Article II. Prehearing Procedures

215

Rule 16: Preliminary Hearings in Dependent and Neglected and Abuse Cases.

(a) Requirement of a Preliminary Hearing. If pursuant to Rule 5 an alleged dependent, neglected or abused child is removed from the custody of such child’s parent, guardian or legal custodian prior to a hearing on the petition and is not returned to the child’s said parent, guardian or legal custodian, a preliminary hearing shall be held no later than seventy-two (72) hours after the child’s removal to determine whether such child’s removal is required under T.C.A. § 37-1-114. In computing the seventy-two (72) hours limitation for purposes of such preliminary hearing, nonjudicial days are excluded, but in no event shall the hearing be held later than eighty-four (84) hours after the child is removed from the custody of such child’s parent, guardian or legal custodian. The evidence at this hearing may include reliable hearsay.

(b) Waiver of Preliminary Hearing. The provisions of subsection (a) may be waived by an express and knowing waiver by the parties to an action, including the parents, guardian or legal custodian and the child or guardian ad litem for the child. Any such waiver may be revoked at any time, at which time a preliminary hearing shall be held within seventy-two (72) hours of the revocation of the waiver; the seventy-two (72) hours limitation shall be computed as in subsection (a).

(c) Disposition at Preliminary Hearing. At the conclusion of the preliminary hearing, the court shall return the child to the person from whose custody the child was removed unless the court determines that the child’s removal is required under T.C.A. § 37-1-114. If the court determines at the hearing that the child’s removal is required under T.C.A. § 37-1-114, the court may order that the child be placed in the custody of a suitable person, persons, or agency, as specified in T.C.A. § 37-1-116(d). If the court returns the child to the person from whose custody the child was removed, the court may enter an interim or preliminary order setting forth conditions of the return designed to protect the rights and interests of the child and the parties pending further hearing.

(d) Rehearing on Affidavit. If the child is not returned, and if a parent, guardian or custodian had not been notified of the preliminary hearing, did not appear or waive appearance at this hearing, and files an affidavit showing these facts, the court shall rehear the matter within seventy-two (72) hours of the filing of the affidavit, computed as in subsection (a), and order such child’s return unless it appears from the hearing that the child’s detention or shelter care is warranted or required under T.C.A. § 37-1-114.

Advisory Commission Comments [2007].

The amendment clarifies time computation for convening a preliminary hearing and is also intended to eliminate differing interpretations of the phrase “3 days”, as utilized in T.C.A. § 37-1-117. The amendment also conforms to the provisions of T.C.A. § 37-1-117, including the addition of subsection (d), which was formerly omitted from the rule.

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