Article II. Prehearing Procedures

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Rule 5: Custody - When Child May Be Taken into Custody - Procedures Upon Taking Child Into Custody - Rights of Child.

(a) Grounds for Taking Child into Custody. A child may be taken into custody according to the provisions of T.C.A. § 37-1-113.

(b) Grounds for Detention or Shelter Care. When a child is taken into custody the child shall not be detained but shall be released to the child's custodian or some other suitable adult within a reasonable time,

(1) Unless the court has lawfully ordered the child to be detained pursuant to procedures set forth in these rules; or

(2) Unless detention or shelter care is sought pursuant to the grounds set forth in T.C.A. § 37-1-114.

The person to whom a child is released may be required to sign a written promise to produce the child when ordered by the court.

(c) Detention of Delinquent and Unruly Children.

(1) Admission of Delinquent or Unruly Child to Detention Facility. If a child alleged to be delinquent or unruly is not released, the child shall within a reasonable time be taken to the juvenile court or to a detention facility designated by court order in accordance with T.C.A. § 37-1-116, where as a condition to the child's admission thereto, the person presenting the child shall complete a written complaint, which shall include the reason(s) the child was taken into custody, the reason(s) the detention or shelter care is requested, the nature of the conduct charged, and the efforts made to notify an appropriate adult custodian. This complaint shall be delivered with the child to the supervisor of the detention facility.

(2) Notification of Court of Presence of Child at Detention Facility. When a child has been delivered to a detention facility, the supervisor of the detention facility shall immediately notify the court or its designated representative of the presence of the child at the facility and shall as soon thereafter as possible provide to the court or its representative a copy of the complaint regarding the child.

(3) Requirements for Detention in Jails. If the detention facility designated by the court is also a facility for the detention of adults, no detention of a child shall take place unless the court so orders in accordance with T.C.A. § 37-1-116, after determining that public safety and protection reasonably require detention of the child. Any such detention of a child shall be in a room separate and removed from those for adults.

(4) Release to Adult Custodian. If the only reason for the holding of a child is the unavailability of a parent, guardian, legal custodian, or suitable adult relative and if, prior to any detention or shelter care hearing, a parent, guardian, legal custodian, or suitable adult relative requests the release of the child and undertakes to assume responsibility for any court appearance which may thereafter be required of the child, the detention or shelter care facility shall forthwith release the child into the custody of such adult.

(5) Notifications to Child. When a child is brought to the court or placed in detention, a youth services officer or other person designated by the juvenile court judge to serve as an intake officer for the juvenile court shall within a reasonable time inform the child of:

 (i) The reason for the detention;

 (ii) The right to a detention hearing as provided under these rules and an explanation that a decision will be made at the detention hearing whether the child will remain in detention or be released pending any future court appearance;

 (iii) The right to an attorney;

 (iv) That if the child is unable to hire an attorney and if the child's parents, guardian or legal custodian have not provided or do not provide an attorney, one can be provided at no charge to the child;

 (v) That the child is not required to say anything and that anything the child says may be used against the child;

 (vi) If the child's attorney, parent, guardian, or legal custodian is not present, that the child has a right to communicate with them, and that, if necessary, reasonable means will be provided to do so; and

 (vii) The child's rights during detention as set forth in Rule 7.

(6) Notifications to Parents. When a child is detained, the child's parents, guardian, or legal custodian shall be notified of the detention as soon as possible. They shall also be informed of the child's rights as set forth in section (c)(5) above.

(7) Preliminary Investigation; Release. The person designated by the court shall make a preliminary investigation as required by T.C.A. § 37-1-117. If after the preliminary investigation no reason appears to warrant detention under T.C.A. § 37-1-114, the child shall be released to the person having lawful custody or to a responsible person, organization, or agency approved by the court. Before such release, the person to whom the child is released may be required to promise in writing to produce the child before the court at a time specified by the court.

(8) Filing of Petition When Child Detained. If a child alleged to be delinquent or unruly is not released according to the provisions of this rule, a petition shall be promptly filed with the court.

(d) Procedures in Dependent and Neglected and Abuse Cases.

(1) Grounds for Emergency Removal by Court Order. The juvenile court may, without formal hearing, order that a child be removed from the custody of the child's parent, guardian, or legal custodian, pending further investigation and hearing, when the court finds that there is probable cause to believe that the conditions specified in T.C.A. § 37-1-114 exist and that the child is in need of the immediate protection of the court. However, any such findings and order shall be based upon a sworn petition or sworn testimony containing specific factual allegations.

