Article I. General Provisions

215

Rule 2: Definitions.

In addition to the definitions of the terms set forth in T.C.A. § 37-1-102, the following terms when used in these rules shall, unless the context clearly otherwise requires, have the meanings shown; the singular shall include the plural, and the masculine shall include both genders unless otherwise specified.

 (1) “Attorney” means a person licensed to practice law in the state of Tennessee, or a senior law student permitted to appear as an attorney pursuant to and subject to the provisions of Rule 7, Section 19 of the Rules of the Tennessee Supreme Court, and shall be construed to include the terms “legal counsel”and “lawyer.”

 (2) “Clerk” means the clerk who serves the juvenile court.

 (3) “Community-based program” means a program providing nonresidential or residential treatment to a child in or near the community where the child's family lives. A community-based program may include specialized foster care, family counseling, shelter care, and other appropriate treatment.

 (4) “Complaint” means an informal oral or written statement requesting the court to exercise its jurisdiction.

 (5) “Domicile” means the place of residence of a parent, guardian, or legal custodian.

 (6) “Guardian of the person” means a person appointed by the court to exercise parental powers and duties in addition to those incident to the day to day care of a child as defined and described under “legal custodian.”Every child is entitled to a guardian of the person, natural or appointive, as contemplated by Tennessee Code Annotated, title 34, chapter 2, part 1. Ordinarily a guardian of the person has the right to care, custody, and control of the child. In cases, however, where legal custody is vested in another individual or agency, those rights would be exercised by the legal custodian, and the guardian of the person would retain power to make major decisions concerning the child's welfare, such as consent to marriage, enlistment in the armed forces, and major surgery. A guardian of the person has the right and duty to represent the child in some legal actions before the court, and to reasonable visitation, subject to such limitations as the court may order, just as in the case of a parent.

 (7) “Guardian ad litem” is a lawyer appointed by the court to protect the rights and interests of a child during the pendency of a proceeding involving the child and to advocate for the best interests of the child. In a dependency, neglect or abuse case the guardian ad litem must also ensure that the child’s concerns and preferences are effectively advocated, pursuant to Tennessee Supreme Court Rule 40.

(8) “Intake” means a process consisting of:

 (i) the screening of cases in which children have been taken into custody and have been brought to a detention facility, to determine whether detention is warranted under the law; and

 (ii) the screening of complaints received by the juvenile court, to determine whether the court has jurisdiction and what action if any should be taken in regard to the complaint.

(9) “Intake officer” means a person employed or otherwise designated by the juvenile court judge to perform any of the functions of intake.

(10) “Legal custodian” means a person or agency to whom legal custody of a child has been given by court order. A legal custodian has the right to physical custody of the child; the right to determine the nature of the care and treatment of the child, including ordinary medical care; and the right and duty to provide for the care, protection, training, education, and physical, mental, and moral welfare of the child. Such rights and duties are, however, subject to the conditions and limitations of the order granting legal custody and to the remaining rights and duties of the child's parent(s).

(10.1) “Magistrate” means a person meeting the qualifications and serving the functions set forth in Tenn. Code Ann. § 37-1-107.

(11) “Nonjudicial days” means Saturdays, Sundays, and legal holidays. Nonjudicial days begin at 4:30 p.m. on the day preceding a weekend or holiday, and end at 8:00 a.m. on the day after a weekend or holiday.

(12) “Parent” means a natural or adoptive parent whose parental rights have not been terminated.

(13) “Petition” means a verified written statement by which the formal process of the juvenile court is begun.

(14) “Probation officer” means a person who performs the duties set forth in § 37-1-105, particularly those of supervising and assisting children placed on probation or in the person's protective supervision or care by order of the court or other authority of law, whether such person is employed by the Department of Children's Services or so designated by the juvenile court.

(15) “Prosecuting attorney” means the district attorney general or city or county attorney, or any attorney requested by the court or retained by the petitioner to present the evidence in support of the petition and otherwise to conduct the proceedings on behalf of the state.

(16) “Record” means the minutes of all the proceedings of the juvenile court, including all official court documents and any papers filed in the proceedings. “Record”shall be construed to include a transcript of the proceedings where one is available.

(17) [Reserved.]

(18) “Respondent” means:

 (i) In a proceeding on a petition alleging delinquent or unruly conduct, the child who is alleged to be delinquent or unruly;

 (ii) In a proceeding on a petition alleging a child to be dependent and neglected, the parent, guardian, or legal custodian who allegedly neglected the child; and

 (iii) In any other proceeding, the person who is summoned to appear before the court as a party, with the right to respond to the allegations of the petition.

(19) “Violation of probation” means the failure to comply with the terms of probation established by the court.

(20) “Violation of the terms of home placement” means the failure to comply with the terms of home placement or other aftercare established when a child who has been committed to the custody of the Department of Correction pursuant to T.C.A. § 37-1-137 is placed in the home of a parent or guardian under the continuing supervision of the Department of Correction or in a foster home contracted for by the Department of Correction where such home has three or less foster children in residence.

(21) “Youth services officer” means a person fulfilling the functions stated in T.C.A. § 37-1-106.

[Amended by order filed January 2, 2007, effective July 1, 2007; and by order filed January 13, 2012, effective July 1, 2012.]

Advisory Commission Comments.

Regarding the terms “youth services officer,” “intake officer,” and “probation officer,” there has been confusion concerning the overlapping functions of these three positions. The committee has attempted, within the parameters of the law, to clarify the functions in the above definitions. However, it recognizes that in many cases one person will fulfill multiple functions, whatever the job title. While this may be unavoidable in some situations, the committee intends that there be limitations on such multiple functioning where it creates a legal conflict of interest. For example, the committee considers that it would not be proper for any employee of the court to make an investigation, interrogate witnesses, take statements or otherwise prepare a case for the purpose of prosecuting a petition before the employee's own court. This does not preclude preliminary investigations for the purpose of intake screening or preparing predisposition reports and social histories as provided in these rules, nor does it preclude testifying before the court on such predisposition reports and social histories. Further, this does not mean that a probation officer should not initiate proceedings to revoke the probation of a child in the officer's charge.

 While subsection (18)(ii) of Rule 2 does not require it, the committee suggests that in dependent and neglected cases where there is only one custodial parent, the absent parent be notified wherever practicable.

Advisory Commission Comments [2007].

The amendment clarifies that a guardian ad litem in juvenile court must be an attorney. This definition is consistent with the definition of a guardian ad litem pursuant to Tennessee Supreme Court Rule 40 in child abuse, neglect and dependency cases and Tenn. Code Ann. § 34-1-107 in guardianship cases.

Advisory Commission Comments [2012].

The 2012 amendments are housekeeping measures that substitute “Department of Children’s Services” for “Department of Correction” and “magistrate” for “referee,” consistent with statutory changes enacted by the General Assembly.

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