Tennessee Parents Could Be Criminalized Based On Anonymous Allegations Of Abuse Or Neglect

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The Tennessee Conservative [By Paula Gomes] –

Under a new law proposed by Representative Ron Travis (R-Dayton-District 31) and Senator Paul Bailey (R-Sparta-District 15), parents could be charged with a felony for failure to turn over their child to the woefully inept Tennessee Department of Children’s Services (DCS), even on anonymous and unsubstantiated allegations of child abuse and neglect when DCS obtains a secret court order based on those allegations. 

House Bill 1109 (HB1109) and companion Senate Bill 1319 (SB1319) would eliminate basic due process which requires that a person has the right to know accusations made against them and have their day in court to tell their side of the story to a judge.  

This bill adds a subsection to Tennessee Code 39-13-306 which states that it is criminal custodial interference for a parent or family member who harbors or hides a child within or outside this state, knowing that the child has been placed in the custody of DCS pursuant to a protective custody order or an emergency custody order entered by a court; and it is no defense that the person harboring or hiding the child has not been served with an actual copy of a protective custody order or emergency custody order.  

Although it appears at first glance that this would provide important protection for children subject to abuse or neglect, this bill will give DCS an arm of enforcement that usurps the constitutional protections of due process.

DCS gets referrals for child abuse or neglect through their portal or by a “hotline” and these reports can be completely anonymous. Reports are not required to be based on firsthand information, and the identity of the person providing the report is protected by law and cannot be disclosed. 

Upon receipt of the referral, DCS is supposed to investigate the allegations which are prioritized as level 1, 2, or 3. The investigation includes seeing the alleged child victim and talking to the alleged perpetrator of the abuse (presumably a parent). When DCS interviews the alleged perpetrator, they are not given notice of their rights against self-incrimination, they are not given notice that they have a right to an attorney, and they are not informed that anything they say will be used against them. DCS has openly declared that they have no duty to speak to a parent’s attorney.  

If the parent does not allow this investigation to occur, DCS may take the allegations to a judge – without any other independent investigation – and get a secret court order to compel the parents to cooperate in the investigation. In some cases, DCS does not even wait for a parent to refuse to talk to them before they take this request to a judge. These orders are called “ex parte” orders because they are obtained without any notice to the parent or their attorney. 

DCS is not required to talk to the source making the allegations, or make any determination of the credibility of the reporter. This is in sharp contrast to law enforcement, where an officer is required to make some credibility determination before relying on third party information to obtain a search warrant from a judge or magistrate. 

DCS, at any point, can take the anonymous allegations, put them in a court document, file the document with the Court, and get the judge to sign an order to take your child out of your home and place them in a stranger’s home miles away. Once this happens, and it does, parents may spend months and years, and thousands of dollars trying to prove their innocence while being required to take drug tests, psychiatric evaluations, and participate in supervised visitation once a month for four hours with their child. 

This proposed legislation will remove the due process requirements of notice and right to be heard on these secret court orders that trigger criminal prosecution. When considering due process, the balancing test is derived from Mathews v. Eldridge,  424 U.S. 319, 335 (1976) where, minimally, notice and opportunity to be heard are essential.

This law also relieves DCS of even attempting to properly serve a parent with the removal order.  DCS can simply obtain an ex parte order, and then obtain a felony warrant for violation of a court order based on uninvestigated anonymous allegations.  A felony warrant triggers a statewide BOLO (be on the lookout) before a parent has even been informed of the allegations. 

Representative Clay Doggett (R-Pulaski-District 70) has attempted to remove anonymous reporting in past legislative sessions but his bill failed after the DCS legislative team falsely claimed that they would prosecute hotline reports that were based on lies or retaliation.

Doggett then brought legislation that would merely require DCS to complete some independent investigation prior to seeking an ex parte order to compel parents to allow DCS in their homes or force the parents to do drug testing. This was not an extraordinary request. Doggett was able to get his bill through the subcommittee, however, it never made it to the floor.  

In 2020, the Supreme Court of Pennsylvania rejected the trial court’s “fair probability” analysis, and ruled that “nothing short of probable cause, guided by the traditional principles that govern its federal and state constitutional limitations, will suffice when a trial court makes a determination as to whether or not to authorize a home visit.” The Court ruled that the child welfare agency needed to secure some independent investigation that would rise to “probable cause” before they could obtain an order to enter someone’s home.

The Supreme Court of Pennsylvania also ruled that the social worker cannot collect body fluids and compel drug screens from parents during an investigation, another routine demand of Tennessee DCS.  

While protecting children from harm is paramount in a civilized society, so is the protection of family integrity and basic constitutional rights intended to give parents the right to contest allegations made against them. There are plenty of laws which cover child abuse and neglect in Tennessee which DCS could turn to when they have probable cause. They are not left without recourse when they believe they have credible evidence of harm. In Tennessee, where the agency vested with protecting children from harm has proven to be the source of harm to the unfortunate youngsters, it is just as important to reduce unnecessary child removals.  

Travis and Bailey’s bill is surprising for another reason. Last year, Williamson County District Attorney Kim Helper prosecuted local attorney Connie Reguli for facilitating custodial interference when DCS obtained a secret ex parte protective custody order on her client’s child in Dekalb County. When DCS contacted her client in August 2018, Reguli made multiple phone calls to the case worker, her supervisor, the DCS local office, the DCS regional office, and DCS Central Office in Nashville. Reguli left multiple messages that she would be happy to meet with them and let them confirm that the child was fine and cooperate with their investigation.  

Instead of calling Reguli back, DCS employees Deandra Miller and Tracy Hetzel took the allegations that her client was a drug dealer to Smith County Judge Michael Collins and obtained an ex parte order to remove her client’s disabled 12-year-old child from her home. The juvenile court clerk refused to fax a copy to Reguli’s office even though Reguli had informed them that she represented the mother. Reguli invited her client and child to her home in Brentwood to keep them safe while she tried to contact Judge Collins to get before the judge.  

Instead of calling Reguli, even after obtaining a secret court order and secret hearing the following day, DCS Miller called the police to surround Reguli’s house and caused the child to be shipped 200 miles from home to live with strangers. Reguli fought the allegations for ten months. The 12-year-old was shipped to six different homes and four schools. The allegations against her client were eventually dropped but the child suffered traumatic separation and depression after being returned home.  

A month later, Reguli and her client were arrested for custodial interference. The Tennessee Conservative spoke with Reguli after her conviction and in that interview she told us that it was a “fake” felony because custodial interference was about interfering with visitation orders between parents and not ex parte DCS orders.  

According to Reguli, Williamson County Judge Joseph Woodruff rewrote the law removing the visitation language just so she could be prosecuted in retaliation for her decade-long battle against the civil rights abuses of DCS. Her case is on appeal. 

Travis and Bailey’s bill would now create the law that Judge Woodruff and DA Helper already believe exists. This ex post facto (or after-the-fact) criminalization has long been known to violate the constitutional rights of citizens.  

If you believe this law should fail for its abuse of government power over the constitutional rights of citizens, contact the bill’s sponsors before it is presented to the House Criminal Justice committee and the Senate Judiciary Committee. 

Representative Ron Travis can be reached at 615-741-1450 or rep.ron.travis@capitol.tn.gov

Senator Paul Bailey can be reached at 615-741-3978 or sen.paul.bailey@capitol.tn.gov 

About the Author: Paula Gomes is a Tennessee resident and reporter for The Tennessee Conservative. You can reach Paula at paula@tennesseeconservativenews.com.