Article III. Adjudicatory and Dispositional Hearings

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Rule 30: Notification and Waiver of Rights of Parties.

(a) Notification and Waiver Where Respondent Represented by Attorney. Where the respondent is represented by an attorney, it is the responsibility of the attorney to fully advise the respondent of the rights which attach at any juvenile court hearing. Decisions to waive any of those rights are to be made by the respondent, after full consultation with the attorney. Nonetheless, the court remains obligated to ascertain whether rights are knowingly and voluntarily relinquished.

(b) Waiver of Rights Where Respondent Not Represented by an Attorney. Any rights guaranteed a respondent in a juvenile court hearing, under the Constitution of Tennessee, the Constitution of the United States, any other law, or any rule of court, may be waived by the respondent who is not represented by an attorney only if the respondent has been adequately advised of the right and knowingly and voluntarily waives the right.

(c) Criteria for Knowing and Voluntary Waivers. No waiver shall be accepted or deemed to have been made knowingly or voluntarily by a respondent where it appears that the respondent is or was unable to make an intelligent and understanding decision because of his mental condition, age, education, experience, the nature or complexity of the case, or other factors.

(d) Waiver by Child. Where the respondent is a child, no waiver in the adjudicatory hearing shall be accepted or deemed to have been made knowingly or voluntarily by the child unless the child has consulted with a knowledgeable adult who has no interest adverse to the child.

(e) Procedure for Making and Confirming of Waivers. Any and all waivers of rights shall be made orally in open court, and shall be confirmed in writing by the party and the judge.

(f) Notification of Right to an Attorney. In all stages of juvenile court proceedings in which a respondent is by law entitled to representation by an attorney, the respondent shall be expressly informed of the right to an attorney, unless it has been waived. Where a respondent is not represented by an attorney, the court shall advise the respondent in open court of the right to an attorney and of any right to an appointed attorney. The court shall not proceed with the hearing unless the respondent has waived the right to an attorney in accordance with the provisions of this rule.

(g) Waiver of Right to an Attorney. No respondent shall be deemed to have waived the assistance of an attorney until:

(1) The entire process of notification of the right to an attorney has been completed;

(2) A thorough inquiry into the respondent's comprehension of the right to an attorney and into the respondent's capacity to make the choice intelligently and understandingly has been made by the court and the court has determined that the respondent thoroughly comprehends the right to an attorney, has the experience and intelligence to understand, and does understand the consequences of any waiver;

(3) The respondent has knowingly and voluntarily waived the right to an attorney; and

(4) In the case of a respondent who is a child, the child has consulted with a knowledgeable adult who has no interest adverse to the child.

(h) Notification of Rights to Respondent Who has Waived Right to an Attorney. A respondent who has waived the right to an attorney shall be advised by the court at the outset of any juvenile court hearing of:

(1) The right to remain silent;

(2) The right to confront and cross-examine witnesses;

(3) The right to present testimony in his own behalf; and

(4) The right to a dispositional hearing following any adjudication of guilt, the right to appeal any decision of the juvenile court, the manner in which such a right can be perfected, and the right to an attorney on appeal.

(i) Appointment of Attorney. Where a respondent who is entitled by law to a court-appointed attorney does not knowingly and intelligently waive the right to an attorney and cannot afford an attorney, or where the respondent's parents or other persons legally obligated to care for and support the child are able to afford an attorney but refuse to hire one, the court shall appoint an attorney and may assess attorney's fees pursuant to T.C.A. § 37-1-150.

Advisory Commission Comments.

The standard in this rule for waiver of the right to an attorney in juvenile court proceedings is taken from a number of Court of Appeals decisions in which juvenile court findings of delinquency were overturned in post-commitment proceedings. According to these decisions a child is not “competent” to waive the right to counsel  “absent presence of a person capable of effectively safeguarding their interests [and] in most cases counsel would fulfill this safeguarding role while the juvenile's parents would not.”  State v. Williams, Tenn. App., Middle Section (June 27, 1975) at 10; State ex rel. Wilson v. Cook, Tenn. App., Middle Section (July 1, 1977) at 7-8; State ex rel. Patillo v. Garrington, Tenn. App., Middle Section (July 28, 1978) at 8.

 T.C.A. § 37-1-126 absolutely mandates appointment of an attorney “for a child not represented by his parent, guardian, guardian ad litem, or custodian.”The statute contemplates that a child will never appear in court without adult guidance and representation. The ability of a non-attorney adult who is present at the juvenile hearing to safeguard the juvenile's interests, and his or her effectiveness in doing so, are among the factors to consider in reviewing the validity of a waiver. Patillo, supra at 9; State v. Harper, Tenn. App., Middle Section (October 2, 1979) at 6. Parents are not automatically disqualified from fulfilling this function. However, as the Supreme Court has observed in a different context, “As a general rule, counsel should be provided, and . . . any doubt should be resolved in favor of appointment of counsel.” State ex rel. Gillard v. Cook, 528 S.W.2d 545, 548 (Tenn. 1975).

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