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Intersection of SIJS in Tennessee courts

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Presentation on theme: "Intersection of SIJS in Tennessee courts"— Presentation transcript:

1 Intersection of SIJS in Tennessee courts

2 Special Immigrant Juvenile Status Eligibility
Unmarried and under 21 old; Declared dependent on a juvenile court OR committed to/in custody of state agency or an individual appointed by the state Reunification with ONE or BOTH parents is not viable due to abuse, neglect, abandonment or similar basis found under state law Not in the best interest of child to be returned to child’s or parent’s home country

3 Access to state courts All permanent legal or undocumented immigrants within the jurisdiction of the United States have the same rights in every state and territory to sue, be parties, give evidence, and have the full and equal benefit of all state and federal laws Graham v. Richardson, 403 U.S. 365 (1971) Martinez v. Fox Valley Bus Lines, 17 F. Supp. 576 (N.D. Ill. 1936) Fundamental right to due process and equal protection under U.S. Constitution

4 Due Process and Equal Protection
Individuals are entitled to the protections of the Due Process and Equal Protection Clauses regardless of immigration status Immigrants whose presence in this country is unlawful are still recognized as “persons” in the ordinary sense of the term, thus, guaranteeing them the Fifth and Fourteenth Amendment rights to due process of the law Plyer v. Doe, 457 U.S. 202 (1982)

5 Juvenile Court under 8 CFR § 204.11(a)
Courts located in the United States Have jurisdiction to make judicial determinations in the custody and care of juveniles Look to the function of the court not the name Includes courts that handle: Dependency cases Guardianship cases Delinquency case Adoption cases Custody/Child Support cases

6 Purpose of Juvenile Courts in Tennessee
“Provide for the care, protection, and wholesome moral, mental and physical development of children coming within its provisions” AND “Achieve the foregoing purposes in a family environment whenever possible, separating the child from such child’s parents only when necessary for such child’s welfare or in the interest of public safety” TCA (a)(1) and (3)

7 Abuse T.C.A. § 37-1-102(b)(1) Person under 18
Suffering from, has sustained, or may be in immediate danger of suffering from or sustaining a wound, injury, disability or physical or mental condition Caused by brutality, neglect or other actions or inactions of a parent, relative, guardian or caretaker

8 Dependent and neglected child - T.C.A. § 37-1-102(b)(12)
(A) Without a parent, guardian or legal custodian; (B) Parent, guardian or person with whom the child lives, by reason of cruelty, mental incapacity, immorality or depravity is unfit to properly care for such child; (C) Under unlawful or improper care, supervision, custody or restraint or who is unlawfully kept out of school; (D) Whose parent, guardian or custodian neglects or refuses to provide necessary medical, surgical, institutional or hospital care for such child; (E) Who, because of lack of proper supervision, is found in any place the existence of which is in violation of law; (F) Who is in such condition of want or suffering or is under such improper guardianship or control as to injure or endanger the morals or health of such child or others;    

9 Dependent and neglected child - T.C.A. § 37-1-102(b)(12)
(G) Who is suffering from abuse or neglect; (H) Who has been in the care and control of one (1) or more agency or person not related to such child by blood or marriage for a continuous period of six (6) months or longer in the absence of a power of attorney or court order, and such person or agency has not initiated judicial proceedings seeking either legal custody or adoption of the child; (I) Who is or has been allowed, encouraged or permitted to engage in prostitution or obscene or pornographic photographing, filming, posing, or similar activity and whose parent, guardian or other custodian neglects or refuses to protect such child from further such activity; OR     

10 Dependent and neglected child - T.C.A. § 37-1-102(b)(12)
(J) Who has willfully been left in the sole financial care and sole physical care of a related caregiver for not less than eighteen (18) consecutive months by the child's parent, parents or legal custodian to the related caregiver, and the child will suffer substantial harm if removed from the continuous care of such relative;   

11 Abandonment For the purposes of termination of parental or guardian rights (T.C.A. § ): Willful failure to visit or willful failure to support or willful failure to make reasonable payments for four months prior to filing of termination petition Failure to establish suitable home after DCS involvement Wanton disregard for welfare of the child (incarcerated parent) Infant child under 72 hours old Left without provision for reasonable and necessary care or supervision – T.C.A. §

12 TN – Juvenile Court Exclusive Original Jurisdiction
Proceedings in which children are alleged to be delinquent, unruly or dependent and neglected Once jurisdiction is assumed by court, it remains with the court until dismissed, transferred or until the child reaches the age of 18 or an adoption is filed

13 TN – Juvenile Court Concurrent Jurisdiction with Probate Court
Treat or commit a developmentally disabled or mentally ill child Determine the custody or appoint a guardian of the person of a child Give judicial consent to the marriage of a child if consent is required by law

