Chapter 1
Juvenile Courts and Proceedings

Part 1
General Provisions

37-1-101. Purpose — Jurisdiction — Ensuring compliance with the Indian Child Welfare Act.

  1. This part shall be construed to effectuate the following public purposes:
    1. Provide for the care, protection, and wholesome moral, mental and physical development of children coming within its provisions;
    2. Consistent with the protection of the public interest, remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior and substitute therefor a program of treatment, training and rehabilitation;
    3. Achieve the foregoing purposes in a family environment whenever possible, separating the child from such child's parents only when necessary for such child's welfare or in the interest of public safety;
    4. Provide a simple judicial procedure through which this part is executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced;
    5. Provide simple interstate procedures that permit resort to cooperative measures among the juvenile courts of the several states when required to effectuate the purposes of this part;
    6. Generally deinstitutionalize children who have not been found to be delinquent; and
    7. Provide developmentally appropriate interventions based on current scientific research in related fields, including neuroscience, psychology, sociology, and criminology.
  2. It is the intention of the general assembly in the passage of this part to promulgate laws relative to children that are to be uniform in application throughout the state.
  3. Each of the juvenile courts in all the counties and municipalities of the state as described in § 37-1-102 have all of the jurisdiction, authority, rights, powers and duties prescribed by this part, and any additional jurisdiction, authority, rights, powers or duties conferred by special or private act upon any of the juvenile courts in the state are not intended to be invalidated or repealed by this part, except where inconsistent or in conflict with any provisions of this part.
  4. Whenever a juvenile court conducts a child custody proceeding, as defined in § 36-6-205, the court shall ensure compliance with the Indian Child Welfare Act, compiled in 25 U.S.C. § 1901 et seq.

Acts 1970, ch. 600, §§ 1, 59; 1979, ch. 289, § 1; T.C.A., §§ 37-201, 37-259; Acts 2009, ch. 317, § 1; 2018, ch. 1052, § 2.

Compiler's Notes. Rules of Juvenile Procedure were adopted by the Supreme Court on February 1, 1983, effective July 1, 1984. See Tennessee Court Rules Annotated.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2018 amendment added (a)(7).

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Cross-References. Appointment of referees (now magistrates) in child support cases, Tenn. R. Sup. Ct. 22.

Rule Reference. This title is referred to in Rule 13 of the Rules of the Supreme Court of Tennessee.

This chapter is referred to in Rule 22 of the Rules of the Supreme Court of Tennessee.

This part is referred to in the Advisory Commission Comments under Rule 501 of the Tennessee Rules of Evidence.

This title is referred to in Rule 29 of the Tennessee Rules of Juvenile Procedure.

This section is referred to in the text of Rule 1 and in the Advisory Commission Comments under Rule 34 of the Tennessee Rules of Juvenile Procedure.

Law Reviews.

An IEP for the Juvenile Justice System: Incorporating Special Education Law Throughout the Delinquency Process, 44 U. Mem. L. Rev. 869 (2014).

Blended Sentencing in Tennessee Courts, 44 U. Mem. L. Rev. 767 (2014).

Bringing Facts into Fiction: The First “Data-Based” Accountability Analysis of the Differences Between Presumptively Open, Discretionarily Open, and Closed Child-Dependency Court Systems, 44 U. Mem. L. Rev. 831 (2014).

Differential Response in Child Protection Services: Perpetuating the Illusion of Voluntariness  (Soledad A. McGrath), 42 U. Mem. L. Rev. 629 (2012).

Success in Shelby County: A Roadmap to Systemic Juvenile Reform, 44 U. Mem. L. Rev. 727 (2014).

The DOJ Comes to Town: An Argument for Legislative Reform When the Juvenile Court Fails to Protect Due Process Rights, 44 U. Mem. L. Rev. 921 (2014).

The Essence of Justice: Independent, Ethical, and Zealous Advocacy by Juvenile Defenders, 44 U. Mem. L. Rev. 799 (2014).

The Incarceration of the Status Offender, 18 Mem. St. U.L. Rev. 713 (1988).

There's No Place Like Home: The Availability of Judicial Review Over Certification Decisions Invoking Federal Jurisdiction Under the Juvenile Justice and Delinquency Prevention Act, 53 Vand. L. Rev. 1311 (2000).

Toward Fundamental Fairness in the Kangaroo Courtroom: The Due Process Case Against Statutes Presumptively Closing Juvenile Proceedings, 54 Vand. L. Rev. 1751 (2001).

Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines (Andrew Tunnard), 66 Vand. L. Rev. 1309 (2013).

“The Politics of Protecting Children”: Panel Discussion 2: Litigation For Change (Jacqueline Dixon, Professor Dean Rivkin and Robert Schwartz), 7 Tenn. J. L. & Pol'y 218 (2011).

“The Politics of Protecting Children”: Panel Discussion 3: Confronting Political and Economic Challenges (Representative Sherry Jones, Connie Steere and Mary Walker), 7 Tenn. J. L. & Pol'y 289 (2011).

“The Politics of Protecting Children”: Panel Discussion 4: Best Practices In Representing Children in Court (The Honorable Timothy Irwin, Carlton Lewis and Dwight Stokes), 7 Tenn. J. L. & Pol'y 324 (2011).

“The Politics of Protecting Children”: Keynote Address Revisiting Luzerne County: Promoting Fairness, Transparency and Accountability In Juvenile Court (Robert Schwartz), 7 Tenn. J. L. & Pol'y 263 (2011).

Attorney General Opinions. Order removing child from home county and enjoining return, OAG 99-007 (1/25/99).

The juvenile court is not subject to the Parenting Plan Act, T.C.A. § 36-6-401 et seq., in any matter before the juvenile court pursuant to its exclusive original jurisdiction, OAG 01-028 (2/27/01).

Authority over the juvenile court system and its employees, OAG 07-004 (1/11/07).

NOTES TO DECISIONS

1. In General.

This part clearly contemplates full evidentiary hearings with the full panoply of constitutional safeguards, making it indispensable that these rights be recognized and protected by a judge having expertise in the field of law. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

Statute did not entitle plaintiffs to the requested recordings of juvenile court proceedings; although the first subsection permitted inspection of files and records, the third subsection specified that, besides petitions and orders, any other document or record was excluded, and except under limited circumstances, the legislature intended for juvenile court files and records to be kept confidential, and this intent is consistent with the express statutory purpose of providing for the protection of children coming within the juvenile court's jurisdiction. Reguli v. Guffee, — S.W.3d —, 2016 Tenn. App. LEXIS 810 (Tenn. Ct. App. Oct. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 123 (Tenn. Feb. 16, 2017).

2. Jurisdiction.

The legislature never intended to make the juvenile court a general sessions court; the intention was to transfer jurisdiction of the juvenile court to the general sessions court and to make the general sessions court a juvenile court when the subject matter before the court was within the jurisdiction conferred upon juvenile courts. Thus, the laws dealing with appeals from the general sessions court when that court is exercising nonjuvenile court jurisdiction were not controlling in an action to establish paternity; the controlling laws were the appellate procedures provided for juvenile courts. State ex rel. Winberry v. Brooks, 670 S.W.2d 631, 1984 Tenn. App. LEXIS 2752 (Tenn. Ct. App. 1984).

In matters of legitimation as provided in title 36, ch. 2, the appeal from the court of original jurisdiction is to the court of appeals. Cooper v. Thompson, 710 S.W.2d 944, 1985 Tenn. App. LEXIS 3289 (Tenn. Ct. App. 1985).

Juvenile court did not have subject matter jurisdiction to set aside a voluntary acknowledgment of paternity (VAP) based on fraud, and relieve respondent of any future obligation to pay child support and grant his petition against the mother and award him damages consisting of the child support that he had erroneously paid. State ex rel. Whitley v. Lewis, 244 S.W.3d 824, 2007 Tenn. App. LEXIS 458 (Tenn. Ct. App. July 24, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 1065 (Tenn. Nov. 19, 2007), appeal denied, State v. Whitley, — S.W.3d —, 2008 Tenn. LEXIS 732 (Tenn. Sept. 29, 2008).

While the juvenile courts have broad statutory authority to establish a child's paternity and to issue orders setting, modifying, or even terminating child support, the court of appeals found no statute giving the juvenile courts authority, expressly or by implication, to order the state to reimburse a person who has voluntarily paid child support based on the mistaken belief that he was the child's biological father. State ex rel. Whitley v. Lewis, 244 S.W.3d 824, 2007 Tenn. App. LEXIS 458 (Tenn. Ct. App. July 24, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 1065 (Tenn. Nov. 19, 2007), appeal denied, State v. Whitley, — S.W.3d —, 2008 Tenn. LEXIS 732 (Tenn. Sept. 29, 2008).

Juvenile court could not order the state of Tennessee to reimburse an alleged father for child support withheld from the alleged father, after it was determined that the alleged father was not a child's father, because: (1) the paternity and support judgment entered against the alleged father in violation of the Servicemembers'  Civil Relief Act, 50 U.S.C. app. § 501 et seq., was voidable, not void ab initio, so the judgment was valid when child support was withheld; and (2) no statute or other provision granted the juvenile court subject matter to enter the order. State ex rel. Price v. Childers, — S.W.3d —, 2012 Tenn. App. LEXIS 5 (Tenn. Ct. App. Jan. 5, 2012).

3. Procedural Rights.

Although juvenile proceedings do, in many ways, partake of civil rather than criminal proceedings, the juvenile has a right to counsel, confrontation and cross-examination of witnesses, the privilege against self-incrimination and the right to have guilt established beyond a reasonable doubt. State v. Johnson, 574 S.W.2d 739, 1978 Tenn. LEXIS 685 (Tenn. 1978).

Despite the purpose and the theory underlying the juvenile court system stated in this section and § 37-1-133, courts in recent years have emphasized that in practical effect persons involved in juvenile proceedings may be deprived of their liberty. Increasingly, concepts of the criminal law, and in particular constitutional principles designed to protect the rights of individuals charged with crime, have been deemed to be applicable to proceedings involving juvenile offenders. State v. Johnson, 574 S.W.2d 739, 1978 Tenn. LEXIS 685 (Tenn. 1978).

4. —Right to Counsel.

Under the Tennessee Juvenile Courts Act, read in context of federal constitutional principles relating to due process and the assistance of counsel, a juvenile court is required to grant a juvenile the right to counsel in proceedings involving the question whether such court should waive its exclusive jurisdiction over a juvenile as a minor and authorize the juvenile to be subjected to felony prosecutions. Mullins v. Lane, 484 F. Supp. 237, 1979 U.S. Dist. LEXIS 11632 (E.D. Tenn. 1979).

37-1-102. Chapter and part definitions.

  1. As used in this chapter, any reference to the department of correction is construed to mean the department of children's services, unless the reference is clearly intended to designate the department of correction.
  2. As used in this part, unless the context otherwise requires:
    1. “Abuse” exists when a person under the age of eighteen (18) is suffering from, has sustained, or may be in immediate danger of suffering from or sustaining a wound, injury, disability or physical or mental condition caused by brutality, neglect or other actions or inactions of a parent, relative, guardian or caretaker;
    2. “Administrative hearing” is an action by the judge or magistrate of the juvenile court in conformity with legislative intent in terminating the home placement of a juvenile;
    3. “Adult” means any person eighteen (18) years of age or older;
    4. “Caregiver” means any relative or other person living, visiting, or working in the child's home who supervises or otherwise provides care or assistance for the child, such as a babysitter, or who is an employee or volunteer with the responsibility for any child at an educational, recreational, medical, religious, therapeutic, or other setting where children are present. “Caregiver” may also include a person who has allegedly used the child for the purpose of commercial sexual exploitation of a minor or trafficking a minor for a commercial sex act, including, but not limited to, as a trafficker. For purposes of this chapter, “caregiver” and “caretaker” shall have the same meaning;
    5. “Child” means:
      1. A person under eighteen (18) years of age; or
      2. A person under nineteen (19) years of age for the limited purpose of:
        1. Remaining under the continuing jurisdiction of the juvenile court to enforce a non-custodial order of disposition entered prior to the person's eighteenth birthday;
        2. Remaining under the jurisdiction of the juvenile court for the purpose of being committed, or completing commitment including completion of home placement supervision, to the department of children's services with such commitment based on an adjudication of delinquency for an offense that occurred prior to the person's eighteenth birthday; or
        3. Remaining under the jurisdiction of the juvenile court for resolution of a delinquent offense or offenses committed prior to a person's eighteenth birthday but considered by the juvenile court after a person's eighteenth birthday with the court having the option of retaining jurisdiction for adjudication and disposition or transferring the person to criminal court under § 37-1-134;
      3. In no event shall a person eighteen (18) years of age or older be committed to or remain in the custody of the department of children's services by virtue of being adjudicated dependent and neglected, unruly or in need of services pursuant to § 37-1-175, except as provided in 37-5-106(a)(20);
      4. This subdivision (b)(5) shall in no way be construed as limiting the court's jurisdiction to transfer a person to criminal court under § 37-1-134;
      5. A person eighteen (18) years of age is legally an adult for all other purposes including, but not limited to, enforcement of the court's orders under this subsection (b) through its contempt power under § 37-1-158;
      6. No exception shall be made for a child who may be emancipated by marriage or otherwise; and
      7. A person over the age of eighteen (18) shall be allowed to remain under the continuing jurisdiction of the juvenile court for purposes of the voluntary extension of services pursuant to § 37-2-417;
    6. “Commissioner” means commissioner of children's services;
    7. “Court order” means any order or decree of a judge, magistrate or court of competent jurisdiction. A “valid court order” is one that is authorized by law, and any order entered in the minutes of a court of record is presumed to be valid;
    8. “Custodian” means a person, other than a parent or legal guardian, who stands in loco parentis to the child or a person to whom temporary legal custody of the child has been given by order of a court;
    9. “Custody” means the control of actual physical care of the child and includes the right and responsibility to provide for the physical, mental, moral and emotional well-being of the child. “Custody,” as herein defined, relates to those rights and responsibilities as exercised either by the parents or by a person or organization granted custody by a court of competent jurisdiction. “Custody” shall not be construed as the termination of parental rights set forth in § 37-1-147. “Custody” does not exist by virtue of mere physical possession of the child;
    10. “Delinquent act” means an act designated a crime under the law, including local ordinances of this state, or of another state if the act occurred in that state, or under federal law, and the crime is not a status offense under subdivision (b)(32)(C) and the crime is not a traffic offense as defined in the traffic code of the state other than failing to stop when involved in an accident pursuant to § 55-10-101, driving while under the influence of an intoxicant or drug, vehicular homicide or any other traffic offense classified as a felony;
    11. “Delinquent child” means a child who has committed a delinquent act and is in need of treatment or rehabilitation;
    12. “Department” means the department of children's services;
    13. “Dependent and neglected child” means a child:
      1. Who is without a parent, guardian or legal custodian;
      2. Whose parent, guardian or person with whom the child lives, by reason of cruelty, mental incapacity, immorality or depravity is unfit to properly care for such child;
      3. Who is under unlawful or improper care, supervision, custody or restraint by any person, corporation, agency, association, institution, society or other organization or who is unlawfully kept out of school;
      4. Whose parent, guardian or custodian neglects or refuses to provide necessary medical, surgical, institutional or hospital care for such child;
      5. Who, because of lack of proper supervision, is found in any place the existence of which is in violation of law;
      6. Who is in such condition of want or suffering or is under such improper guardianship or control as to injure or endanger the morals or health of such child or others;
      7. Who is suffering from abuse or neglect;
      8. Who has been in the care and control of one (1) or more agency or person not related to such child by blood or marriage for a continuous period of six (6) months or longer in the absence of a power of attorney or court order, and such person or agency has not initiated judicial proceedings seeking either legal custody or adoption of the child;
      9. Who is or has been allowed, encouraged or permitted to engage in prostitution or obscene or pornographic photographing, filming, posing, or similar activity and whose parent, guardian or other custodian neglects or refuses to protect such child from further such activity; or
        1. Who has willfully been left in the sole financial care and sole physical care of a related caregiver for not less than eighteen (18) consecutive months by the child's parent, parents or legal custodian to the related caregiver, and the child will suffer substantial harm if removed from the continuous care of such relative;
        2. For the purposes of this subdivision (b)(13)(J):
          1. A related caregiver shall include the child's biological, step or legal grandparent, great grandparent, sibling, aunt, uncle or any other person who is legally or biologically related to the child; and
          2. A child willfully left with a related caregiver as defined in subdivision (b)(13)(J)(ii)(a)  because of the parent's military service shall not be subject to action pursuant to § 37-1-183;
    14. “Detention” means temporary confinement in a secure or closed type of facility that is under the direction or supervision of the court or a facility that is designated by the court or other authority as a place of confinement for juveniles;
    15. “Evidence-based” means policies, procedures, programs, and practices demonstrated by scientific research to reliably produce reductions in recidivism or has been rated as effective by a standardized program evaluation tool;
    16. “Financial obligations” means fines, fees, costs, surcharges, child support, or other monetary liabilities ordered or assessed by any court or state or county government, but does not include restitution;
    17. “Foster care” means the temporary placement of a child in the custody of the department of children's services or any agency or institution, whether public or private, for care outside the home of a parent or relative, by blood or marriage, of the child, whether the placement is by court order, voluntary placement agreement, surrender of parental rights or otherwise;
    18. “Foster parent” means, for purposes other than § 37-2-414, a person who has been trained and approved by the department or licensed child-placing agency to provide full-time temporary out-of-home care at a private residence for a child or children who have been placed in foster care, or in the case of a child or children placed for adoption, a person who has provided care for the child or children for a period of six (6) months or longer in the absence of a power of attorney or court order;
    19. “Juvenile court” means the general sessions court in all counties of this state, except in those counties and municipalities in which special juvenile courts are provided by law, and “judge” means judge of the juvenile court;
    20. “Nonjudicial days” means Saturdays, Sundays and legal holidays. Nonjudicial days begin at four thirty p.m. (4:30 p.m.) on the day preceding a weekend or holiday, and end at eight o'clock a.m. (8:00 a.m.) on the day after a weekend or holiday;
    21. “Positive behavior” means prosocial behavior or progress in a treatment program or on supervision;
    22. “Preliminary inquiry” means the process established by the Rules of Juvenile Practice and Procedure that is used to commence proceedings and to resolve complaints by excluding certain matters from juvenile court at their inception;
    23. “Probation” means casework service as directed by the court and pursuant to this part as a measure for the protection, guidance, and well-being of the child and child's family;
    24. “Protective supervision” means supervision ordered by the court of children found to be dependent or neglected or unruly;
    25. “Restitution” means compensation that is accomplished through actual monetary payment to the victim of the offense by the child who committed the offense, or symbolically, through unpaid community service work by the child, for property damage or loss incurred as a result of the delinquent offense;
    26. “Seclusion”:
      1. Means the intentional, involuntary segregation of an individual from the rest of the resident population for the purposes of preventing harm by the child to oneself or others; preventing harm to the child by others; aiding in de-escalation of violent behavior; or serving clinically defined reasons; and
      2. Does not include:
        1. The segregation of a child for the purpose of managing biological contagion consistent with the centers for disease control and prevention guidelines;
        2. Confinement to a locked unit or ward where other children are present as seclusion is not solely confinement of a child to an area, but separation of the child from other persons;
        3. Voluntary time-out involving the voluntary separation of an individual child from others, and where the child is allowed to end the separation at will; or
        4. Temporarily securing children in their rooms during regularly scheduled times, such as periods set aside for sleep or regularly scheduled down time, that are universally applicable to the entire population or within the child's assigned living area;
    27. “Severe child abuse” means:
        1. The knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect that is likely to cause serious bodily injury or death and the knowing use of force on a child that is likely to cause serious bodily injury or death;
        2. “Serious bodily injury” shall have the same meaning given in § 39-15-402(c);
      2. Specific brutality, abuse or neglect towards a child that in the opinion of qualified experts has caused or will reasonably be expected to produce severe psychosis, severe neurotic disorder, severe depression, severe developmental delay or intellectual disability, or severe impairment of the child's ability to function adequately in the child's environment, and the knowing failure to protect a child from such conduct;
      3. The commission of any act towards the child prohibited by § 39-13-309, §§ 39-13-502 — 39-13-504, § 39-13-515, § 39-13-522, § 39-13-527, § 39-13-531, § 39-13-532, § 39-15-302, § 39-15-402, or § 39-17-1005 or the knowing failure to protect the child from the commission of any such act towards the child;
      4. Knowingly allowing a child to be present within a structure where the act of creating methamphetamine, as that substance is identified in § 39-17-408(d)(2), is occurring; or
      5. Knowingly or with gross negligence allowing a child under eight (8) years of age to ingest an illegal substance or a controlled substance that results in the child testing positive on a drug screen, except as legally prescribed to the child;
    28. “Sexually explicit image” means a lewd or lascivious visual depiction of a minor's genitals, pubic area, breast or buttocks, or nudity, if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such nudity;
    29. “Shelter care” means temporary care of a child in physically unrestricted facilities;
    30. “Significant injury” means bodily injury, including a cut, abrasion, bruise, burn, or disfigurement, and physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty, involving:
      1. A substantial risk of death;
      2. Protracted unconsciousness;
      3. Extreme physical pain;
      4. Protracted or obvious disfigurement; or
      5. Protracted loss or substantial impairment of a function of a bodily member, organ, or mental faculty;
    31. “Telecommunication device” has the same meaning as defined in § 39-16-201;
    32. “Unruly child” means a child in need of treatment and rehabilitation who:
      1. Habitually and without justification is truant from school while subject to compulsory school attendance under § 49-6-3007;
      2. Habitually is disobedient of the reasonable and lawful commands of the child's parent(s), guardian or other legal custodian to the degree that such child's health and safety are endangered;
      3. Commits an offense that is applicable only to a child; or
      4. Is away from the home, residence or any other residential placement of the child's parent(s), guardian or other legal custodian without their consent. Such child shall be known and defined as a “runaway”; and
    33. “Validated risk and needs assessment” means a determination of a child's risk to reoffend and the needs that, when addressed, reduce the child's risk to reoffend through the use of an actuarial assessment tool that assesses the dynamic and static factors that predict delinquent behavior.

Acts 1970, ch. 600, § 2; 1973, ch. 81, § 3; 1975, ch. 326, § 1; 1976, ch. 425, § 1; 1977, ch. 87, § 1; 1977, ch. 482, § 1; 1978, ch. 543, § 1; 1978, ch. 704, § 3; 1979, ch. 271, § 1; 1979, ch. 289, § 2; 1980, ch. 796, § 1; 1980, ch. 838, § 3; 1981, ch. 120, § 1; 1981, ch. 316, §§ 1, 3; 1982, ch. 882, § 4; 1982, ch. 934, § 16; 1983, ch. 9, § 1; 1983, ch. 254, § 1; 1983, ch. 435, § 2; T.C.A., § 37-202; Acts 1984, ch. 789, § 5; 1985, ch. 441, § 1; 1985, ch. 478, § 30; 1989, ch. 278, §§ 29, 77; 1990, ch. 988, § 2; 1993, ch. 276, § 1; 1995, ch. 532, §§ 4-6; 1996, ch. 1079, §§ 73, 77-84, 183; 2000, ch. 947, § 8G; 2002, ch. 868, § 1; 2009, ch. 235, §  1; 2009, ch. 411, §§ 5-8, 10; 2010, ch. 1065, § 4; 2011, ch. 158, § 19; 2011, ch. 314, §§ 3, 4; 2011, ch. 486, § 1; 2012, ch. 653, § 1; 2014, ch. 711, § 1; 2016, ch. 979, § 4; 2017, ch. 292, §§ 1, 2; 2017, ch. 367, § 2; 2018, ch. 1052, §§ 3-5; 2019, ch. 36, § 19; 2019, ch. 510, § 4.

Compiler's Notes. Acts 1993, ch. 276, § 4 provided that the amendment by that act shall not affect or apply to any juvenile committed to the department of youth development on or before July 1, 1993, or to the subsequent de novo appeal of such case.

The definition in subdivision (b)(23) (now subdivision (b)(32)) shall be effective July 1, 1996, before which date the definition of “unruly” shall be the definition found in former § 37-1-102(b)(21), which read: “  ‘Unruly child’ means a child who: (A) While subject to compulsory school attendance is habitually and without justification truant from school; (B) Is habitually disobedient of the reasonable and lawful commands of the child's parent, guardian or other custodian, and is ungovernable; (C) Has committed an offense applicable only to a child; or (D) Is away from the home or residence of his parents or guardians without their consent. Such child shall be known and defined as a ‘runaway’; if any of the foregoing is in need of treatment or rehabilitation.”

Acts 2009, ch. 235, § 1 directed the code commission to revise appropriate references from “child support referees” and “juvenile referees” to “child support magistrates” and “juvenile magistrates” in the code as supplements are published and volumes are replaced.

Acts 2009, ch. 411, § 12 provided that the act, which amended §§ 36-1-102, 36-1-108, 37-1-102, 37-2-402 and added new § 37-1-183, shall apply to conduct covered by the provisions of the act that occurs on or after July 1, 2009. The eighteen (18) month time period set out in § 37-1-102(b)(12)(J) shall not commence until July 1, 2009.

Acts 2010, ch. 1065, § 5 provided that the act, which added subdivision (b)(4)(G), shall be repealed June 30, 2012. Acts 2012, ch. 653, § 1 repealed Acts 2010, ch. 1065, § 5, effective April 4, 2012.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2014 amendment, in (b), added “39-13-515” in (C) of the definition of “severe child abuse”.

The 2016 amendment added the definition of “caregiver” in (b).

The 2017 amendment by ch. 292, in (b), rewrote the second sentence in the definition of “caregiver” which read: “ ‘Caregiver’ may also include a person who has allegedly used the child for the purpose of commercial sexual exploitation of a minor, including as a trafficker.”, and, in (C) of the definition of “severe child abuse”, inserted “§ 39-13-309,” near the beginning and substituted “or” for “and” preceding “§ 39-17-1005” near the end.

The 2017 amendment by ch. 367 added the definitions of “sexually explicit image” and “telecommunication device”.

The 2018 amendment, in (b), added the definitions of “‘Evidence-based’” and “‘Financial obligations’”; in the definition of “‘Juvenile Court’”, inserted “temporary” following “means” in the definition of “‘Detention’”; added the definition of “‘Positive behavior’” and “‘Preliminary inquiry”; in the definition of “‘Probation’”, substituted “and pursuant to this part” for the comma following “court”, deleted “such” preceding “child’s”, and deleted the second sentence which read: “Probation methods shall be directed to the discovery and correction of the basic causes of maladjustment”; and added the definitions of “‘Seclusion’”, “‘Significant injury’”, and “‘Validated risk and needs assessment’”.

The 2019 amendment by ch. 36, inserted “§ 39-13-527, § 39-13-531, § 39-13-532”.

The 2019 amendment by ch. 510, added (b)(27)(E).

Effective Dates. Acts 2014, ch. 711, § 2. July 1, 2014.

Acts 2016, ch. 979, § 5. July 1, 2016.

Acts 2017, ch. 292, § 4. July 1, 2017.

Acts 2017, ch. 367, § 3. July 1, 2017.

Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Acts 2019, ch. 36, § 35. July 1, 2019.

Acts 2019, ch. 510, § 7. June 3, 2019.

Cross-References. “Age of majority” and “minor” defined, § 1-3-105.

Eighteen-year-olds, legal responsibilities, alcoholic beverage restrictions on persons under 21, § 1-3-113.

Rule Reference. This section is referred to in Rule 803 of the Tennessee Rules of Evidence.

This section is referred to in the Advisory Commission Comments under Rules 1, 28 and 35 and in the text of Rules 2 and 28 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 8.3, 8.6, 8.13.

Tennessee Jurisprudence, 8 Tenn. Juris., Courts, § 25, 18 Tenn. Juris., Minors, § 35, 20 Tenn. Juris., Parent and Child, § 2, 17 Tenn. Juris., Jurisdiction, § 27; 24 Tenn. Juris., Verdict, § 7.

Law Reviews.

The DOJ Comes to Town: An Argument for Legislative Reform When the Juvenile Court Fails to Protect Due Process Rights, 44 U. Mem. L. Rev. 921 (2014).

The Incarceration of the Status Offender, 18 Mem. St. U.L. Rev. 713 (1988).

Attorney General Opinions. Jurisdiction and procedures for emancipation proceedings, OAG 96-064 (4/8/96).

Juvenile court judgeship is county-wide office, OAG 98-097 (5/21/98).

Juvenile courts have exclusive jurisdiction for enforcement of a child curfew law against a child, OAG 00-158 (10/17/00).

The General Assembly has neither explicitly nor implicitly supplied the Department of Children's Services (DCS) with authority to make decisions about extraordinary medical care, and the juvenile court may not unilaterally confer such authority upon DCS, OAG 04-127 (8/11/04).

If a person absconds after turning 18, but while serving a commitment for a juvenile offense, the individual is no longer a child and any offense would be handled as an adult offense, OAG 05-008 (1/20/05).

Juvenile court jurisdiction over violations of city ordinances by children, OAG 07-048 (4/10/07).

NOTES TO DECISIONS

1. Abandoned Child.

Definition of abandoned child of former § 37-1-102(b)(1) (repealed) was applicable to cases concerning custody jurisdiction of juvenile court and is not necessarily the same as the definition of abandonment used for purposes of adoption. Pack v. Rogers, 538 S.W.2d 607, 1976 Tenn. App. LEXIS 220 (Tenn. Ct. App. 1976).

Only where termination of parental rights is predicated upon the abandonment of the child by the parents has the general assembly required the trier of fact to find that the acts of the parents were willful. State, Dep't of Human Services v. Smith, 785 S.W.2d 336, 1990 Tenn. LEXIS 70 (Tenn. 1990).

Totality of the evidence, including the pre-incarceration conduct of father coupled with the obvious inability of the father to establish and provide a stable home for the child and the total lack of any chance of an early integration of the child into a stable and permanent home unless parental rights of the father were terminated was so compellingly in the best interests of the child that his parental rights had to be terminated. Department of Human Servs. v. Hauck, 872 S.W.2d 916, 1993 Tenn. App. LEXIS 700 (Tenn. Ct. App. 1993), appeal denied, 1994 Tenn. LEXIS 77 (Tenn. Feb. 28, 1994).

2. Dependent and Neglected Child.

Clear and convincing evidence child was dependent or neglected was established where 14-year-old girl was in fear of living at home because older brother was sexually molesting her and father, who had previously sexually assaulted her and been placed in jail, had just been released. In re Dunigan, 658 S.W.2d 112, 1983 Tenn. App. LEXIS 607 (Tenn. Ct. App. 1983).

A finding of substantial harm to the child was supported by evidence that the mother, along with her husband, was responsible for injuries to the child, that she was aware abuse was occurring prior to the time she took the child to the hospital, that she failed to protect the child from abuse, and that the conduct was likely to cause great harm or death. Nash-Putnam v. McCloud, 921 S.W.2d 170, 1996 Tenn. LEXIS 252 (Tenn. 1996).

There was clear and convincing evidence that mother committed severe child abuse under Tenn. Code Ann. § 37-1-102 because by deliberately and recklessly ignoring father's pedophilic interests, mother knowingly failed to protect her daughter from being raped by father and failed to protect her sons who were exposed to father's acts and the sexual environment that existed in her home; accordingly, circuit court properly found that the children were dependent and neglected because they suffered from severe abuse, mother injured or endangered her children's health, and mother was unfit to care for the children. In re H.L.F., 297 S.W.3d 223, 2009 Tenn. App. LEXIS 51 (Tenn. Ct. App. Feb. 4, 2009).

There was clear and convincing evidence that father engaged in severe child abuse because: (1) Several child witnesses stated that they observed him raping and/or sexually assaulting his daughter and one of her friends, both under the age of 13; (2) Children's testimony was corroborated by medical experts and the testimony of other professionals; (3) Children's statements were validated by numerous exhibits, photographs, magazines, videos, and “sex toys,” which the children accurately identified; (4) Father's 10-year-old son witnessed him having sex with the daughter; and (5) Father exposed the boys to his sexual abuse of at least two minor girls, to “sex toys,” to the parents'  sexual activity, and to numerous and varied pornographic materials; thus, circuit court properly found that the children were dependent and neglected because the children were severely abused, father injured or endangered the morals or health of his children or others, and father was unfit to care for them. In re H.L.F., 297 S.W.3d 223, 2009 Tenn. App. LEXIS 51 (Tenn. Ct. App. Feb. 4, 2009).

Because the custody disposition was not temporary, invalid, or fraudulent, the trial court correctly held that the superior rights doctrine could not be asserted by the father in his counter-petition for custody of his son. At the time of the order, the child was dependent and neglected, within the meaning of T.C.A. § 37-1-102, and the guardians, having raised him since his birth, were fit and proper custodians of the child. In re Landon H., — S.W.3d —, 2012 Tenn. App. LEXIS 24 (Tenn. Ct. App. Jan. 11, 2012).

Notwithstanding the lack of physical abuse towards two children, when a mother perpetrated severe abuse against the children's sibling or willingly placed the children in a home where she should have recognized that abuse was occurring, the mother provided “improper guardianship or control so as to injure or endanger the morals or health” of the two children, so as to render them dependent and neglected, pursuant to T.C.A. § 37-1-102. State v. Byrd, — S.W.3d —, 2012 Tenn. App. LEXIS 105 (Tenn. Ct. App. Feb. 17, 2012), appeal denied, In re Morgan R., — S.W.3d —, 2012 Tenn. LEXIS 227 (Tenn. Apr. 12, 2012).

Mother's severe abuse of an eight-month-old child provided clear and convincing evidence to support a finding that the child and his two siblings were dependent and neglected, pursuant to T.C.A. § 37-1-102, because by perpetrating severe abuse against the eight-month-old child or willingly placing her children in a home where she should have recognized that abuse was occurring on that night, the mother provided improper guardianship or control so as to injure or endanger the morals or health of the three children. In re Dakota C.R., — S.W.3d —, 2012 Tenn. App. LEXIS 265 (Tenn. Ct. App. Apr. 24, 2012).

