SB 2119

In any proceeding initiated by the state that seeks or may result in the removal of a child from a parent, restriction or suspension of parental custody or visitation, or termination of parental rights, this bill provides that the state bears the burden of proof at all times. An order resulting in the permanent termination of parental rights, permanent transfer of custody, or permanent state conservatorship must not be entered unless the state proves, beyond a reasonable doubt, each of the following eleme nts:  That the court has lawful jurisdiction over the parent and the child .  That the factual allegations justifying state intervention are true .  That the alleged conduct constitutes legally cognizable grounds for termination under state law .  That termination is necessary to prevent serious and specific harm that cannot be remedied by less restrictive means. This bill provides that such burden of proof applies to any action that functions as a termination of parental rights, regardless of nomenclature, including permanent guardianship, permanent custody, no-contact orders, orders suspending, denying, or cancelling parental visitation, or any other disposition or restraint that substantially, indefinitely, or irreversibly severs or extinguishes the parent-child re lationship in whole or in part. This bill prohibits a court from rely ing upon a preponderance of the evidence, clear and convincing evidence, or any lesser evidentiary standard to support an order described above . Any order entered in violation of this prohibition is voidable as a matter of law. In an emergency removal proceeding, this bill provides that the state bears the burden of demonstrating, by clear and convincing evidence, that an imminent and substantial risk of serious physical harm exists and that immediate removal is the least restrictive means available. However, this provision does not relieve the state of its obligation to satisfy the heightened standard required above prior to any permanent disposition. This bill clarifies that the provisions above must be construed to protect fundamental liberty interests and not be interpreted to diminish or displace any greater protections afforded by the Constitution of the United States, the Constitution of Tennessee, or applicable federal law. RIGHT TO JURY TRIAL In a proceeding in which the state seeks the termination of parental rights or any disposition that functions as a permanent severance of the parent-child relationship, this bill provides that a parent has the right to a trial by jury on all questions of fact. Such right to a jury trial must be exercised only upon the written election of the parent. The court must advise the parent of this right on the record at the earliest practicable stage of the proceeding. The jury must determine all factual issues , including ( i ) w hether the factual allegations by the state are proven; ( ii ) w hether the state has met its burden of proof beyond a reasonable doubt; and ( iii ) w hether the alleged conduct constitutes grounds for termination under state law. Questions of law must remain with the court. A verdict terminating parental rights requires a unanimous decision of the jury. Any waiver of the right to a jury trial must be made knowingly, voluntarily, and in writing, following an on-the-record colloquy by the court. A waiver must not be inferred from silence, inaction, or the conduct of counsel. This paragraph does not diminish the right to a bench trial where a jury trial is not elected or limit any greater jury-trial pr otections provided under the Constitution of the United States or the Constitution of Tennessee. RIGHT TO COUNSEL AND PROHIBITION ON UNAUTHORIZED WAIVER In a proceeding initiated by the state that may result in the removal of a child, restriction or suspension of parental custody or visitation, or termination of parental rights, this bill provides a parent has the right to the assistance of counsel at all critical stages of the proceeding. The right to counsel attaches at the earliest of the following events:  The filing of a petition or complaint seeking state intervention in the parent-child relationship .  The execution or attempted execution of an emergency removal .  Any appearance by the parent before a court or administrative body concerning such matters. If a parent is indigent, then this bill requires the court to appoint qualified counsel without delay. A proceeding affecting parental rights must not advance until counsel has been appointed and afforded a reasonable opportunity to consult with the parent. A waiver of the right to counsel or of any due process right, including the right to notice, the right to a hearing, the right to confrontation and cross-examination, the right to timely adjudication, or the right to appeal, is not valid unless all of the following criteria is met:  The waiver is made knowingly, voluntarily, and intelligently by the parent .  The waiver is reduced to writing, specifically identifying the right or rights being waived, and signed by the parent .  The court conducts an on-the-record colloquy sufficient to establish that the parent understands the nature of the proceedings, the specific rights being relinquished, and the reasonably foreseeable consequences of the waiver. This bill prohibits a waiver of any right protected by this bill from be ing executed, inferred, or implied by counsel, a guardian ad litem, a court officer, an agency representative, or any other person acting on behalf of the parent. Silence, inaction, failure to object, failure to appear without proper notice, compliance with services, or the conduct or omission of appointed or retained counsel do not constitute a waiver of the right to counsel or of any other due process right. A p urported waiver obta ined in violation of the provisions under this heading is void and has no legal effect. Counsel appointed or permitted to represent a parent owes a duty of undivided loyalty to the parent and is not subject to removal, retaliation, or adverse appointment consequences for asserting constitutional rights, demanding evidentiary compliance, or c hallenging the sufficiency or legality of