E-FILED

2/4/2022 4:21 PM
CLERK & MASTER
DAVIDSON CO. CHANCERY CT.

IN THE CHANCERY COURT FOR THE STATE OF TENNESSEE

TWENTIETH JUDICIAL DISTRICT, DAVIDSON COUNTY, TENNESSEE

THE BAPTISTE GROUP, LLC, )

)
Petitioner, ) No. 21-0691-I
)
vs. )
)
TENNESSEE DEPARTMENT OF CHILDREN’S )
SERVICES and JENNIFER NICHOLS, )
COMMISSIONER, )
)
Respondents. )

BENCH BRIEF REGARDING THE ISSUE OF MOOTNESS

Petitioner, The Baptiste Group, LLC (“TBG”) by and through its counsel of record, files

this bench brief regarding the narrow issue of whether this Judicial Review would be mooted upon

the anticipated natural expiration of TBG’s license to operate (License No. 21035) (“TBG’s

License”) on February 27, 2022. TBG states that it would not.

INTRODUCTION

As the Court acknowledged during the hearing on January 28, 2022, the Tennessee

Department of Children’s Services (the “Department”) issued the summary suspension that is the

subject of this Judicial Review over seven months ago on July 1, 2021 and then sat idly taking no

further action against TBG’s License, despite its statutory obligation to “promptly” institute

further proceedings if the Department determined that revocation or denial of the license was

warranted following suspension. Tenn. Code Ann. § 37-5-514(d)(1). It was not until September

17, 2021, which was over two months after the Department issued the summary suspension, that

the Department issued a Notice of Revocation to TBG. All the while, over the past seven months

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and counting, TBG has continued to suffer irreparable harm while its doors are closed, and it is

unable to operate.

Although all parties involved knew that TBG’s License would naturally expire on February

27, 2022, the summary suspension proceeding and the revocation proceeding remain unresolved

less than thirty days before the expiration date. Despite this knowledge, the Department

unilaterally chose not to initiate the process of renewal of TBG’s License. TBG is unaware of any

written or publicized process or protocols in place for the renewal of a license of a residential child

care agency, despite it scouring the Department’s official website and the applicable Rules and

Regulations and law. It is TBG’s understanding that usually the Department’s Licensing office

will contact a licensed facility some weeks before the license expires to schedule a final inspection

and determine whether the license should be renewed. The Department has not done this.

On January 31, 2022, TBG formally requested by e-mail that the Department renew TBG’s

License and, accordingly, begin its renewal process. TBG’s written request is attached as Exhibit

A. TBG received a response from Sammi Maifair, Senior Associate Counsel for the Office of

General Counsel of the Tennessee Department of Children’s Services, on February 2, 2022, in

relevant part, stating:

The Department is considering your email as a request to renew your license.

Accordingly, members of licensing division will be contacting you directly to
discuss next steps.

Exhibit A (emphasis added). Regardless of whether the Department fails to timely respond to the

request to renew, denies the request, or grants it, these proceedings will not become moot on

February 27, 2022.

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 LAW AND ARGUMENT

With TBG’s formal request to renew TBG’s License, even upon the passing of February

27, 2022, these proceedings will not become moot, regardless of the Department’s initial renewal

decision. Under Tenn. Code Ann. § 4-5-320(b) of the Uniform Administrative Procedures Act,

“[w]hen a licensee has made timely and sufficient application for the renewal of a license . . . the

existing license does not expire until the application has been finally determined by the agency,

and, in case the application is denied or the terms of the new license limited, until the last day for

seeking review of the agency order or a later date fixed by order of the reviewing court.” Tenn.