Given the abuse and neglect suffered by an infant, it was clear that other children under the mother's care were under such improper guardianship as to endanger the health of such child and it would be anomalous indeed if the Department, after finding one child in a household had suffered abuse and neglect, was powerless under the dependency and neglect statutes to remove other children in the household. In re S.J., 387 S.W.3d 576, 2012 Tenn. App. LEXIS 553 (Tenn. Ct. App. Aug. 9, 2012), appeal denied, In re Shanira J., — S.W.3d —, 2012 Tenn. LEXIS 757 (Tenn. Oct. 17, 2012).

Clear and convincing evidence supported a trial court's finding that a child was dependent and neglected, T.C.A. §§ 37-1-102 and 37-1-129(a)(2), because the child provided consistent disclosures to two therapists of abundant accounts of severe child abuse, including rape, incest, and aggravated sexual battery, perpetrated by his mother and other adults around the mother; the mother, among other transgressions, raped the child when he was around age ten or eleven. In re Wyatt S., — S.W.3d —, 2012 Tenn. App. LEXIS 790 (Tenn. Ct. App. Nov. 13, 2012).

Trial court properly denied a mother's motion to modify a temporary order giving custody of her special needs child to the grandparents, resulting from a finding of dependency and neglect, T.C.A. § 37-1-102, because the grandparents established by clear and convincing evidence the child would face a risk of substantial harm if custody were awarded to the mother, T.C.A. § 37-1-129; the grandparents were addressing the child's medical and educational needs while the mother was unaware of those needs. In re Hannah v. S., — S.W.3d —, 2012 Tenn. App. LEXIS 849 (Tenn. Ct. App. Dec. 7, 2012).

No statutory ground for dependency and neglect, pursuant to T.C.A. § 37-1-102, existed with respect to a mother's child. Though the family who had cared for the child for a period during the case argued that the mother was morally unfit to properly care for the child and presented past postings from the mother's social networking pages to bolster their argument, the record contained no evidence that the child had seen or knew about the mother's postings, that she would be exposed to them in the future, or any effect the exposure would have on her morals. In re Alysia M. S., — S.W.3d —, 2013 Tenn. App. LEXIS 264 (Tenn. Ct. App. Apr. 11, 2013).

Statutory ground for dependency and neglect in T.C.A. § 37-1-102 did not apply with respect to a mother's child as there was no clear and convincing evidence that the child suffered direct or indirect abuse or neglect by the mother. In re Alysia M. S., — S.W.3d —, 2013 Tenn. App. LEXIS 264 (Tenn. Ct. App. Apr. 11, 2013).

No statutory ground for dependency and neglect, pursuant to T.C.A. § 37-1-102, existed with respect to a mother's child. Though the evidence showed that the mother had tested positive for marijuana in the past, she had since passed random drug screens, attended weekly celebratory recovery meetings, had been working with a sponsor, and was trying to become a sponsor herself. No party introduced into evidence the drug screening results. In re Alysia M. S., — S.W.3d —, 2013 Tenn. App. LEXIS 264 (Tenn. Ct. App. Apr. 11, 2013).

In a custody dispute between a father from California and the maternal grandparents from Tennessee, the orders of a Tennessee circuit court determining jurisdiction, custody, and any visitation to the father were vacated because it failed to conduct a de novo review of the dependency and neglect proceedings under T.C.A. § 37-1-130. In re Lillian F. W., — S.W.3d —, 2013 Tenn. App. LEXIS 659 (Tenn. Ct. App. Sept. 30, 2013), appeal denied, In re Lillian W., — S.W.3d —, 2014 Tenn. LEXIS 145 (Tenn. Feb. 13, 2014).

Circuit court erred in holding that a child was dependent and neglected because the evidence that the mother at some point in the past engaged in once-per-week marijuana use and had a single positive drug test was insufficient to show that she was unfit to properly care for the child or that he was dependent and neglected, and the circuit court did not refer to the definition of a “dependent and neglected the child” or ascertain and state the subsection or subsections applicable to the facts. In re K. A. P., — S.W.3d —, 2013 Tenn. App. LEXIS 802 (Tenn. Ct. App. Dec. 17, 2013).

To find the child dependent and neglected, the children's services department did not need to show direct evidence of abuse; it was clear the child suffered abuse while in the care of the mother and father, it was not incumbent on the court to determine which one abused the child, and the claim by the mother and father that they were unaware of how they inflicted the injury on the child was irrelevant. In re Colby W., — S.W.3d —, 2014 Tenn. App. LEXIS 451 (Tenn. Ct. App. July 30, 2014).

Evidence supported the trial court's adjudication of the child as a dependent and neglected child, given that none of the possible causes proposed by the mother had any evidentiary support, the child suffered two separate brain bleeding injuries that were unexplained, a doctor testified that the second injury was the result of abusive trauma, and it was clear that the child was abused while in the care of the mother and father. In re Colby W., — S.W.3d —, 2014 Tenn. App. LEXIS 451 (Tenn. Ct. App. July 30, 2014).

Circuit court erred in finding a child dependent and neglected and in awarding custody of the child jointly to the child's parent and grandparent, based on the parent's stipulation of dependency and neglect, because the record lacked clear and convincing evidence that the child was dependent and neglected as of the date of the de novo hearing by the court. In re Landon H., — S.W.3d —, 2016 Tenn. App. LEXIS 147 (Tenn. Ct. App. Feb. 25, 2016).

Alleged lack of an order adjudicating a child to be dependent and neglected “as regards” the child's father did not prohibit sustaining a termination of the father's parental rights because (1) nothing in T.C.A. §§ 37-1-102(b)(12) and 37-1-130 required an adjudication “as regards” a specific parent, and (2) the trial court's orders sufficiently found the child was dependent and neglected for reasons related to the father. In re Daymien T., 506 S.W.3d 461, 2016 Tenn. App. LEXIS 540 (Tenn. Ct. App. July 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 752 (Tenn. Oct. 21, 2016).

In this dependency case, the trial court did not simply rely on the father's drug use to establish that he sexually abused the child; instead, the trial court rendered a credibility determination based on the father's in-court demeanor and the effects of drug use on him, which was not improper. In re M.D., — S.W.3d —, 2016 Tenn. App. LEXIS 746 (Tenn. Ct. App. Sept. 30, 2016).

Four-year-old child made disclosures of sexual abuse by the father, and any inconsistency in the disclosures did not go to whether sexual abuse occurred; the child was dependent and neglected and a victim of sexual abuse by the father. In re M.D., — S.W.3d —, 2016 Tenn. App. LEXIS 746 (Tenn. Ct. App. Sept. 30, 2016).

Evidence did not preponderate against the trial court's finding that all of the children were dependent and neglected, as all of the children were the victims of excessive discipline, which included in part being beaten with an extension cord, being forced to sleep on the floor despite the fact that a bed was available, and having their hands, feet, mouths, and eyes duct-taped. In re Tamera W., 515 S.W.3d 860, 2016 Tenn. App. LEXIS 859 (Tenn. Ct. App. Nov. 10, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 88 (Tenn. Feb. 8, 2017).

Circuit court did not err in adjudicating the child dependent and neglected because, even disregarding the medical records of a crisis stabilization unit, the evidence clearly and convincingly established that, at the time of the hearing, the mother's mental incapacity rendered her unfit and unable to properly care for her child as a senior psychological examiner diagnosed the mother with an adjustment disorder with anxiety and recommended treatment; the examiner agreed that, without treatment, the mother was at risk for continued overreaction to events she found stressful; and, while the examiner expected the mother's condition to improve, that expectation was predicated on her participation in counseling and therapy. In re Yvonne R., — S.W.3d —, 2017 Tenn. App. LEXIS 446 (Tenn. Ct. App. July 3, 2017).

Mother's abuse of child 1 demonstrated that child 2 was under such improper guardianship so as to injure or endanger his morals or health and was dependent and neglected under T.C.A. § 37-1-102(b)(13)(F). The evidence did not preponderate against the trial court's finding that child 2 was dependent and neglected in the mother's care. In re B.B., — S.W.3d —, 2017 Tenn. App. LEXIS 517 (Tenn. Ct. App. July 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 763 (Tenn. Nov. 16, 2017).

Evidence demonstrated that child 1 had sustained injury at the hands of her mother, which constituted abuse under T.C.A. § 37-1-102(b)(1). As a matter of law, the evidence did not preponderate against the trial court's finding that child 1 was dependent and neglected in the mother's care. In re B.B., — S.W.3d —, 2017 Tenn. App. LEXIS 517 (Tenn. Ct. App. July 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 763 (Tenn. Nov. 16, 2017).

Parents'  argument that the use of the present tense in the dependency and neglect statute belied the use of future or past circumstances as the basis for a current finding of dependency and neglect was rejected as the past and anticipated circumstances could be a relevant indication of a parent's fitness. In re Ethan W., — S.W.3d —, 2018 Tenn. App. LEXIS 308 (Tenn. Ct. App. May 31, 2018).

Evidence was sufficient to support the circuit court's findings of dependency and neglect where the testimony of the parents, the children's counselors, and state workers established that the children were engaging in inappropriate sexual behavior, the parents were unable or unwilling to properly supervise the children, and the failure of the parents to accept responsibility for their own conduct, which allowed the inappropriate sexual behavior to develop and continue, demonstrated that significant improvements would not be made to their supervision. In re Ethan W., — S.W.3d —, 2018 Tenn. App. LEXIS 308 (Tenn. Ct. App. May 31, 2018).

Trial court properly adjudicated a father's children as dependent and neglected and severely abused in the care of the father because the mother testified at the dependency and neglect and severe child abuse hearing that she and the father abused drugs and alcohol together numerous times while she was pregnant and that the father provided her illegal drugs and alcoholic beverages during that time. In re C.T., — S.W.3d —, 2018 Tenn. App. LEXIS 561 (Tenn. Ct. App. Sept. 26, 2018).

Because father's petition alleged that mother permitted the child to skip school without justification and encouraged the child to lie about doing so, the petition alleged that the child was “unlawfully kept out of school” by mother, for purposes of T.C.A. § 37-1-102(b)(13)(C). Cox v. Lucas, — S.W.3d —, 2018 Tenn. App. LEXIS 649 (Tenn. Ct. App. Nov. 2, 2018).

Because the father's petition contained assertions that were tantamount to allegations of dependency and neglect, the juvenile court had exclusive jurisdiction, the trial court lacked subject matter jurisdiction, and all actions taken by the trial court were void. Cox v. Lucas, — S.W.3d —, 2018 Tenn. App. LEXIS 649 (Tenn. Ct. App. Nov. 2, 2018).

Not all statements in father's petition were tantamount to allegations of dependency and neglect; allegation that the child was uncomfortable having friends over due to living conditions was not an allegation that the child was endangered, allegations that the mother had male guests who drank too much was not an allegation that the mother was unfit, and the mother's alleged use of profanity did not seem to rise to the level of immorality that made a parent unfit. Cox v. Lucas, — S.W.3d —, 2018 Tenn. App. LEXIS 649 (Tenn. Ct. App. Nov. 2, 2018).

Father's petition alleged that the child was often left home alone, even in the middle of the night; if these allegations did not fit squarely within T.C.A. § 37-1-102(b)(13)(C), they were very close. Cox v. Lucas, — S.W.3d —, 2018 Tenn. App. LEXIS 649 (Tenn. Ct. App. Nov. 2, 2018).

Father's petition alleged that mother's drug use occurred in the presence of the child, and that the child had access to both marijuana and mother's pipe; these allegations fit within T.C.A. § 37-1-102(b)(13)(F). Cox v. Lucas, — S.W.3d —, 2018 Tenn. App. LEXIS 649 (Tenn. Ct. App. Nov. 2, 2018).

Assertions that there was little or no food in the home and that the child returned to the father without clean clothes or even proper undergarments raised serious questions about the child's health and hygiene; thus, these allegations fit within T.C.A. § 37-1-102(b)(13)(F). Cox v. Lucas, — S.W.3d —, 2018 Tenn. App. LEXIS 649 (Tenn. Ct. App. Nov. 2, 2018).

Trial court did not err by finding that the children were dependent and neglected because the evidence did not preponderate against its findings that one child suffered a series of non-accidental injuries, the child's non-parental caregivers were not responsible for the injuries, and the trial court did not credit the parents'  denials. In re E.Z., — S.W.3d —, 2019 Tenn. App. LEXIS 152 (Tenn. Ct. App. Mar. 26, 2019).

Trial court properly denied a father's motion to dismiss the mother's petition for modification of their parenting plan—to include a provision, inter alia, precluding the father from any direct or indirect contact with the children—because the mother invoked the court's subject matter jurisdiction when she filed her petition, the petition raised allegations that the children were abused and neglected—the father administered excessive beatings on the children with various objects—and the court then considered the statutory factors to make the best interest determination. Massey v. Massey, — S.W.3d —, 2020 Tenn. App. LEXIS 173 (Tenn. Ct. App. Apr. 17, 2020).

Clear and convincing evidence supported the trial court's determination that the children were dependent and neglected while in the parents'  care given the children's testimony describing persistent physical and verbal abuse, unsanitary living conditions, and the emotional trauma suffered as a result. In re Nehemiah H., — S.W.3d —, 2020 Tenn. App. LEXIS 311 (Tenn. Ct. App. July 8, 2020).

Trial court did not err in finding that a mothers'  children were dependent and neglected, when one child was a victim of aggravated child abuse by the father, because the court considered the mother's Alford plea to child endangerment in reaching its decision that the mother committed child endangerment as to the child and in concluding that the mother's act of child endangerment resulted in serious bodily injury to the child as a doctor testified that the child suffered brain injuries a result of abusive head trauma. In re Treylynn T., — S.W.3d —, 2020 Tenn. App. LEXIS 403 (Tenn. Ct. App. Sept. 9, 2020).

Because one of a mother's children was the victim of severe child abuse and, as such, was dependent and neglected, the mothers'  other child was also a dependent and neglected child. In re Treylynn T., — S.W.3d —, 2020 Tenn. App. LEXIS 403 (Tenn. Ct. App. Sept. 9, 2020).

3. —Medical Treatment.

Child was dependent and neglected as the father was unfit to care for the child and the child was suffering from abuse or neglect because a senior psychological examiner diagnosed the father with anxiety disorder; the examiner opined that when the father was faced with intense emotional stress or pressure, he became reactive; the examiner strongly recommended that the father be referred for medical stabilization of his disturbed sleep and anxiety symptoms, individual supportive counseling, parenting skills training, and family counseling; and the father admitted that he had not done anything to improve his mental state or his relationship with his son and that it was not worth swallowing his pride to go to counseling to get his son back. In re Lukis B., — S.W.3d —, 2017 Tenn. App. LEXIS 196 (Tenn. Ct. App. Mar. 24, 2017).

Minor was properly declared dependent and neglected child where father, for religious reasons, refused to provide medical treatment for Ewing's Sarcoma, a fatal disease if untreated, yet with up to a 50 percent success rate if treated in time. In re Hamilton, 657 S.W.2d 425, 1983 Tenn. App. LEXIS 711 (Tenn. Ct. App. 1983).

State may submit minor to necessary treatment for life-threatening cancer over wishes of parents who claim this violates their first amendment right to free exercise of religion. In re Hamilton, 657 S.W.2d 425, 1983 Tenn. App. LEXIS 711 (Tenn. Ct. App. 1983).

In a child neglect case alleging failure to seek medical treatment for the child, trial court improperly granted defendant's motion to dismiss the child neglect charge before trial was held because: (1) Only relevant undisputed facts were that defendant was not the biological parent of the child, not her legal guardian, and not married to the co-defendant, her mother, which was not enough information to warrant a dismissal of the indictment; (2) State could present other circumstances that might establish duty on the part of defendant arising out of in loco parentis relationship; and (3) State might be able to establish that defendant failed to perform a statutory duty to provide adequate medical care for the child. State v. Sherman, 266 S.W.3d 395, 2008 Tenn. LEXIS 538 (Tenn. Aug. 15, 2008).

Circuit court properly found a mother's children dependent and neglected because, while the evidence did not clearly and convincingly prove that the mother's failure to seek medical attention for one child until the next day constituted severe child abuse, she knowingly failed to protect her child from abuse and had an affirmative duty to do something inasmuch as she was present and knew her boyfriend was assaulting the child, and, while the record contained compelling evidence that the mother had an opportunity for her and the children to stay in a safe environment away from the boyfriend, she exposed them to a known threat when she left her cousin's home and returned to his home with the children. In re Antoine J., — S.W.3d —, 2019 Tenn. App. LEXIS 198 (Tenn. Ct. App. Apr. 26, 2019).

4. Delinquent Act.

Because no part of the criminal code classifies a probation violation as a criminal offense, it cannot be considered a “delinquent act.” State v. Jackson, 60 S.W.3d 738, 2001 Tenn. LEXIS 804 (Tenn. 2001).

Trial court properly affirmed the revocation of defendant juvenile's probation under Tenn. R. Juv. P. 35(b) and placement in the Tennessee Department of Children's Services custody as defendant was delinquent under T.C.A. § 37-1-102 and guilty of disorderly conduct under T.C.A. § 39-17-305(b) where he was physically offensive, made unreasonable noise and slammed his desk when asked by a teacher to stop talking in class, which evidenced his disregard of the school rules and his contempt for the juvenile court's probation instructions; prior less restrictive means had been ineffective to correct defendant's behavior. State v. Lyon, — S.W.3d —, 2013 Tenn. App. LEXIS 40 (Tenn. Ct. App. Jan. 24, 2013).

5. Severe Child Abuse.

Trial court did not err when it held that a child was dependent and neglected and had suffered severe abuse, pursuant to T.C.A. § 37-1-102, while in the care of his parents, because the expert medical testimony was not just clear but was overwhelming that the injuries to the child could not have occurred in the way the parents claimed, and the injuries occurred while the child was very young, were multiple, very serious, inflicted on separate occasions with great force, and not self or accidentally inflicted. In re N.T.B., 205 S.W.3d 499, 2006 Tenn. App. LEXIS 168 (Tenn. Ct. App. 2006), appeal denied, In re N. T. B., — S.W.3d —, 2006 Tenn. LEXIS 721 (Tenn. Aug. 21, 2006).

Court erred in finding that the parents, in a complex, extended dependency and neglect case, were not indigent and finding their seven children dependent and neglected and that the parents had committed severe child abuse; that finding could have led to termination of parental rights and the parents clearly had a right to appointed counsel if they were indigent. The parents were entitled to a thorough hearing in compliance with T.C.A. § 40-14-202 to determine if they were indigent and thus, entitled to appointed counsel under Tenn. Sup. Ct. R. 13(d)(2)(B). Tenn. Dep't of Children's Servs. v. David H., 247 S.W.3d 651, 2006 Tenn. App. LEXIS 193 (Tenn. Ct. App. Mar. 21, 2006).

Finding that a minor child was dependent and neglected under T.C.A. § 37-1-102 on the ground of severe child abuse due to the mother's drug usage was appropriate because the child suffered horrible drug withdrawal symptoms. The full extent of his injuries might not be known until the child was well into his childhood. Cornelius v. Dep't of Children's Servs., 314 S.W.3d 902, 2009 Tenn. App. LEXIS 419 (Tenn. Ct. App. July 6, 2009), rehearing denied, Cornelius v. State, 314 S.W.3d 902, 2009 Tenn. App. LEXIS 836 (Tenn. Ct. App. Aug. 6, 2009), appeal denied, In re Brooks C., — S.W.3d —, 2010 Tenn. LEXIS 195 (Tenn. Feb. 22, 2010).

Under T.C.A. § 37-1-102, the trial court is not required to find that a parent's neglect was “knowing” in order to find that a child was the victim of “severe child abuse.” Tenn. Dep't of Children's Servs. v. Tikindra G. (In re Samaria S.), 347 S.W.3d 188, 2011 Tenn. App. LEXIS 111 (Tenn. Ct. App. Mar. 8, 2011), appeal denied, In re Samaria S., — S.W.3d —, 2011 Tenn. LEXIS 701 (Tenn. July 14, 2011).

Mother acted knowingly under T.C.A. § 37-1-102 with regard to a finding of severe child abuse because hospital personnel took great care in educating the mother about the needs of her premature infants, and testimony described an infant whose appearance was shocking, with no fat, skin hanging over his bones, and in respiratory distress. Tenn. Dep't of Children's Servs. v. Tikindra G. (In re Samaria S.), 347 S.W.3d 188, 2011 Tenn. App. LEXIS 111 (Tenn. Ct. App. Mar. 8, 2011), appeal denied, In re Samaria S., — S.W.3d —, 2011 Tenn. LEXIS 701 (Tenn. July 14, 2011).

Evidence was sufficient under T.C.A. § 37-1-102 to show that a step-father committed severe child abuse because the children each separately and independently disclosed abuse by the step-father in graphic terms, and they both engaged in inappropriate displays of affection, including sexual behavior inappropriate for their age. In re Melanie T., 352 S.W.3d 687, 2011 Tenn. App. LEXIS 189 (Tenn. Ct. App. Apr. 15, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 836 (Tenn. Aug. 24, 2011).

Father lacked standing to challenge the constitutionality of T.C.A. § 37-1-102(b)(21)(C) as applied based on its failure to define knowing as the father was charged with committing severe child abuse under the enumerated sections, and knowing was not an element of the charged part of § 37-1-102(b)(21)(C); the father was not charged under that part of the definition of severe child abuse that used knowing. John V. L. v. Dep't of Children's Servs., — S.W.3d —, 2011 Tenn. App. LEXIS 610 (Tenn. Ct. App. Nov. 10, 2011), appeal denied, John V.L. v. State, — S.W.3d —, 2012 Tenn. LEXIS 127 (Tenn. Feb. 15, 2012).

There was clear and convincing evidence to support the termination of a mother and father's parental rights over their child based on abuse pursuant to T.C.A. § 36-1-113(g)(4), as they failed to meet her basic nutritional and physical needs, which resulted in her suffering damage; such conduct constituted “severe abuse” under T.C.A. § 37-1-102. In re Keara J., 376 S.W.3d 86, 2012 Tenn. App. LEXIS 26 (Tenn. Ct. App. Jan. 13, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 274 (Tenn. Apr. 11, 2012).

There was clear and convincing evidence to support the termination of a mother's parental rights over her child based on abuse pursuant to T.C.A. § 36-1-113(g)(4), as she failed to disclose her HIV status to medical providers, which subjected the child to “severe abuse” under T.C.A. § 37-1-102. In re Keara J., 376 S.W.3d 86, 2012 Tenn. App. LEXIS 26 (Tenn. Ct. App. Jan. 13, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 274 (Tenn. Apr. 11, 2012).

Parental rights of the parent of two children were terminated, pursuant to T.C.A. § 36-1-113, because the evidence clearly and convincingly established the grounds of termination due to severe child abuse, as defined by T.C.A. § 37-1-102, through the parent's knowing failure to adequately feed the infant child, which resulted in serious malnutrition and failure to thrive. In re Noah D., — S.W.3d —, 2012 Tenn. App. LEXIS 45 (Tenn. Ct. App. Jan. 20, 2012).

In dependency and neglect proceedings, despite the absence of direct evidence of severe child abuse by a mother, clear and convincing evidence supported a trial court's finding that the child's injuries occurred while he was with the mother, the injuries were caused by either the mother or her husband, and the non-abuser knowingly or recklessly disregarded the other's abusive actions, T.C.A. § 37-1-102; the child had suffered facial bruises, liver lacerations, and multiple broken bones. State v. Byrd, — S.W.3d —, 2012 Tenn. App. LEXIS 105 (Tenn. Ct. App. Feb. 17, 2012), appeal denied, In re Morgan R., — S.W.3d —, 2012 Tenn. LEXIS 227 (Tenn. Apr. 12, 2012).

In dependency and neglect proceedings, clear and convincing evidence did not support a trial court's finding that a father severely abused his eight-month-old child, T.C.A. §§ 37-1-102 and 37-1-129, because the father was absent from the home on the day the child was injured and there was a lack of proof the child and his siblings were abused prior to that date. In re Dakota C.R., — S.W.3d —, 2012 Tenn. App. LEXIS 265 (Tenn. Ct. App. Apr. 24, 2012).

In dependency and neglect proceedings, clear and convincing evidence supported a trial court's finding that a mother severely abused her eight-month-old child, T.C.A. §§ 37-1-102 and 37-1-129, because the mother's story of how the injuries were inflicted by the child's eighteen-month-old sibling was implausible and, instead, more plausible was that the injuries were inflicted by the only adult present that night, the mother; however, even if the child's injuries were somehow inflicted by the sibling, the mother certainly would have heard the commotion and should have intervened sooner in order to prevent serious injury. In re Dakota C.R., — S.W.3d —, 2012 Tenn. App. LEXIS 265 (Tenn. Ct. App. Apr. 24, 2012).

Trial court did not err in terminating a father's parental rights under T.C.A. § 36-1-113(c) on the ground of severe child abuse pursuant to T.C.A. § 37-1-102 because the father had a history of drug abuse, and he had been criminally charged for providing drugs to the mother; the mother's brother testified that the father gave the mother drugs wile she was pregnant. In re Joshua E.R., — S.W.3d —, 2012 Tenn. App. LEXIS 309 (Tenn. Ct. App. May 15, 2012).

Trial court did not err in terminating a mother's parental rights under T.C.A. § 36-1-113(c) because the mother testified that she knew it was wrong to use drugs while she was pregnant but that she did not think it would be harmful to her baby and that she hid her drug use from her doctors since she knew it was wrong; prenatal drug abuse may constitute severe child abuse under T.C.A. § 37-1-102 for the purpose of terminating parental rights. In re Joshua E.R., — S.W.3d —, 2012 Tenn. App. LEXIS 309 (Tenn. Ct. App. May 15, 2012).

There was sufficient clear and convincing evidence to support the trial court's termination of a mother's parental rights over her child due to having subjected him to severe child abuse by exposing him in utero to her drug use pursuant to T.C.A. §§ 37-1-102 and 36-1-113(g)(4); she abused prescription pain medication during her pregnancy, which caused serious bodily injury to the child and caused him to be hospitalized for treatment. In re Ethin E.S., — S.W.3d —, 2012 Tenn. App. LEXIS 354 (Tenn. Ct. App. May 31, 2012).

Clear and convicing evidence was sufficient under T.R.A.P. 13(d) to support a trial court's determination that termination of a mother's parental rights over her child was in the child's best interest under T.C.A. § 36-1-113(i)(1)-(9), as her incestuous relationship with the child's sibling constituted severe abuse that warranted termination pursuant to T.C.A. §§ 37-1-102 and 36-1-113(g)(4), and the child had started over in a new community with his father and the father's wife. Brewer v. Brewer (In re K.B.), — S.W.3d —, 2012 Tenn. App. LEXIS 538 (Tenn. Ct. App. July 31, 2012).

Where a mother was an experienced parent with two older children, yet her infant was brought in on multiple occassions malnourished, and the mother failed to take the child to a physician, the evidence in the record preponderated in favor of a finding that the mother engaged in knowing neglect that is likely to cause serious bodily injury. In re S.J., 387 S.W.3d 576, 2012 Tenn. App. LEXIS 553 (Tenn. Ct. App. Aug. 9, 2012), appeal denied, In re Shanira J., — S.W.3d —, 2012 Tenn. LEXIS 757 (Tenn. Oct. 17, 2012).

Where a child had multiple rib fractures occurring on different dates, the evidence preponderated in favor of a finding that the mother either knowingly inflicted the serious bodily injury on the child or knowingly failed to protect him from the serious bodily injury. In re S.J., 387 S.W.3d 576, 2012 Tenn. App. LEXIS 553 (Tenn. Ct. App. Aug. 9, 2012), appeal denied, In re Shanira J., — S.W.3d —, 2012 Tenn. LEXIS 757 (Tenn. Oct. 17, 2012).

When a mother's explanation that a child's leg was broken while being extracted from a crib was juxtaposed against a doctor's testimony that the break likely occurred due to a blow, and the doctor's testimony was considered as a whole, the evidence preponderated in favor of a factual finding that the child's femur fracture did not occur in the manner the mother suggested but was the result of nonaccidental trauma. When that fact was considered along with the other evidence of multiple rib fractures, skull fractures and a failure to provide sufficient nutrition, the evidence was clear and convincing that the mother committed severe child abuse. In re S.J., 387 S.W.3d 576, 2012 Tenn. App. LEXIS 553 (Tenn. Ct. App. Aug. 9, 2012), appeal denied, In re Shanira J., — S.W.3d —, 2012 Tenn. LEXIS 757 (Tenn. Oct. 17, 2012).

Evidence supported a trial court's finding that a mother committed severe child abuse under T.C.A. § 37-1-102 when she knowingly exposed the five-week-old child to and knowingly failed to protect the child from abuse that was likely to cause great bodily harm. The mother's position that there were no signs to indicate that severe child abuse by the father was highly probable was unpersuasive as the mother knew the father could be “violent,” had seen the father handling the child roughly, heard the child scream while alone with the father, and expressed concern about leaving the child with the father. In re Jaycee W., — S.W.3d —, 2013 Tenn. App. LEXIS 141 (Tenn. Ct. App. Feb. 27, 2013).

Clear and convincing evidence supported terminating a mother's parental rights to five children on grounds of severe child abuse because the mother admitted using cocaine during four of her five pregnancies, acknowledged she was warned prenatal drug use was dangerous, and knew such conduct was wrong; the mother's prenatal abuse of cocaine constituted severe child abuse even though the children had not suffered long-lasting effects. In re Shannon P., — S.W.3d —, 2013 Tenn. App. LEXIS 457 (Tenn. Ct. App. July 16, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 789 (Tenn. Oct. 16, 2013).

Court properly terminated a mother's parental rights on the basis of severe child abuse because one child suffered inflicted trauma when the children were alone with the mother, and the injury could not have been inflicted by a sixteen-month-old child, by the child himself, or in the course of providing routine child care. In re Travion B., — S.W.3d —, 2013 Tenn. App. LEXIS 539 (Tenn. Ct. App. Aug. 19, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 883 (Tenn. Nov. 4, 2013).

Clear and convincing evidence supported a finding that a mother and her boyfriend, who was the father of one of the three children at issue, committed severe child abuse because a healthy two-year-old child suffered catastrophic injuries while in the care of the mother and the boyfriend, the delay in seeking treatment for the child resulted in permanent brain injury, and even if the mother did not abuse the child or witness abuse, the mother knowingly exposed her children to abuse. In re Adriana L., — S.W.3d —, 2013 Tenn. App. LEXIS 642 (Tenn. Ct. App. Sept. 25, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 1084 (Tenn. Dec. 23, 2013).

Clear and convincing evidence supported a determination that a one-year-old child was dependent and neglected upon a finding that the father knowingly engaged in severe child abuse because the father became aggressive when approached by the police and began to grab the child around his head and neck in a manner the officers deemed was likely to cause severe harm or death to the child; the officer dealing directly with the father believed he was going to break the child's neck. In re Kason K. C., — S.W.3d —, 2014 Tenn. App. LEXIS 271 (Tenn. Ct. App. May 7, 2014).

Clear and convincing evidence supported terminating a father's parental rights to two children on grounds of severe child abuse because the father admitted that he supplied drugs to the mother for her use during pregnancy, the mother's drug use resulted in serious bodily injury and death of the children's sibling, and the father's severe child abuse against the sibling served as the basis for severe child abuse against the two children. In re Garvin M., — S.W.3d —, 2014 Tenn. App. LEXIS 274 (Tenn. Ct. App. May 9, 2014).

Evidence was sufficient to sustain a finding that a child had suffered severe child abuse by her father for purposes of being adjudicated dependent and neglected; the evidence clearly and convincingly showed that the father had touched the child and penetrated her vagina with his finger. In re Kaitlynne D., — S.W.3d —, 2014 Tenn. App. LEXIS 297 (Tenn. Ct. App. May 21, 2014).

In a termination of parental rights case, because the juvenile court found at a hearing that the mother committed severe abuse by exposing the youngest child to methamphetamine in utero and relieved the Department of Children's Services (DCS) of its obligation of further reasonable efforts toward reunification, and because the mother was afforded notice and an opportunity to be heard at the hearing and the adjudication of the dependency and neglect action, the mother's due process rights were not violated when the DCS discontinued funding for drug counseling services. In re C.L., — S.W.3d —, 2014 Tenn. App. LEXIS 312 (Tenn. Ct. App. May 28, 2014).

Trial court found that severe child abuse had been committed against the child by the mother, and the evidence did not preponderate against this finding; the mother was aware of her boyfriend's abusive actions toward her other children in the past, she knew he abused alcohol and drugs and became angry when he did so, and yet she still left her children in his care, and she failed to protect her child, who suffered a skull fracture, from the boyfriend's severe abuse. In re K.P., — S.W.3d —, 2014 Tenn. App. LEXIS 313 (Tenn. Ct. App. May 28, 2014).

Lasting or permanent injury is not required to sustain a finding of severe child abuse, and thus the court was not persuaded by the mother's effort to challenge the abuse finding by claiming the skull fracture that the child suffered was expected to heal without issue; the child's skull fracture without more fell within the definition of severe child abuse. In re K.P., — S.W.3d —, 2014 Tenn. App. LEXIS 313 (Tenn. Ct. App. May 28, 2014).

Termination of parental rights to children was appropriate because clear and convincing evidence showed that the parents committed severe child abuse against each of their children. There was sexual abuse by one parent while the other parent watched and sexual acts between the children observed by the parents, as well as physical abuse and exposure to domestic violence that caused psychological harm. In re Samuel P., — S.W.3d —, 2014 Tenn. App. LEXIS 367 (Tenn. Ct. App. June 24, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 816 (Tenn. Sept. 22, 2014).

Termination of parental rights was proper on the basis of severe abuse because, in addition to using illegal drugs, which the father provided to the mother during pregnancy, the mother was present in a house with the father where the act of creating methamphetamine was occurring. In re Alexis C., — S.W.3d —, 2014 Tenn. App. LEXIS 363 (Tenn. Ct. App. June 25, 2014).

It was undisputed that the child suffered severe child abuse, and the mother's claim that she did not knowingly fail to protect him was rejected; weeks prior to the child's nonaccidental brain bleeding injury, he suffered another such injury, which would have caused noticeable symptoms, but the mother never reported the injury, and her failure to protect the child despite having been presented with facts from which she should have recognized that severe abuse either had occurred or likely would occur was sufficient to support the finding that she committed severe child abuse. In re Colby W., — S.W.3d —, 2014 Tenn. App. LEXIS 451 (Tenn. Ct. App. July 30, 2014).