(2) Grounds for Emergency Removal Without Court Order. Pursuant to T.C.A. § 37-1-113, a law enforcement officer, a social worker of the Department of Children's Services, or a duly authorized officer of the court may take a child into custody without a court order, if that person has reasonable grounds to believe that the conditions specified in T.C.A. § 37-1-114 exist.

(3) Procedures upon Taking Child into Custody; Notice Requirements. When a child is taken into custody upon an allegation that the child is dependent and neglected or abused, the person taking the child into custody shall bring the child before the court or deliver the child to a shelter care facility designated by the court or to a medical facility if the child is believed to suffer from a serious physical condition or illness which requires prompt treatment. The person shall give notice thereof, together with a reason for taking the child into custody, to the parents, guardian, or other custodian and to the court. Notice shall also immediately be given to the Department of Children's Services. As soon as practicable, notice shall also be given to the parents, guardian, or other custodian, and to the child if fourteen (14) years of age or older or if also alleged to be delinquent or unruly, of their right to a preliminary hearing as provided in T.C.A. § 37-1-117 and Rule 16 of these rules; of the time, date, and place of the hearing; and of the factual circumstances necessitating the removal.

(4) Filing of Petition When Child in Custody. If the child is taken into custody prior to the filing of a petition, a petition shall be filed as soon as practicable but in no event later than two (2) days after the child is taken into custody excluding nonjudicial days.

(5) Alternatives to Ordering Emergency Removal. In cases in which application is made for an order of emergency removal, the court may, as an alternative to emergency removal, authorize a representative of the Department of Children's Services to remain in the child's home with the child until a parent, guardian, legal custodian, or adult relative of the child enters the home and expresses a willingness and apparent ability to resume permanent charge of the child, or in the case of a relative, to assume charge of the child until a parent or legal guardian enters the home and expresses such willingness and apparent ability. [As amended by order entered January 31, 1984, effective July 1, 1984; and by order filed January 13, 2012, effective July 1, 2012.]

Advisory Commission Comments.

It is suggested by the committee that each local juvenile court develop its own written guidelines and criteria for the detention and shelter care of children in accordance with the law and with these rules. The intake officer should properly consider such guidelines and criteria in making the investigations required in section (c)(7) of this rule, and in making decisions whether to detain particular children. The intake officer may be a youth services officer or other employee of the court, or someone else designated by the court to serve as an intake officer for detention screening; for example, an employee of the sheriff 's office may act as intake officer when no court employee is available. The committee urges that youth services officers perform these functions, but realizes that in some counties this will be difficult to achieve on a consistent basis.

 In regard to the preliminary investigation required by section (c)(7) of the rule, the following procedures are suggested as a proper basis for such investigations, to be supplemented by other procedures within the law which may be appropriate to particular cases. The intake officer may:

 1. Interview or otherwise seek information from the complainant, victim and any witnesses to the alleged offense;

 2. Examine court records and the records of law enforcement agencies; and

 3. Conduct interviews with the subject of the complaint and that child's family, guardian, or legal custodian. These interviews must be voluntary, and the child (or parent, guardian, or custodian in dependent and neglected cases) has the right to an attorney and to remain silent. At the beginning of such interviews the intake officer should explain the nature of the complaint and the purpose, procedures, and possible consequences of the detention screening process.

 The term “shelter care facility” in section (d) of this rule should be construed to include a foster home or other home or facility approved by the court, as stated in T.C.A. § 37-1-116. Both in regard to the detaining of allegedly dependent and neglected children in “shelter care facilities”(T.C.A. § 37-1-116) prohibits the detention of such children in any facility “intended or used for the detention of adults charged with criminal offenses or of children alleged to be delinquent” and in regard to the detaining of allegedly delinquent and unruly children in “detention facilities,”the committee recommends that, wherever possible, community-based alternatives to institutions should be used. This preference is in keeping with the prohibition in T.C.A. § 37-1-114 against any detention or shelter care of children unless “there is no less drastic alternative to removal of the child from the custody of his parent, guardian or legal custodian available which would reasonably and adequately protect the child's health or safety or prevent the child's removal from the jurisdiction of the court pending a hearing.”

Advisory Commission Comments [2012].

The 2012 amendments to paragraphs (d)(2), (3) and (5) substitute the term “Department of Children’s Services” for the term “Department Human Services,” consistent with statutory changes enacted by the General Assembly.

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