14 TN – Juvenile Court Concurrent Jurisdiction with General Sessions
Offense contributing to the delinquency or unruly conduct of a minor as defined in §

15 TN – Juvenile Court Concurrent Jurisdiction with Circuit and Chancery Courts
Termination of parental rights or guardianship rights pursuant to adoption statute Child support Hague Convention cases Paternity, custody, visitation, education issues for children born out of wedlock

16 Temporary Emergency Jurisdiction
Child is present in this state and the child has been abandoned or Necessary to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse T.C.A. § (a) - UCCJEA

17 UCCJEA Jurisdiction State is home state of the child
State has significant connection with the child State is the most appropriate forum Necessity

18 Can one parent file a petition?
Parent must have a reason to be in court Is there an underlying issue of abuse, abandonment or neglect How is abandonment defined under the TCA and case law?

19 Burdens of Proof Preponderance of the evidence unless stated otherwise
Dependent and Neglect cases Bifurcated hearings Adjudication Hearing - Clear and Convincing Disposition Hearing – Preponderance of the evidence Termination of parental rights – clear and convincing

20 Best Interest Standard TCA §36-6-106 - Custody
Love, affection, and emotional ties existing between each parent and the child; Emotional needs and developmental level of the child; Moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child Child's interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child's involvement with the child's physical surroundings, school, or other significant activities Importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment  

21 Best Interest Standard TCA §36-6-106 - Custody
Strength, nature, and stability of the child's relationship with each parent Each parent's or caregiver's past and potential for future performance of parenting responsibilities Refusal to attend a court ordered parent education seminar     Disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care Degree to which a parent has been the primary caregiver

22 Best Interest Standard TCA §36-6-106 - Custody
Evidence of physical or emotional abuse to the child, to the other parent or to any other person Character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child Reasonable preference of the child if twelve (12) years of age or older Each parent's employment schedule and Any other factors deemed relevant by the court

23 Best Interest Standard TCA 36-1-113(i) - Termination
Parent/Guardian’s conduct or actions in making the home safer for child Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible Visitation or contact with child by the parent/guardian Nature of relationship between the parent or guardian and the child

24 Best Interest Standard TCA 36-1-113(i) - Termination
Effect a change of caregivers and physical environment on the child's emotional, psychological, and medical condition Parent’s/guardian’s, or other household member’s, past behavior regarding the well-being of child Physical environment of parent’s/guardian’s home Parent's or guardian's mental and/or emotional status would effect the parent’s ability to provide a safe and stable care and supervision for the child Child support payments by the parent or guardian

25 Factors under parental relocation TCA § 36-6-108
Access to adequate medical treatment if child with a serious medical problem Access to acceptable education facilities child has specific educational requirements Residence with a person with a history of child or domestic abuse or who is currently abusing alcohol or other drugs Removal of child from non-relocating parent would result in severe emotional detriment to the child Support system not available at relocation for a custodial parent is emotionally disturbed or dependent such that the custodial parent is not capable of adequately parenting the child in the absence of support systems currently in place in this state If the proposed relocation is to a foreign country whose public policy does not normally enforce the visitation rights of non-custodial parents, that does not have an adequately functioning legal system or that otherwise presents a substantial risk of specific and serious harm to the child

Dependency and Neglect (D&N) Petition Ex Parte Relief, if appropriate Preliminary Hearing Adjudication Hearing – Finding of Neglect Disposition Hearing(s) Custody, restraining order, etc. PLUS in SIJS cases the specific findings

Court must find: Facts are proved by Clear and Convincing Evidence TCA (c); AND Such facts constitute Dependency and Neglect under the law: TCA (b)(12). RULES OF EVIDENCE APPLY Child hearsay exception

Dependency and Neglect (D&N) Petition Ex Parte Relief, if appropriate Preliminary Hearing Adjudication Hearing – Finding of Neglect Disposition Hearing(s) Custody, restraining order, etc. PLUS in SIJS cases the specific findings

Hearing within 15 days if DCS custody; Hearing within 90 days in other cases; Extensions made for good cause shown; TCA (a) What will protect the physical, mental and moral welfare of the child? Written reports admissible even if they are not admissible at Adjudication TCA (d).

TCA (A)(1) AND (2): POTENTIAL DISPOSITION ORDERS Custody to person, persons or agency (DCS); Permanent Guardianship (Review ); Protective Supervision (defined at (b)(19)); Restraining Order Until Child is Eighteen (b); Order to Control Conduct: (b); No Contact Orders: (c) (DCS only);

These are requested in Prayer for Relief and ordered upon Disposition;

Primary request is not for a SIJS finding; Disposition should fit case; Plead the facts of Dependency and Neglect to get the resulting disposition; SIJS findings are secondary to D&N;

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