Termination of the mother's parental rights based on severe child abuse was appropriate because the children were subject to continuous physical punishment and intentional deprivation of food by the mother. In re Shameel S., — S.W.3d —, 2014 Tenn. App. LEXIS 578 (Tenn. Ct. App. Sept. 19, 2014).

Trial court properly found that the mother had committed severe abuse for purposes of terminating her parental rights where she had not timely appealed a final order regarding the disposition of the child as dependent and neglected due to severe child abuse. In re Serenity S., — S.W.3d —, 2014 Tenn. App. LEXIS 765 (Tenn. Ct. App. Nov. 24, 2014).

Clear and convincing evidence supported terminating a father's parental rights on grounds of severe child abuse because the eight-month-old child suffered a subdural hematoma, retinal hemorrhages, and fractures to his right leg while solely in the father's care, and the injuries were “non-accidental”; the child suffered hearing loss and developmental delays as a result of the injuries. In re Jaden W., — S.W.3d —, 2014 Tenn. App. LEXIS 856 (Tenn. Ct. App. Dec. 26, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 280 (Tenn. Mar. 25, 2015).

Clear and convincing evidence did not support terminating a mother's parental rights on grounds of severe child abuse because the mother could not be charged with the knowledge that the father would harm their child based on his violence towards her and his ex-wife, there was no evidence indicating the father had ever exhibited violence towards a child, and there was no evidence to suggest there were signs of any injuries to the child before his admission to the hospital. In re Jaden W., — S.W.3d —, 2014 Tenn. App. LEXIS 856 (Tenn. Ct. App. Dec. 26, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 280 (Tenn. Mar. 25, 2015).

In a dependency and neglect proceeding in which the child was found to be a victim of severe child abuse by aggravated sexual battery, the trial court did not err in admitting the out of court statements of the child because those statements were sufficiently bolstered by indicia of reliability so as to render them admissible as the disclosures of the child to the forensic interviewer, a licensed clinical social worker, her pediatrician, the grandmother, and the mother corroborated and sustained the reliability of the statements; and the father had ample opportunity to question and examine the conveyors of the disclosures. In re Emmalee O., 464 S.W.3d 311, 2015 Tenn. App. LEXIS 34 (Tenn. Ct. App. Jan. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 478 (Tenn. June 12, 2015), cert. denied, Overton v. Tenn. Dep't of Children's Servs., 193 L. Ed. 2d 230, 136 S. Ct. 330, — U.S. —, 2015 U.S. LEXIS 6517 (U.S. 2015).

Trial court did not err in finding that the three-year-old child was a victim of severe child abuse by aggravated sexual battery, in finding both of the father's children to be dependent and neglected, in enjoining him from having any contact with his two daughters, and in placing sole custody of the children with the mother because the evidence presented to the trial court against the father rose to the level of clear and convincing as the child made multiple disclosures to multiple people that the father poked, rubbed, and otherwise touched her privates; the child's privates were irritated upon return from visitation with the father; and the child had consistently identified only the father as the perpetrator of those actions. In re Emmalee O., 464 S.W.3d 311, 2015 Tenn. App. LEXIS 34 (Tenn. Ct. App. Jan. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 478 (Tenn. June 12, 2015), cert. denied, Overton v. Tenn. Dep't of Children's Servs., 193 L. Ed. 2d 230, 136 S. Ct. 330, — U.S. —, 2015 U.S. LEXIS 6517 (U.S. 2015).

Termination of the mother's parental rights was proper because the trial court previously found, by clear and convincing evidence, that the child was severely abused by the mother in that she knowingly allowed the child to be present within a structure where the act of creating methamphetamine was occurring; and the mother did not appeal the November 2013 adjudicatory order. In re J.R.C., — S.W.3d —, 2015 Tenn. App. LEXIS 255 (Tenn. Ct. App. Apr. 27, 2015).

Trial court did not err in terminating the father's parental rights based on his sentence of more than two years for conduct against the child deemed severe child abuse. In re T.L.G., — S.W.3d —, 2015 Tenn. App. LEXIS 369 (Tenn. Ct. App. May 26, 2015).

Trial court noted the father's convictions in Ohio for multiple rapes and an attempted rape of the child and found that the father's acts that led to his incarceration constituted severe child abuse, and the trial court properly considered the father's rape convictions for purposes of a parental termination proceeding; the trial court properly found that the father committed acts that fell within the definition of rape, and in addition, enumerated offenses relevant herein included aggravated sexual battery and rape of a child, and the trial court did not err in terminating the father's rights. In re T.L.G., — S.W.3d —, 2015 Tenn. App. LEXIS 369 (Tenn. Ct. App. May 26, 2015).

In proceedings to terminate a mother's parental rights, clear and convincing evidence existed to establish the ground of severe abuse because the mother and the father were again manufacturing methamphetamine in their home, the mother tested positive for methamphetamine at that time and admitted to methamphetamine use, and, shortly thereafter, the young child also tested positive for methamphetamine. In re Wesley P., — S.W.3d —, 2015 Tenn. App. LEXIS 400 (Tenn. Ct. App. May 29, 2015).

Juvenile court properly terminated the parents'  parental rights pursuant based on severe abuse because their children made multiple disclosures of sexual abuse perpetrated on them by the parents to several individuals, the children were acting out sexually and with each other and had knowledge of sexual matters far beyond what was appropriate for children of their age, reunification was not realistic or in the best interests of the children, the absence of criminal charges relating to sexual abuse did not undermine the evidence, the suggestion of “coaching” was unsupported by the record, and the parents had made absolutely no genuine reckoning with the sexual abuse allegations. In re C.A.F., — S.W.3d —, 2015 Tenn. App. LEXIS 612 (Tenn. Ct. App. July 29, 2015).

Termination of the mother's parental rights to an adopted child based on severe child abuse was proper because, although the mother argued that her boyfriend had committed the abuse, the evidence in the record established that the mother also abused the child by both paddling her and binding her with cable ties; the parent facing termination of her parental rights did not have to have caused the abuse as the definition of severe child abuse included the knowing failure to protect a child from abuse or neglect that was likely to cause serious bodily injury; and the mother admitted in her interview that she knew that her boyfriend abused her children, including the adopted child, on an almost daily basis. In re Americus C., — S.W.3d —, 2015 Tenn. App. LEXIS 803 (Tenn. Ct. App. Sept. 30, 2015).

If the order outlining the conditions that led to the removal of the child is pending appeal, that order is not res judicata, and until that order has reached its final completion, the prior order cannot form the basis alone for termination on any ground that contemplates reliance on a previous finding or order; because the current posture of the father's appeal from the order on dependency and neglect, where the juvenile court found the child was a victim of sexual abuse, could be determined, the trial court erred in terminating his rights on the ground of persistence of conditions. In re S.S.-G., — S.W.3d —, 2015 Tenn. App. LEXIS 917 (Tenn. Ct. App. Nov. 16, 2015).

Trial court stated only that the father had sexually abused the child, which constituted severe abuse, but the trial court's failure to include the specific statutory definitions that it relied upon prevented meaningful review; where the statute provides several possible definitions for a ground, the trial court must specify the exact definition that it relies upon in reaching its ultimate conclusion, and the termination of the father's rights on the ground of severe child abuse was vacated. In re S.S.-G., — S.W.3d —, 2015 Tenn. App. LEXIS 917 (Tenn. Ct. App. Nov. 16, 2015).

Trial court's conclusion that the parents committed severe child abuse against their adopted daughter was supported by clear and convincing evidence where it showed that they were neglectful in procuring medical care and dental care, provided inadequate nutrition, and subjected the child to physical abuse. In re C.M., — S.W.3d —, 2015 Tenn. App. LEXIS 976 (Tenn. Ct. App. Dec. 18, 2015), appeal denied, In re Carolina M., — S.W.3d —, 2016 Tenn. LEXIS 344 (Tenn. May 5, 2016).

Termination of the mother's rights for severe abuse was proper, given in part that she moved often and left the children in the care of boyfriends who were abusive, the children were exposed to a pattern of neglect while in the mother's custody, and they had psychological issues because of that. In re Joseph F., 492 S.W.3d 690, 2016 Tenn. App. LEXIS 227 (Tenn. Ct. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 377 (Tenn. May 10, 2016).

Trial court did not err in finding that children were the victims of severe child abuse because it heard clear and convincing evidence that the father knowingly exposed his children or knowingly failed to protect his children from an environment that is likely to cause serious bodily injury or death; by the father's own admission, the children were present in an outbuilding where items used to manufacture methamphetamine were discovered. In re Mason E., — S.W.3d —, 2016 Tenn. App. LEXIS 334 (Tenn. Ct. App. May 16, 2016).

Children were severely abused by a parent as evidenced by the parent's driving while under the influence of prescription medication, for which medication the parent did not have a prescription, while the children were in the car. In re Addison E., — S.W.3d —, 2016 Tenn. App. LEXIS 447 (Tenn. Ct. App. June 30, 2016).

Evidence supported the findings of termination of the parental rights of the mother and father based on severe child abuse, given the second-degree burn that the child sustained while in his mother's care and the father's failure to procure medical attention for the child; there was medical testimony that the injury was consistent with non-accidental trauma that caused the child substantial pain. In re Derrick J., — S.W.3d —, 2016 Tenn. App. LEXIS 477 (Tenn. Ct. App. July 8, 2016).

Termination of the mother's parental rights was proper based on severe child abuse because, despite being aware of the risks, the mother persistently abused drugs while pregnant; she knowingly exposed the child to abuse that was likely to cause serious bodily injury or death; and that exposure caused the child to experience drug withdrawals after birth and necessitated the child's hospitalization for an extended period of time. In re Joshua C., — S.W.3d —, 2016 Tenn. App. LEXIS 543 (Tenn. Ct. App. July 28, 2016).

Termination of the mother's parental rights was proper based on severe child abuse because, prior to the termination hearing, the trial court entered an order adjudicating the child dependent and neglected based upon a finding that the mother had committed severe child abuse by failing to protect the child from acts that met the statutory definitions of rape, aggravated sexual assault, rape of a child, and incest. In re C.D.,  S.W.3d —, 2016 Tenn. App. LEXIS 646 (Tenn. Ct. App. Aug. 30, 2016).

One of the parents'  minor child was the victim of severe abuse by both parents because the child's multiple skull fractures constituted a serious bodily injury. Furthermore, the children's counselor testified that the child suffered from Post traumatic stress disorder as a result of the physical abuse which the child suffered in the home. In re Savannah F., — S.W.3d —, 2016 Tenn. App. LEXIS 657 (Tenn. Ct. App. Aug. 31, 2016).

Because the juvenile court's order of dependency and neglect was final and was not appealed, grounds for termination existed based on severe abuse; the juvenile court adjudicated the children to be dependent and neglected after finding, by clear and convincing evidence, that all three children were victims of severe child abuse. In re Jason S., — S.W.3d —, 2016 Tenn. App. LEXIS 715 (Tenn. Ct. App. Sept. 23, 2016).

Credible evidence supported a finding, by clear and convincing evidence, that a parent committed severe child abuse because the parent was responsible for the child's injuries by the parent's knowing use of force as the child suffered a liver laceration, an injury, which a doctor opined occurred as a result of significant trauma, that constituted a serious bodily injury to the child. In re Damian M., — S.W.3d —, 2016 Tenn. App. LEXIS 738 (Tenn. Ct. App. Sept. 30, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 32 (Tenn. Jan. 19, 2017).

Termination of the mother's rights on the grounds of severe child abuse was proper, given that a previously issued final order found that the mother had severely abused one child, and that finding was res judicata, plus it supported a finding that a half-sibling of the other children was the victim of severe child abuse. In re Alfonzo E., — S.W.3d —, 2016 Tenn. App. LEXIS 797 (Tenn. Ct. App. Oct. 26, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 76 (Tenn. Jan. 24, 2017).

Father was aware of the nature of the abuse and believed the discipline administered was excessive but did not make a considered effort to prevent the abuse from occurring; the trial court did not err in finding that the father knowingly failed to protect the children from abuse in spite of his borderline intellectual functioning, given that a doctor did not indicate that the father's failure to protect the children was the result of his inability to understand the wrongfulness of the abuse. In re Tamera W., 515 S.W.3d 860, 2016 Tenn. App. LEXIS 859 (Tenn. Ct. App. Nov. 10, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 88 (Tenn. Feb. 8, 2017).

Evidence did not preponderate against the trial court's finding of severe abuse; the bruising, lacerations, and other marks on the children caused by whipping, regardless of whether the instrument used was a belt or an extension cord, constituted serious bodily injury, and the mother caused these injuries to the children. In re Tamera W., 515 S.W.3d 860, 2016 Tenn. App. LEXIS 859 (Tenn. Ct. App. Nov. 10, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 88 (Tenn. Feb. 8, 2017).

Mother's conduct in failing to feed her youngest child appropriately and failing to seek medical care for him constituted severe child abuse because an expert testified that the mother's actions of neglect toward the child resulting in severe nutritional malnourishment could produce severe developmental delay or intellectual disability in the child, and was likely to cause serious bodily injury or death; she admitted to hospital personnel that she noticed that the child was not growing approximately three months before he was admitted to the hospital; the mother was aware that it was not appropriate for the child to gain only eight ounces in six months; and, despite that knowledge, she did not seek medical treatment for the child. In re Chance D., — S.W.3d —, 2016 Tenn. App. LEXIS 902 (Tenn. Ct. App. Nov. 30, 2016).

Finding of sever child abuse was supported by expert testimony that the mother's actions of neglect toward the child resulting in severe malnutrition could reasonably have been expected to produce severe developmental delay or intellectual disability in the child. In re Jude D., — S.W.3d —, 2016 Tenn. App. LEXIS 909 (Tenn. Ct. App. Nov. 30, 2016).

Mother's conduct in failing to feed her youngest child appropriately and failing to seek medical care for him constituted severe child abuse because an expert testified that the mother's actions of neglect toward the child resulting in severe nutritional malnourishment could produce severe developmental delay or intellectual disability in the child, and was likely to cause serious bodily injury or death; she admitted to hospital personnel that she noticed that the child was not growing approximately three months before he was admitted to the hospital; the mother was aware that it was not appropriate for the child to gain only eight ounces in six months; and, despite that knowledge, she did not seek medical treatment for the child. In re Gabriella D., — S.W.3d —, 2016 Tenn. App. LEXIS 912 (Tenn. Ct. App. Nov. 30, 2016).

Trial court did not err in terminating the parental rights of a mother because there was clear and convincing evidence that the mother committed severe child abuse; the mother took photographs of the child's genitals and sent them to a known sex offender, who had discussed with her his sexual interest in the child, and her actions constituted especially aggravated sexual exploitation of a minor and severe child abuse. In re G.L., — S.W.3d —, 2016 Tenn. App. LEXIS 993 (Tenn. Ct. App. Dec. 28, 2016).

Mother abused drugs while pregnant with one child, and termination of her rights was proper. In re Yariel S., — S.W.3d —, 2017 Tenn. App. LEXIS 5 (Tenn. Ct. App. Jan. 6, 2017).

Mother was found to have committed severe child abuse as defined in T.C.A. § 37-1-102, which was a final judgment, and she was precluded from relitigating this issue; this finding established grounds for the termination of the mother's parental rights under T.C.A. § 36-1-113(g)(4) and relieved the Department of Children's Services from its obligation to make reasonable efforts to reunify the mother and the child, for purposes of T.C.A. § 37-1-166(g)(4)(A). In re Martese P., — S.W.3d —, 2017 Tenn. App. LEXIS 353 (Tenn. Ct. App. May 24, 2017).

Although the mother contended that a lower standard was used to imply severe child abuse against her as she was only convicted of criminally negligent homicide, because the trial court made an additional finding that the mother committed severe abuse as she knew or should have known that the father abused the children in a way that could cause serious bodily injury or death, the mother's parental rights were properly terminated as she committed severe abuse by failing to protect the deceased child from the father's known abuse. In re Demarkus T., — S.W.3d —, 2017 Tenn. App. LEXIS 529 (Tenn. Ct. App. Aug. 3, 2017).

Termination of the father's parental rights based on severe child abuse was proper because the severe abuse he committed against the deceased child resulted in her death; he was tried and convicted of aggravated child abuse and felony murder and was serving a life sentence for his actions; his convictions established severe child abuse that served as the basis for termination of his parental rights; and severe child abuse committed against one sibling resulted in severe child abuse against the other siblings. In re Demarkus T., — S.W.3d —, 2017 Tenn. App. LEXIS 529 (Tenn. Ct. App. Aug. 3, 2017).

Circuit court properly found two of the parents'  three children to be the victims of severe child abuse because they tested positive for methamphetamine during the time they were in the mother's care, whether mother exposed the children to drugs or she allowed her mother or someone else to expose the children, she failed to protect the children from exposure to drug, it was their exposure to harm that mattered, not the method or level of exposure, the express statutory language did not limit serious bodily injury to the listed conditions and did not require a finding of specific harm, and the children were the victims of severe child abuse due to drug exposure, regardless of the fact that their sibling tested negative for drugs. In re A.L.H., — S.W.3d —, 2017 Tenn. App. LEXIS 596 (Tenn. Ct. App. Aug. 31, 2017).

Trial court's order to delete termination of father's rights based upon severe child abuse as defined by T.C.A. § 37-1-102(b)(22)(C) was modified where the trial court's order failed to specify the facts supporting a finding of severe child abuse under that definition as required by T.C.A. § 36-1-113(k). In re L.M.H., — S.W.3d —, 2017 Tenn. App. LEXIS 657 (Tenn. Ct. App. Sept. 28, 2017).

Termination of a father's parental rights on the basis of severe child abuse under T.C.A. § 37-1-102(b)(22)(B) was appropriate where the child suffered trauma caused by the father, requiring him to undergo therapy, the therapist noted that child and his half-brother both reported the same instances of abuse, and the child had suffered PTSD as a result of the abuse. In re L.M.H., — S.W.3d —, 2017 Tenn. App. LEXIS 657 (Tenn. Ct. App. Sept. 28, 2017).

Clear and convincing evidence showed a mother's severe abuse because the evidence showed the mother knew it was highly probable the mother's boyfriend would severely abuse the mother's child, as the mother knew the abuse had occurred and tried to conceal the abuse. In re Brooklyn S., — S.W.3d —, 2017 Tenn. App. LEXIS 736 (Tenn. Ct. App. Nov. 8, 2017).

In a termination of parental rights case, the hearsay testimony regarding the children's statements related to issues concerning severe child abuse were admissible because there was no competent evidence that their statements were not trustworthy; the children described the mother's drug use consistently at different times to the Child Protective Services Investigator and the foster mother, and the specifics of the matters about which the children reported placed them in danger of serious bodily harm by their exposure to illicit drugs and drug paraphernalia; and the father was aware of the threat to their safety inasmuch as they reported the mother's drug use to him. In re Alyssa W., — S.W.3d —, 2017 Tenn. App. LEXIS 803 (Tenn. Ct. App. Dec. 14, 2017).

Termination of the mother's and the father's parental rights was proper because they committed severe child abuse as the findings of the autism center and a doctor were compelling evidence of severe child abuse while in the parents'  custody as the child was essentially nonverbal, having to grunt or point to communicate, and his language delays severely impaired his ability to function in his environment and adversely affected his ability to learn, but there was evidence that the child improved immensely after his removal from the parents'  custody; and the center ruled out autism as the cause for the child's developmental delays. In re Charles R., — S.W.3d —, 2018 Tenn. App. LEXIS 425 (Tenn. Ct. App. July 25, 2018).

Trial court properly terminated a mother's parental rights on the ground of severe child abuse because a judgment in another proceeding found her guilty of severe child abuse of the child's half-sister; viewed in context, the mother's testimony in the other proceeding simply did not establish a basis upon which to hold that the child abuse adjudication was tainted by fraud or collusion, by constitutional infirmity, or in any other way not entitled to res judicata effect. In re Gabriel C., — S.W.3d —, 2018 Tenn. App. LEXIS 516 (Tenn. Ct. App. Aug. 30, 2018).

Because the order adjudicating the mother to have severely abused the child's sibling was a final judgment, the trial court found that she committed severe child abuse, and termination of her parental rights on this ground was proper. In re Hayden L, — S.W.3d —, 2018 Tenn. App. LEXIS 515 (Tenn. Ct. App. Aug. 31, 2018).

Trial court erred by declining to find severe child abuse, even though it could not determine which parent caused the abuse, because the evidence clearly and convincingly established that the father or the mother subjected the child to severe child abuse and that the other parent covered for the other rather than protecting the child from the abuse. In re E.Z., — S.W.3d —, 2019 Tenn. App. LEXIS 152 (Tenn. Ct. App. Mar. 26, 2019).

Termination of the father's parental rights to his two children was proper on the ground of severe child abuse, severe child sexual abuse, and receiving a sentence more than two years for conduct against a child and a sentence of 10 or more years when the children were eight years old because he was convicted of rape of a child, and was sentenced to serve 35 years in prison at 100%. In re O.W., — S.W.3d —, 2020 Tenn. App. LEXIS 7 (Tenn. Ct. App. Jan. 9, 2020).

Definition of serious bodily injury under T.C.A. § 39-11-106(a)(34) was inapplicable for purposes of terminating a parent's rights on the ground of severe child abuse, and instead, T.C.A. § 37-1-102(b)(27) governed. In re Imerald W., — S.W.3d —, 2020 Tenn. App. LEXIS 43 (Tenn. Ct. App. Jan. 31, 2020).

Sufficient evidence supported the termination of the mother's parental rights based on severe child abuse because the trial court found that the child was the victim of severe child abuse in a dependency and neglect order based on his positive hair follicle test for methamphetamine, and the mother did not appeal the order. In re Caydan T., — S.W.3d —, 2020 Tenn. App. LEXIS 143 (Tenn. Ct. App. Apr. 7, 2020).

Termination of the father's rights was proper based on his child abuse sentence; he pleaded guilty to attempted aggravated child neglect and received a suspended sentence of 10 years imprisonment, the incident underlying his conviction, where one child obtained a loaded and unsecured handgun and shot himself in the arm, was found by the juvenile court to constitute severe child abuse, and the fact that the father did not serve any jail time did not preclude termination of his rights on this ground. In re Shyanne H., — S.W.3d —, 2020 Tenn. App. LEXIS 292 (Tenn. Ct. App. June 25, 2020).

Because the issue of whether the parents committed severe child abuse in the past was fully litigated, that issue was res judicata, plus the juvenile court also properly terminated the parents'  rights based upon new findings that they had committed severe child abuse; the children disclosed that the father hit, choked, and whipped them, and the mother held one child by the neck and hit her in the face with a frying pan. The abuse the children endured caused them severe psychological issues, as determined by a clinical psychologist. In re Shyanne H., — S.W.3d —, 2020 Tenn. App. LEXIS 292 (Tenn. Ct. App. June 25, 2020).

What rendered the trial court's application of collateral estoppel erroneous was the improper use of an inapplicable statute, T.C.A. § 39-15-401(c), under which subsection the mother was not convicted, to prevent her from defending against the severe child abuse statute; this holding did not disrupt the principle that criminal convictions could serve to establish severe child abuse, thereby collaterally estopping a litigant from relitigating the same issue previously litigated in a prior criminal conviction. In re Zaliyah S., — S.W.3d —, 2020 Tenn. App. LEXIS 296 (Tenn. Ct. App. June 26, 2020).

Evidence supported finding that twins were dependent and neglected due to severe child abuse by the mother; trial court's application of the definition of knowingly in T.C.A. § 39-15-401(c) for collateral estoppel purposes, while error as the mother had been convicted under § 39-15-401(b), the error was harmless. Given a nurse's testimony and photographs, the twins were the victims of severe child abuse in that they were malnourished and the mother admitted her failure to properly feed them and she knew of the danger to their lives. In re Zaliyah S., — S.W.3d —, 2020 Tenn. App. LEXIS 296 (Tenn. Ct. App. June 26, 2020).

Clear and convincing evidence supported the trial court's determination of severe child abuse as the evidence was clear that the mother had knowingly failed to protect the three eldest children from physical abuse in California and in Tennessee, had participated in some of the abusive acts, and participated in ongoing arguments and altercations with the father. In re Nehemiah H., — S.W.3d —, 2020 Tenn. App. LEXIS 311 (Tenn. Ct. App. July 8, 2020).

While the father may have taken steps to stop the father's use of drugs and to remove the father's father from the father's life, clear and convincing evidence supported the finding that the father had committed severe child abuse because the child was present during incidents of domestic violence at the home of the father's parents and the father had taken the child with the father to places where the father used or acquired drugs. In re Adalee H., — S.W.3d —, 2020 Tenn. App. LEXIS 356 (Tenn. Ct. App. Aug. 7, 2020).

Mother's act of child endangerment resulted in serious bodily injury to the child as doctors testified that the child suffered brain injuries a result of nonaccidental and abusive head trauma. In re Treylynn T., — S.W.3d —, 2020 Tenn. App. LEXIS 403 (Tenn. Ct. App. Sept. 9, 2020).

6. Court Order.

There is no authority for the substitution of an oral directive for a valid court order, and therefore juvenile defendant was entitled to post-commitment relief after he was found to be in violation of the terms of probation based on an oral mandate for house arrest since he was entitled to notice under U.S. Const. amend. XIV, § 1 and Tenn. Const. art. I, § 8; moreover, the appeal was not moot because a finding of a probation violation could have had adverse consequences in the future. State v. Rodgers, 235 S.W.3d 92, 2007 Tenn. LEXIS 744 (Tenn. Aug. 17, 2007).

6.5. Protective Custody Ordered.

Trial court ordered the child to remain in protective custody after finding he was a dependent and neglected child and the mother engaged in severe child abuse against him; as those findings were supported by the evidence, the order was affirmed. In re Colby W., — S.W.3d —, 2014 Tenn. App. LEXIS 451 (Tenn. Ct. App. July 30, 2014).

7. Termination of Parental Rights.

Termination of a father's parental rights was in the best interest of the father's son under T.C.A. § 36-1-113(i) (2011) as the evidence showed that the father committed virtually every type of abuse listed in § 36-1-113(i)(6) toward the child and the father's daughters, including brutality, physical, sexual, emotional, and psychological abuse, defiling, tormenting, and tyrannizing the children in his home nearly every day. This factor alone provided ample basis for terminating the father's parental rights. In re Robert B., — S.W.3d —, 2012 Tenn. App. LEXIS 461 (Tenn. Ct. App. July 12, 2012).

Although a mother was found not guilty of criminal charges of child abuse, such was not fatal to the trial court's finding that the mother committed severe child abuse based on clear and convincing evidence pursuant to T.C.A. § 37-1-102, such that termination of the mother's rights was established by clear and convincing evidence under T.C.A. § 36-1-113(g)(4). In re Dakota C.R., 404 S.W.3d 484, 2012 Tenn. App. LEXIS 844 (Tenn. Ct. App. Dec. 7, 2012), appeal denied, In re Dakota R., — S.W.3d —, 2013 Tenn. LEXIS 230 (Tenn. Mar. 6, 2013).

As the mother and the Department of Children's Services were among the parties in a prior dependency and neglect action involving the mother's children, wherein it was determined after fully litigating the issue that the mother had committed severe child abuse, pursuant to T.C.A. § 37-1-102 that issue was res judicata and a trial court properly found that ground of termination of the mother's rights established by clear and convincing evidence under T.C.A. § 36-1-113(g)(4). In re Dakota C.R., 404 S.W.3d 484, 2012 Tenn. App. LEXIS 844 (Tenn. Ct. App. Dec. 7, 2012), appeal denied, In re Dakota R., — S.W.3d —, 2013 Tenn. LEXIS 230 (Tenn. Mar. 6, 2013).

Father's parental rights were erroneously terminated based on a finding of severe child abuse pursuant to T.C.A. §§ 37-1-102 and 36-1-113(g)(4), as the father was apparently absent from the home when one child was injured, and there was a lack of proof that the children were abused prior to that time; there was conflicting evidence as to the existence of, cause of, and seriousness of, the children's other “marks” on their bodies. In re Dakota C.R., 404 S.W.3d 484, 2012 Tenn. App. LEXIS 844 (Tenn. Ct. App. Dec. 7, 2012), appeal denied, In re Dakota R., — S.W.3d —, 2013 Tenn. LEXIS 230 (Tenn. Mar. 6, 2013).

Trial court erred in finding that the ground of severe child abuse under T.C.A. § 37-1-102 had not been proven in the termination of parental rights proceeding as numerous witnesses from the oldest child's school testified that the child had common, weekly bruising, that he regularly came to school late and was hungry and dirty, that he often wore the same clothes for days in a row, and that he slept in class and could not interact normally with his peers; the child identified that he was whipped with a belt that he described in detail, which was found at his home; he and his younger siblings consistently reported having been abused by the mother and father; the children displayed severe behavioral problems and described sexual acts that should have been well beyond their knowledge; the children exhibited what the psychological experts described as “classic signs of abuse”; and once the children came into custody, the constant bruising stopped and the oldest child gained weight. In re Devonta L.C., — S.W.3d —, 2013 Tenn. App. LEXIS 61 (Tenn. Ct. App. Jan. 31, 2013), appeal denied, In re Devonta C., — S.W.3d —, 2013 Tenn. LEXIS 505 (Tenn. June 18, 2013).

Trial court did not err in terminating the parental rights of a mother and father because pursuant to T.C.A. § 36-1-113(g)(4), the Tennessee Department of Children's Services proved the ground of severe abuse by proving that the mother and father had been found to have committed severe abuse of the children's half-sibling; the mother was found to have committed severe abuse because she knew about the father's abuse of the half-sibling and did nothing to protect her. In re Eric J. P., — S.W.3d —, 2013 Tenn. App. LEXIS 290 (Tenn. Ct. App. Apr. 24, 2013), appeal denied, In re Eric P., — S.W.3d —, 2013 Tenn. LEXIS 595 (Tenn. June 27, 2013).

Evidence was sufficient to support the termination of the father's parental rights where a court found that he had committed severe child abuse against his son under this section and he did not appeal. In re Jamazin H. M., — S.W.3d —, 2014 Tenn. App. LEXIS 308 (Tenn. Ct. App. May 28, 2014), appeal denied, In re Jamazin M., — S.W.3d —, 2014 Tenn. LEXIS 632 (Tenn. Aug. 22, 2014).

Grounds for termination of parental rights existed because a parent (1) whipped one child to the point that the child was bruised and the child's face was lacerated; and (2) continued to abuse illicit substances while pregnant with another child, despite the parent's knowledge of the potential dangers (including the risk of serious bodily injury or even death of the in utero child) of continued illicit substance abuse during the parent's pregnancy with the child. In re Kaedince M., — S.W.3d —, 2015 Tenn. App. LEXIS 849 (Tenn. Ct. App. Oct. 19, 2015).

Trial court did not err in finding that grounds existed to terminate the father's parental rights to the children for severe abuse; the father struck the mother with a baseball bat stating that he knew he would be arrested, the children were present at the time, and the father had attacked two of the children and was incarcerated. In re Kyah H., — S.W.3d —, 2015 Tenn. App. LEXIS 986 (Tenn. Ct. App. Dec. 23, 2015).

Juvenile court properly terminated a father's parental rights on the ground of severe child abuse because the father, along with the mother, perpetrated severe child abuse through the supply and use of illegal drugs and non-prescribed pain medication. In re Braxton R., — S.W.3d —, 2016 Tenn. App. LEXIS 660 (Tenn. Ct. App. Sept. 2, 2016).

Nothing in the definition of a dependent and neglected child requires that a ground for termination of parental rights has been established by appropriate proof, and the same is true of the definition of severe abuse; there are no cases in which Tennessee courts have held that a ground for termination or a best interest determination must be made in order to adjudicate a child dependent and neglected or the victim of severe abuse, and dependency and neglect proceeding and termination of parental rights proceeding are separate proceedings. In re Tamera W., 515 S.W.3d 860, 2016 Tenn. App. LEXIS 859 (Tenn. Ct. App. Nov. 10, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 88 (Tenn. Feb. 8, 2017).

Nothing in either the definition of a dependent and neglected child or severe abuse requires that the trial court determine whether the parent has complied with an applicable permanency plan; whether the parent has made lasting adjustment after reasonable efforts by available social services agencies alone does not prevent the trial court from finding the children dependent and neglected or to be the victims of severe abuse. In re Tamera W., 515 S.W.3d 860, 2016 Tenn. App. LEXIS 859 (Tenn. Ct. App. Nov. 10, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 88 (Tenn. Feb. 8, 2017).

Although the trial court properly found that the mother had committed severe child abuse against her youngest child, the foster parent's petition to terminate her parental rights was improperly denied as termination was in the child's best interests because the mother's 10-year history of abuse and neglect of her children had been extensive and damaging to the children, and showed that she was not a fit parent; she continued to deny any fault for the youngest child's failure to thrive and insisted that she fed him properly; and she had a long history of complying with requirements of child welfare agencies when necessary before returning to her abusive husband, her illicit drug use, and her patterns of abuse and neglect of her children. In re Chance D., — S.W.3d —, 2016 Tenn. App. LEXIS 902 (Tenn. Ct. App. Nov. 30, 2016).

Although the trial court properly found that the mother had committed severe child abuse against her youngest child, the foster parent's petition to terminate her parental rights was improperly denied as termination was in the oldest child's best interests because the mother's 10-year history of abuse and neglect of her children had been extensive and damaging to them, and showed that she was not a fit parent; she continued to deny any fault for the youngest child's failure to thrive and insisted that she fed him properly; and she had a long history of complying with requirements of child welfare agencies when necessary before returning to her abusive husband, her illicit drug use, and her patterns of abuse and neglect of her children. In re Gabriella D., — S.W.3d —, 2016 Tenn. App. LEXIS 912 (Tenn. Ct. App. Nov. 30, 2016).

Evidence amounted to clear and convincing evidence supporting termination of a mother's parental rights based on severe child abuse for physical and psychological damage to the child's half-siblings because the mother slapped one half-sibling and choked her making it difficult for the child to breathe; the child's other half-sibling witnessed the event, and an expert clinical psychologist testified to the harm that would result from being a victim of the assault and having witnessed it. In re D.T., — S.W.3d —, 2018 Tenn. App. LEXIS 292 (Tenn. Ct. App. May 24, 2018).

