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Brady v. Henry

United States District Court, Middle District of Tennessee, Nashville Division

February 13, 2015

BARRY BRADY, Plaintiff,



The defendant has filed a Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6) (Docket No. 8), to which the plaintiff has filed a Response in opposition (Docket No. 11), and the defendant has filed a Reply (Docket No. 14). For the reasons stated herein, the motion will be denied.


This case concerns alleged procedural unfairness by the Tennessee Department of Children’s Services (“DCS”) in identifying and listing individuals as perpetrators of child abuse or child sexual abuse without a fair hearing. DCS has promulgated the “Rules of the Tennessee Department of Children’s Services – Child Protective Services, ” Chapter 0250-07-09, codified at Tenn. Comp. R. & Regs. 0250-07-09 (the “Rules”).[1] The Tennessee Uniform Administrative Procedures Act (“UAPA”) governs reviews of agency decisions, including the type of DCS order at issue here. Before discussing the plaintiff’s alleged facts, the court will outline the relevant DCS Rules and provisions of UAPA as they relate to DCS orders.

I. Indication and The DCS Rules

A. DCS’s Duty to Indicate

Tennessee law requires DCS to investigate reports of child abuse and child sexual abuse and to determine, within sixty days, “whether the report of abuse was indicated or unfounded and report its findings to the department’s abuse registry.” Tenn. Code Ann. § 37-1-406(a) and (i); Fitzpatrick v. State Dep’t of Children’s Servs., 2014 WL 1092368, at *3 n.2 (Tenn. Ct. App. Mar. 18, 2014) (quoting Tenn. Code Ann. § 37-1-406(a)). DCS has adopted the Rules to implement this statutory mandate.

Under the Rules, DCS can identify and publish on a registry any person who engaged in “child abuse” or “child sexual abuse” as defined in Rule .01(4).[2] After a DCS investigation of a report of abuse, a person may be “indicated” as the perpetrator of child abuse. Rule .01(9); Fitzpatrick, 2014 WL 1092368, at *3 n.2 (“The term ‘indicated’ is defined as ‘the classification assigned to an individual found to be a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect as a result of investigation of a report of abuse.’”) (quoting Rule .01(9)).

B. Initial Investigation and Indication

After DCS receives a report of child abuse, it can “indicate” that the person is a perpetrator of child sexual abuse based on its internal assessment of the report and any other evidence it collects. A report made against an alleged perpetrator is classified as “indicated” if the “preponderance of the evidence, in light of the entire record, proves that the individual committed . . . child sexual abuse[.]” Rule .05(1).

Proof of one or more of several factors “may constitute a preponderance of the evidence, ” including information from a medical professional supporting the report of abuse, an admission by the perpetrator, the statement of a “credible witness, ” the child victim’s statement that abuse occurred, physical indications of abuse, other “[p]hysical evidence” that could impact the classification decision, behavioral patterns reflecting abuse, or other “circumstantial evidence” of abuse. Id.[3] It appears that all investigations must include certain investigatory steps, including, inter alia, a visit to the child’s home, an interview with and physical observation of the child, and an interview with the parents or guardians of the child. See Tenn. Code Ann. § 37-1-406(e). The investigation must also include determinations concerning the nature, extent, and cause of the harm, the names and conditions or other children in the home, the identity of any other people in the household, and “[a]ll other pertinent data.” Id. § 37-1-406(d).

C. Formal File Review as a Form of “Due Process”

The Rules purport to provide a form of “due process” to individuals indicated as perpetrators of child abuse. Rule .01(13). After a report is “indicated, ” DCS contacts the alleged perpetrator to inform him of the indication and to inform him of his right to “a formal file review by the Commissioner’s designee to determine whether the report has been properly classified as ‘indicated.’” Rule .06(1).[4] The DCS notice must, inter alia, indicate that (a) the individual “has been classified as the perpetrator of abuse . . . in an ‘indicated report’ investigated by the Department;” (b) the individual may request a “formal file review by the Commissioner’s Designee” within 10 days of the date of the notice; and (3) the failure to request a formal file review within 10 business days, absent a showing of good cause, results in the classified report becoming final. Rule .06(4). While that 10-day period is pending, DCS must not disclose that the individual has been classified as the perpetrator of child abuse, although it may confirm that an “investigation has commenced.” Rule .06(7).

If the alleged perpetrator timely responds to the notice by requesting a formal file review, DCS mails the person a notice of the individual’s obligations in the formal file review process. Rule .06(6). The notice must inform the individual that (1) he has the right to submit “additional written or documentary information on his or her behalf” within 30 days, and (2) the review will be completed within 90 days of the date on the notice. Id. “[T]he Commissioner’s designee” thereafter determines whether the evidentiary standards set forth in Rule .05, which are the same standards applicable in the initial indication process, have been met. Rule .06(8).

Thus, as the court understands the process, the Commissioner’s designee (whoever that may be) essentially conducts a de novo review of the case file, perhaps with the benefit of any documents timely produced by the alleged perpetrator. If the designee determines that the Rule .05(1) evidentiary standard has not been met, the initial report is reversed, the report is classified as “not indicated, ” and DCS does not release information about the report. Rule .06(9).[5] On the other hand, if the designee determines that the Rule .05(1) evidentiary standard has been met, the report “shall be upheld and it shall be classified as ‘indicated’.” Rule .06(11).

The Rules characterize the formal file review process as the “initial form of due process” that was “established pursuant to 42 U.S.C. § 5106(a)(b)(2)(A)(xv)(II) that is available to an individual whom the Department identifies or proposes to identify as a perpetrator of abuse[.]”[6]Rule .01(13). Here, the State has not identified any requirement that, in connection with the file review, DCS inform the alleged perpetrator of the evidence on which DCS has relied, the nature of DCS’s investigation, or how DCS reached its conclusions. Furthermore, the defendant has not identified any requirement that DCS disclose the source of its initial report to the alleged perpetrator.

D. Right to Hearing in Defined Circumstances Only

The next step in the review process varies based on how DCS intends to utilize the indication following a formal file review. By way of background, the UAPA defines a “contested case” as “a proceeding, including a declaratory proceeding, in which the legal rights, duties or privileges of a party are required by any statute or constitutional provision to be determined by an agency after an opportunity for a hearing.” Tenn. Code Ann. § 4-5-102(3) (emphasis added). ...

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