state action. An order entered in a proceeding conducted in violation of the provisions under this heading is subject to vaca tur upon timely motion, without a showing of prejudice. ADJUDICATION REQUIRED This bill prohibits a court from enter ing an order terminating parental rights, permanently transferring custody, or imposing any disposition that functions as a permanent severance of the parent-child relationship unless a prior adjudication has occurred in strict compliance with this bill and with all legislatively enacted time requirements and applicable rules of the court governing adjudication, notice, and hearing timelines, which must be construed to protect family integrity and prevent undue delay. As used in this bill, an "adjudication"" d oes not include preliminary hearings, shelter care hearings, ex parte proceedings, status conferences, or dispositional reviews . This bill provides that a lawful adjudication under this heading requires all of the following:  Timely notice to the parent of the specific allegations asserted by the state .  Representation by counsel .  A meaningful evidentiary hearing at which the state bears the burden of proof .  The opportunity for the parent to confront and cross-examine adverse witnesses .  Written findings of fact and conclusions of law entered by the court. This bill prohibits a termination of parental rights proceeding from be ing heard, commenced, or adjudicated unless both of the following criteria are met:  The adjudication described above has been completed in strict compliance with this bill and all legislatively enacted time requirements and applicable rules of the court .  A minimum post-adjudication period prescribed by law or rule for remedial opportunity has elapsed following the adjudicatory and dispositional findings, such that the state is required to prove alleged parental unfitness over time, and the parent is afforded a meaningful opportunity to remedy the conditions adjudicated. This bill prohibits a termination of parental rights proceeding from rely ing upon delay, obstruction, consolidation, or postponement of adjudication to satisfy or circumvent the requirements under this heading. This bill prohibits a n adjudication from be ing implied, presumed, deferred indefinitely, or satisfied through preliminary proceedings, shelter care hearings, emergency orders, compliance plans, or dispositional reviews. The absence of a timely and lawful adjudication bars any permanent disposition a ffecting parental rights. Further, p roceedings for adjudication and proceedings for termination of parental rights must be distinct and sequential. A court must not consolidate, merge, or conduct adjudication and termination proceedings simultaneously or in a manner that deprives the parent of meaningful notice, preparation, or the opportunity to contest the state's allegations. A lawful adjudication is a jurisdictional prerequisite to any termination proceeding. Any termination order entered without a prior adjudication that complies with the provisions in this heading is voidable as a matter of law. This bill provides that the provisions in this heading prevent the circumvention of due process through procedural delay, consolidation, or re-labeling of proceedings, and to ensure that a parent is not permanently deprived of parental rights without a full and fair adjudication of the state's claims. EMERGENCY AND EX PARTE REMOVALS This bill provides that e mergency or ex parte removal of a child from a parent is permitted only as a narrowly tailored exception to the requirements of prior notice and hearing, and only under the conditions set forth in this heading. This bill prohibits a child from being removed pursuant to an emergency or ex parte order unless the sworn allegations, if proven, would constitute conduct sufficient to establish probable cause for a criminal offense involving abuse or neglect under law relative to criminal offenses against children . The absence of filed criminal charges at the time of removal does not relieve the state of its obligation to meet the requirements of this provision. This bill requires an emergency or ex parte removal order to be supported by a sworn affidavit or testimony setting forth specific, particularized facts demonstrating (i) a n imminent and substantial risk of serious physical harm to the child; ( ii ) t hat the alleged conduct satisfies the criminal law threshold above ; and (iii ) t hat immediate removal is the least restrictive means available to prevent such harm. Generalized allegations, predictive risk assessments, poverty, noncompliance with services, or sp eculative harm are not a sufficient basis for emergency or ex parte removal. This bill requires an emergency or ex parte removal order to include written findings by the court, entered contemporaneously with the order, expressly stating ( i ) t he specific facts relied upon; ( ii ) t he criminal offense for which probable cause exists; and ( iii ) t he reasons less restrictive alternatives were inadequate . Failure to enter such findings renders the order voidable as a matter of law. Following an emergency or ex parte removal, this bill requires the court to conduct a prompt evidentiary hearing within a time certain, at which ( i ) t he state bears the burden of proof, ( ii ) t he parent has the right to counsel, and ( iii ) t he court must determine whether continued removal is justified. An extension or continuance must not be granted absent a showing of extraordinary circumstances. However, a n emergency or ex parte removal does not serve as a substitute for adjudication and must not, by itself, support any permanent or long-term disposition affecting parental rights. All subsequent proceedings must comply fully with the requirements in this bill . This bill clarifies that the provisions in this heading must be construed consistently with the Fourth and Fourteenth Amendments to the Constitution of the United States and Article I, § 7 and § 8 of the Constitution of Tennessee, and does not authorize removals based on civil standards divorced from criminal l aw principles. FEDERAL FUNDING CONFLICTS AND DISCLOSURE REQUIREMENTS In a proceeding initiated by the state that may result in the removal of a child, restriction or suspension of parental custody or visitation, or termination of parental rights, this bill requires the state to disclose, on the record and prior to any adjudicatory or dispositional hearing, the existence of any federal financial incentive applicable to the case. Such disclosure must include, at a minimum, both of the following:  The categories of federal reimbursement, grants, or performance-based funding for which the state, county, court, agency, contractor, or service provider may be eligible as a result of the child's removal, placement, supervision, treatment, or adoption .  