Evidence amounted to clear and convincing evidence supporting termination of a mother's parental rights based on severe child abuse because the mother's prenatal drug use constituted severe child abuse; the mother was advised by medical professionals to discontinue her use for the duration of her pregnancy, but she refused, and the child showed signs of developmental delays. In re D.T., — S.W.3d —, 2018 Tenn. App. LEXIS 292 (Tenn. Ct. App. May 24, 2018).

Evidence found by the trial court amounted to clear and convincing evidence supporting termination of a mother's parental rights based on severe child abuse because the mother drove while intoxicated with the child's half-sibling in the vehicle; that kind of reckless conduct had the potential to cause serious bodily injury and death to the child. In re D.T., — S.W.3d —, 2018 Tenn. App. LEXIS 292 (Tenn. Ct. App. May 24, 2018).

Evidence was sufficient to terminate the mother's parental rights on the ground of severe child abuse because the child was severely burned on two separate occasions within a one-week period, strongly suggesting that the mother recklessly disregarded the known dangers of a curling iron and a campfire, and she failed to alleviate the child's ongoing pain by seeking appropriate medical treatment. In re E.M., — S.W.3d —, 2018 Tenn. App. LEXIS 564 (Tenn. Ct. App. Sept. 27, 2018).

In light of other clear and convincing proof that the mother had not remedied the conditions that led to the children's placement with the child placement agency and the trial court's holding that the children were dependent and neglected, certain testimony did not establish, as the mother claimed, that there were no conditions preventing the children's return. In re Antonio J., — S.W.3d —, 2018 Tenn. App. LEXIS 759 (Tenn. Ct. App. Dec. 28, 2018).

Trial court determined that the children were dependent and neglected as the mother was unable to care for them without the assistance of others, and the trial court approved an agreement that the children remain in child placement agency's custody; there was no basis for the mother's argument that the children were not removed because she voluntarily placed them with the agency, and the order satisfied the persistence of conditions requirement that the child be removed from the parent's home by order of the court. In re Antonio J., — S.W.3d —, 2018 Tenn. App. LEXIS 759 (Tenn. Ct. App. Dec. 28, 2018).

Trial court properly terminated a mother's parental rights to her child because the ground of severe child abuse was proven by clear and convincing evidence; the child's brother was injured while in the mother's care and treated for skull fractures and subdural hematoma, for which the mother pleaded guilty to child abuse with serious injuries, unlawful wounding of a child, and cruelty to a child. In re C.S., — S.W.3d —, 2020 Tenn. App. LEXIS 197 (Tenn. Ct. App. Apr. 29, 2020).

Because a mother was sentenced to more than two years'  imprisonment for conduct against the child's sibling that met the definition of severe child abuse, the trial court did not err in terminating her parental rights. In re C.S., — S.W.3d —, 2020 Tenn. App. LEXIS 197 (Tenn. Ct. App. Apr. 29, 2020).

In a March 2019 order, the juvenile court found that the father committed severe child abuse against two of the child's siblings for failure to protect them from their mother's drug exposure; as the father did not challenge the finality or validity of the order finding severe child abuse either in the proceedings below or on appeal, the ground of severe child abuse was proven by clear and convincing evidence. In re Trinity H., — S.W.3d —, 2020 Tenn. App. LEXIS 388 (Tenn. Ct. App. Aug. 28, 2020).

8. Aggravated Circumstances.

Any issue concerning lack of reasonable efforts by the Tennessee Department of Children's Services to reunify a family in a termination of parental rights case was without merit because there was aggravated circumstances as the evidence presented at trial was clear and convincing that the parents engaged in severe child abuse against each of their children. In re Samuel P., — S.W.3d —, 2014 Tenn. App. LEXIS 367 (Tenn. Ct. App. June 24, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 816 (Tenn. Sept. 22, 2014).

9. Physical Custody.

Construing the language of the adoption and termination statutory scheme, the term “physical custody” as utilized in the statutory sections would be synonymous with having physical possession of a child and would not require a court order or other judicial act; the statutory definition of custody contained in the juvenile court statutory scheme is inapplicable in the context of a termination or adoption proceeding, and physical custody means physical possession of a child, as granted by a parent, guardian, child-placing agency, or court, but physical custody as used in the statutory scheme does not include the unlawful taking of a child. In re Joseph F., 492 S.W.3d 690, 2016 Tenn. App. LEXIS 227 (Tenn. Ct. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 377 (Tenn. May 10, 2016).

10. “Unruly Child.”

Defendant was properly convicted of contributing to the delinquency of a minor because the child at issue was on “runaway” status on the date of the offense, defendant knew the child had run away from home, diligently searched for her, and then encouraged her to continue her unruly runaway behavior. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 374 (Tenn. Crim. App. May 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 711 (Tenn. Sept. 30, 2016).

Defendant was properly convicted of contributing to the delinquency of a minor because the child at issue was on “runaway” status on the date of the offense, defendant knew the child had run away from home, diligently searched for her, and then encouraged her to continue her unruly runaway behavior. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 374 (Tenn. Crim. App. May 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 711 (Tenn. Sept. 30, 2016).

Father's petition alleged that the child had 10 unexcused absences, for which the child could be deemed habitually truant; because the substance of the father's petition alleged that the child was unruly, the allegations implicated the exclusive original jurisdiction of the juvenile court, and thus the trial court lacked subject matter jurisdiction and all actions taken by the trial court were void. Minyard v. Lucas, — S.W.3d —, 2018 Tenn. App. LEXIS 650 (Tenn. Ct. App. Nov. 2, 2018), rev'd, 576 S.W.3d 351, 2019 Tenn. LEXIS 230 (Tenn. May 29, 2019).

11. Knowing.

Parent's conduct is considered to be knowing, and a parent is considered to act or fail to act knowingly, when a parent has actual knowledge of the relevant facts and circumstances or when the parent is either in deliberate ignorance of or in reckless disregard of the information that has been presented to the parent. In re Savannah F., — S.W.3d —, 2016 Tenn. App. LEXIS 657 (Tenn. Ct. App. Aug. 31, 2016).

Clear and convincing evidence supported the termination of a mother's parental rights to the mother's child on the ground of severe child abuse because the child tested positive for methamphetamine and marijuana in hair follicle drug screens during the time when the child was in the care and control of the mother. Furthermore, the mother testified to being aware that using methamphetamine could be harmful to the child, while a doctor testified that ingestion of the drugs could cause immediate and/or long term injury to the child. In re Mason C., — S.W.3d —, 2018 Tenn. App. LEXIS 579 (Tenn. Ct. App. Oct. 2, 2018).

Termination of parental rights due to severe child abuse was appropriate because the mother confessed to having squeezed and shaken the child in a manner which a doctor testified was consistent with the child's injuries, while the father confessed to investigators to having witnessed the mother hit the child in the head. The parents'  conduct was knowing as the doctor testified that the mother should have known that serious harm would result, while the father should have recognized that severe child abuse would occur or had already occurred. In re Kyland F., — S.W.3d —, 2020 Tenn. App. LEXIS 86 (Tenn. Ct. App. Feb. 27, 2020).

12. Appellate Review.

No Tennessee Court has ever held that the appellate court must consider whether the trial court erred in finding clear and convincing evidence of severe abuse in an appeal from a dependency and neglect proceeding in spite of the parents'  failure to properly brief the issue; the court does not interpret a termination of parental rights opinion as requiring review of the severe abuse finding at issue in this neglect case. In re Tamera W., 515 S.W.3d 860, 2016 Tenn. App. LEXIS 859 (Tenn. Ct. App. Nov. 10, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 88 (Tenn. Feb. 8, 2017).

Circuit court did not err in finding that the parties'  children were no longer dependent and neglected. Although the children indicated that they were fearful of the father because he yelled at them, and the trial court intimated, that participation in family counseling was likely necessary to address these concerns, the appellate court concluded that these concerns did not support a finding of dependency and neglect by clear and convincing evidence. In re Maya M., — S.W.3d —, 2018 Tenn. App. LEXIS 395 (Tenn. Ct. App. July 9, 2018).

13. Probation.

Although the reporting requirement in the Serious Habitual Offender Community Action Program (SHOCAP) is strict, as it is an intensive program for serious or habitual offenders, the reporting requirement is among the most basic requirements of any supervised probation program; therefore, the reporting requirement of SHOCAP is compliant with the definition of probation and is an appropriate condition of probation. In re A'reeyon L., — S.W.3d —, 2018 Tenn. App. LEXIS 53 (Tenn. Ct. App. Jan. 30, 2018).

Trial court did not err by finding that defendant violated his probation and ordering that he be committed to Department of Children's Services custody because defendant violated his Serious Habitual Offender Community Action Program (SHOCAP) probation by failing to report to his probation officer; defendant and his mother agreed to the terms of the SHOCAP probation, including the reporting requirement, and the trial court found that his violations were intentional and deliberate. In re A'reeyon L., — S.W.3d —, 2018 Tenn. App. LEXIS 53 (Tenn. Ct. App. Jan. 30, 2018).

14. Adult.

Because an inmate was 18 when he murdered the victim, he was an adult. Davis v. Tenn. Dep't of Corr., — S.W.3d —, 2018 Tenn. App. LEXIS 631 (Tenn. Ct. App. Oct. 30, 2018).

Collateral References.

Age of child at time of alleged offense or delinquency, or at time of legal proceedings, as criterion of jurisdiction of juvenile court. 89 A.L.R.2d 506.

Marriage as affecting jurisdiction of juvenile court over delinquent or dependent. 14 A.L.R.2d 336.

School, prosecution under laws as to truants, and delinquent or neglected children where child is expelled from, for refusal to take oath of allegiance, to salute flag, or to participate in other ritual of a patriotic character. 141 A.L.R. 1034.

Sufficiency of evidence to establish parent's knowledge or allowance of child's sexual abuse by another under statute permitting termination of parental rights for “allowing” or “knowingly allowing” such abuse to occur. 53 A.L.R.5th 499.

Truancy as indicative of delinquency or incorrigibility, justifying commitment of infant or juvenile. 5 A.L.R.4th 1211.

Vagrancy of minors. 14 A.L.R. 1507.

Validity and construction of putative father's promise to support or provide for illegitimate child. 20 A.L.R.3d 500.

What constitutes delinquency or incorrigibility justifying commitment of infant. 45 A.L.R. 1533, 85 A.L.R. 1099.

37-1-103. Exclusive original jurisdiction.

  1. The juvenile court has exclusive original jurisdiction of the following proceedings, which are governed by this part:
    1. Proceedings in which a child is alleged to be delinquent, unruly or dependent and neglected, or to have committed a juvenile traffic offense as defined in § 37-1-146;
    2. Proceedings arising under §§ 37-1-141 — 37-1-144;
    3. Proceedings arising under § 37-1-137 for the purposes of termination of a home placement;
    4. Prosecutions under § 37-1-412, unless the case is bound over to the grand jury by the juvenile court or the defendant is originally charged with a greater offense of which violation of § 37-1-412 is a lesser included offense;
    5. Proceedings arising under § 49-5-5209(e) [repealed]; and
    6. Proceedings in which a parent or legal guardian is alleged to have violated parental responsibilities pursuant to § 37-1-174.
  2. The juvenile court also has exclusive original jurisdiction of the following proceedings, which are governed by the laws relating thereto without regard to the other provisions of this part:
    1. Proceedings to obtain judicial consent to employment, or enlistment in the armed services of a child, if consent is required by law;
    2. Proceedings under the Interstate Compact for Juveniles, compiled as chapter 4, part 1 of this title; and
    3. Proceedings under the Interstate Compact on the Placement of Children, compiled as chapter 4, part 2 of this title.
  3. Except as provided in subsection (d), when jurisdiction has been acquired under this part, such jurisdiction shall continue until the case has been dismissed, or until the custody determination is transferred to another juvenile, circuit, chancery or general sessions court exercising domestic relations jurisdiction, or until a petition for adoption is filed regarding the child in question as set out in § 36-1-116(f). A juvenile court shall retain jurisdiction to the extent needed to complete any reviews or permanency hearings for children in foster care as may be mandated by federal or state law. This subsection (c) does not establish concurrent jurisdiction for any other court to hear juvenile cases, but permits courts exercising domestic relations jurisdiction to make custody determinations in accordance with this part.
    1. A juvenile court in any county of this state shall have temporary jurisdiction to issue temporary orders pursuant to this section upon a petition on behalf of a child present or residing in that county. Upon being informed that a proceeding pertaining to the same child has been commenced in or a determination pertaining to the same child has been made by a court of a county having prior jurisdiction under this part; provided, that the court having temporary jurisdiction shall immediately notify and attempt to communicate with the court having original jurisdiction regarding the status of the child before issuing any temporary order hereunder, the courts shall coordinate with one another to resolve any jurisdictional issues, protect the best interests of the child, and determine the duration of any order entered by a court pursuant to this section.
    2. A court shall have temporary jurisdiction pursuant to this subsection (d) only in a neglect, dependency or abuse proceeding, a termination of parental rights proceeding or an order of protection pursuant to title 36, pertaining to the child whose matter is before the court when the court determines it is necessary to protect the best interests of that child by action of that court.
    3. Upon notice that a proceeding pertaining to the child has been commenced in a court in a county having prior jurisdiction under this part or upon notice that there is a previous determination pertaining to the child that is entitled to be enforced under this part:
      1. The court exercising temporary jurisdiction shall attempt to communicate with the prior court having jurisdiction and resolve jurisdictional issues and determine whether jurisdiction should transfer to the court exercising temporary jurisdiction;
      2. If jurisdiction is not transferred to the court exercising temporary jurisdiction, the orders of the court exercising temporary jurisdiction shall remain in force and effect until an order is obtained from the court having prior jurisdiction regarding the child;
      3. If jurisdiction is not transferred to the court exercising temporary jurisdiction, the court exercising temporary jurisdiction under this part, either upon motion by a party or on its own, shall enter an order specifying the period of time that the court considers adequate to allow the parties to resume the proceeding in the court having prior jurisdiction under this part; and
      4. If jurisdiction is transferred to the court exercising temporary jurisdiction, all matters thereafter pertaining to the child shall be within the jurisdiction of that court.
  5. Notwithstanding any other law to the contrary, transfers under this section shall be at the sole discretion of the juvenile court.  In all other cases, jurisdiction shall continue until a person is no longer a child as defined in § 37-1-102.
  6. The court is authorized to require any parent or legal guardian of a child within the jurisdiction of the court to participate in any counseling or treatment program the court may deem appropriate and in the best interest of the child.
  7. Notwithstanding this section, nothing in subdivision (a)(1) shall be construed to preclude a court from exercising domestic relations jurisdiction pursuant to title 36, regardless of the nature of the allegations, unless and until a pleading is filed or relief is otherwise sought in a juvenile court invoking its exclusive original jurisdiction.

Acts 1970, ch. 600, § 3; 1971, ch. 189, §§ 1, 2; 1975, ch. 326, § 2; 1977, ch. 482, § 2; 1979, ch. 96, § 1; 1981, ch. 120, § 2; 1981, ch. 316, § 2; 1981, ch. 348, § 1; 1981, ch. 488, § 11; T.C.A., § 37-203; Acts 1989, ch. 278, § 44; 1994, ch. 811, § 1; 1994, ch. 929, § 3; 1995, ch. 532, § 7; 1996, ch. 675, § 16; 1996, ch. 1079, § 85; 1997, ch. 465, § 1; 2001, ch. 297, § 1; 2003, ch. 333, § 1; 2009, ch. 335, § 1; 2011, ch. 485, §§ 1, 2; 2019, ch. 167, § 1.

Compiler's Notes. Section 49-5-5209, referred to in subdivision (a)(5), was repealed by Acts 2013, ch. 214, § 1, effective April 23, 2013.

Acts 2001, ch. 297, § 5 provided that the act shall apply to any case pending or filed on or after July 1, 2001. Any custody order that has been entered by a court exercising domestic relations jurisdiction and that is not the subject of or eligible for appeal on July 1, 2001, shall be valid and is hereby declared to be in full compliance with the laws of this state.

Acts 2019, ch. 167,  § 2 provided that the act shall apply  to any case pending or filed on or after April 18, 2019.  Any domestic relations order which has been entered by a court exercising domestic relations jurisdiction and which is not the subject of or eligible for appeal on April 18, 2019, shall be valid and is hereby declared to be in full compliance with the laws of this state.

Amendments. The 2019 amendment added (g).

Effective Dates. Acts 2019, ch. 167, § 3. April 18,  2019.

Cross-References. Eighteen-year-olds, legal responsibilities, alcoholic beverage restrictions on persons under 21, § 1-3-113.

Litigation taxes imposed, § 67-4-602.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 1 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 7.1, 8.1, 16.56.

Tennessee Jurisprudence, 17 Tenn. Juris., Jurisdiction, § 27; 18 Tenn. Juris., Minors, § 11, 20 Tenn. Juris., Parent and Child, § 7, 8 Tenn. Juris., Courts, § 25.

Law Reviews.

Blended Sentencing in Tennessee Courts, 44 U. Mem. L. Rev. 767 (2014).

Guidelines for Juvenile Court Practice (Andrew J. Shookhoff), 19 No. 2 Tenn. B.J. 5 (1983).

There's No Place Like Home: The Availability of Judicial Review Over Certification Decisions Invoking Federal Jurisdiction Under the Juvenile Justice and Delinquency Prevention Act, 53 Vand. L. Rev. 1311 (2000).

Attorney General Opinions. Jurisdiction and procedures for emancipation proceedings, OAG 96-064 (4/8/96).

Juvenile courts have exclusive jurisdiction for enforcement of a child curfew law against a child, OAG 00-158 (10/17/00).

Juvenile court's subject matter jurisdiction to award joint custody, OAG 04-106 (7/09/04).

Unless and until a party files a proceeding under T.C.A. §§ 37-1-103 or 37-1-104 the juvenile court lacks authority to order a safety plan because it lacks subject matter jurisdiction, OAG 06-012 (1/17/06).

Juvenile court jurisdiction over violations of city ordinances by children, OAG 07-048 (4/10/07).

Transfer of a parentage action properly initiated a juvenile court to a circuit or chancery court, OAG 07-099 (7/9/07).

Juvenile court may not rule upon a party's request for legal custody or parenting time, OAG 08-189 (12/23/08).

Juvenile, circuit and chancery courts have concurrent jurisdiction to hear petitions to set child support for children of married persons who are living apart when the parties have not filed a petition for divorce or legal separation, OAG 08-189 (12/23/08).

NOTES TO DECISIONS

1. Right to Transfer Hearing.

A defendant who was actually a juvenile at the time of the offense, but who was not afforded a transfer hearing in juvenile court prior to his conviction in criminal court, because neither he nor the state knew that he was underage, was deprived of fundamental procedural right and was entitled to remand to trial court for de novo hearing as to whether or not defendant would have been transferred from juvenile to criminal court, based on facts existing at time of his indictment and trial. Sawyers v. State, 814 S.W.2d 725, 1991 Tenn. LEXIS 514 (Tenn. 1991).

Juvenile defendant's right to have transfer order entered in juvenile court before being tried in criminal court is sufficiently fundamental to be considered a matter of due process, in the context of juvenile justice. Consequently, where the error is raised at the first opportunity and there is no suggestion of bad faith on the petitioner's part, it would be patently unfair to conclude that the issue had been “waived,” as that term is contemplated by § 40-30-112(b) (repealed; see now § 40-30-106). Sawyers v. State, 814 S.W.2d 725, 1991 Tenn. LEXIS 514 (Tenn. 1991).

2. Abandoned Child.

Although the definition of an “abandoned child” in former § 37-1-102(b)(1) [repealed] requires only that the parents fail to visit or support the child for any period of four consecutive months, this section gives the juvenile court the right to terminate the parental rights only in cases where that failure exists for four consecutive months immediately preceding institution of the action or proceeding to declare the child to be an abandoned child by the filing of a petition pursuant to § 37-1-108. West Tennessee Agape, Inc. v. Lipe, 515 S.W.2d 648, 1974 Tenn. App. LEXIS 112 (Tenn. Ct. App. 1974).

For purposes of custody jurisdiction of the juvenile court, the applicable definition of abandonment is that supplied by former § 37-1-102(b)(1) [repealed] and is not necessarily the same as abandonment for purposes of adoption. Pack v. Rogers, 538 S.W.2d 607, 1976 Tenn. App. LEXIS 220 (Tenn. Ct. App. 1976).

3. Jurisdiction of Juvenile Courts.

Juvenile court erred in ruling that in the event the father was unable to exercise personal visitation in any month, the paternal grandparents were entitled to exercise his shared parenting time; that conditional order established the grandparents'  visitation fully and completely and was therefore governed by T.C.A. § 36-6-306, which allowed visitation rights to grandparents but did not grant jurisdiction to decide grandparental visitation rights. Smallwood v. Mann, 205 S.W.3d 358, 2006 Tenn. LEXIS 994 (Tenn. 2006).

Although the chancery court has inherent jurisdiction of the persons and estates of minors, the state has conferred upon juvenile courts the special exclusive jurisdiction to determine custody of a dependent or delinquent minor. State ex rel. Baker v. Turner, 562 S.W.2d 435, 1977 Tenn. App. LEXIS 258 (Tenn. Ct. App. 1977).

Upon a finding that a delinquent child has committed any act designated a crime by § 37-1-102, the court has the discretion to “retain jurisdiction and control … until he or she shall have reached the age of twenty-one (21) years,” notwithstanding the Legal Responsibility Act of 1971 lowering the age of minority to age 18. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

This section does not establish jurisdiction in juvenile courts to establish paternity concerning children born during the marriage of the parties. Scales v. Winston, 760 S.W.2d 952, 1988 Tenn. App. LEXIS 456 (Tenn. Ct. App. 1988).

After determining that child was dependent and neglected, juvenile court could not transfer proceedings to change custody to chancery court, thus temporary restraining order issued by the chancellor in the matter was void, and convictions based on violation of such order were overturned. State v. George, 968 S.W.2d 896, 1997 Tenn. Crim. App. LEXIS 754 (Tenn. Crim. App. 1997), rehearing denied, State v. Green, — S.W.3d —, 1997 Tenn. Crim. App. LEXIS 863, (Tenn. Crim. App. 1997).

Because the juvenile court dismissed the petition, exclusive jurisdiction over the matters alleged in it did not attach; thus, the parent's petition for temporary custody that was dismissed by the juvenile court before the petition for custody filed by the other parent did not confer continuing jurisdiction on the juvenile court. P.E.K. v. J.M., 52 S.W.3d 653, 2001 Tenn. App. LEXIS 232 (Tenn. Ct. App. 2001).

To the extent that T.C.A. §§ 37-1-103 and 36-2-307(a)(1) are inconsistent regarding where actions to establish paternity must be filed, T.C.A. § 36-2-307 amended T.C.A. § 37-1-103 such that the juvenile court no longer has exclusive jurisdiction over paternity matters. P.E.K. v. J.M., 52 S.W.3d 653, 2001 Tenn. App. LEXIS 232 (Tenn. Ct. App. 2001).

Where the juvenile court dismissed the grandparent's petition for dependency and neglect proceedings, the juvenile court lost jurisdiction, and subject matter jurisdiction remained with the circuit court, that had jurisdiction over the divorce proceedings and the custody issue once the grandparents intervened. Toms v. Toms, 98 S.W.3d 140, 2003 Tenn. LEXIS 1 (Tenn. 2003).

T.C.A. § 37-1-104(a)(2) gave a Tennessee juvenile court jurisdiction and authority to award maternal grandparents custody over two children because in light of the incarceration of their father for murdering their mother, the grandparents had a legally colorable basis for seeking appointment as the children's guardians and for requesting the juvenile court to devise an appropriate custody arrangement while considering their request; juvenile court also had authority under T.C.A. § 37-1-103(a)(1) because the grandparents amended their petition to include an allegation that the children were dependent and neglected. In re S.L.M., 207 S.W.3d 288, 2006 Tenn. App. LEXIS 487 (Tenn. Ct. App. 2006).

When a juvenile court acquires jurisdiction from a dependency and neglect proceeding, its exclusive original jurisdiction continues until one of following events occur: (1) The case is dismissed; (2) The custody determination is transferred to another court; (3) A petition for adoption is filed; or (4) The child reaches the age of 18. In re D.Y.H., 226 S.W.3d 327, 2007 Tenn. LEXIS 503 (Tenn. May 24, 2007).

In a custody dispute between a father from California and the maternal grandparents from Tennessee, the circuit court's order that emergency jurisdiction was to continue indefinitely was erroneous since T.C.A. § 36-6-219(b) and (c) authorized such jurisdiction only on a temporary basis. In re Lillian F. W., — S.W.3d —, 2013 Tenn. App. LEXIS 659 (Tenn. Ct. App. Sept. 30, 2013), appeal denied, In re Lillian W., — S.W.3d —, 2014 Tenn. LEXIS 145 (Tenn. Feb. 13, 2014).

Chancery court erred in granting the parents'  petition for a writ of certiorari because the chancery court did not have subject matter jurisdiction to review a juvenile court's ex parte protective custody order where the chancery court was not a superior court to a juvenile court with regard to dependency and neglect proceedings and a writ of certiorari proceeding did not satisfy either of the types of cases for the chancery court's exercise of jurisdiction. In re Brody S., — S.W.3d —, 2016 Tenn. App. LEXIS 362 (Tenn. Ct. App. May 24, 2016).

Chancery court's order modifying child support and allocating a tax exemption was void because, before the order was entered, a juvenile court assumed exclusive jurisdiction in a dependency and neglect proceeding concerning the child, depriving the chancery court of subject matter jurisdiction, as (1) no statutory exceptions to the juvenile court's exclusive jurisdiction were present, (2) child support was a component of dependency and neglect proceedings, and (3) the tax exemption was an inevitable part of the juvenile court's decisions. Hance v. Hance, — S.W.3d —, 2018 Tenn. App. LEXIS 252 (Tenn. Ct. App. May 8, 2018).

Court of appeals lacked jurisdiction over a father's appeal of an order awarding permanent guardianship of his child to foster parents because the order was properly appealed to trial court, which retained exclusive subject matter jurisdiction over the child; because the record did not indicate that any of the four events specified in subsection occurred, the juvenile court presiding over the dependency and neglect action had continuing, exclusive jurisdiction over matters involving the child. In re Brian G., — S.W.3d —, 2018 Tenn. App. LEXIS 507 (Tenn. Ct. App. Aug. 30, 2018).

Because the father's petition contained assertions that were tantamount to allegations of dependency and neglect, the juvenile court had exclusive jurisdiction, the trial court lacked subject matter jurisdiction, and all actions taken by the trial court were void. Cox v. Lucas, — S.W.3d —, 2018 Tenn. App. LEXIS 649 (Tenn. Ct. App. Nov. 2, 2018).

Father's petition alleged that the child had 10 unexcused absences, for which the child could be deemed habitually truant; because the substance of the father's petition alleged that the child was unruly, the allegations implicated the exclusive original jurisdiction of the juvenile court, and thus the trial court lacked subject matter jurisdiction and all actions taken by the trial court were void. Minyard v. Lucas, — S.W.3d —, 2018 Tenn. App. LEXIS 650 (Tenn. Ct. App. Nov. 2, 2018), rev'd, 576 S.W.3d 351, 2019 Tenn. LEXIS 230 (Tenn. May 29, 2019).

Reference to neglect and dependency in the father's pro se petition was a mistake and the action was properly characterized as one to establish paternity and visitation; father sought custody or visitation, and outside of the outdated, incorrect form he used, the only mention made to dependency and neglect was within the proposed order, and the juvenile court struck that language when it learned of the mistake. In re Easton W., — S.W.3d —, 2020 Tenn. App. LEXIS 305 (Tenn. Ct. App. July 1, 2020).

Juvenile court had jurisdiction over a dependency and neglect action where the mother had asserted dependency and neglect in seeking an order of protection from the father, and she had resided in the forum county at the time she filed the petition. In re Nehemiah H., — S.W.3d —, 2020 Tenn. App. LEXIS 311 (Tenn. Ct. App. July 8, 2020).

4. Nonlawyer Judge.

In the context of a juvenile commitment, “the law of the land” provision of Tenn. Const., art. I, § 8, does not permit a judge who is not licensed to practice law to make any disposition of a juvenile that operates to confine him or deprive him of his liberty. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

5. Child Custody.

The custody arrangements made in cases involving dependent, neglected, abandoned or unruly children, do not constitute confinement or deprivation of liberty. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

Where the filing of a petition by the department of human services alleging dependency and neglect and the custody order of the juvenile court occurred prior to the custody hearing in circuit court and the order of that court to the effect that custody should remain with father, exclusive jurisdiction had vested in the juvenile court and the circuit court was without jurisdiction to hear and decide custody questions pertaining to the children so long as the juvenile court jurisdiction had attached. State Dep't of Human Services v. Gouvitsa, 735 S.W.2d 452, 1987 Tenn. App. LEXIS 2595 (Tenn. Ct. App. 1987).

The circuit court has no right or power to change custody or to make any orders in regard thereto so long as the matter is pending in juvenile court or unless the juvenile court otherwise consents. Arnold v. Gouvitsa, 735 S.W.2d 458, 1987 Tenn. App. LEXIS 2596 (Tenn. Ct. App. 1987).

Trial court had subject matter jurisdiction to hear a father's petition for change of custody because the statute was not applicable; the allegations in the petition were not tantamount to allegations of dependency and neglect under the statute but were more in the nature of a disagreement over the long-term manner of addressing the children's psychological, behavioral, and educational issues. Holley v. Holley, 420 S.W.3d 756, 2013 Tenn. App. LEXIS 361 (Tenn. Ct. App. May 31, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 794 (Tenn. Oct. 16, 2013).

Mother was not entitled to relief from the circuit court's judgment entering a modified Permanent Parenting Plan (PPP) because the father appropriately filed his petition seeking modification of the PPP in the circuit court, which possessed continuing, exclusive subject matter jurisdiction of divorce decrees; the April 18, 2019 amendment to the statute controlled the outcome of the appeal because the appeal was pending on its effective date. Cox v. Lucas, — S.W.3d —, 2019 Tenn. LEXIS 218 (Tenn. May 29, 2019).

Under the plain language of the amendment to the statute, the circuit court was not precluded from exercising domestic relations jurisdiction, regardless of the nature of the allegations of a father's petition for modification of the Permanent Parenting Plan because no pleading had been filed or relief sought in a juvenile court invoking its exclusive original jurisdiction; accordingly, the allegations of the father's petition did not divest the circuit court of subject matter jurisdiction. Cox v. Lucas, — S.W.3d —, 2019 Tenn. LEXIS 218 (Tenn. May 29, 2019).

6. Pre-Trial Inquiry.

Nothing precludes a nonlawyer judge from making a pretrial inquiry designed to determine whether there is substantial likelihood that a hearing, if conducted, would result in an adjudication of delinquency and confinement. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

7. Appeal.

Court of appeals did not have subject matter jurisdiction to hear a mother's appeal flowing from a dependency and neglect action because jurisdiction was with the circuit court, and thus, it transferred the case to the circuit court; the order from which the mother appealed flowed from the dependency and neglect proceedings, and the trial court lost subject matter jurisdiction over the child with the dismissal of the father's dependency and neglect petition. State ex rel. Blandford v. Blandford, — S.W.3d —, 2016 Tenn. App. LEXIS 204 (Tenn. Ct. App. Mar. 24, 2016).

Court of appeals did not have subject matter jurisdiction to consider the State's appeal of an order denying its motion for relief from an agreed order forgiving a portion of a mother's child support arrearage because jurisdiction was with the circuit court, which assumed subject matter jurisdiction over the children upon the filing of the grandmother's dependency and neglect petition; the agreed order and order denying the State's motion flowed from the dependency and neglect proceedings. State ex rel. Smith v. Thorne, — S.W.3d —, 2017 Tenn. App. LEXIS 294 (Tenn. Ct. App. May 8, 2017).

8. Applicability.

Periodic review provisions in T.C.A. § 37-1-103(c) and Tenn. R. Juv. P. 402 did not apply because the children were not in foster care. In re Conner C., — S.W.3d —, 2017 Tenn. App. LEXIS 183 (Tenn. Ct. App. Mar. 20, 2017).

9. Termination of Parental Rights And Adoption.

Trial court erred in separating grandparents'  termination and adoption actions and transferring only the termination portion of the proceedings to the juvenile court because once the grandparents filed their adoption and termination petition, the trial court acquired exclusive jurisdiction over the matter to the exclusion of all other courts, including the juvenile court. In re Tyler G., — S.W.3d —, 2017 Tenn. App. LEXIS 280 (Tenn. Ct. App. May 3, 2017).

Collateral References.

Age of child at time of alleged offense or delinquency, or at time legal proceedings are commenced, as criterion of jurisdiction of juvenile court. 89 A.L.R.2d 506.

Applicability of double jeopardy to juvenile court proceedings. 5 A.L.R.4th 234.

Civil or criminal nature of proceedings. 43 A.L.R.2d 1128.

Contempt, power of juvenile courts to punish for. 8 A.L.R. 1543, 54 A.L.R. 318, 73 A.L.R. 1185, 77 A.L.R.2d 1004.

Evidence, applicability of rules of, to juvenile delinquency proceeding. 43 A.L.R.2d 1128.

Juvenile court act as affecting jurisdiction over homicide by juvenile. 48 A.L.R.2d 663.

Testimony by children, power of juvenile court to require. 115 A.L.R. 1229.

37-1-104. Concurrent jurisdiction.

