Article IV. Post-Hearing Procedures; Miscellaneous Provisions

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Rule 38: Protective Orders - Judicial Consent for Treatment.

(a) General Criteria. Upon its own motion or upon the motion of the child; the child's parents, guardian, legal custodian, or guardian ad litem; a probation officer; a caseworker; the prosecuting attorney; the attorney for any department of government; or any person providing services to the child or the child's parent, guardian, or custodian; the juvenile court may, on the basis of a report that a child's welfare or safety may be endangered or for good cause shown upon the record, issue an injunction, an order, or an ex parte emergency order:

(1) To provide a child with a mental examination or treatment in accordance with T.C.A. §§ 37-1-128 and 37-1-135 and/or with Title 33 of the Tennessee Code Annotated; and/or

(2) To provide a child with a physical examination or treatment, and to that end, the following procedures are also authorized:

(i) Where a physician advises that an emergency exists, the court may order the child detained in a health care facility while the emergency exists;

(ii) Where a physician advises that continued medical care is necessary to protect the child after an emergency has passed, the court may order these services for a reasonable length of time and order the child detained while they are provided;

(iii) Where the emergency has passed or whenever the medical care is no longer necessary, the child shall be returned to the child's parents, guardian, or custodian unless a petition has been filed and the court has determined that the child should not be returned to their custody pending the hearing.

(b) Oral and Telephone Authorizations. Where the need for an emergency order under section (a) of this rule arises and the court is not in regular session, the judge or magistrate may give oral or telephone authorization to place a child in protective custody or to detain a child in a physical health care service, which authorization shall have the same force and effect as if written and which shall be followed by a written order on the first regular day of court thereafter.

(c) Preliminary Hearings. Whenever a child is placed in protective custody or detained as above provided in section (a) of this rule, the court shall conduct a preliminary hearing as provided in Rules 5 and 16, within seventy-two (72) hours, excluding nonjudicial days. The parents, guardian or other legal custodian or person with whom the child was residing at the time the injunction, order or ex parte emergency order was issued shall be notified of the time and place of the hearing. The child shall also be so notified if over fourteen (14) years of age and not incapacitated because of the need for emergency treatment.

(d) Consent of Parents. At any time when a child is subject to an injunction, order, or emergency order of the court as provided in section (a) of this rule, reasonable effort shall be made to notify the parents, guardian, or other legal custodian for the purpose of gaining consent for such injunction, detention, examination, or treatment. However, if such consent cannot be secured and the child's welfare or safety so requires, the court may authorize the needed injunctive relief, detention, and/or medical examination and treatment.

[As amended by order filed January 12, 2012, effective July 1, 2012.]

Advisory Commission Comments [2012].

The 2012 amendment substitutes in paragraph (b) the term “magistrate” for the term “referee,” consistent with statutory changes enacted by the General Assembly.

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