Whether the outcome sought by the state would increase, preserve, or otherwise affect eligibility for such funding. As used in the provisions above, a ""f ederal financial incentive"" means any reimbursement, grant, performance payment, bonus, or fiscal benefit, whether direct or indirect, available to a state, county, court, agency, contractor, or provider contingent upon, correlated with, or enhanced by th e removal, placement, supervision, treatment, or termination of parental rights involving a child . At the time of disclosure, this bill requires the court to affirm on the record that the court has no institutional or financial interest in the outcome of the proceeding and that no funding consideration has influenced, or will influence, the court's determinations. The obligation to disclose is a continuing duty and applies to any material change in funding eligibility or incentives arising during the pendency of the proceeding. This bill prohibits a court from entering an order affecting parental rights if the disclosures have not been made. Failure to comply constitutes structural error and renders any resulting order voidable as a matter of law. The rights and disclosures are not subject to waiver by a parent, counsel, or guardian ad litem, and failure to object must not be deemed consent. This bill clarifies that the provisions in this heading must be construed to preserve judicial impartiality, prevent conflicts of interest, and ensure that decisions affecting family integrity are based solely on lawful evidence and constitutional standards, and not on financial considerations. EVIDENTIARY PROTECTIONS AND PROHIBITED BASES FOR TERMINATION This bill prohibits a n order affecting parental rights from be ing entered unless supported by competent, admissible evidence presented in a meaningful evidentiary hearing. Findings must not be based on unsworn statements, proffers, summaries, or reports not admitted into evidence. This bill provides that a parent has the right to confront and cross-examine all adverse witnesses whose testimony or statements are offered to support removal, restriction of custody or visitation, or termination of parental rights. Hearsay must not constitute the sole or primary basis for any finding required under this bill. Further, e xpert testimony may be admitted only upon a showing of reliability and relevance. Opinions based primarily on speculation, generalized risk assessments, predictive harm, or compliance metrics do not satisfy the state's burden of proof. This bill prohibits a removal, restriction of custody or visitation, or termination of parental rights from be ing based solely or primarily upon any of the following:  Poverty, homelessness, or economic hardship .  A parent's disagreement with, or noncompliance with, recommended services absent proof of necessity and proportionality .  Lawful exercise of constitutional rights, including the right to remain silent, to decline services, or to seek judicial review .  Predictive harm, generalized risk factors, or speculative future injury .  Prior involvement with the child welfare system that has not been proven relevant and admissible in the current proceeding .  The best interest of the child standard standing alone, without proof of statutory grounds and necessity under the required burden of proof. This bill requires m aterial allegations supporting permanent dispositions to be corroborated by independent evidence. Uncorroborated accusations are not sufficient to meet the state's burden. An order affecting parental rights must include written findings of fact and conclusions of law identifying the specific evidence relied upon and the manner in which the state met its burden under this bill. This bill clarifies that the provisions in this heading must be construed to ensure evidentiary rigor, protect against arbitrary decision-making, and prevent deprivations of family integrity based on speculation, administrative convenience, or non-evidentiary considerations. REMEDIES, ENFORCEMENT, AND PRESERVATION OF RIGHTS This bill provides that an order affecting parental rights entered in violation of this bill is voidable as a matter of law and subject to vacatur upon timely motion by an aggrieved parent or upon the court's own motion. A violation of this bill constitutes structural error. A showing of harmlessness or lack of prejudice is not required to obtain relief. This bill clarifies that its provisions do not limit, waive, or preclude any right, remedy, or cause of action available under the Constitution of the United States, the Constitution of Tennessee, or applicable federal or state law, including actions brought pursuant to civil rights law . Judicial, quasi-judicial, or administrative immunity must not attach to acts taken in knowing violation of this bill or in willful disregard of the rights secured in this bill, to the extent permitted by law. A parent wh ose rights are affected by a proceeding governed by this bill has standing to seek enforcement of its provisions. This bill requires the provisions under this heading to be construed to ensure meaningful enforcement of the protections established by this bill and to deter future violations of constitutional and statutory rights relating to family integrity. APPLICABILITY This bill applies to proceedings initiated on or after that date this bill becomes effective and to proceedings that are pending on that date in which a final order terminating parental rights has not yet been entered."