  1. The juvenile court has concurrent jurisdiction with the probate court of proceedings to:
    1. Treat or commit a developmentally disabled or mentally ill child;
    2. Determine the custody or appoint a guardian of the person of a child; and
    3. Give judicial consent to the marriage of a child if consent is required by law.
  2. The juvenile court has concurrent jurisdiction with the general sessions court for the offenses of contributing to the delinquency or unruly conduct of a minor as defined in § 37-1-156 and contributing to the dependency of a minor as defined in § 37-1-157.
  3. The juvenile, circuit and chancery courts have concurrent jurisdiction to terminate parental or guardian rights pursuant to the provisions of title 36, chapter 1, part 1.
      1. The juvenile court has concurrent jurisdiction and statewide jurisdiction with other courts having the jurisdiction to order support for minor children and shall have statewide jurisdiction over the parties involved in the case.
      2. In intrastate cases, jurisdiction to modify, alter or enforce orders or decrees for the support of children shall be determined in accordance with the provisions of title 36, chapter 5, parts 30 and 31.
      3. In any political subdivision or judicial district of the state in which a court by contract is the agency designated to provide child support enforcement pursuant to Title IV-D of the Social Security Act, compiled in 42 U.S.C. §§ 651 et seq., and if a judge with child support jurisdiction in that political subdivision or judicial district agrees, the contracting court shall have jurisdiction in any case in such judge's court in which an application is made for assistance in obtaining support under this part. Upon application being made for child support enforcement assistance as provided by law, the contracting court shall assume jurisdiction and it is the duty of the court clerk to so notify the clerk of any court having prior jurisdiction. The contracting court shall then proceed to make and enforce such orders of support as it deems proper within its jurisdiction pursuant to the agreement. The contracting court shall not have jurisdiction in any case in which an absent parent is in full compliance with a support order of another court.
    2. In any case in which the court has exclusive or concurrent jurisdiction to order the payment of child support, the court may issue a child support order when requested by a party. All provisions of title 36, chapter 5 that relate to child support or child support orders that include an order of spousal support and § 50-2-105 apply to support orders issued in these proceedings.
  5. The juvenile court has concurrent jurisdiction with the circuit and chancery court of proceedings arising from the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
  6. Notwithstanding any law to the contrary, the juvenile court has concurrent jurisdiction with the circuit and chancery court of proceedings to establish the paternity of children born out of lawful wedlock and to determine any custody, visitation, support, education or other issues regarding the care and control of children born out of wedlock. The court further has the power to enforce its orders. Nothing in this subsection (f) shall be construed as vesting the circuit and chancery court with jurisdiction over matters that are in the exclusive jurisdiction of the juvenile court under § 37-1-103.

Acts 1970, ch. 600, § 4; 1971, ch. 189, § 3; 1975, ch. 248, § 34; 1980, ch. 838, § 4; 1981, ch. 348, § 2; 1983, ch. 453, §§ 1, 2; T.C.A., § 37-204; Acts 1985, ch. 477, § 16; 1989, ch. 206, § 2; 1995, ch. 416, § 1; 1995, ch. 532, § 8; 1997, ch. 551, § 9; imp. am. Acts 2000, ch. 947, § 6; 2003, ch. 333, § 2; 2016, ch. 600, § 1.

Compiler's Notes. Acts 1985, ch. 477, § 1 provided that Acts 1985, ch. 477 may be cited as the “Child Support Enforcement Act of 1985.”

Amendments. The 2016 amendment, in (b), substituted “the offenses” for “the offense”, and added “and contributing to the dependency of a minor as defined in § 37-1-157” to the end of (b).

Effective Dates. Acts 2016, ch. 600, § 17. July 1, 2016.

Cross-References. Expedited process for support, title 36, ch. 5, part 4.

Jurisdiction for intercounty enforcement of support, § 36-5-3001.

Termination of Acts 1985, ch. 477, which amended this section, § 36-5-110.

Waiver of age requirements and waiting period, § 36-3-107.

Rule Reference. This section is referred to in Rules 1 and 29 of the Tennessee Rules of Juvenile Procedure and the Advisory Commission Comments under Rule 1 of the Tennessee Rules of Juvenile Procedure.

This section is referred to in Appendix II of the Rules Of The Circuit Court Of Tennessee For The Thirtieth Judicial District At Memphis, Shelby County.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Courts, § 25, 17 Tenn. Juris., Jurisdiction, § 27.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

Storied Anna Mae He Decision Clarifies Law But Leaves Unanswered Questions (Christina A. Zawisza), 38 U. Mem. L. Rev. 637 (2008).

Attorney General Opinions. Jurisdiction and procedures for emancipation proceedings, OAG 96-064 (4/8/96).

The Parenting Plan Act, § 36-6-401 et seq., does not apply to any matter subject to the concurrent jurisdiction of the juvenile court, OAG 01-028 (2/27/01).

Unless and until a party files a proceeding under T.C.A. §§ 37-1-103 or 37-1-104 the juvenile court lacks authority to order a safety plan because it lacks subject matter jurisdiction, OAG 06-012 (1/17/06).

Juvenile, circuit and chancery courts have concurrent jurisdiction to hear petitions to set child support for children of married persons who are living apart when the parties have not filed a petition for divorce or legal separation, OAG 08-189 (12/23/08).

Juvenile court may not rule upon a party's request for legal custody or parenting time, OAG 08-189 (12/23/08).

Jurisdiction over parentage actions in Shelby county.  OAG 10-91, 2010 Tenn. AG LEXIS 97 (8/9/10).

Authority to award child support in the absence of a divorce or separation decree. OAG 12-42, 2012 Tenn. AG LEXIS 42 (3/21/12).

Authority of juvenile courts to issue orders of protection.  OAG 13-98, 2013 Tenn. AG LEXIS 103 (12/6/13).

NOTES TO DECISIONS

1. Child Custody.

Where the filing of a petition by the department of human services (now children's services) alleging dependency and neglect and the custody order of the juvenile court occurred prior to the custody hearing in circuit court and the order of that court to the effect that custody should remain with father, exclusive jurisdiction had vested in the juvenile court and the circuit court was without jurisdiction to hear and decide custody questions pertaining to the children so long as the juvenile court jurisdiction had attached. State Dep't of Human Services v. Gouvitsa, 735 S.W.2d 452, 1987 Tenn. App. LEXIS 2595 (Tenn. Ct. App. 1987).

The circuit court has no right or power to change custody or to make any orders in regard thereto so long as the matter is pending in juvenile court or unless the juvenile court otherwise consents. Arnold v. Gouvitsa, 735 S.W.2d 458, 1987 Tenn. App. LEXIS 2596 (Tenn. Ct. App. 1987).

T.C.A. § 37-1-104(a)(2) gave a Tennessee juvenile court jurisdiction and authority to award maternal grandparents custody over two children because, in light of the incarceration of their father for murdering their mother, the grandparents had a legally colorable basis for seeking appointment as the children's guardians and for requesting the juvenile court to devise an appropriate custody arrangement while considering their request. In re S.L.M., 207 S.W.3d 288, 2006 Tenn. App. LEXIS 487 (Tenn. Ct. App. 2006).

2. Dependency Proceedings.

Because a mother's petition for a change of custody was a part of the prior dependency and neglect proceeding which granted custody to the father, the juvenile court's order denying the petition was appealable to circuit court for a de novo hearing under T.C.A. § 37-1-159(a); when a juvenile court acquires jurisdiction from a dependency and neglect proceeding, its exclusive original jurisdiction continues until one of following events occur: (1) The case is dismissed; (2) The custody determination is transferred to another court; (3) A petition for adoption is filed; or (4) The child reaches the age of 18, pursuant to T.C.A. § 37-1-103(c). In re D.Y.H., 226 S.W.3d 327, 2007 Tenn. LEXIS 503 (Tenn. May 24, 2007).

3. Visitation.

Whether the legislature intended for all grandparent visitation petitions, including those pertaining to children whose parents were never married, to be filed in circuit or chancery court is unclear. Smallwood v. Mann, 205 S.W.3d 358, 2006 Tenn. LEXIS 994 (Tenn. 2006).

Juvenile court erred in ruling that in the event the father was unable to exercise personal visitation in any month, the paternal grandparents were entitled to exercise his shared parenting time; that conditional order established the grandparents'  visitation fully and completely and was therefore governed by T.C.A. § 36-6-306, which allowed visitation rights to grandparents but did not grant jurisdiction to decide grandparental visitation rights. Smallwood v. Mann, 205 S.W.3d 358, 2006 Tenn. LEXIS 994 (Tenn. 2006).

Because the amendment to T.C.A. § 36-6-306 appeared to clarify a legislative intent that circuit and chancery courts have sole jurisdiction over grandparents'  visitation petitions, the supreme court of Tennessee was constrained to conclude that the juvenile court did not have jurisdiction to grant grandparents'  visitation pursuant to T.C.A. § 37-1-104(f). Smallwood v. Mann, 205 S.W.3d 358, 2006 Tenn. LEXIS 994 (Tenn. 2006).

4. Particular Proceedings.

Although a written notice and a copy of a petition to terminate a father's parental rights filed in the circuit court were not filed with the juvenile court, a lack of further written notice to the juvenile court did not divest the circuit court of its concurrent jurisdiction because the petition for termination of the father's parental rights was no longer pending in the juvenile court upon the State's voluntary dismissal of the initial termination petition. In re Michaela V., — S.W.3d —, 2013 Tenn. App. LEXIS 745 (Tenn. Ct. App. Nov. 19, 2013).

Even though a petition for termination of a father's parental rights was filed in a juvenile court, after dependency and neglect proceedings, the circuit court had subject matter jurisdiction to consider a second petition to terminate the father's parental rights because the circuit court retained concurrent jurisdiction with the juvenile court and the petition filed in juvenile court was voluntarily dismissed by the State nearly contemporaneously with the filing in circuit court. In re Michaela V., — S.W.3d —, 2013 Tenn. App. LEXIS 745 (Tenn. Ct. App. Nov. 19, 2013).

5. Jurisdiction.

Juvenile court properly set aside its parental visitation order with respect to a child born to married parents as void for lack of jurisdiction because its subject matter jurisdiction only applied to parents of a minor child born out of wedlock. In re Donovyn B.H., — S.W.3d —, 2014 Tenn. App. LEXIS 286 (Tenn. Ct. App. May 16, 2014).

Trial court erred in separating grandparents'  termination and adoption actions and transferring only the termination portion of the proceedings to the juvenile court because once the grandparents filed their adoption and termination petition, the trial court acquired exclusive jurisdiction over the matter to the exclusion of all other courts, including the juvenile court; juvenile courts have original jurisdiction to hear termination actions but not adoption petitions. In re Tyler G., — S.W.3d —, 2017 Tenn. App. LEXIS 280 (Tenn. Ct. App. May 3, 2017).

Collateral References.

Construction and application of International Child Abduction Remedies Act (42 U.S.C. § 11601 et seq.). 125 A.L.R. Fed. 217.

37-1-105. Probation officers.

  1. The judge has authority to appoint one (1) or more probation officers who shall receive such salary as shall be fixed by the county legislative body or as otherwise provided by law.
  2. For the purpose of carrying out the objectives and purposes of this part and subject to the limitations of this part or imposed by the court, a probation officer, or other designated officers of the court, shall:
    1. Make investigations, reports and recommendations to the juvenile court;
    2. Receive and examine complaints and charges of delinquency or unruly conduct and conduct a preliminary inquiry;
    3. Receive and examine complaints of dependency and neglect of a child for the purpose of considering the commencement of proceedings under this part;
    4. Supervise and assist a child placed on probation or in such probation officer's protective supervision or care by order of the court or other authority of law;
    5. Make appropriate referrals to other public or private agencies of the community if their assistance appears to be needed or desirable;
    6. Take into custody and detain a child who is under such probation officer's supervision or care as a delinquent, unruly, or dependent and neglected child if the probation officer, or other designated officers of the court, have reasonable cause to believe that the child's health or safety is in imminent danger, or that such child may abscond or be removed from the jurisdiction of the court, or when ordered by the court pursuant to this part. Such child may be placed in detention or shelter care only if authorized by and in accordance with §§ 37-1-114 and 37-1-115. Except as provided by this part, a probation officer, or other designated officer of the court, does not have the powers of a law enforcement officer. Such probation officer, or other designated officer of the court, shall not conduct accusatory proceedings under this part against a child who is or may be under such officer's care or supervision; and
    7. Perform all other functions designated by this part or by order of the court pursuant thereto.
  3. Any of the functions in subsection (b) may be performed in another state if authorized by the court of this state and permitted by the laws of the other state.

Acts 1970, ch. 600, §§ 5, 6; 1983, ch. 165, § 1; T.C.A., §§ 37-205, 37-206; Acts 2018, ch. 1052, §§ 6-8.

Compiler's Notes. Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2018 amendment added present (b)(3) and redesignated former (b)(3) through (b)(6) as present (b)(4) through (b)(7); rewrote (b)(2) which read: “Receive and examine complaints and charges of delinquency, unruly conduct or dependency and neglect of a child for the purpose of considering the commencement of proceedings under this part”; in present (b)(6), added the second sentence, and, in the last sentence, substituted “shall” for “may”.

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

Storied Anna Mae He Decision Clarifies Law But Leaves Unanswered Questions (Christina A. Zawisza), 38 U. Mem. L. Rev. 637 (2008).

The DOJ Comes to Town: An Argument for Legislative Reform When the Juvenile Court Fails to Protect Due Process Rights, 44 U. Mem. L. Rev. 921 (2014).

37-1-106. Youth services officer.

  1. Each county with a population of more than twenty thousand (20,000), according to the 1980 federal census or any subsequent federal census, may establish a full-time youth services officer to assist the court sitting as a juvenile court in relation to cases coming before the court. Counties with a population of twenty thousand (20,000) or less, according to the 1980 federal census or any subsequent federal census, may establish a part-time youth services officer.
  2. The youth services officer shall be paid by the county in which the officer serves and the officer's duties include, but are not limited to, the following:
    1. Intake duties including receiving and examining complaints and allegations of delinquency and unruly behavior for the purpose of conducting a preliminary inquiry;
    2. Counseling;
    3. Record keeping and transmitting information as required by this part or by law to the commission on children and youth or the office of the executive secretary of the Tennessee council of juvenile and family court judges;
    4. Make investigations, reports and recommendations to the judge having juvenile jurisdiction;
    5. Make appropriate referrals to other public or private agencies;
    6. Make predisposition studies and submit reports and recommendations to the court as required; and
    7. Perform other functions as directed by the court or by law including, but not limited to, those set out in § 37-1-105.

Acts 1982, ch. 934, § 19; 1983, ch. 161, § 1; T.C.A., § 37-287; Acts 2018, ch. 1052, § 9.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2018 amendment, in (b)(1), substituted “conducting a preliminary inquiry” for “considering the commencement of proceedings” following “purpose of”.

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Cross-References. Commission on children and youth, title 37, chapter 3.

Temporary retention of disabled correctional officer or youth service worker, § 4-6-148.

Tennessee council of juvenile and family court judges, title 37, chapter 1, part 5.

Rule Reference. This section is referred to in Rule 2 of the Tennessee Rules of Juvenile Procedure.

Attorney General Opinions. Employees of the youth services office and of the juvenile court, OAG 07-115 (8/2/07).

37-1-107. Magistrates.

    1. The judge of the juvenile court may appoint one (1) or more suitable persons to act as magistrates at the pleasure of the judge. A magistrate shall be a member of the bar and may qualify and shall hold office at the pleasure of the judge. The compensation of a magistrate shall be fixed by the judge with the approval of the county legislative body or the pertinent governing body, and paid from public funds.
    2. In any county with a population of not less than seventy-one thousand three hundred (71,300) nor more than seventy-one thousand four hundred (71,400), according to the 2000 federal census or any subsequent federal census, the child support magistrate appointed to serve the chancery court shall also serve the juvenile court.
  2. The judge may direct that any case or class of cases over which the juvenile court has jurisdiction shall be heard in the first instance by the magistrate. These cases shall be conducted in the same manner as cases heard by the judge. In the conduct of the proceedings, the magistrate shall have the powers of a judge and shall have the same authority as the judge to issue any and all process.
  3. Upon the conclusion of the hearing, the magistrate shall file an order. The magistrate shall also inform each party of the right to a hearing before the juvenile court judge, of the time limits within which a request for a hearing must be perfected, and of the manner in which to perfect the request.
  4. Any party may, within ten (10) days after entry of the magistrate's order, file a request with the court for a de novo hearing by the judge of the juvenile court. The judge shall allow a hearing if a request for hearing is filed. No later than ten (10) days after the entry of the magistrate's order, the judge may, on the judge's own initiative, order a hearing of any matter heard before a magistrate. However, if the child pleads guilty or no contest before the magistrate in a delinquency or unruly proceeding, the child waives the right to request an adjudicatory hearing before the judge and the judge may not order an adjudicatory hearing in such proceeding. If the plea includes an agreement as to disposition, the child also waives the right to request a hearing before the judge regarding disposition and the judge may not order a hearing in such proceeding. Nothing herein alters the court's jurisdiction to hear post-dispositional issues, including, but not limited to, judicial reviews or collateral challenges. There shall be no hearing in any delinquent or unruly case in which the petition is dismissed by the magistrate after a hearing on the merits.  Unless the judge orders otherwise, the order of the magistrate shall be the order of the court pending the hearing.
  5. If no hearing before the judge is requested, or if the right to the hearing is expressly waived by all parties within the specified time period, the magistrate's order becomes the order of the court. A party may appeal the order pursuant to § 37-1-159.
  6. Any hearing by a magistrate on any preliminary matter shall be final and not reviewable by the judge of the juvenile court, except on the court's own initiative. The setting of bond in detention hearings and any matter that is a final adjudication of a child shall not be construed to be preliminary matters under this section and are reviewable by the judge of the juvenile court upon request or upon the court's own initiative, except as provided in this section.
  7. All parties to the hearing before the magistrate shall be parties to a de novo hearing before the judge.

Acts 1975, ch. 256, §§ 2-5; 1981, ch. 458, § 1; 1983, ch. 88, § 1; 1983, ch. 254, § 2; T.C.A., § 37-207; Acts 1999, ch. 393, §§ 1, 2; 2008, ch. 646, § 1; 2009, ch. 235, § 1; 2016, ch. 716, § 1; 2019, ch. 312, § 1.

Compiler's Notes. Acts 1983, ch. 254, § 5 provided that the amendment by that act shall not be construed as altering or decreasing the maximum period of eighty-four hours that a juvenile may be detained without a hearing.

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2009, ch. 235, § 1 directed the code commission to revise appropriate references from “child support referees” and “juvenile referees” to “child support magistrates” and “juvenile magistrates” in the code as supplements are published and volumes are replaced.

Amendments. The 2016 amendment rewrote (b) – (g), which read, “(b) The judge may direct that any case or class of cases shall be heard in the first instance by the magistrate in all cases wherein the juvenile court has jurisdiction in the manner provided for the hearing of cases by the court.“(c) A magistrate has the same authority as the judge to issue any and all process. The magistrate in the conduct of the proceedings has the powers of a trial judge.“(d) Upon the conclusion of the hearing in each case, the magistrate shall transmit to the judge all papers relating to the case, together with the magistrate's findings and recommendations in writing. Any hearing by a magistrate on any preliminary matter is final and not reviewable by the judge of the juvenile court, except on the court's own motion. The setting of bond in detention hearings and any matter that is a final adjudication of a juvenile shall not be construed to be a preliminary matter under this section and are reviewable by the judge of the juvenile court upon request or upon the court's own motion as provided in this section.“(e) Any party may, within five (5) days thereafter, excluding nonjudicial days, file a request with the court for a hearing by the judge of the juvenile court. The judge may, on the judge's own motion, order a rehearing of any matter heard before a magistrate, and shall allow a hearing if a request for such hearing is filed as herein prescribed. Unless the judge orders otherwise, the recommendation of the magistrate shall be the decree of the court pending a rehearing.“(f) In case no hearing before the judge is requested, or when the right to a hearing is waived, the findings and recommendations of the magistrate become the decree of the court when confirmed by an order of the judge. The final order of the court is, in any event, proof of such confirmation, and also of the fact that the matter was duly referred to the magistrate. A party may appeal such order pursuant to the provisions of § 37-1-159.“(g) All prior sections governing the organization, jurisdiction, and management of juvenile courts referred to in this section, that are not in conflict with this section, remain in full force and effect, and all sections in conflict with this section are hereby repealed.”

The 2019 amendment inserted the fourth through sixth sentences in (d).

Effective Dates. Acts 2016, ch. 716, § 3. July 1, 2016.

Acts 2019, ch. 312, § 11. May 8, 2019.

Rule Reference. This section is referred to in the text of Rule 2 and in the Advisory Commission Comments of Rules 4 and 32 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.2.

Law Reviews.

Blended Sentencing in Tennessee Courts, 44 U. Mem. L. Rev. 767 (2014).

Guidelines for Juvenile Court Practice (Andrew J. Shookhoff), 19 No. 2 Tenn. B.J. 5 (1983).

NOTES TO DECISIONS

1. Rehearing.

In terms of due process, a rehearing pursuant to this section following a full dress hearing before a lawyer-referee (now lawyer-magistrate) is an optional, redundant step. State v. York, 615 S.W.2d 154, 1981 Tenn. LEXIS 438 (Tenn. 1981).

It is immaterial whether a rehearing judge is a lawyer or a nonlawyer if the rehearing is preceded by a due process trial before a lawyer-referee (now lawyer-magistrate). State v. York, 615 S.W.2d 154, 1981 Tenn. LEXIS 438 (Tenn. 1981).

The interests of a speedy disposition of juvenile cases, and of due process, are best served by proceeding directly from a lawyer-referee (now lawyer-magistrate) to a de novo hearing before a circuit judge and appellate review, if sought, even if the juvenile judge is also a lawyer. State v. York, 615 S.W.2d 154, 1981 Tenn. LEXIS 438 (Tenn. 1981).

T.C.A. § 37-1-107 contemplates a de novo hearing based upon the record of the hearing before the referee (now magistrate), and not a traditional hearing de novo as in an appeal from a general sessions court to a circuit court. Kelly v. Evans, 43 S.W.3d 514, 2000 Tenn. App. LEXIS 828 (Tenn. Ct. App. 2000).

Although an appellant asserted that a magistrate did not have jurisdiction, under Tenn. R. Juv. P. 4(c) and T.C.A. § 37-1-107(e), to modify a child custody order, any defect in the magistrate's handling of the case was moot because the modification of custody issues were litigated de novo before the juvenile court judge. In re Nathan A-W, — S.W.3d —, 2012 Tenn. App. LEXIS 430 (Tenn. Ct. App. June 26, 2012), appeal dismissed, — S.W.3d —, 2012 Tenn. LEXIS 813 (Tenn. Nov. 5, 2012).

Parent's request for rehearing was timely filed when, dissatisfied with a magistrate's ruling, the parent filed a request for a rehearing before a juvenile court judge within five days of the entry of the magistrate's written order but ten days after the hearing before the magistrate at which the magistrate announced a bench order on the record. As a result of the parent's request filed the same day as the written findings and recommendations, the parent was entitled to a de novo hearing before the juvenile court judge. Sprouse v. Dotson, — S.W.3d —, 2016 Tenn. App. LEXIS 882 (Tenn. Ct. App. Nov. 18, 2016).

Addition of the term de novo to the statute serves as clarification that the intent of the legislature concerning the nature of a rehearing of a magistrate's decision before a juvenile court judge was in alignment with the court's previous interpretation of the prior versions of the statute. State ex rel. Groesse v. Sumner, — S.W.3d —, 2019 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 18, 2019).

2. Referee's Order.

Referee's order was not a “prior decree of a court” as that term was used in T.C.A. § 36-6-101; thus, the juvenile court properly ruled that the proceeding before it was one to establish an initial custody order and that the proper standard of decision was the child's best interest. In re Zamorah B., — S.W.3d —, 2013 Tenn. App. LEXIS 108 (Tenn. Ct. App. Feb. 15, 2013).

3. Evidence.

Although the juvenile court erred in taking judicial notice of a paternity test report previously entered as an exhibit in proceedings before a magistrate, the error was harmless because the mother's copy of the report was admissible; because the report showed a statistical probability of paternity of ninety-nine percent or greater, the putative father had an extremely high burden of proof to rebut the statutory presumption of paternity, but he failed to meet that burden. In re Michael J., — S.W.3d —, 2018 Tenn. App. LEXIS 52 (Tenn. Ct. App. Jan. 31, 2018).

4. De Novo Hearing.

Inasmuch as a hearing conducted before the juvenile court judge of a matter previously decided by a magistrate is a de novo hearing, the trial court in this case did not err by considering whether the father had violated the 2013 order from the time of the order's entry to the time of the 2016 de novo hearing. State ex rel. Groesse v. Sumner, — S.W.3d —, 2019 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 18, 2019).

37-1-108. Commencement of proceedings.

A proceeding under this part may be commenced:

  1. By transfer of a case from another court as provided in § 37-1-109;
  2. As provided in § 37-1-146 in a proceeding charging the violation of a traffic offense;
  3. By the court accepting jurisdiction as provided in § 37-1-142 or accepting supervision of a child as provided in § 37-1-144; or
  4. In other cases by the filing of a petition as provided in this part or by issuing a citation as authorized by law. The petition and all other documents in the proceeding, other than a citation, shall be entitled “In the matter of _____, a child under eighteen (18) years of age.”

Acts 1970, ch. 600, § 8; T.C.A., § 37-208; Acts 2016, ch. 598, § 1.

Amendments. The 2016 amendment substituted “37-1-142” for “37-1-141” and “37-1-144” for “37-1-143” in (3) and added “or by issuing a citation as authorized by law” to the end of the first sentence in (4) and inserted “, other than a citation,” following “proceeding” in the middle of the second sentence of (4).

Effective Dates. Acts 2016, ch. 598, § 5. July 1, 2016.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VI. Juvenile Courts (Neil P. Cohen), 45 Tenn. L. Rev. 469 (1978).

37-1-109. Transfer of criminal cases from other courts.

  1. If it appears to the court in a criminal proceeding that the defendant is a child, the court shall forthwith transfer the case to the juvenile court, together with a copy of the accusatory pleading and other papers, documents and transcripts of testimony relating to the case.
  2. It shall order that the defendant be taken forthwith to the juvenile court or to a place of detention designated by the juvenile court, or release the defendant to the custody of the defendant's parent, guardian, custodian or other person legally responsible for the defendant, to be brought before the juvenile court at a time designated by that court.
  3. The accusatory pleading may serve in lieu of a petition in the juvenile court unless that court directs the filing of a petition.

Acts 1970, ch. 600, § 9; T.C.A., § 37-209.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.1.

Tennessee Jurisprudence, 18 Tenn. Juris., Minors, §§ 11, 35.

Law Reviews.

Toward Fundamental Fairness in the Kangaroo Courtroom: The Due Process Case Against Statutes Presumptively Closing Juvenile Proceedings, 54 Vand. L. Rev. 1751 (2001).

37-1-110. Informal adjustment without adjudication — Pretrial diversion — No admission required.

    1. Before or after a petition is filed, a designated court officer may informally resolve a complaint containing delinquent or unruly allegations without adjudication by giving counsel and advice to the child if such informal resolution would be in the best interest of the public and the child, and the child and the child's parents, guardian, or other custodian consent to the informal adjustment with knowledge that consent is not obligatory. The informal adjustment shall not extend beyond three (3) months from the day commenced, unless extended by the court for an additional period not to exceed a total of six (6) months, and does not authorize the attachment or detention of the child if not otherwise permitted by this part.
    2. If the child and the victim agree to restitution, restitution may be paid independently of informal adjustment; however, financial obligations shall not be assessed or collected against a child as part of an informal adjustment pursuant to this section.
    1. After a petition has been filed and a designated court officer determines that an unruly or delinquent case is an appropriate case for diversion from adjudication, the parties may agree to pretrial diversion that suspends the proceedings and places the child under supervision on terms and conditions agreeable to the designated court officer and approved by the court. A child may not be placed on pretrial diversion if the delinquent act alleged is an offense described in § 37-1-153(b).
    2. A pretrial diversion agreement shall remain in force for a maximum of six (6) months unless the child is discharged sooner by the court. Upon application of any party to the proceedings, made before expiration of the six-month period and after notice and a hearing, pretrial diversion may be extended by the court for an additional six (6) months.
    3. If, prior to discharge by the court or expiration of the pretrial diversion period, the child fails to fulfill the terms and conditions of the pretrial diversion agreement, the original petition may be reinstated and the case may proceed to adjudication just as if the agreement had never been entered.
    4. Attachment and detention of a child are not authorized for the violation of a pretrial diversion agreement unless otherwise permitted by this part.
  3. The petition shall be dismissed with prejudice once a child completes an informal adjustment pursuant to subsection (a) or pretrial diversion pursuant to subsection (b) without reinstatement of the original delinquent or unruly petition.
  4. No admission shall be required as part of informal adjustment or pretrial diversion, and any statements made by the child during the preliminary inquiry, informal adjustment pursuant to subsection (a), or pretrial diversion pursuant to subsection (b) are not admissible prior to a dispositional hearing.

Acts 1970, ch. 600, § 10; 1981, ch. 113, § 1; T.C.A., § 37-210; Acts 2016, ch. 600, § 2; 2018, ch. 1052, §§ 10, 11; 2019, ch. 312, §§ 2, 3.

Compiler's Notes. Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2016 amendment rewrote this section which read: “(a) Before or after a petition is filed, the probation officer or other officer of the court designated by it, subject to its direction, may give counsel and advice to the parties with a view to an informal adjustment if it appears:“(1) The admitted facts bring the case within the jurisdiction of the court;“(2) Counsel and advice without an adjudication would be in the best interest of the public and the child; and“(3) The child and the child's parents, guardian or other custodian consent thereto with knowledge that consent is not obligatory.“(b) The giving of counsel and advice cannot extend beyond three (3) months from the day commenced unless extended by the court and does not authorize the detention of the child if not otherwise permitted by this part.”

The 2018 amendment added (a)(2); in present (a)(1), rewrote the last sentence which read: “The informal adjustment shall not extend beyond three (3) months from the day commenced unless extended by the court and does not authorize the detention of the child if not otherwise permitted by this part.”; and added (d).

The 2019 amendment, in (a)(1), inserted “attachment or” following “authorize the”; and added (b)(4).

Effective Dates. Acts 2016, ch. 600, § 17. July 1, 2016.

Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Acts 2019, ch. 312, § 11. May 8, 2019.

Rule Reference. This section is referred to in the text of Rules 13 and 14 and in the Advisory Commission Comments of Rule 14 of the Tennessee Rules of Juvenile Procedure.

Law Reviews.

Guidelines for Juvenile Court Practice (Andrew J. Shookhoff), 19 No. 2 Tenn. B.J. 5 (1983).

37-1-111. Venue.

  1. A proceeding under this part may be commenced in the county in which the child resides.
  2. If delinquent or unruly conduct is alleged, the proceeding may be commenced in the county in which the acts constituting the alleged delinquent or unruly conduct occurred.
  3. If dependency or neglect is alleged, the proceeding may be brought in the county in which the child is present when it is commenced.
  4. Proceedings to terminate parental rights shall be brought pursuant to § 36-1-113.
  5. If unruly conduct is alleged against a child in the custody of the department of children's services, the proceeding may be brought in the juvenile court exercising continuing jurisdiction under § 37-1-103 or it may be brought in the juvenile court that issued the order granting custody to the department.

Acts 1970, ch. 600, § 11; 1971, ch. 189, § 4; 1983, ch. 435, § 3; T.C.A., § 37-211; Acts 1995, ch. 532, §§ 9, 10; 2011, ch. 275, § 1.

Rule Reference. This section is referred to in Rule 3 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.3.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

37-1-112. Transfer to another court within state — Appeals.

  1. If the child resides in a county of this state and the proceeding is commenced in a court of another county, the court, on motion of a party or on its own motion after a finding of fact, may transfer the proceeding to the county of the child's residence for further action. Like transfer may be made if the residence of the child changes pending the proceeding. The proceeding may be transferred if the child has been adjudicated delinquent or unruly, or neglected or abandoned and other proceedings involving the child are pending in the juvenile court of the county of the child's residence.
  2. If a juvenile court proceeding is commenced under this part and a proceeding involving the child's custody is also commenced or pending in the circuit, chancery or general sessions court exercising domestic relations jurisdiction, the juvenile court, on motion of a party or on its own motion after an adjudication making specific findings of fact pursuant to § 37-1-129(a)(2) and after ordering any essential services for the child and family, may transfer the custody proceeding to the court where the pending matter has been commenced. Like transfer may be made if the residence of the child changes during the pendency of the juvenile court proceedings. The transfer shall only occur upon a finding of fact by the transferring court that the transfer will be in the best interest of the child, will promote judicial economy, will provide a more reasonable or convenient forum, or for other good cause. The transferring court may communicate with the receiving court concerning the transfer of the case. The transfer of the custody proceeding to another court exercising domestic relations jurisdiction, except to another juvenile court, shall not occur if the case involves allegations of dependency, neglect or abuse and the child is in the custody of the department of children's services.
  3. Certified copies of all legal and social documents and records pertaining to the case on file with the clerk of the court shall accompany the transfer.
  4. An appeal of a transfer decision under this part shall be to the court of appeals in accordance with the Tennessee Rules of Appellate Procedure.

Acts 1970, ch. 600, § 12; 1972, ch. 592, § 1; T.C.A., § 37-212; Acts 2001, ch. 297, §§ 2-4.

Compiler's Notes. Acts 2001, ch. 297, § 5 provided that the act shall apply to any case pending or filed on or after July 1, 2001. Any custody order that has been entered by a court exercising domestic relations jurisdiction and that is not the subject of or eligible for appeal on July 1, 2001, shall be valid and is hereby declared to be in full compliance with the laws of this state.

Cross-References. Transfer to another state, § 37-1-141.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

37-1-113. Taking into custody — Grounds.

  1. A child may be taken into custody:
    1. Pursuant to an order of the court under this part;
    2. Pursuant to the laws of arrest;
    3. By a law enforcement officer, social worker of the department of human services, or duly authorized officer of the court, if there are reasonable grounds to believe that the conditions specified in § 37-1-114(a)(2) exist; or
    4. By a law enforcement officer or duly authorized officer of the court if there are reasonable grounds to believe that the child has run away from the child's parents, guardian or other custodian.
  2. The taking of a child into custody is not an arrest, except for the purpose of determining its validity under the Constitution of Tennessee or the Constitution of the United States.

Acts 1970, ch. 600, § 13; 1977, ch. 482, § 14; 1981, ch. 247, § 2; T.C.A., § 37-213.

Cross-References. Arrest, title 40, ch. 7.

Protective custody of sexually abused children, § 37-1-608.

Rule Reference. This section is referred to in the text of Rule 5 and in the Advisory Commission Comments of Rule 11 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.3.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

37-1-114. Detention or shelter care of child prior to hearing on petition.

