Transcript FAMILY LAW FOR SIJS FINDINGS

Intersection of
SIJS in
Tennessee
courts
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
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
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)
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
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 37-1-101(a)(1) and (3)
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
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;
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
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;
Abandonment


For the purposes of termination of parental or guardian
rights (T.C.A. § 36-1-102):

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. § 36-6-205
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
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
TN – Juvenile Court
Concurrent Jurisdiction with
General Sessions

Offense contributing to the delinquency or unruly
conduct of a minor as defined in § 37-1-156
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
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. § 36-6-219 (a) - UCCJEA
UCCJEA Jurisdiction
1.
State is home state of the child
2.
State has significant connection
with the child
3.
State is the most appropriate
forum
4.
Necessity
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?
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
Best Interest Standard
TCA §36-6-106 - Custody
1.
Love, affection, and emotional ties existing between each
parent and the child;
2.
Emotional needs and developmental level of the child;
3.
Moral, physical, mental and emotional fitness of each parent as
it relates to their ability to parent the child
4.
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
5.
Importance of continuity in the child's life and the length of time
the child has lived in a stable, satisfactory environment
Best Interest Standard
TCA §36-6-106 - Custody
6.
Strength, nature, and stability of the child's relationship
with each parent
7.
Each parent's or caregiver's past and potential for future
performance of parenting responsibilities
8.
Refusal to attend a court ordered parent education
seminar
9.
Disposition of each parent to provide the child with food,
clothing, medical care, education and other necessary
care
10.
Degree to which a parent has been the primary caregiver
Best Interest Standard
TCA §36-6-106 - Custody
11.
Evidence of physical or emotional abuse to the child, to the
other parent or to any other person
12.
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
13.
Reasonable preference of the child if twelve (12) years of
age or older
14.
Each parent's employment schedule and
15.
Any other factors deemed relevant by the court
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
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
Factors under parental
relocation TCA § 36-6-108
1.
Access to adequate medical treatment if child with a serious medical
problem
2.
Access to acceptable education facilities child has specific
educational requirements
3.
Residence with a person with a history of child or domestic abuse or
who is currently abusing alcohol or other drugs
4.
Removal of child from non-relocating parent would result in severe
emotional detriment to the child
5.
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
6.
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
ELEMENTS OF
A DEPENDENCY AND
NEGLECT CASE
A.
Dependency and Neglect (D&N) Petition
B.
Ex Parte Relief, if appropriate

Preliminary Hearing
C.
Adjudication Hearing – Finding of Neglect
D.
Disposition Hearing(s)

Custody, restraining order, etc.

PLUS in SIJS cases the specific findings
ADJUDICATION HEARING:
FINDINGS
Court must find:

Facts are proved by Clear and Convincing
Evidence

TCA 37-1-129(c);
AND

Such facts constitute Dependency and Neglect
under the law:

TCA 37-1-102(b)(12).
RULES OF EVIDENCE APPLY
ELEMENTS OF
A DEPENDENCY AND
NEGLECT CASE
A.
Dependency and Neglect (D&N) Petition
B.
Ex Parte Relief, if appropriate

Preliminary Hearing
C.
Adjudication Hearing – Finding of Neglect
D.
Disposition Hearing(s)

Custody, restraining order, etc.

PLUS in SIJS cases the specific findings
DISPOSITION HEARING
TIMING

Tenn. R. Juv. Pro. 18

Hearing within 15 days if
DCS custody;

Hearing within 90 days
in other cases;

Extensions made for
good cause shown;
CONSIDERATIONS

TCA 37-1-130(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 37-1129(d).
DISPOSITION HEARING:
ORDERS
TCA 37-1-130(A)(1) AND (2):
POTENTIAL DISPOSITION ORDERS

Custody to person, persons or agency (DCS);

Permanent Guardianship (Review 37-1-801-807);

Protective Supervision (defined at 37-1102(b)(19));

Restraining Order Until Child is Eighteen 37-1152(b);

Order to Control Conduct: 37-1-152(b);

No Contact Orders: 37-1-152(c) (DCS only);
DISPOSITION HEARING:
SIJS FINDINGS

These are requested in Prayer for Relief and
ordered upon Disposition;
JUVENILE COURT SIJS
PETITIONS

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;