and the rules of evidence and procedure be damned–as long as it’s “for the children” and the Department “has concerns,” they can simply do as they please at the juvenile court level.

It’s not evidence until the Department says it is.  It’s not a court document until the Department chooses it to be as such.  It’s not subject to any known standard of review and no party receiving an “indication letter” gets to face their accuser or accusers.  And if you don’t respond in ten days from getting the letter–despite the legal process–you are branded a child abuser.  Your employment is in jeopardy, as is any future employment opportunity.  You’re officially persona non grata, and the Department gets to control your life and liberties until such time as they choose to chew your mangled up carcass and spit it out of the system–after having spent potentially thousands of dollars in attorney fees fighting an “internal memo.”

Due process isn’t a thing when you’re doing it “for the children.”

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