  1. A child taken into custody shall not be detained or placed in shelter care prior to the hearing on the petition unless there is probable cause to believe that the child:
    1. Has committed the delinquent or unruly act with which the child is charged; or
    2. Is a neglected, dependent or abused child, and in either case the child's detention or shelter care is required because the child is subject to an immediate threat to the child's health or safety to the extent that delay for a hearing would be likely to result in severe or irreparable harm, or the child may abscond or be removed from the jurisdiction of the court, and in either case, there is no less drastic alternative to removal of the child from the custody of the child's parent, guardian, legal custodian or the person who physically possesses or controls the child available that 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.
  2. Children alleged to be unruly shall not be detained for more than twenty-four (24) hours, excluding nonjudicial days unless there has been a detention hearing and a judicial determination that there is probable cause to believe the child has violated a valid court order, and in no event shall such a child be detained for more than seventy-two (72) hours exclusive of nonjudicial days prior to an adjudicatory hearing. Nothing herein prohibits the court from ordering the placement of children in shelter care where appropriate, and such placement shall not be considered detention within the meaning of this section.
  3. A child shall not be detained in any secure facility or secure portion of any facility unless:
    1. There is probable cause to believe the child has committed a delinquent offense constituting:
      1. A crime against a person resulting in the serious injury or death of the victim or involving the likelihood of serious injury or death to such victim; or
      2. The unlawful possession of a handgun or carrying of a weapon, as prohibited by title 39, chapter 17, part 13;
    2. There is probable cause to believe the child has committed any other delinquent offense involving the likelihood of serious physical injury or death, or an offense constituting a felony, violation of probation or violation of aftercare, and the child:
      1. Is currently on probation;
      2. Is currently awaiting court action on a previous alleged delinquent offense;
      3. Is alleged to be an escapee or absconder from a juvenile facility, institution or other court-ordered placement; or
      4. Has, within the previous twelve (12) months, willfully failed to appear at any juvenile court hearing, engaged in violent conduct resulting in serious injury to another person or involving the likelihood of serious injury or death, or been adjudicated delinquent by virtue of an offense constituting a felony if committed by an adult;
    3. There is probable cause to believe the child has committed a delinquent offense, and special circumstances in accordance with the provisions of subsection (a) indicate the child should be detained; however, in any such case, the judge shall, within twenty-four (24) hours of the actual detention, excluding nonjudicial days, issue a written order on a form prescribed by the Tennessee council of juvenile and family court judges setting forth the specific reasons necessitating such detention. Nothing in this subdivision (c)(3) shall be construed as requiring a hearing or formal finding of fact, except as otherwise required by § 37-1-117;
    4. The child is alleged to be an escapee from a secure juvenile facility or institution;
    5. The child is wanted in another jurisdiction for an offense that, if committed by an adult, would be a felony in that jurisdiction;
    6. There is probable cause to believe the child is an unruly child who has violated a valid court order or who is a runaway from another jurisdiction. Any detention of such a child shall be in compliance with subsection (b);
    7. In addition to any of the conditions listed in subdivisions (c)(1)-(6), there is no less restrictive alternative that will reduce the risk of flight or of serious physical harm to the child or to others, including placement of the child with a parent, guardian, legal custodian or relative; use of any of the alternatives listed in § 37-1-116(g); or the setting of bail; and
    8. For the purposes of this subsection (c), “serious physical injury” includes conduct that would constitute the offenses of aggravated rape, rape and aggravated sexual battery.

Acts 1970, ch. 600, § 14; 1979, ch. 289, § 3; 1980, ch. 595, § 1; 1981, ch. 247, § 3; 1982, ch. 882, § 1; 1983, ch. 137, § 1; 1983, ch. 408, § 3; T.C.A., § 37-214; Acts 1994, ch. 998, § 2; 1995, ch. 85, § 1; 1999, ch. 524, § 1; 2013, ch. 255, § 1.

Cross-References. Protective custody of child by hospital or physician, § 37-1-404.

Protective custody of sexually abused children, § 37-1-608.

Sexual offenses, title 39, ch. 13, part 5.

Rule Reference. This section is referred to in the text of Rules 5, 15 and 16 and in the Advisory Commission Comments of Rules 5 and 6 of the Tennessee Rules of Juvenile Procedure.

Law Reviews.

Guidelines for Juvenile Court Practice (Andrew J. Shookhoff), 19 No. 2 Tenn. B.J. 5 (1983).

The DOJ Comes to Town: An Argument for Legislative Reform When the Juvenile Court Fails to Protect Due Process Rights, 44 U. Mem. L. Rev. 921 (2014).

Attorney General Opinions. Detainment of juvenile under subdivision (c)(2) of this section, OAG 99-042 (2/25/99).

“Property offense” defined, OAG 99-042 (2/25/99).

A juvenile court may not order the department of children's services to detain or otherwise hold securely a child who has pending delinquency charges and who is currently in the department's custody as a dependent and neglected child without first complying with the statutory requirements to determine whether there is probable cause to believe that the child has committed the delinquent act with which the child is charged, OAG 01-130 (8/20/01).

Collateral References.

Right in child custody proceedings to cross-examine investigating officer whose report is used by court in its decision. 59 A.L.R.3d 1337.

37-1-115. Custody — Release to proper party — Warrant for custody.

  1. A person taking a child into custody shall within a reasonable time:
    1. Release the child to such child's parents, guardian or other custodian upon a promise by such person or persons to bring the child before the court when requested by the court unless such child's detention or shelter care is warranted or required under § 37-1-114; or
    2. Bring the child before the court or deliver such child to a detention or 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 that requires prompt treatment. A person taking a child into custody shall give notice thereof, together with a reason for taking the child into custody, to a parent, guardian or other custodian and to the court. If the child is taken into custody pursuant to the provisions of § 37-1-113(a)(3) prior to the filing of a petition, a petition under § 37-1-120 shall be filed as soon as possible but in no event later than two (2) days after the child is taken into custody excluding Saturdays, Sundays and legal holidays.
  2. If a parent, guardian or other custodian, when requested, fails to bring the child before the court as provided in subsection (a), the court may issue its warrant directing that the child be taken into custody and brought before the court.
    1. A law enforcement officer who has taken a child into custody for the commission of an offense that would be considered a misdemeanor if committed by an adult may, in that officer's professional discretion, issue a citation in lieu of continued custody of the child. In issuing a citation pursuant to this subsection (c), the officer shall:
      1. Prepare a written citation, which shall include the name and address of the cited child, the offense charged, and the time and place of appearance;
      2. Have the child sign the original and duplicate copy of the citation. The officer shall deliver one (1) copy to the child and retain the other; and
      3. Release the cited child from custody.
    2. If the law enforcement officer determines that issuing a citation is appropriate but that circumstances surrounding the issuance of a citation indicate an immediate risk to the safety of the child, the officer shall make efforts to contact a parent, guardian, or legal custodian of the child to retrieve the child in lieu of or prior to taking the child into custody.
  4. Subject to the approval of the juvenile court, each municipal or metropolitan police department or sheriff's department is authorized to create and administer its own juvenile diversion program to address citable juvenile offenses without court involvement. Each program shall be developed in consultation with the juvenile court, local school districts, and other community stakeholders, and shall be subject to the same conditions and limitations as informal adjustment pursuant to § 37-1-110.

Acts 1970, ch. 600, § 15; 1976, ch. 745, § 1; 1981, ch. 247, § 4; T.C.A., § 37-215; Acts 2018, ch. 1052, § 12.

Compiler's Notes. Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2018 amendment added (c) and (d).

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 8.3, 8.12, 19.63.

Tennessee Jurisprudence, 18 Tenn. Juris., Minors, § 11; 21 Tenn. Juris., Rape, § 11.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

NOTES TO DECISIONS

1. Application to Criminal Court.

Neither this section nor § 37-1-127 apply upon the trial of a child transferred from juvenile court to be tried as an adult in the criminal courts of this state. Colyer v. State, 577 S.W.2d 460, 1979 Tenn. LEXIS 423 (Tenn. 1979), superseded by statute as stated in, State v. Manus, 632 S.W.2d 137, 1982 Tenn. App. LEXIS 463 (Tenn. Ct. App. 1982), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982).

2. —Acceptance Hearings.

This section, providing for the release of a child from custody, and § 37-1-127, bestowing basic rights on a child charged with a delinquent act, are applicable to an acceptance hearing in the criminal court under § 37-1-159 because such hearing is essentially a review of the juvenile court's action in transferring the child to criminal court to be tried as an adult; it is no part of the trial as an adult in criminal court. Colyer v. State, 577 S.W.2d 460, 1979 Tenn. LEXIS 423 (Tenn. 1979), superseded by statute as stated in, State v. Manus, 632 S.W.2d 137, 1982 Tenn. App. LEXIS 463 (Tenn. Ct. App. 1982), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982).

3. Release to Parents.

Where police questioned child for a considerable length of time at the police station with the child's parents present, and where the child had not been brought before the court prior to the questioning, the child had not been released to his parents within the meaning of this section and a confession given by the child was inadmissible. State v. Strickland, 532 S.W.2d 912, 1975 Tenn. LEXIS 617 (Tenn. 1975), appeal dismissed, Lovelace v. Tennessee, 425 U.S. 929, 96 S. Ct. 1657, 48 L. Ed. 2d 170, 1976 U.S. LEXIS 1297 (1976), cert. denied, Cotton v. Tennessee, 425 U.S. 940, 96 S. Ct. 1677, 48 L. Ed. 2d 183, 1976 U.S. LEXIS 1384 (1976), dismissed, Strickland v. Tennessee, 429 U.S. 805, 97 S. Ct. 38, 50 L. Ed. 2d 65, 1976 U.S. LEXIS 2323 (1976), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982), superseded by statute as stated in, State v. Lundy, 808 S.W.2d 444, 1991 Tenn. LEXIS 125 (Tenn. 1991), superseded by statute as stated in, Toler by Lack v. City of Cookeville, 952 S.W.2d 831, 1997 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1997).

4. Reasonable Time.

Evidence was sufficient to show that the defendant was brought before the juvenile judge within the “reasonable time” period required by T.C.A. § 37-1-115(a). State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982).

5. Admissibility of Juvenile's Statement.

The proper post-Strickland (State v. Strickland, 532 S.W.2d 912 (Tenn. 1975)) inquiry as to admissibility of a juvenile's statement is whether the reasonable time requirements of this section have been met and whether, under the totality of the circumstances, the juvenile's confession was the result of a knowing and intelligent waiver of his constitutional rights. State v. Lundy, 808 S.W.2d 444, 1991 Tenn. LEXIS 125 (Tenn. 1991).

6. Release from Police Custody.

Parental presence during interrogation is not the same as the release to a parent, guardian, or custodian contemplated by T.C.A. § 37-1-115(a)(1) which must be construed to mean release from police custody. State v. Lundy, 808 S.W.2d 444, 1991 Tenn. LEXIS 125 (Tenn. 1991).

The provisions of T.C.A. § 37-1-115(a)(1) were not satisfied where there was no evidence that the juvenile was ever released from police custody to the custody of his mother. State v. Lundy, 808 S.W.2d 444, 1991 Tenn. LEXIS 125 (Tenn. 1991).

7. Procedural Protections.

In essence, this section provides that, within a reasonable time of taking a child into custody, the police must either release the child to his parents' custody, bring the child before the court, or place the child in an appropriate detention facility for juveniles, thereby triggering procedural protections relating to the detention of juveniles. State v. Carroll, 36 S.W.3d 854, 1999 Tenn. Crim. App. LEXIS 1346 (Tenn. Crim. App. 1999).

Petitioner was properly denied postconviction relief on his claim that his counsel was ineffective for failing to adequately advocate for suppression of his pretrial statement where the issue of the voluntariness of petitioner's statement as well as the probable cause supporting the detention that preceded the statement was thoroughly litigated at trial and on appeal, and his claim lacked merit, as he presented no evidence with regard to the time he was taken before the juvenile court and both the trial court and the instant court considered and rejected his claim that the police lacked probable cause to support his custodial interrogation. Readus v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 419 (Tenn. June 24, 2016).

37-1-116. Place of detention — Escape or attempted escape — Shelter care.

  1. A child alleged to be delinquent or unruly may be detained only in:
    1. A licensed foster home or a home approved by the court;
    2. A facility operated by a licensed child care agency;
    3. A detention home or center for delinquent children that is under the direction or supervision of the court or other public authority or of a private agency approved by the court; or
    4. Subject to subsection (e), any other suitable place or facility designated or operated by the court. The child may be detained in a jail or other facility for the detention of adults only if:
      1. Other facilities in subdivision (a)(3) are not available;
      2. The detention is in a room separate and removed from those for adults; and
      3. It appears to the satisfaction of the court that public safety and protection reasonably require detention, and it so orders.
  2. The official in charge of a jail or other facility for the detention of adult offenders or persons charged with crime shall inform the court immediately if a person who is or appears to be under eighteen (18) years of age is received at the facility, and shall bring such person before the court upon request or deliver such person to a detention or shelter care facility designated by the court.
  3. If a case is transferred to another court for criminal prosecution, the child may be transferred to the appropriate officer or detention facility in accordance with the law governing the detention of persons charged with crime.
  4. A child alleged to be dependent or neglected may be detained or placed in shelter care only in the facilities stated in subdivisions (a)(1), (2) and (4), and shall not be detained in a jail or other facility intended or used for the detention of adults charged with criminal offenses or of children alleged to be delinquent.
  5. No child may be detained or otherwise placed in any jail or other facility for the detention of adults, except as provided in subsections (c) and (h).
  6. A county may contract with juvenile courts in other counties, other public authorities, or private agencies to place children in any of the facilities listed in subdivisions (a)(1)-(3) and in the first sentence of subdivision (a)(4). The payment for such placements shall be according to per diem allowances established jointly by the department of children's services and the comptroller of the treasury, or as agreed upon between the county and the juvenile court or other authority or agency operating the facility. The cost allowances established jointly by the department and the comptroller of the treasury shall take into account the actual operating costs of the facility, the costs of any special programs offered by the facility, and the cost of any transportation provided by the facility. Any and all such costs of placement and transportation may be assessed against the parents or other persons legally obligated to care for and support the child as provided in § 37-1-150(d).
  7. To the extent necessary to comply with subsection (e), counties may expend funds received from the state for the purpose of improving juvenile court services or providing community alternatives to detention to pay for the alternative placement and transportation services described in subsection (f), and to develop other alternatives to jail for children, including emergency foster homes, runaway/emergency shelters, juvenile summons, crisis intervention, home detention, attendant care and other programs.
  8. A juvenile may be temporarily detained for as short a time as feasible, not to exceed forty-eight (48) hours, in an adult jail or lockup, if:
    1. The juvenile is accused of a serious crime against persons, including criminal homicide, forcible rape, mayhem, kidnapping, aggravated assault, robbery and extortion accompanied by threats of violence;
    2. The county has a low population density not to exceed thirty-five (35) persons per square mile;
    3. The facility and program have received prior certification by the Tennessee corrections institute as providing detention and treatment with total sight and sound separation from adult detainees and prisoners, including no access by trustees;
    4. There is no juvenile court or other public authority, or private agency as provided in subsection (f), able and willing to contract for the placement of the juvenile; and
    5. A determination is made that there is no existing acceptable alternative placement available for the juvenile.
    1. Notwithstanding the provisions of this section to the contrary, in any facility that meets the following requisites of separateness, juveniles who meet the detention criteria of § 37-1-114(c) may be held in a juvenile detention facility that is in the same building or on the same grounds as an adult jail or lockup; provided, that no juvenile facility constructed or developed after January 1, 1995, may be located in the same building or directly connected to any adult jail or lockup facility complex:
      1. Total separation between juvenile and adult facility spatial areas such that there could be no haphazard or accidental contact between juvenile and adult residents in the respective facilities;
      2. Total separation in all juvenile and adult program activities within the facilities, including recreation, education, counseling, health care, dining, sleeping and general living activities;
      3. Separate juvenile and adult staff, including management, security staff and direct care staff, such as recreational, educational and counseling. Specialized services staff, such as cooks, bookkeepers and medical professionals who are not normally in contact with detainees or whose infrequent contacts occur under conditions of separation of juveniles and adults, can serve both; and
      4. In the event that state standards or licensing requirements for secure juvenile detention facilities are established, the juvenile facility must meet the standards and be licensed or approved as appropriate.
    2. In determining whether the criteria set out in this subsection (i) are met, the following factors will serve to enhance the separateness of juvenile and adult facilities:
      1. Juvenile staff are employees of or volunteers for a juvenile service agency or the juvenile court with responsibility only for the conduct of the youth serving operations. Juvenile staff are specially trained in the handling of juveniles and the special problems associated with this group;
      2. A separate juvenile operations manual, with written procedures for staff and agency reference, specifies the function and operation of the juvenile program;
      3. There is minimal sharing between the facilities of public lobbies or office/support space for staff;
      4. Juveniles do not share direct service or access space with adult offenders within the facilities, including entrance to and exits from the facilities. All juvenile facility intake, booking and admission processes take place in a separate area and are under the direction of juvenile facility staff. Secure juvenile entrances (sally ports, waiting areas) are independently controlled by juvenile staff and separated from adult entrances. Public entrances, lobbies and waiting areas for the juvenile detention program are also controlled by juvenile staff and separated from similar adult areas. Adult and juvenile residents do not make use of common passageways between intake areas, residential spaces and program/service spaces;
      5. The space available for juvenile living, sleeping and the conduct of juvenile programs conforms to the requirements for secure juvenile detention specified by prevailing case law, prevailing professional standards of care, and by state code; and
      6. The facility is formally recognized as a juvenile detention center by the state agency responsible for monitoring, review or certification of juvenile detention facilities.
    1. Any juvenile who:
      1. Is alleged or adjudicated to be delinquent;
      2. Is confined to a secure detention or correctional facility designated, operated or approved by the court; and
      3. Absconds or attempts to abscond from such facility;

        may be charged with the offense of escape or attempted escape and a petition alleging such offense may be filed with the juvenile court of the county in which the alleged offense occurred. If the allegations of the petition are sustained, then the court may make any order of disposition authorized by § 37-1-131.

    2. Any juvenile who:
      1. Is alleged or adjudicated to be delinquent;
      2. Has been placed by the court in a secure detention or correctional facility designated, operated or approved by the court;
      3. Is being transported to or from such facility; and
      4. Absconds or attempts to abscond from the custody of the person responsible for such transportation;

        may be charged with the offense of escape or attempted escape and a petition alleging such offense may be filed with the juvenile court of the county in which the alleged offense occurred. If the allegations of the petition are sustained, then the court may make any order of disposition authorized by § 37-1-131.

      1. Any juvenile may be charged with the offense of escape or attempted escape and a petition alleging the offense may be filed with the juvenile court of the county in which the alleged offense occurred who:
        1. Is adjudicated to be delinquent;
        2. Is placed in a place of detention other than a secure detention facility, as specified in subsection (a); and
        3. Absconds or attempts to abscond from such facility.
      2. Escape or attempted escape from a facility listed in subdivisions (a)(1)-(3) constitutes an offense that, if committed by an adult, would be a misdemeanor.  If the allegations of the petition are sustained, then the court may make any order of disposition authorized by § 37-1-131.
    4. Upon an escape by a juvenile who is alleged or adjudicated to be delinquent by virtue of an act which would be a felony if committed by an adult and who is confined to a secure detention or correctional facility designated, operated or approved by the court, the appropriate facility or departmental official shall immediately report the escape to the chief law enforcement officer of the county in which the facility is located. The report shall include the facts of the escape, the time when it occurred and the circumstances under which it occurred, together with the particular description of the escapee, the escapee's age, size, complexion, race, color of hair and eyes, and from what county committed, for what offense, and when.
    1. Notwithstanding any law to the contrary, no child alleged to be delinquent and meeting any of the criteria under this subsection (k) nor any child committed to the department of children's services as a delinquent child and meeting any of the criteria under this subsection (k) shall be held in shelter care authorized by this section with a child alleged to be dependent or neglected unless the following are satisfied:
      1. There is total separation between facility spatial areas such that there could be no haphazard or accidental contact between a child alleged to be delinquent, or committed as delinquent, who meets the criteria of this subsection (k) and a child alleged to be dependent or neglected; and
      2. There is total separation in all program activities between children alleged to be delinquent, or committed as delinquent, who meet the criteria of this subsection (k) and children alleged to be dependent or neglected, including all program activities listed in subdivision (i)(1)(B) and total separation of any staff for such children as listed in subdivision (i)(1)(C).
    2. The criteria to be used under this subsection (k), together with an allegation of delinquency or commitment to the department as delinquent, are:
      1. The child has been found to be delinquent or is alleged to be delinquent based upon a felony offense constituting a crime against a person or persons;
      2. The child has prior commitments to the department as a result of having committed a felony offense or offenses that constitute a crime against a person or persons;
      3. The child has been found to be delinquent or is alleged to be delinquent based upon a felony drug offense;
      4. The child has prior commitments to the department as a result of having committed a felony drug offense; or
      5. The child has a history of prior convictions for felony offenses that constitute crimes against persons or felony drug offenses, even though the child has never been committed to the department.
  12. The use of seclusion for punitive purposes pre-adjudication or post-adjudication for any child detained in any facility pursuant to § 37-1-114 is prohibited.

Acts 1970, ch. 600, § 16; 1983, ch. 408, §§ 1, 2; T.C.A., § 37-216; Acts 1984, ch. 995, § 1; 1989, ch. 278, § 38; 1989, ch. 329, § 1; 1994, ch. 817, § 1; 1996, ch. 1079, § 73; 1999, ch. 508, § 6; 2000, ch. 981, § 51; 2008, ch. 1083, § 1; 2010, ch. 803, § 1; 2018, ch. 1052, § 13.

Compiler's Notes. For tables of U. S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2018 amendment added (l ).

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Cross-References. Crimes against persons, title 39, ch. 13.

Drug offenses, title 39, ch. 17, part 4.

Rule Reference. This section is referred to in the text of Rules 5 and 16 and in the Advisory Commission Comments of Rule 5 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Minors, § 11.

Law Reviews.

Guidelines for Juvenile Court Practice (Andrew J. Shookhoff), 19 No. 2 Tenn. B.J. 5 (1983).

Attorney General Opinions. A juvenile offender who has attained the age of majority before being convicted of an offense by a juvenile court may not be held in an adult facility, such as the local jail; such a defendant may only be held in a juvenile detention facility and may not be held beyond the defendant's nineteenth birthday, regardless of whether the offense is a misdemeanor or a felony, OAG 04-038 (3/12/04).

If a juvenile who is adjudicated delinquent absconds from a group home or other non-institutional placement, a petition with a summons should issue; in the event a summons is not effective, the court may issue an order of attachment, OAG 05-008 (1/20/05).

If a person absconds after turning 18, but while serving a commitment for a juvenile offense, the individual is no longer a child and any offense would be handled as an adult offense, OAG 05-008 (1/20/05).

Cited: State v. Carroll, 36 S.W.3d 854, 1999 Tenn. Crim. App. LEXIS 1346 (Tenn. Crim. App. 1999).

NOTES TO DECISIONS

1. Fugitive Disentitlement Doctrine.

Circuit court properly determined that a juvenile's appeal of a juvenile court's determination of delinquency should be dismissed based upon application of the fugitive disentitlement doctrine. The juvenile had a long history of refusing to cooperate with the juvenile court, the juvenile fled from a rehabilitation facility in which he was placed pursuant to a court order and engaged in additional delinquent acts during that time, and his fugitive status was directly related to the pending appeal. State v. Kelley, — S.W.3d —, 2012 Tenn. App. LEXIS 785 (Tenn. Ct. App. Nov. 9, 2012).

Collateral References.

Validity, construction, and application of juvenile escape statutes. 46 A.L.R.5th 523.

37-1-117. Investigation and release or detention — Petition — Hearings.

    1. If a child alleged to have committed a delinquent or unruly act is brought before the court or delivered to a detention facility designated by the court, the intake or other authorized officer of the court shall immediately make an investigation and release the child unless it appears that such child's detention is warranted or required under § 37-1-114.
    2. If such child is not so released, the court shall issue an order authorizing the detention of the child and a petition under § 37-1-120 shall be promptly filed with the court. The filing of a petition shall not preclude participation in informal adjustment pursuant to § 37-1-110. In the case of a child alleged to be delinquent, a detention hearing shall be held no later than seventy-two (72) hours after the child is placed in detention to determine whether such child's detention is required under § 37-1-114. In computing the time limitation for purposes of such detention hearing, nonjudicial days are excluded, but in no event shall the hearing be held later than eighty-four (84) hours after the child is placed in detention. The court, in its discretion, may release the child on an appearance bond or on the child's own recognizance subject to a written agreement to appear in court.
    1. When the court finds, based upon a sworn petition or sworn testimony containing specific factual allegations, that there is probable cause to believe that the conditions specified in § 37-1-114(a)(2) exist and a child is in need of the immediate protection of the court, the court may order that the child be removed from the custody of the child's parent, guardian, legal custodian, or the person who physically possesses or controls the child and be placed in the custody of a suitable person, persons, or agency, as specified in § 37-1-116(d), pending further investigation and hearing. When a child alleged to be dependent and neglected is removed from the custody of such child's parent, guardian, legal custodian, or the person who physically possesses or controls the child prior to a hearing on a petition, a preliminary hearing shall be held no later than seventy-two (72) hours after the child's removal to determine whether such child's continued removal is required under § 37-1-114. In computing the time 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 home.
    2. If a child is removed from the home prior to the filing of a petition, a petition shall be filed within forty-eight (48) hours of the removal, excluding nonjudicial days, unless the child is returned to the home within the forty-eight hour time period. In no event shall a petition be filed later than the preliminary hearing.
    3. This subsection (b) may be waived by 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 this section shall apply. The court shall make every effort to advise the parent, guardian, or legal custodian, and the child individually, if fourteen (14) years of age or older, of the time, date, and place of the hearing and the factual circumstances necessitating the removal.
  3. If the child is not so released, and a parent, guardian, or legal custodian has not been notified of the hearing, did not appear or waived appearance at this hearing, and files an affidavit showing these facts, the court shall rehear the matter without unnecessary delay and order such child's release unless it appears from the hearing that the child's detention or shelter care is required under § 37-1-114.

Acts 1970, ch. 600, § 17; 1973, ch. 269, § 3; 1979, ch. 289, § 4; 1980, ch. 595, § 2; 1981, ch. 247, §§ 5, 6; 1981, ch. 458, § 2; 1982, ch. 882, § 3; 1983, ch. 254, § 3; T.C.A., § 37-217; Acts 2009, ch. 235, § 1; 2016, ch. 598, § 2; 2018, ch. 1052, § 14.

Compiler's Notes. Acts 2009, ch. 235, § 1 directed the code commission to change all references from “child support referee” and “juvenile referee” to “child support magistrate” and “juvenile magistrate” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Acts 1983, ch. 254, § 5 provided that the amendment by that act shall not be construed as altering or decreasing the maximum period of eighty-four hours that a juvenile may be detained without a hearing.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2016 amendment rewrote the section which read: “(a) If a child is brought before the court or delivered to a detention facility designated by the court, the intake or other authorized officer of the court shall immediately make an investigation and release the child unless it appears that such child's detention is warranted or required under § 37-1-114.“(b)(1) If such child is not so released, a petition under § 37-1-120 shall be made promptly and presented to the court. In the case of a child alleged to be delinquent, a detention hearing shall be held no later than three (3) days after the child is placed in detention to determine whether such child's detention is required under § 37-1-114. In computing the three (3) days' limitation for purposes of such detention hearing, nonjudicial days are excluded. If a juvenile is detained as provided in § 37-1-114, a detention hearing shall be held no later than eighty-four (84) hours after the child is placed in detention pursuant to § 37-1-114.“(2) In the alternative, if the child is not so released, a warrant committing the child may be sworn out before the court or magistrate by the person producing the child for commitment. Immediately upon receiving a child committed under a warrant, however, the petition shall be made promptly and presented to the court as provided in subdivision (b)(1).“(c) If a child alleged to be dependent and neglected is removed from the custody of such child's parent, guardian or legal custodian prior to a hearing on the petition, a preliminary hearing shall be held no later than three (3) days after the child's removal, excluding Saturdays, Sundays and legal holidays, to determine whether such child's removal is required under § 37-1-114. If the court determines that the child's removal is required under § 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 § 37-1-116(d). This subsection (c) may be waived by 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 if the child is of tender years. Any such waiver may be revoked at any time, at which time this subsection (c) shall apply. The court shall make every effort to advise the parent, guardian or legal custodian, and the child individually, if fourteen (14) years of age or older or alleged to be delinquent or unruly, of the time, date and place of the hearing and the factual circumstances necessitating the removal.“(d) If the child is not so released, and a parent, guardian or custodian has not been notified of the informal hearing, did not appear or waive appearance at this hearing, and files an affidavit showing these facts, the court shall rehear the matter without unnecessary delay and order such child's release unless it appears from the hearing that the child's detention or shelter care is required under § 37-1-114.“(e) The court, in its discretion, may release the child on an appearance bond.”

The 2018 amendment, in (a)(2), inserted the second sentence and, at the end, added “or on the child’s own recognizance subject to a written agreement to appear in court.”

Effective Dates. Acts 2016, ch. 598, § 5. July 1, 2016.

Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Rule Reference. This section is referred to in the text of Rule 5 and in the Advisory Commission Comments of Rules 6 and 16 of the Tennessee Rules of Juvenile Procedure.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

The DOJ Comes to Town: An Argument for Legislative Reform When the Juvenile Court Fails to Protect Due Process Rights, 44 U. Mem. L. Rev. 921 (2014).

Collateral References.

Right of bail in proceedings in juvenile court. 53 A.L.R.3d 848.

37-1-118. Subpoenas.

Upon application of a party, the court or the clerk of the court shall issue, or the court on its own motion may issue, subpoenas requiring attendance and testimony of witnesses and production of papers at any hearing under this part.

Acts 1970, ch. 600, § 18; T.C.A., § 37-218.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

37-1-119. Petition — Who may make.

The petition may be made by any person, including a law enforcement officer, who has knowledge of the facts alleged or is informed and believes that they are true.

Acts 1970, ch. 600, § 19; T.C.A., § 37-219.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.3.

Law Reviews.

Storied Anna Mae He Decision Clarifies Law But Leaves Unanswered Questions (Christina A. Zawisza), 38 U. Mem. L. Rev. 637 (2008).

37-1-120. Contents of petition.

  1. All petitions shall be verified and may be on information and belief.
  2. Petitions that allege a delinquent or unruly offense; educational neglect when filed on behalf of a school; child abuse prosecutions, pursuant to §§ 37-1-412 and 39-15-401; nonsupport of children, pursuant to title 39, chapter 15, part 1; contributing to the delinquency or unruly behavior of a child, pursuant to § 37-1-156; contributing to the dependency and neglect of a child, pursuant to § 37-1-157; offenses involving adults arising under title 49, chapter 6, part 30; criminal contempt, pursuant to § 29-9-102; and civil contempt, pursuant to §§ 29-9-104 and 29-9-105 shall set forth plainly and to the extent reasonably ascertainable:
    1. The facts that bring the child or person within the jurisdiction of the court, including the approximate date, manner, and place of the acts alleged, with a statement that it is in the best interest of the child and the public that the proceeding be brought;
    2. If the petition alleges delinquency or unruly conduct, the offense charged, the relevant statutes, and a statement that the child is in need of treatment or rehabilitation;
    3. The name, age, and residence address, if any, of the child on whose behalf the petition is brought;
    4. The names and residence addresses, if known to petitioner, of the legal parents, guardian, or custodian of the child;
    5. The names and residence addresses, if known to the petitioner, of any person or persons, other than the legal father, alleged to be the biological father of the child whose parental rights have not been terminated;
    6. If the child is in detention, the place of detention, and the time the child was taken into custody; and
    7. If any other court has jurisdiction over the child and the name of the court, if known to the petitioner.
  3. All other petitions shall set forth plainly and to the extent reasonably ascertainable:
    1. The facts that bring the child within the jurisdiction of the court, including the approximate date, manner, and place of the acts alleged, with a statement that it is in the best interest of the child and the public that the proceeding be brought;
    2. The name, age, and residence address, if any, of the child on whose behalf the petition is brought and the places where the child has lived for the last five (5) years, and the names and present addresses of the persons with whom the child has lived during that period;
    3. The names and residence addresses, if known to petitioner, of the legal parents, guardian, or custodian of the child and of the child's spouse, or of any person who has physical custody of the child or claims rights of legal or physical custody of, or visitation with the child;
    4. The names and residence addresses, if known to the petitioner, of any person or persons, other than the legal father, alleged to be the biological father of the child whose parental rights have not been terminated;
    5. The court, case number, and nature of any proceeding, if known to the petitioner, that could affect the current proceeding including proceedings for custody, visitation, enforcement, domestic violence, protective orders, termination of parental rights, or adoption;
    6. A statement whether the petitioner has participated as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, a statement that identifies the court, the case number, and the date of the child custody determination, if any;
    7. A statement whether or not the parents are currently serving in the armed forces; and
    8. A statement whether the child or child's parent is a member or eligible for membership in any recognized Indian tribe under the federal Indian Child Welfare Act (25 U.S.C. § 1901).
  4. If the petitioner, counter-petitioner, or child is a victim of abuse or has been placed at risk of abuse by any of the parties to the proceeding, the petitioner may exclude the address of the petitioner or the child from the petition and file that information with the clerk in a separate document, which the clerk shall place under seal.
  5. School personnel may file a juvenile petition against a student receiving special education services only in accordance with the manifestation determination requirements of § 49-10-1304(d)(3)(B).
    1. Absent serious threats to school safety or exceptional circumstances in the judgment of a law enforcement officer, when a delinquency or unruly petition is filed by school personnel based upon acts committed on school grounds or at a school-sponsored event, the school personnel shall include information in the petition that shows that:
      1. School personnel have sought to resolve the problem through available educational approaches; and
      2. Court intervention is needed in the judgment of the petitioner.
    2. School personnel shall seek to engage parents, guardians, or legal custodians in resolving the child's behavior before filing a petition where appropriate under the circumstances.

Acts 1970, ch. 600, § 20; T.C.A., § 37-220; Acts 2012, ch. 1017, §§ 1, 2; 2016, ch. 598, § 4; 2017, ch. 263, § 2; 2018, ch. 1052, § 15.