Code Ann. § 4-5-320(b). With respect to TBG’s request to renew, the applicable licensing laws

state in relevant part as follows:

If the department determines that any applicant . . . for the renewal of an existing
license has failed to attain, or an existing licensee has failed to maintain, compliance
with licensing laws or regulations after reasonable notice of such failure and a
reasonable opportunity to demonstrate compliance with licensing laws or
regulations, the department may deny the application for the new or renewed
license or may revoke the existing license; . . . provided, further, if the department
determines that repeated or serious violations of licensing laws or regulations
warrant the denial or revocation of the license, then, notwithstanding any provisions
of § 4-5-320 or this subsection (c) to the contrary, the department may seek denial
or revocation of the license regardless of the licensee's demonstration of
compliance either before or after the notice of denial of the application or after
notice of the revocation.

Tenn. Code Ann. § 37-5-514(c)(1). If an application for the renewal of a license is denied, the

applicant may appeal the denial and request a hearing. Tenn. Code Ann. § 37-5-514(c)(3). Only if

the licensee fails to timely appeal does the existing license expire immediately. Id. If timely appeal

is made, “pending the hearing upon the denial . . . the child care agency may continue to operate

pending the decision of the board of review unless the license is summarily suspended.” Tenn.

Code Ann. § 37-5-514(c)(5)(A). Accordingly, while TBG’s request for renewal remains

undecided, TBG’s existing license does not expire. Further, if the summary suspension is lifted,

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which is the issue presently before the Court for Judicial Review, TBG may continue to operate

pending any appeal of the Department’s decision. 1 Thus, upon February 27, 2022, considering

TBG’s formal request for renewal to the Department which remains pending and subject to appeal,

the Court’s judicial review of the summary suspension remains relevant for decision.

In addition, in a sparse, two-page Order, the Respondents purportedly issued the summary

suspension on July 1, 2021 because it claimed the “health, safety or welfare of the children in the

care of the Facility imperatively requires such emergency action.” TBG filed this Petition for

Judicial Review of the summary suspension on the grounds that the agency action was

unconstitutional, exceeded the Respondents’ statutory authority, and was arbitrary and capricious

and unwarranted in fact or law. A final decision impacts TBG’s reputation, and in that regard,

judicial review of the propriety of the summary suspension is and will be necessary,

notwithstanding the natural expiration date on any license.

CONCLUSION

Because TBG has formally requested a renewal of TBG’s License, TBG’s request for

Judicial Review of the summary suspension will not become moot on February 27, 2022.

Regardless of the Department’s decision regarding the renewal request, TBG may appeal that

decision. The applicable licensing laws allow TBG to continue to operate while that appeal is

pending, if the summary suspension is lifted.

1This is also the case, even with a Notice of Revocation issued on September 17, 2021, because
TBG has appealed the agency decision and awaits a hearing before the Board of Review and its
decision.

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Respectfully submitted,

BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, P.C.

/s/ Mark Baugh

Mark Baugh (BPR #15779)
1600 West End Avenue, Suite 2000
Nashville, TN 37203
Tel: (615) 726-5760
mbaugh@bakerdonelson.com

Mary Wu Tullis (BPR #31339)

165 Madison Avenue, Suite 2000
Memphis, TN 38103
Tel: (901) 577-8180
mtullis@bakerdonelson.com

Ashley B. Gibson (BPR #34140)

633 Chestnut Street, Suite 1900
Chattanooga, TN 37450
Tel: (423) 752-4403
abgibson@bakerdonelson.com

Attorneys for The Baptiste Group

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 CERTIFICATE OF SERVICE
I hereby certify that on February 4, 2022, a true and correct copy of the foregoing document
was served by email and first-class U.S. Mail upon:

Jordan K. Crews, Senior Assistant Attorney General

Office of the Attorney General
P.O. Box 20207
Nashville, TN 37202-0207
jordan.crews@ag.tn.gov

Douglas Earl Dimond

General Counsel
Department of Children’s Services
Office of General Counsel
7 th Floor UBS Tower
315 Deaderick Street
Nashville, TN 37243
(615) 741-9184
Douglas.E.Dimond@tn.gov

BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, PC

By: /s/ Mark Baugh

Mark Baugh