Compiler's Notes. Acts 2012, ch. 1017, § 4 provided that the act, which amended subdivision (3) and added present subdivision (4), shall apply to any proceeding commenced on or after July 1, 2012.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2016 amendment inserted “and to the extent reasonably ascertainable:” to the end of the introductory language; inserted “, including the approximate date, manner, and place of the acts alleged,”  following “court” in (1);  added “and the places where the child has lived for the last five (5) years, and the names and present addresses of the persons with whom the child has lived during that period;” to the end of (2); substituted “or of any person who has physical custody of the child or claims rights of legal or physical custody of, or visitation with the child;” for “if any” at the end of (3); deleted “and” at the end of (4); added current (5)-(7); redesignated former (5) as (8); deleted “custody and, if so, the place of” preceding “detention” at the beginning of current (8); inserted “, the place of detention,” following “detention” in the middle of current (8), and added current (9).

The 2017 amendment rewrote the section, which read: “The petition shall be verified and may be on information and belief. It shall set forth plainly and to the extent reasonably ascertainable:“(1) The facts that bring the child within the jurisdiction of the court, including the approximate date, manner, and place of the acts alleged, with a statement that it is in the best interest of the child and the public that the proceeding be brought and, if delinquency or unruly conduct is alleged, that the child is in need of treatment or rehabilitation;“(2) The name, age, and residence address, if any, of the child on whose behalf the petition is brought and the places where the child has lived for the last five (5) years, and the names and present addresses of the persons with whom the child has lived during that period;“(3) The names and residence addresses, if known to petitioner, of the legal parents, guardian, or custodian of the child and of the child's spouse, or of any person who has physical custody of the child or claims rights of legal or physical custody of, or visitation with the child;“(4) The names, and residence addresses, if known to the petitioner, of any persons, other than the legal father, alleged to be the biological father of the child whose parental rights have not been terminated;“(5) The court, case number, and nature of any proceeding, if known to the petitioner, that could affect the current proceeding including proceedings for custody, visitation, enforcement, domestic violence, protective orders, termination of parental rights, or adoption“(6) A statement whether the petitioner has participated as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, a statement that identifies the court, the case number, and the date of the child custody determination, if any;“(7) A statement whether or not the parents are currently serving in the armed forces;“(8) If the child is in detention, the place of detention, and the time the child was taken into custody; and“(9) A statement whether the child or child's parent is a member or eligible for membership in any recognized Indian tribe under the federal Indian Child Welfare Act (25 U.S.C. § 1901).”

The 2018 amendment added (e) and (f).

Effective Dates. Acts 2016, ch. 598, § 5. July 1, 2016.

Acts 2017, ch. 263, § 5. July 1, 2017.

Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

37-1-121. Service of process.

Service of process for juvenile court proceedings may be completed by any individual authorized to serve process under the Tennessee Rules of Civil Procedure or the Tennessee Rules of Juvenile Procedure, including, but not limited to, a sheriff, constable, or private process server.

Acts 2018, ch. 535, § 2.

Compiler's Notes. Former § 37-1-121, repealed by Acts 2016, ch. 717, § 1, effective July 1, 2016, concerned summons.

Effective Dates. Acts 2018, ch. 535, § 3. March 7, 2018.

37-1-122. Summons — Attachment where summons ineffectual.

  1. After the petition has been filed, the clerk shall schedule a time for a hearing and issue summonses to the parties. In case a summons cannot be served or the party served fails to obey the same, and in any case where it is made to appear to the court that such summons will be ineffectual, except as described in subsection (b), an attachment may issue, on the order of the court, against the:
    1. Parent or guardian;
    2. Person having custody of the child;
    3. Person with whom the child may be; or
    4. Child.
    1. An attachment for a violation of conditions or limitations of probation pursuant to § 37-1-131 or § 37-1-132, home placement supervision pursuant to § 37-1-137, or diversion pursuant to § 37-1-129 shall not issue unless:
      1. The child poses a significant likelihood of:
        1. Significant injury or sexual assault to another person;
        2. Danger to self, such that a delay would endanger the child's safety or health; or
        3. Damage to property;
      2. The child cannot be located by the supervising person, persons, or entity after documented efforts to locate the child by the supervising person, persons, or entity; or
      3. The child fails to appear for a court proceeding.
    2. If the child has an attorney of record, that attorney must be served with any attachment request made to the court.
    3. A child may not be detained pursuant to an attachment under this subsection (b), unless the child meets the criteria of § 37-1-114.

Acts 1970, ch. 600, § 22; T.C.A., § 37-222; Acts 2016, ch. 717, § 2; 2018, ch. 1052, § 16; 2019, ch. 312, §§ 4-6.

Compiler's Notes. Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2016 amendment added the present first sentence.

The 2018 amendment added (b); in the present introductory language of (a), substituted “summonses” for “summons” preceding “to the parties” and “a” for “the” following “In case”, and inserted “except as described in subsection (b),”.

The 2019 amendment, in (b)(1), deleted “§ 37-1-110 or” following “diversion pursuant to”; rewrote (b)(1)(A), which read: “The child poses a significant likelihood of significant injury to another person or significant likelihood of damage to property;”; and added (b)(3).

Effective Dates. Acts 2016, ch. 717, § 7. July 1, 2016.

Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Acts 2019, ch. 312, § 11. May 8, 2019.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 11 of the Tennessee Rules of Juvenile Procedure.

Attorney General Opinions. If a juvenile who is adjudicated delinquent absconds from a group home or other non-institutional placement, a petition with a summons should issue; in the event a summons is not effective, the court may issue an order of attachment, OAG 05-008 (1/20/05).

Collateral References.

Liability of parent for support of child institutionalized by juvenile court. 59 A.L.R.3d 636.

37-1-123. Use of detention.

Detention shall not be ordered as a disposition under § 37-1-132, and neither a child nor that child's attorney may waive the detention-related prohibitions of that section, including as part of any pre-adjudication agreements.

Acts 2018, ch. 1052, § 46; 2019, ch. 510, § 5.

Compiler's Notes. Former § 37-1-123 (Acts 1970, ch. 600, § 23; 1983, ch. 137, § 2; T.C.A., § 37-223; repealed by Acts 2016, ch. 717 § 3, effective July 1, 2016) concerned service of summons was repealed by Acts 2016, ch. 717 § 3, effective July 1, 2016.

Acts 2018, ch. 1052, § 1 provided that the act, which enacted this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2019 amendment deleted “be used only for those circumstances expressly authorized by the provisions of this part and shall” preceding “not be ordered”, deleted “§ 37-1-131(a) or” following “disposition under”, and substituted “that section” for “those provisions”.

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2019; provided that for purposes of rulemaking, the act took effect May 21, 2018.

Acts 2019, ch. 510, § 7. July 1, 2019 at 12:01 a.m.

37-1-124. Conduct of hearing.

  1. Hearings pursuant to this part shall be conducted by the court without a jury, in an informal but orderly manner, separate from other proceedings not included in § 37-1-103.
  2. The district attorney general or city or county attorney, or any attorney, upon request of the court, shall present the evidence in support of the petition and otherwise conduct the proceedings on behalf of the state.
  3. Minutes of all proceedings shall be kept by the court.

Acts 1970, ch. 600, § 24; T.C.A., § 37-224; Acts 2007, ch. 199, §§ 3, 4; 2016, ch. 600, § 3.

Amendments. The 2016 amendment deleted “, and pursuant to Rule 27 of the Tennessee Rules of Juvenile Procedure” from the end of (a).

Effective Dates. Acts 2016, ch. 600, § 17. July 1, 2016.

Rule Reference. This section is referred to in Rules 19 and 28 and in the Advisory Commission Comments under Rule 27 of the Tennessee Rules of Juvenile Procedure.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

NOTES TO DECISIONS

1. Failure to Keep Minutes.

Juvenile defendant's motion to dismiss murder indictment on the ground that the juvenile court that found that he should be held for prosecution as an adult failed to keep minutes of the proceedings was properly denied where there was no defect on the face of the indictment and no showing of prejudice due to the alleged failure, since defendant could have appealed from the judgment of the juvenile court. Braziel v. State, 529 S.W.2d 501, 1975 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. 1975).

2. Closure of Proceedings.

The juvenile court should balance the public's interest in open judicial proceedings and the litigants' right to a fair trial in deciding whether to close juvenile proceedings. State v. James, 902 S.W.2d 911, 1995 Tenn. LEXIS 328 (Tenn. 1995).

3. Jury Trial.

Juveniles adjudged delinquent on the basis of an offense which would be a felony if committed by an adult are not entitled by the Tennessee constitution to a jury trial upon their de novo appeal to circuit court. State v. Burns, 205 S.W.3d 412, 2006 Tenn. LEXIS 848 (Tenn. 2006).

37-1-125. Party served by publication — Provisional hearing — Interlocutory order.

  1. If, after reasonable effort, a party cannot be found, or the party's postal address cannot be ascertained, regardless of whether the party is within this state, the court may order service of the summons upon the party by publication in accordance with §§ 21-1-203 and 21-1-204. The published summons shall indicate the general nature of the allegations and where a copy of the petition may be obtained. The hearing shall not be earlier than five (5) days after the date of the last publication.
  2. If service of summons upon a party is made by publication, the court may conduct a provisional hearing upon the allegations of the petition and enter an interlocutory order of disposition if the:
    1. Petition alleges delinquency, unruly conduct, or dependency or neglect of the child;
    2. Summons served upon any party:
      1. States that prior to the final hearing on the petition designated in the summons a provisional hearing thereon will be held at a specified time and place;
      2. Requires the party who is served other than by publication to appear and answer the allegations of the petition at the provisional hearing;
      3. States further that findings of fact and orders of disposition made pursuant to the provisional hearing will become final at the final hearing unless the party served by publication appears at the final hearing; and
      4. [Deleted by 2016 amendment.]
    3. Child is personally before the court at the provisional hearing.
  3. All provisions of this part applicable to a hearing on a petition, orders of disposition, and other proceedings dependent thereon, apply under this section, but findings of fact and orders of disposition have only interlocutory effect pending the final hearing on the petition. The rights and duties of the party served by publication are not affected, except as provided in subsection (d).
  4. If the party served by publication fails to appear at the final hearing on the petition, the findings of fact and interlocutory orders made become final without further evidence and are governed by this part as if made at the final hearing. If the party appears at the final hearing, the findings and orders shall be vacated and disregarded and the hearing shall proceed upon the allegations of the petition without regard to this section.

Acts 1970, ch. 600, § 25; T.C.A., § 37-225; Acts 2016, ch. 717, §§ 4, 5.

Amendments. The 2016 amendment added present (a); redesignated former (a)-(c) as (b)-(d); and deleted (b)(2)(D) [former (a)(2)(D)], which read, “Otherwise conforms to § 37-1-121; and”.

Effective Dates. Acts 2016, ch. 717, § 7. July 1, 2016.

37-1-126. Right to counsel or guardian ad litem — Administrative fee.

    1. A child is entitled to representation by legal counsel at all stages of any delinquency proceedings or proceedings alleging unruly conduct that place the child in jeopardy of being removed from the home pursuant to § 37-1-132(b) and is entitled to a guardian ad litem for proceedings alleging a child to be dependent and neglected or abused.
      1. An adult is entitled to representation by legal counsel at all stages of any proceeding under this part in proceedings involving:
        1. Child abuse prosecutions pursuant to §§ 37-1-412 and 39-15-401;
        2. Contributing to the delinquency or unruly behavior of a child pursuant to § 37-1-156 or contributing to the dependency and neglect of a child pursuant to § 37-1-157;
        3. Violation of compulsory school attendance pursuant to §§ 49-6-3007 and 49-6-3009; or
        4. Criminal contempt.
      2. A parent is entitled to representation by legal counsel at all stages of any proceeding under this part in proceedings involving:
        1. Abuse, dependency or neglect pursuant to § 37-1-102; or
        2. Termination of parental rights pursuant to § 36-1-113.
    3. If the person is indigent, the court shall provide counsel for the indigent person. If a person appears without counsel, the court shall ascertain whether the person knows of the right to counsel and of the right to be provided with counsel by the court if the person is indigent. The court may continue the proceeding to enable a person to obtain counsel and shall provide counsel for an unrepresented indigent person upon request.
    4. In all delinquency hearings or in unruly hearings in which the child may be in jeopardy of being removed from the home as specified in § 37-1-132(b), counsel must be provided for a child not represented by the child's parent, guardian, guardian ad litem or custodian or where the child's interests conflict with the parent, guardian, custodian or guardian ad litem. If the interest of two (2) or more persons conflict, separate counsel may be provided for each of them.
  2. A person is indigent if:
    1. That person does not possess sufficient means to pay reasonable compensation for the services of a competent attorney or guardian ad litem. In determining indigency, the court shall consider the financial resources of the child and the child's parents, legal custodians or guardians; or
    2. In the case of a child, if the child, the child's parents, legal custodians or guardians are financially able to defray a portion or all of the cost of the child’s representation but refuse to do so timely, the court may make written findings determining this as indigency; provided, the court shall assess the administrative fee and costs pursuant to § 37-1-150(g).
    1. Parents, legal custodians, or guardians, or any adult defendants or respondents whose child is provided with court-appointed counsel pursuant to this section, or who themselves are provided with court-appointed counsel pursuant to this section, may be assessed by the court at the time of appointment a nonrefundable administrative fee in the amount of fifty dollars ($50.00). The parents, legal custodians, or guardians of a child who is appointed a guardian ad litem may be assessed by the court an administrative fee as provided in this subdivision (c)(1).
    2. The administrative fee shall be assessed only one (1) time per case and shall be waived or reduced by the court upon a finding that the child and the child's parents, legal custodians, or guardians lack financial resources sufficient to pay the fee in such amount. In cases where a guardian ad litem is appointed, the financial resources of the child shall not be considered. The fee may be increased by the court to an amount not in excess of two hundred dollars ($200) upon a finding that the child's parents, legal custodians or guardians, or an adult defendant or respondent possesses sufficient financial resources to pay the fee in such increased amount. The administrative fee shall be payable, at the court's discretion, in a lump sum or in installments; provided, that the fee shall be paid prior to disposition of the case or within two (2) weeks of appointment of counsel, whichever first occurs. Prior to disposition of the case, the clerk of the court shall inform the judge whether the administrative fee has been collected. Failure to pay the administrative fee assessed by the court shall not reduce or in any way affect the rendering of services by court-appointed counsel. The administrative fee shall not be assessed against the child.
    3. The administrative fee shall be separate from, and in addition to, any other contribution or recoupment assessed pursuant to law for defrayal of costs associated with the provision of court-appointed counsel. The clerk of the court shall retain a commission of five percent (5%) of each dollar of administrative fees collected and shall transmit the remaining ninety-five percent (95%) of each such dollar to the state treasurer for deposit in the state's general fund.
    4. If the administrative fee is not paid prior to disposition of the case, then the fee shall be collected in the same manner as costs are collected; provided, that upon disposition of the case, moneys paid to the clerk, including any cash bond posted by or on behalf of a child who has been transferred or is awaiting a transfer hearing pursuant to § 37-1-134 or an adult, shall be allocated to taxes, costs, and fines and then to the administrative fee and any recoupment ordered. The administrative fee and any recoupment or contribution ordered for the services of court-appointed counsel may apply and may be collected even if the charges against the party are dismissed. The court shall have discretion to waive the administrative fee if the case is dismissed.
    5. As part of the clerk's regular monthly report, each clerk of court, who is responsible for collecting administrative fees pursuant to this section, shall file a report with the court, the administrative director of the courts, and the comptroller of the treasury. The report shall indicate the following:
      1. Number of children and adults for whom the court appointed counsel pursuant to this section;
      2. Number of children for whom the court appointed a guardian ad litem pursuant to § 37-1-149;
      3. Number of children and adults for whom the court appointed counsel and waived the administrative fee;
      4. Number of children for whom the court appointed a guardian ad litem and waived the administrative fee;
      5. Number of children and adults from, or on behalf of, whom the clerk collected administrative fees;
      6. Total amount of commissions retained by the clerk from such administrative fees; and
      7. Total amount of administrative fees forwarded by the clerk to the state treasurer.

Acts 1970, ch. 600, § 26; 1980, ch. 796, § 2; T.C.A., § 37-226; Acts 1997, ch. 547, § 2; 2008, ch. 1084, §§ 1-4; 2009, ch. 417, § 1; 2012, ch. 857, §§ 1-5; 2018, ch. 1052, § 17.

Compiler's Notes. Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2018 amendment, in (c)(1), rewrote the first sentence which read: “A child who is provided with court-appointed counsel pursuant to this section, the child’s parents, legal custodians or guardians, or any adult defendant or respondent who is provided with court-appointed counsel pursuant to this section shall be assessed by the court at the time of appointment a nonrefundable administrative fee in the amount of fifty dollars ($50.00).”, and in the second sentence substituted “may” for “shall” preceding “be assessed”; in (c)(2), in the second sentence, deleted “child, the” preceding “child’s parents” and substituted “possesses” for “possess” following “respondent”, and, at the end, substituted the present last sentence for “; provided, that willful failure to pay such fee may be weighed by the court when determining appropriate disposition of the case.”; in (c)(4), substituted “a child who has been transferred or is awaiting a transfer hearing pursuant to § 37-1-134 or an” for “the child or” preceding “adult” in the second sentence, twice substituted “may” for “shall”, and in the last sentence, substituted “The” for “In cases where a guardian ad litem is appointed, the”; and in (c)(5), in the first sentence, deleted “and with” following “with the court”, deleted “Tennessee” preceding “administrative director”, and inserted “, and the comptroller of the treasury”.

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Rule Reference. This section is referred to in Rules 13 and 28 and under the Advisory Commission Comments of Rule 30 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.4.

Law Reviews.

A Proposal To Strengthen Juvenile Miranda Rights: Requiring Parental Presence in Custodial Interrogations, 53 Vand. L. Rev. 1355 (2000).

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

The Essence of Justice: Independent, Ethical, and Zealous Advocacy by Juvenile Defenders, 44 U. Mem. L. Rev. 799 (2014).

NOTES TO DECISIONS

1. Application.

In proceedings under this part, the applicant has a right to counsel. Mullins v. Lane, 484 F. Supp. 237, 1979 U.S. Dist. LEXIS 11632 (E.D. Tenn. 1979).

This section relating to the right to counsel and T.C.A. § 37-1-127, governing the basic rights of juveniles, are applicable only to delinquency hearings. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

2. Appointment of Counsel.

The juvenile judge must consider each case on its merits to determine whether the appointment of counsel is required at a home placement revocation hearing using such criteria as whether the juvenile can speak capably for himself, or whether he alleges in a timely and colorable claim that he has not committed the violation or that there are substantial reasons mitigating the violation which are complex or difficult to present, with any doubt being resolved in favor of appointment of counsel. State ex rel. Gillard v. Cook, 528 S.W.2d 545, 1975 Tenn. LEXIS 627 (Tenn. 1975).

Dependent and neglect proceeding was separate and distinct from the termination proceeding, and the father had counsel appointed for him in the latter proceeding, and the matters of which he complained were matters which were within his power and ability to correct and were the product of his free will; thus the argument that the manner in which the neglect proceeding was handled rendered the father's actions relative to the termination grounds less than willful was rejected. In re Olivia C., — S.W.3d —, 2015 Tenn. App. LEXIS 28 (Tenn. Ct. App. Jan. 22, 2015).

Any due process violation associated with the failure to appoint counsel in a prior dependency and neglect proceeding involving a parent's children was remedied by the procedural protections provided to the parent as a part of the parental termination proceeding. In re Makenzie P., — S.W.3d —, 2016 Tenn. App. LEXIS 737 (Tenn. Ct. App. Sept. 30, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 897 (Tenn. Nov. 22, 2016).

3. Waiver of Counsel.

Presuming waiver of counsel from a silent record is impermissible. Mullins v. Lane, 484 F. Supp. 237, 1979 U.S. Dist. LEXIS 11632 (E.D. Tenn. 1979).

In the absence of proof that a parent was aware of the termination of parental rights trial date, the appellate court was reluctant to conclude that the parent's failure to appear coupled with appointed counsel's unsupported allegations of lack of communication were sufficient to show that the parent effectively waived the right to appointed counsel. Remand for a new trial, with possible appointment of counsel, was appropriate. In re A.P., — S.W.3d —, 2019 Tenn. App. LEXIS 163 (Tenn. Ct. App. Mar. 29, 2019).

4. Transfer to Criminal Court.

Under Tennessee Juvenile Courts Act, read in context of federal constitutional principles relating to due process and the assistance of counsel, a juvenile court is required to grant a juvenile the right to counsel in the proceedings involving the question whether such court should waive its exclusive jurisdiction over a juvenile as a minor and authorize the juvenile to be subjected to felony prosecutions. Mullins v. Lane, 484 F. Supp. 237, 1979 U.S. Dist. LEXIS 11632 (E.D. Tenn. 1979).

Collateral References.

Applicability of double jeopardy to juvenile court proceedings. 5 A.L.R.4th 234.

37-1-127. Basic rights at hearing.

  1. A party is entitled to the opportunity to introduce evidence and otherwise be heard in the party's own behalf and to cross-examine adverse witnesses.
  2. A child charged with a delinquent act need not be a witness against self-interest or otherwise engage in self-incrimination.
  3. An extra-judicial statement, if obtained in the course of violation of this part or that would be constitutionally inadmissible in a criminal proceeding, shall not be used against the child.
  4. Evidence illegally seized or obtained shall not be received over objection to establish the allegations made against the child.
  5. A confession validly made by a child out of court is insufficient to support an adjudication of delinquency unless it is corroborated in whole or in part by other evidence.
  6. If a child is charged with a delinquent act that could qualify such child as a violent juvenile sexual offender, as defined by § 40-39-202, such child shall be given verbal and written notice of the violent juvenile sexual offender registration requirements prior to a hearing on whether the child committed such act.

Acts 1970, ch. 600, § 27; T.C.A., § 37-227; Acts 2011, ch. 483, § 1.

Rule Reference. This section is referred to in Rule 28 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.12.

Tennessee Jurisprudence, 18 Tenn. Juris., Minors, § 11; 21 Tenn. Juris., Rape, § 11.

Law Reviews.

A Proposal To Strengthen Juvenile Miranda Rights: Requiring Parental Presence in Custodial Interrogations, 53 Vand. L. Rev. 1355 (2000).

Guidelines for Juvenile Court Practice (Andrew J. Shookhoff), 19 No. 2 Tenn. B.J. 5 (1983).

The DOJ Comes to Town: An Argument for Legislative Reform When the Juvenile Court Fails to Protect Due Process Rights, 44 U. Mem. L. Rev. 921 (2014).

Toward Fundamental Fairness in the Kangaroo Courtroom: The Due Process Case Against Statutes Presumptively Closing Juvenile Proceedings, 54 Vand. L. Rev. 1751 (2001).

NOTES TO DECISIONS

1. Application.

Section 37-1-115, providing for the release of a child from custody, and this section, bestowing basic rights on a child charged with a delinquent act, are applicable to an acceptance hearing in the criminal court under § 37-1-159 because such hearing is essentially a review of the juvenile court's action in transferring the child to criminal court to be tried as an adult; it is no part of the trial as an adult in criminal court. Colyer v. State, 577 S.W.2d 460, 1979 Tenn. LEXIS 423 (Tenn. 1979), superseded by statute as stated in, State v. Manus, 632 S.W.2d 137, 1982 Tenn. App. LEXIS 463 (Tenn. Ct. App. 1982), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982).

Neither § 37-1-115 nor this section applies upon the trial of a child transferred from juvenile court to be tried as an adult in the criminal courts of this state. Colyer v. State, 577 S.W.2d 460, 1979 Tenn. LEXIS 423 (Tenn. 1979), superseded by statute as stated in, State v. Manus, 632 S.W.2d 137, 1982 Tenn. App. LEXIS 463 (Tenn. Ct. App. 1982), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982).

The per se exclusion of extra-judicial statements, obtained in violation of this part dealing exclusively with juvenile courts, is limited in scope to proceedings in that court. Colyer v. State, 577 S.W.2d 460, 1979 Tenn. LEXIS 423 (Tenn. 1979), superseded by statute as stated in, State v. Manus, 632 S.W.2d 137, 1982 Tenn. App. LEXIS 463 (Tenn. Ct. App. 1982), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982).

T.C.A. § 37-1-126, relating to the right to counsel, and this section, governing the basic rights of juveniles, are applicable only to delinquency hearings. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

This section does not relate to statements made out of court to police officers. State v. Turnmire, 762 S.W.2d 893, 1988 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 1988).

2. Purpose.

This section expressly bestows upon children charged with a delinquent act basic rights that were not uniformly recognized or granted in the juvenile courts of this state prior to the 1970 Act, but were then enjoyed by adults on trial in the criminal courts. Colyer v. State, 577 S.W.2d 460, 1979 Tenn. LEXIS 423 (Tenn. 1979), superseded by statute as stated in, State v. Manus, 632 S.W.2d 137, 1982 Tenn. App. LEXIS 463 (Tenn. Ct. App. 1982), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982).

3. Admissibility of Confession.

A child's confession obtained after a lengthy questioning session at the police station when the child had not been released to his parents or brought before the court was inadmissible as it was obtained in violation of § 37-1-115. State v. Strickland, 532 S.W.2d 912, 1975 Tenn. LEXIS 617 (Tenn. 1975), appeal dismissed, Lovelace v. Tennessee, 425 U.S. 929, 96 S. Ct. 1657, 48 L. Ed. 2d 170, 1976 U.S. LEXIS 1297 (1976), cert. denied, Cotton v. Tennessee, 425 U.S. 940, 96 S. Ct. 1677, 48 L. Ed. 2d 183, 1976 U.S. LEXIS 1384 (1976), dismissed, Strickland v. Tennessee, 429 U.S. 805, 97 S. Ct. 38, 50 L. Ed. 2d 65, 1976 U.S. LEXIS 2323 (1976), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982), superseded by statute as stated in, State v. Lundy, 808 S.W.2d 444, 1991 Tenn. LEXIS 125 (Tenn. 1991), superseded by statute as stated in, Toler by Lack v. City of Cookeville, 952 S.W.2d 831, 1997 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1997).

When police take a child into custody and conduct an interrogation, the admissibility of any resultant statement in a juvenile court proceeding will depend both upon satisfaction of the reasonable time requirements of T.C.A. § 37-1-115 and the knowing and voluntary nature of the confession. State v. Carroll, 36 S.W.3d 854, 1999 Tenn. Crim. App. LEXIS 1346 (Tenn. Crim. App. 1999).

Petitioner was properly denied postconviction relief on his claim that his counsel was ineffective for failing to adequately advocate for suppression of his pretrial statement where the issue of the voluntariness of petitioner's statement as well as the probable cause supporting the detention that preceded the statement was thoroughly litigated at trial and on appeal, and his claim lacked merit, as he presented no evidence with regard to the time he was taken before the juvenile court and both the trial court and the instant court considered and rejected his claim that the police lacked probable cause to support his custodial interrogation. Readus v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 419 (Tenn. June 24, 2016).

Collateral References.

Liability of parent for support of child institutionalized by juvenile court. 59 A.L.R.3d 636.

Right of juvenile court defendant to be represented during court proceedings by parent. 11 A.L.R.4th 719.

Right to and appointment of counsel in juvenile court proceedings. 60 A.L.R.2d 691, 25 A.L.R.4th 1072.

37-1-128. Investigations — Custody of child — Evaluation and commitment for mental illness or developmental disability.

    1. When a child alleged to be delinquent or unruly is brought before the court, the court may notify a probation officer attached to the court or any such person, persons or agencies available to the court, or to the department of children's services, and it shall be their duty to:
      1. Make an investigation of the case or conduct a preliminary inquiry if one has not already been conducted;
      2. Be present in court to report when the case is heard;
      3. Furnish such information and assistance as the court may require; and
      4. Take charge of any child before or after the hearing as may be directed by the court.
    2. A probation officer shall have, as to any child committed to such officer's care, the powers of a law enforcement officer. Subject to this part, the probation officer may bring such child before the court committing the child to the officer's care for further action as the court may deem fit and proper.
  2. [Deleted by 2016 amendment.]
    1. At any time prior to a child being adjudicated unruly or dependent and neglected, or before the disposition of a child who has been adjudicated delinquent, unruly or dependent and neglected, the court may order that the department make an assessment of the child and report the findings and recommendations to the court. Such order of referral shall confer authority to the department or its designees to transport the child and to obtain any necessary evaluations of the child without further consent of the parent(s), legal custodian or guardian.
    2. If, during the evaluation or assessment, the department determines that there is a need for treatment for either the mental or physical well being of the child, consent of the parent(s), guardian or current legal custodian shall be obtained. If such consent cannot be obtained, the department may apply to the court for authorization to provide consent on behalf of the child. If a child is suspected of being in need of or is eligible for special education services, then state and federal laws governing evaluation and placement must be followed.
    3. A report to the court of the department's recommendations shall be made within fifteen (15) days, which may be extended up to thirty (30) days for good cause following the court's order of referral. The department shall include in the report a review of the child's previous records including, but not limited to, health and education records, a review of the child's family history and current family status, and a written recommendation concerning the child's status.
    4. Any order of the court that places custody of a child with the department shall empower the department to select any specific residential or treatment placements or programs for the child according to the determination made by the department, its employees, agents or contractors.
  4. During the pendency of any proceeding, the court may order the child examined at a suitable place by a physician regarding the child's medical condition, and may order medical or surgical treatment of a child who is suffering from a serious physical condition or illness that requires prompt treatment, even if the parent, guardian or other custodian has not been given notice of a hearing, is not available, or without good cause informs the court of such person's refusal to consent to treatment.
      1. If, during the pendency of any proceeding under this chapter, there is reason to believe that the child may be suffering from mental illness, the court may order the child to be evaluated on an outpatient basis by a mental health agency or a licensed private practitioner designated by the commissioner of mental health and substance abuse services to serve the court. If, during the pendency of any proceeding under this chapter, there is reason to believe that the child may be suffering from a developmental disability, the court may order the child to be evaluated on an outpatient basis by a mental health agency, developmental center or a licensed private practitioner designated by the commissioner of mental health and substance abuse services to serve the court. The outpatient evaluation shall be completed no more than thirty (30) days after receipt of the order by the examining professional.
      2. If, and only if, in either of the circumstances described in subdivision (e)(1)(A) the outpatient evaluator concludes that further evaluation and treatment are needed, the court may order the child hospitalized. If the court orders the child to be hospitalized in a department of mental health and substance abuse services facility, hospital or treatment resource, the child shall be placed into the custody of the commissioner of mental health and substance abuse services at the expense of the county for not more than thirty (30) days at a facility, hospital or treatment resource with available, suitable accommodations. Prior to transporting a defendant for such evaluation and treatment in a department facility, the sheriff or other transportation agent shall determine that the receiving department facility has available, suitable accommodations.
    2. If an evaluation is ordered under this subsection (e), the evaluator shall file a complete report with the court, which shall include:
      1. Whether the child is mentally ill or developmentally disabled;
      2. Identification of the care, training or treatment required to address conditions of mental illness or developmental disability that are found, and recommendations as to resources that may be able to provide such services;
      3. Whether the child is subject to voluntary or involuntary admission or commitment for inpatient or residential services or for commitment to the custody of the department of mental health and substance abuse services for such conditions under title 33; and
      4. Any other information requested by the court that is within the competence of the evaluator.
    3. If it appears from the evaluation report and other information before the court that the child is in need of care, training or treatment for mental illness or developmental disability, the court may proceed in accordance with other provisions of this chapter or may order that proceedings be initiated before the court under § 37-1-175, § 33-5-402 or title 33, chapter 6, part 5.
    4. When transportation of the child is necessary to obtain evaluations under this subsection (e), the court may order the child transported with the cost of the transportation borne by the county from which the child is sent.
    5. If a community mental health center receives grants or contracts from the department of mental health and substance abuse services for services for mental illness or developmental disability and the commissioner has not designated another provider of outpatient evaluation for the court, the department shall contract with the center for evaluation services under this subsection (e), and the center shall provide such services ordered under this subsection (e) by courts in the center's catchment area.
    6. If a child who is alleged to be delinquent or unruly is brought before the court, and if the court determines that there is reason to believe that the child is experiencing a behavioral health emergency, then the court may request the services of a crisis response provider designated by the commissioner of mental health and substance abuse services to perform such services under title 33. For purposes of this subdivision (e)(6), “behavioral health emergency” means an acute onset of a behavioral health condition that manifests itself by an immediate substantial likelihood of serious harm as defined in § 33-6-501. If the crisis provider is unable to respond within two (2) hours of contact by the court, the crisis provider shall immediately notify the court and provide instructions for examination of the child under title 33, chapter 6, part 1.
  6. After adjudication, but prior to the disposition of a child found to be dependent and neglected, delinquent, unruly or in need of services under § 37-1-175, the court may place the child in custody of the department of children's services for the purpose of evaluation and assessment if the department has a suitable placement available for such purpose. If the department determines that there is no suitable placement available, the court shall not order the department to take custody of the child for the purpose of evaluation and assessment. Such pre-disposition custody shall last for a maximum of thirty (30) days and the court shall have a hearing to determine the appropriate disposition before the expiration of the thirty (30) days.

Acts 1970, ch. 600, § 28; 1972, ch. 487, § 1; impl. am. 1975, ch. 219, § 1; 1975, ch. 248, § 35; 1980, ch. 639, § 1; 1981, ch. 224, § 29; 1981, ch. 247, § 1; T.C.A., § 37-228; Acts 1986, ch. 836, § 1; 1986, ch. 837, § 1; 1987, ch. 240, § 1; 1989, ch. 277, § 1; 1989, ch. 278, § 35; 1996, ch. 1079, §§ 73, 74, 86-88, 183; 2000, ch. 947, §§ 6, 8C, 8G, 8H; 2009, ch. 549, §§ 1, 2; 2010, ch. 1100, §§ 47-51; 2012, ch. 575, §§ 1, 2; 2013, ch. 255, § 2; 2016, ch. 598, § 3; 2018, ch. 1052, §§ 18, 19.

Code Commission Notes.

Subsection (c) was amended by Acts 1996, ch. 1079, § 86; however, § 183 of that act purports to delete (c) in its entirety. Neither section refers to the other. Subsection (c) has been rewritten as set out in § 86, in accordance with the apparent legislative intent.

Compiler's Notes. For the establishment of the Tennessee Children's Plan, see Executive Order No. 58 (June 29, 1994).

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2016 amendment deleted (b) which read: “(b)(1) When a petition is filed in the juvenile court alleging a child to be either an abandoned child or a dependent and neglected child, it is the function of the juvenile court, when necessary, to give the child emergency temporary care, and the court shall forthwith refer the case to the county director of public welfare to investigate the social conditions of the child and to report the findings to the court to aid the court in its disposition of the child. The director shall submit such director's findings pursuant to an order from the court. If the child who is the subject of the petition is in the custody of a licensed child-placing agency, or, if the petition is filed by a licensed child-placing agency, the referral may be made to the licensed child-placing agency having custody of the child or filing the petition in lieu of a referral to the director. The court may make informal adjustment of such cases as is provided by § 37-1-110.“(2)(A) When the court finds, based upon a sworn petition or sworn testimony containing specific factual allegations, that there is probable cause to believe that the conditions specified in § 37-1-114(a)(2) exist and the child is in need of the immediate protection of the court, the court may order that the child be removed from the custody of the child's parent, guardian, legal custodian or the person who physically possesses or controls the child, pending further investigation and hearing for a period not to exceed three (3) days, excluding Saturdays, Sundays and legal holidays. In no case shall such order remain in effect for more than two (2) days, excluding Saturdays, Sundays and legal holidays, unless a petition is filed within the two-day period.“(B)(i) If the child is not returned to the parent, guardian or legal custodian within such three-day period, a hearing shall be conducted pursuant to § 37-1-117(c).“(ii)(a) Subdivision (b)(2)(B)(i) may be waived by 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, if the child is of tender years.“(b) Any such waiver may be revoked at any time, at which time this section shall apply.“(C) In lieu of any disposition of the child authorized by subdivision (b)(2)(B)(ii)(b), the court may, in its discretion, authorize a representative of the department to remain in the child's home with the child until a parent, legal guardian or 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.”

The 2018 amendment, in (a)(1)(A), added “or conduct a preliminary inquiry if one has not already been conducted” at the end, and, in (a)(2), substituted “Subject to this part” for “At any time” at the beginning of the second sentence.

Effective Dates. Acts 2016, ch. 598, § 5. July 1, 2016.

Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Rule Reference. This section is referred to in the text of Rules 1, 32 and 38 and in the Advisory Commission Comments of Rule 32 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Jurisdiction, § 27.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

Attorney General Opinions. The General Assembly has neither explicitly nor implicitly supplied the Department of Children's Services (DCS) with authority to make decisions about extraordinary medical care, and the juvenile court may not unilaterally confer such authority upon DCS, OAG 04-127 (8/11/04).

The juvenile court has statutory authority to make decisions about extraordinary medical care of a child, particularly in the absence of a parent or other person or entity that independently holds such authority, OAG 04-127 (8/11/04).

37-1-129. Hearings — Judicial Diversion — Findings — Disposition of child.

    1. If a child alleged to be delinquent or unruly enters a plea of guilty or no contest, or after an adjudicatory hearing, the court may defer further proceedings and place the child on judicial diversion and probation subject to reasonable conditions, which may include completion of substance abuse and mental health treatment services where appropriate, without entering a judgment of guilty and with the consent of the child. For delinquent offenses, such reasonable conditions must be consistent with a validated risk and needs assessment. Probation conditions must not include a period of detention or placing the child in custody of the department, but may include a transfer or grant pursuant to § 37-1-131(a)(1). A child must not be placed on judicial diversion if the delinquent act alleged is an offense described in § 37-1-153(b)(2), if the child has previously been adjudicated delinquent for such an offense, or if the matter is dismissed after a hearing on the merits.
    2. A judicial diversion agreement shall remain in force for a maximum of six (6) months unless the child is discharged sooner by the court, subject to this subdivision (a)(2). Before expiration of the six-month period, and after notice and a hearing, the court may extend judicial diversion for an additional period not to exceed six (6) months, but only if the court finds and issues a written order that:
      1. States that it is in the best interest of the child that a condition or conditions of judicial diversion remain in effect; and
      2. Specifies the condition or conditions that shall remain in effect and why that continued effectiveness is in the best interest of the child.
      1. If the supervising authority finds that the child has violated the terms or conditions of judicial diversion, the supervising authority may file a petition alleging a violation of the terms or conditions of judicial diversion with the court; provided, that the court, in its discretion, may direct the supervising authority that, in some or all circumstances, such a petition should be filed only if the supervising authority makes and documents attempts to address the noncompliant behavior and determines and documents the reasons for which court intervention is needed to address the noncompliance.
      2. If a violation of any of the terms of judicial diversion probation is alleged, the child shall be given notice of the violation and an opportunity to be heard concerning the alleged violation. If, after a hearing, the court determines that a violation has occurred, the court may enter an adjudication of guilty and proceed to a dispositional hearing. If no violation is found, the court may continue the period of probation or may dismiss the petition.
    4. If, during the period of probation, the child does not violate any of the conditions of the probation, then upon expiration of the period, the court shall discharge the child and dismiss the proceedings against the child.
    1. If an adjudicatory hearing is held, the court shall make and file its findings as to whether the child is a dependent and neglected child, or, if the petition alleges that the child is delinquent or unruly, whether the acts ascribed to the child were committed by that child. If the court finds that the child is not a dependent or neglected child or that the allegations of delinquency or unruly conduct have not been established, it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.
    2. If the petition alleged the child was dependent and neglected as defined in § 37-1-102(b)(13)(G), or if the court so finds regardless of the grounds alleged in the petition, the court shall determine whether the parents or either of them or another person who had custody of the child committed severe child abuse. The court shall file written findings of fact that are the basis of its conclusions on that issue within thirty (30) days of the close of the hearing or, if an appeal or a petition for certiorari is filed, within five (5) days thereafter, excluding nonjudicial days. If the court finds the child is dependent and neglected, a dispositional hearing shall be held. In scheduling the hearing, the court shall give priority to proceedings in which a child has been removed from the child's home before an order of disposition has been made.
    3. If the petition alleged the child was delinquent or unruly and the court finds that the child committed the alleged delinquent or unruly acts, the court shall further determine whether the child is in need of treatment or rehabilitation and make and file its findings thereon. In the absence of evidence to the contrary, evidence of the commission of acts that constitute a felony or that reflect recidivistic delinquency is sufficient to sustain a finding that the child is in need of treatment or rehabilitation. If the court finds the child is in need of treatment and rehabilitation, a dispositional hearing shall be held. If the court finds the child is not in need of treatment or rehabilitation, it shall dismiss the petition and discharge the child from any detention or other restriction. If the court continues its determination of whether the child is in need of treatment and rehabilitation or the dispositional hearing, it shall make an appropriate order for detention of the child or the child's release from detention, subject to supervision of the court during the period of the continuance. In scheduling the hearings, the court shall give priority to proceedings in which a child is in detention or has otherwise been removed from the child's home before an order of disposition has been made. The court shall minimize the use of detention between adjudication and disposition. In no event shall a dispositional hearing be postponed or continued because there is a waitlist for a suitable placement unless the child and, if applicable, the child's attorney, agree to the postponement or continuance in writing.
    1. Any order of the court that places custody of a child with the department shall empower the department to select any specific residential or treatment placements or programs for the child according to the determination made by the department, its employees, agents or contractors.
    2. The court may review the residential or treatment placement of a child placed in the department's custody, and within ninety (90) days of the placement, the court may, on its own motion, order a hearing to receive evidence and testimony with regard to the appropriateness of the child's residential or treatment placement. The court shall provide notice of the hearing to the department, to the child's biological parent or parents, and any other person who has been primarily responsible for the care of the child during the twelve (12) months prior to the child's placement in the department's custody. The court shall allow thirty (30) days from the time such notices are sent before the hearing date is set. The court shall issue a placement recommendation based on a preponderance of the evidence to the department within ten (10) days after the conclusion of the hearing. Upon receiving the court's recommendation, the department shall issue a determination as to the child's placement within fifteen (15) days. The department shall notify the court, the child's biological parent or parents, and any other person who has been primarily responsible for the care of the child during the twelve (12) months prior to the child's placement.

Acts 1970, ch. 600, § 29; 1977, ch. 482, § 3; T.C.A., § 37-229; Acts 1986, ch. 837, § 2; 1987, ch. 240, § 1; 1989, ch. 277, § 1; 1989, ch. 278, § 42; 1996, ch. 1079, §§ 73, 89; 1997, ch. 479, § 1; 2004, ch. 859, § 1; 2010, ch. 820, § 1; 2012, ch. 1016, § 1; 2016, ch. 600, § 4; 2017, ch. 263, § 3; 2018, ch. 1052, §§  20, 21; 2019, ch. 312, § 7.

Compiler's Notes. Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2016 amendment rewrote this section which read: “(a)(1) After hearing the evidence on the petition, the court shall make and file its findings as to whether the child is a dependent or neglected child, or, if the petition alleges that the child is delinquent or unruly, whether the acts ascribed to the child were committed by that child. If the court finds that the child is not a dependent or neglected child or that the allegations of delinquency or unruly conduct have not been established, it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.“(2) If the petition alleged the child was dependent and neglected as defined in § 37-1-102(b)(12)(G), or if the court so finds regardless of the grounds alleged in the petition, the court shall determine whether the parents or either of them or another person who had custody of the child committed severe child abuse. The court shall file written findings of fact that are the basis of its conclusions on that issue within thirty (30) days of the close of the hearing or, if an appeal or a petition for certiorari is filed, within five (5) days thereafter, excluding Sundays.“(b) If the court finds on proof beyond a reasonable doubt that the child committed the acts by reason of which the child is alleged to be delinquent, it shall proceed immediately or at a postponed hearing to hear evidence as to whether the child is in need of treatment or rehabilitation and to make and file its findings thereon. If the court finds that the child is not in need of treatment or rehabilitation, it may dismiss the proceeding and discharge the child from any detention or other restriction theretofore ordered. In the absence of evidence to the contrary, evidence of the commission of acts that constitute a felony or that reflect recidivistic delinquency is sufficient to sustain a finding that the child is in need of treatment or rehabilitation.“(c) If the court finds from clear and convincing evidence that the child is dependent, neglected or unruly, the court shall proceed immediately or at a postponed hearing to make a proper disposition of the case.“(d) In hearings under subsections (b) and (c), all evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making the reports. Sources of confidential information need not be disclosed.“(e)(1) Any order of the court that places custody of a child with the department shall empower the department to select any specific residential or treatment placements or programs for the child according to the determination made by the department, its employees, agents or contractors.“(2) The court may review the residential or treatment placement of a child placed in the department's custody, and within ninety (90) days of the placement, the court may, on its own motion, order a hearing to receive evidence and testimony with regard to the appropriateness of the child's residential or treatment placement. The court shall provide notice of the hearing to the department, to the child's biological parent or parents, and any other person who has been primarily responsible for the care of the child during the twelve (12) months prior to the child's placement in the department's custody. The court shall allow thirty (30) days from the time such notices are sent before the hearing date is set. The court shall issue a placement recommendation based on a preponderance of the evidence to the department within ten (10) days after the conclusion of the hearing. Upon receiving the court's recommendation, the department shall issue a determination as to the child's placement within fifteen (15) days. The department shall notify the court, the child's biological parent or parents, and any other person who has been primarily responsible for the care of the child during the twelve (12) months prior to the child's placement.“(f) On its own motion or that of a party, the court may continue the hearings under this section for a reasonable period to receive reports and other evidence bearing on the disposition or the need for treatment or rehabilitation. In this event, the court shall make an appropriate order for detention of the child, or the child's release from detention, subject to supervision of the court during the period of the continuance. In scheduling investigations and hearings, the court shall give priority to proceedings in which a child is in detention or has otherwise been removed from the child's home before an order of disposition has been made.”

The 2017 amendment substituted “§ 37-1-102(b)(13)(G)” for “§ 37-1-102(b)(12)(G)” in the first sentence of (b)(2).

The 2018 amendment, effective July 1, 2018, added the last two sentences in (b)(3).

The 2018 amendment, effective July 1, 2019, in (a)(1), in the first sentence, substituted “subject to reasonable conditions which may include completion of substance abuse and mental health treatment services where appropriate,” for “upon such reasonable conditions as it may require” and inserted “, and, for delinquent offenses, such reasonable conditions shall be consistent with a validated risk and needs assessment”, and in the second sentence, inserted “, but may include a transfer or grant pursuant to § 37-1-131(a)(1)”; added (a)(2)(A) and (a)(2)(B); in the present introductory language of (a)(2), substituted “court, subject to this subdivision (a)(2). Before” for “court. Upon application of any party, to the proceedings, made before” preceding “expiration”, substituted “the court may extend judicial diversion” for “judicial diversion may be extended by the court” preceding “for an additional”, inserted “period not to exceed”, and added “, but only if the court finds and issues a written order that:”; added present (3)(A) and redesignated former (a)(3) as (a)(3)(B); and, in (a)(3)(B), substituted “judiciary” for “judicial” preceding “diversion”.

The 2019 amendment rewrote (a)(1), which read: “If a child alleged to be delinquent or unruly enters a plea of guilty or no contest, the court may defer further proceedings and place the child on probation subject to reasonable conditions, which may include completion of substance abuse and mental health treatment services where appropriate, without entering a judgment of guilty and with the consent of the child, and, for delinquent offenses, such reasonable conditions shall be consistent with a validated risk and needs assessment. Probation conditions shall not include a period of detention or placing the child in custody of the department, but may include a transfer or grant pursuant to § 37-1-131(a)(1). A child shall not be placed on judicial diversion if the delinquent act alleged is an offense described in § 37-1-153(b) or if the child has previously been adjudicated delinquent for such an offense.”

Effective Dates. Acts 2016, ch. 600, § 17. July 1, 2016.

Acts 2017, ch. 263, § 5. July 1, 2017.

Acts 2018, ch. 1052, § 58. July 1, 2018; July 1, 2019; provided that for purposes of rulemaking, the act took effect May 21, 2018.

Acts 2019, ch. 312, § 11. July 1, 2019.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 1 and in the text of Rules 28 and 32 of the Tennessee Rules of Juvenile Procedure.

This section is referred to in Rule 14 of the Rules Regulating Practice And Procedure  In The Juvenile Court Of Memphis And  Shelby County, Tennessee.

Law Reviews.

Guidelines for Juvenile Court Practice (Andrew J. Shookhoff), 19 No. 2 Tenn. B.J. 5 (1983).

NOTES TO DECISIONS

0.5. Jurisdiction.

T.C.A. § 37-1-129(c) expressly limited the court's power to direct the placement of a child in the custody of the Department of Children's Services and nothing in the broad grant of jurisdiction to the chancery court exempted it from that limitation. In re Neveah W., 470 S.W.3d 807, 2015 Tenn. App. LEXIS 197 (Tenn. Ct. App. Apr. 2, 2015).

1. Burden of Proof.

While the trial court acknowledged error in its assumption that it was dealing with a neglect and dependency case, the court did not apply an incorrect standard of proof to a mother's petition to suspend visitation, as implicit in the court's affirmative finding that the father did not abuse the parties'  child was the conclusion that the mother did not prove abuse by a preponderance of the evidence. In re Jonathan S. C-B, — S.W.3d —, 2012 Tenn. App. LEXIS 924 (Tenn. Ct. App. Nov. 16, 2011), rehearing denied, In re Jonathan S. C. B., — S.W.3d —, 2012 Tenn. App. LEXIS 603 (Tenn. Ct. App. Aug. 20, 2012).

To find the child dependent and neglected, the children's services department did not need to show direct evidence of abuse; it was clear the child suffered abuse while in the care of the mother and father, it was not incumbent on the court to determine which one abused the child, and the claim by the mother and father that they were unaware of how they inflicted the injury on the child was irrelevant. In re Colby W., — S.W.3d —, 2014 Tenn. App. LEXIS 451 (Tenn. Ct. App. July 30, 2014).

2. Transfer Hearings.

A juvenile court judge is not free to adjudicate guilt or innocence at the same time as he makes a transfer determination under § 37-1-134. McGaha v. Tennessee, 461 F. Supp. 360, 1978 U.S. Dist. LEXIS 15775 (E.D. Tenn. 1978).

3. Statement of Findings.

The court is not required to state on the face of the order that there was clear and convincing evidence to support its finding. In re Dunigan, 658 S.W.2d 112, 1983 Tenn. App. LEXIS 607 (Tenn. Ct. App. 1983).

Trial court properly denied a mother's motion to modify a temporary order giving custody of her special needs child to the grandparents because the trial court specifically stated the evidence showed there was a danger of mental harm to the child if she were returned to the mother's custody “separate and apart from any attachment theory,” and there was no reason to believe the trial court based its decision primarily on a psychologist's description of the child's bond with the grandparents. In re Hannah v. S., — S.W.3d —, 2012 Tenn. App. LEXIS 849 (Tenn. Ct. App. Dec. 7, 2012).

Juvenile court's procedure violated applicable statutes and Rules of Juvenile Procedure because (1) the record contained no adjudicatory or dispositional order, (2) a “Knox County Juvenile Court Plan of Probation” contained no required findings, so there was no finding that a delinquent charge was proven beyond a reasonable doubt or that a juvenile was in need of treatment or rehabilitation, nor did the juvenile receive written warning of the consequences of violating a court order, and (3) the court delayed resolution of the proceeding indefinitely, contrary to the time limits in Tenn. R. Juv. P. 17 and 18. In re Addison M., — S.W.3d —, 2015 Tenn. App. LEXIS 896 (Tenn. Ct. App. Nov. 9, 2015).

Mother's treatment of child 1 had gotten progressively worse and posed a risk that child 2 might, in the absence of action by the Tennessee Department of Children's Services, suffer abuse. The evidence did not preponderate against the trial court's findings that both children were dependent and neglected in their mother's care. In re B.B., — S.W.3d —, 2017 Tenn. App. LEXIS 517 (Tenn. Ct. App. July 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 763 (Tenn. Nov. 16, 2017).

4. Clear and Convincing.

The term “clear and convincing” is a relative term and must be examined in light of the facts of each particular case. In re Dunigan, 658 S.W.2d 112, 1983 Tenn. App. LEXIS 607 (Tenn. Ct. App. 1983).

Trial court did not err in holding that child was dependent and neglected and had suffered “severe abuse”, as defined in T.C.A. § 37-1-102, while in the care of his parents; expert medical testimony was overwhelming that the injuries to the child could not have occurred in the way the parents claimed, that the injuries occurred while the child was very young, and that the injuries were multiple, very serious, inflicted on separate occasions with great force, and not self- or accidentally inflicted. In re N.T.B., 205 S.W.3d 499, 2006 Tenn. App. LEXIS 168 (Tenn. Ct. App. 2006), appeal denied, In re N. T. B., — S.W.3d —, 2006 Tenn. LEXIS 721 (Tenn. Aug. 21, 2006).

There was clear and convincing evidence that father engaged in severe child abuse because: (1) Several child witnesses stated that they observed him raping and/or sexually assaulting his daughter and one of her friends, both under the age of 13; (2) Children's testimony was corroborated by medical experts and the testimony of other professionals; (3) Children's statements were validated by numerous exhibits, photographs, magazines, videos, and “sex toys,” which the children accurately identified; (4) Father's 10-year-old son witnessed him having sex with the daughter; and (5) Father exposed the boys to his sexual abuse of at least two minor girls, to “sex toys,” to the parents'  sexual activity, and to numerous and varied pornographic materials; thus, circuit court properly found that the children were dependent and neglected because the children were severely abused, father injured or endangered the morals or health of his children or others, and father was unfit to care for them. In re H.L.F., 297 S.W.3d 223, 2009 Tenn. App. LEXIS 51 (Tenn. Ct. App. Feb. 4, 2009).

There was clear and convincing evidence that mother committed severe child abuse under Tenn. Code Ann. § 37-1-102 because by deliberately and recklessly ignoring father's pedophilic interests, mother knowingly failed to protect her daughter from being raped by father and failed to protect her sons who were exposed to father's acts and the sexual environment that existed in her home; accordingly, circuit court properly found that the children were dependent and neglected because they suffered from severe abuse, mother injured or endangered her children's health, and mother was unfit to care for the children. In re H.L.F., 297 S.W.3d 223, 2009 Tenn. App. LEXIS 51 (Tenn. Ct. App. Feb. 4, 2009).

Finding that a minor child was dependent and neglected under T.C.A. § 37-1-102 on the ground of severe child abuse due to the mother's drug usage was appropriate because it was proven by clear and convincing evidence that the child suffered horrible drug withdrawal symptoms, T.C.A. § 37-1-129(c). The full extent of his injuries might not be known until the child was well into his childhood. Cornelius v. Dep't of Children's Servs., 314 S.W.3d 902, 2009 Tenn. App. LEXIS 419 (Tenn. Ct. App. July 6, 2009), rehearing denied, Cornelius v. State, 314 S.W.3d 902, 2009 Tenn. App. LEXIS 836 (Tenn. Ct. App. Aug. 6, 2009), appeal denied, In re Brooks C., — S.W.3d —, 2010 Tenn. LEXIS 195 (Tenn. Feb. 22, 2010).

Notwithstanding the lack of physical abuse towards two children, a mother's severe abuse against the children's sibling provided clear and convincing evidence that the mother provided “improper guardianship or control so as to injure or endanger the morals or health” of the two children, so as to render them dependent and neglected, pursuant to T.C.A. § 37-1-102. State v. Byrd, — S.W.3d —, 2012 Tenn. App. LEXIS 105 (Tenn. Ct. App. Feb. 17, 2012), appeal denied, In re Morgan R., — S.W.3d —, 2012 Tenn. LEXIS 227 (Tenn. Apr. 12, 2012).

In dependency and neglect proceedings, despite the absence of direct evidence of severe child abuse by a mother, clear and convincing evidence supported a trial court's finding that the child's injuries occurred while he was with the mother, the injuries were caused by either the mother or her husband, and the non-abuser knowingly or recklessly disregarded the other's abusive actions, T.C.A. § 37-1-102; the child had suffered facial bruises, liver lacerations, and multiple broken bones. State v. Byrd, — S.W.3d —, 2012 Tenn. App. LEXIS 105 (Tenn. Ct. App. Feb. 17, 2012), appeal denied, In re Morgan R., — S.W.3d —, 2012 Tenn. LEXIS 227 (Tenn. Apr. 12, 2012).

In dependency and neglect proceedings, clear and convincing evidence did not support a trial court's finding that a father severely abused his eight-month-old child, T.C.A. §§ 37-1-102 and 37-1-129, because the father was absent from the home on the day the child was injured and there was a lack of proof the child and his siblings were abused prior to that date. In re Dakota C.R., — S.W.3d —, 2012 Tenn. App. LEXIS 265 (Tenn. Ct. App. Apr. 24, 2012).

In dependency and neglect proceedings, clear and convincing evidence supported a trial court's finding that a mother severely abused her eight-month-old child, T.C.A. §§ 37-1-102 and 37-1-129, because the mother's story of how the injuries were inflicted by the child's eighteen-month-old sibling was implausible and, instead, more plausible was that the injuries were inflicted by the only adult present that night, the mother; however, even if the child's injuries were somehow inflicted by the sibling, the mother certainly would have heard the commotion and should have intervened sooner in order to prevent serious injury. In re Dakota C.R., — S.W.3d —, 2012 Tenn. App. LEXIS 265 (Tenn. Ct. App. Apr. 24, 2012).

When a mother's explanation that a child's leg was broken while being extracted from a crib was juxtaposed against a doctor's testimony that the break likely occurred due to a blow, and the doctor's testimony was considered as a whole, the evidence preponderated in favor of a factual finding that the child's femur fracture did not occur in the manner the mother suggested but was the result of nonaccidental trauma. When that fact was considered along with the other evidence of multiple rib fractures, skull fractures and a failure to provide sufficient nutrition, the evidence was clear and convincing that the mother committed severe child abuse. In re S.J., 387 S.W.3d 576, 2012 Tenn. App. LEXIS 553 (Tenn. Ct. App. Aug. 9, 2012), appeal denied, In re Shanira J., — S.W.3d —, 2012 Tenn. LEXIS 757 (Tenn. Oct. 17, 2012).

Clear and convincing evidence supported a trial court's finding that a child was dependent and neglected, T.C.A. §§ 37-1-102 and 37-1-129(a)(2), because the child provided consistent disclosures to two therapists of abundant accounts of severe child abuse, including rape, incest, and aggravated sexual battery, perpetrated by his mother and other adults around the mother; the mother, among other transgressions, raped the child when he was around age ten or eleven. In re Wyatt S., — S.W.3d —, 2012 Tenn. App. LEXIS 790 (Tenn. Ct. App. Nov. 13, 2012).

Trial court properly denied a mother's motion to modify a temporary order giving custody of her special needs child to the grandparents, resulting from a finding of dependency and neglect, T.C.A. § 37-1-102, because the grandparents established by clear and convincing evidence the child would face a risk of substantial harm if custody were awarded to the mother, T.C.A. § 37-1-129; the grandparents were addressing the child's medical and educational needs while the mother was unaware of those needs. In re Hannah v. S., — S.W.3d —, 2012 Tenn. App. LEXIS 849 (Tenn. Ct. App. Dec. 7, 2012).

Clear and convincing evidence supported a determination that a one-year-old child was dependent and neglected upon a finding that the father knowingly engaged in severe child abuse because the father became aggressive when approached by the police and began to grab the child around his head and neck in a manner the officers deemed was likely to cause severe harm or death to the child; the officer dealing directly with the father believed he was going to break the child's neck. In re Kason K. C., — S.W.3d —, 2014 Tenn. App. LEXIS 271 (Tenn. Ct. App. May 7, 2014).

Evidence was sufficient to sustain a finding that a child had suffered severe child abuse by her father for purposes of being adjudicated dependent and neglected; the evidence clearly and convincingly showed that the father had touched the child and penetrated her vagina with his finger. In re Kaitlynne D., — S.W.3d —, 2014 Tenn. App. LEXIS 297 (Tenn. Ct. App. May 21, 2014).

It was undisputed that the child suffered severe child abuse, and the mother's claim that she did not knowingly fail to protect him was rejected; weeks prior to the child's nonaccidental brain bleeding injury, he suffered another such injury, which would have caused noticeable symptoms, but the mother never reported the injury, and her failure to protect the child despite having been presented with facts from which she should have recognized that severe abuse either had occurred or likely would occur was sufficient to support the finding that she committed severe child abuse. In re Colby W., — S.W.3d —, 2014 Tenn. App. LEXIS 451 (Tenn. Ct. App. July 30, 2014).

Evidence supported the trial court's adjudication of the child as a dependent and neglected child, given that none of the possible causes proposed by the mother had any evidentiary support, the child suffered two separate brain bleeding injuries that were unexplained, a doctor testified that the second injury was the result of abusive trauma, and it was clear that the child was abused while in the care of the mother and father. In re Colby W., — S.W.3d —, 2014 Tenn. App. LEXIS 451 (Tenn. Ct. App. July 30, 2014).

Trial court did not err in finding that the three-year-old child was a victim of severe child abuse by aggravated sexual battery, in finding both of the father's children to be dependent and neglected, in enjoining him from having any contact with his two daughters, and in placing sole custody of the children with the mother because the evidence presented to the trial court against the father rose to the level of clear and convincing as the child made multiple disclosures to multiple people that the father poked, rubbed, and otherwise touched her privates; the child's privates were irritated upon return from visitation with the father; and the child had consistently identified only the father as the perpetrator of those actions. In re Emmalee O., 464 S.W.3d 311, 2015 Tenn. App. LEXIS 34 (Tenn. Ct. App. Jan. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 478 (Tenn. June 12, 2015), cert. denied, Overton v. Tenn. Dep't of Children's Servs., 193 L. Ed. 2d 230, 136 S. Ct. 330, — U.S. —, 2015 U.S. LEXIS 6517 (U.S. 2015).

Circuit court erred in finding a child dependent and neglected and in awarding custody of the child jointly to the child's parent and grandparent, based on the parent's stipulation of dependency and neglect, because the record lacked clear and convincing evidence that the child was dependent and neglected as of the date of the de novo hearing by the court. In re Landon H., — S.W.3d —, 2016 Tenn. App. LEXIS 147 (Tenn. Ct. App. Feb. 25, 2016).

Parent's youngest children were dependent and neglected based upon a finding that the parent committed severe child abuse against the parent's oldest child because credible evidence supported a finding that the parent committed severe child abuse in that the parent was responsible for the child's injuries by the parent's knowing use of force as the child suffered a liver laceration, an injury, which a doctor opined occurred as a result of significant trauma, that constituted a serious bodily injury to the child. In re Damian M., — S.W.3d —, 2016 Tenn. App. LEXIS 738 (Tenn. Ct. App. Sept. 30, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 32 (Tenn. Jan. 19, 2017).

Four-year-old child made disclosures of sexual abuse by the father, and any inconsistency in the disclosures did not go to whether sexual abuse occurred; the child was dependent and neglected and a victim of sexual abuse by the father. In re M.D., — S.W.3d —, 2016 Tenn. App. LEXIS 746 (Tenn. Ct. App. Sept. 30, 2016).

Circuit court did not err in adjudicating the child dependent and neglected because, even disregarding the medical records of a crisis stabilization unit, the evidence clearly and convincingly established that, at the time of the hearing, the mother's mental incapacity rendered her unfit and unable to properly care for her child as a senior psychological examiner diagnosed the mother with an adjustment disorder with anxiety and recommended treatment; the examiner agreed that, without treatment, the mother was at risk for continued overreaction to events she found stressful; and, while the examiner expected the mother's condition to improve, that expectation was predicated on her participation in counseling and therapy. In re Yvonne R., — S.W.3d —, 2017 Tenn. App. LEXIS 446 (Tenn. Ct. App. July 3, 2017).

Clear and convincing evidence supported the trial court's determination that the children were dependent and neglected while in the parents'  care given the children's testimony describing persistent physical and verbal abuse, unsanitary living conditions, and the emotional trauma suffered as a result. In re Nehemiah H., — S.W.3d —, 2020 Tenn. App. LEXIS 311 (Tenn. Ct. App. July 8, 2020).

Clear and convincing evidence supported the trial court's finding that a mothers'  children were dependent and neglected, when one child was a victim of aggravated child abuse by the father, because the court considered the mother's Alford plea to child endangerment in reaching its decision that the mother committed child endangerment and in concluding that the mother's act of child endangerment resulted in serious bodily injury to the child as a doctor testified that the child suffered brain injuries a result of abusive head trauma. In re Treylynn T., — S.W.3d —, 2020 Tenn. App. LEXIS 403 (Tenn. Ct. App. Sept. 9, 2020).

5. Dismissal.

Circuit court followed proper procedure in dismissing both petitions for dependency and neglect, pursuant to T.C.A. § 37-1-129(a)(1) and remanding the case to the juvenile court to enforce the circuit court's judgment, pursuant to T.C.A. § 37-1-159(c). The circuit court conducted a procedurally sound de novo hearing in the case. In re Alysia M. S., — S.W.3d —, 2013 Tenn. App. LEXIS 264 (Tenn. Ct. App. Apr. 11, 2013).

6. Hearing Appropriate.

In a dependency and neglect case, the finding that the child was dependent and neglected and that the child's best interests were served by remaining in the custody of his maternal uncle and aunt was proper because the circuit court did not err by hearing adjudicatory and dispositional proof at the same hearing, T.C.A. §§ 37-1-129(c), 37-1-130(a). The statutory language did not prohibit both the adjudicatory phase and the dispositional phase from occurring at the same hearing and there was no indication that the trial court was confused, applied the wrong statute, or improperly considered the evidence. In re Caleb L. C., 362 S.W.3d 581, 2011 Tenn. App. LEXIS 225 (Tenn. Ct. App. May 4, 2011), appeal denied, In re Caleb L.C., — S.W.3d —, 2011 Tenn. LEXIS 789 (Tenn. Aug. 25, 2011).

7. Hearing Not Required.

Trial court did not err in proceeding to disposition of a dependency and neglect case without further hearing where the parents'  counsel appeared to concede that additional evidence was not needed in order for the court to make its dispositional decision. In re C.M., — S.W.3d —, 2015 Tenn. App. LEXIS 976 (Tenn. Ct. App. Dec. 18, 2015), appeal denied, In re Carolina M., — S.W.3d —, 2016 Tenn. LEXIS 344 (Tenn. May 5, 2016).

8. Applicability.

Nothing in T.C.A. § 37-1-129(b)(2) prohibited the Department of Children's Services (DCS) from pursing a finding of severe child abuse where DCS was alleging dependency and neglect as defined in T.C.A. § 37-1-102(b)(13)(G), and thus, § 37-1-129(b)(2) did not apply to the case. In re L.M.H., — S.W.3d —, 2017 Tenn. App. LEXIS 657 (Tenn. Ct. App. Sept. 28, 2017).

37-1-130. Dependent or neglected child — Disposition.

  1. If the child is found to be dependent or neglected, the court may make any of the following orders of disposition best suited to the protection and physical, mental and moral welfare of the child:
    1. Subject to the restrictions of § 37-1-129(c), permit the child to remain with the child's parents, guardian or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child;
    2. Subject to the restrictions of § 37-1-129(c), and subject to conditions and limitations as the court prescribes, transfer temporary legal custody to or grant permanent guardianship in accordance with part 8 of this chapter to any of the following:
      1. Any individual who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child;
      2. The department of children's services:
        1. Any child placed in the custody of the department of children's services shall become a resident of the county in which such child is placed by the department. The board of education of each local school system shall assign the student to a public school pursuant to § 49-6-3102;
        2. In order to assure appropriate placement for students with disabilities, the procedures required by the state board of education must be followed;
        3. If a student is determined to be a child with disabilities as defined by state and federal laws and regulations and, therefore, entitled to special education and related services, a multi-disciplinary team of the receiving school system must be convened prior to the placement of the child in the school system for the purpose of developing an appropriate educational program. The department shall notify the receiving school system as far in advance of the intended placement as possible. A representative from the department must be present at the multi-disciplinary team meeting;
        4. Placements in educational programs not following the requirements set forth in this section shall be the financial responsibility of the department of education;
        5. Any financial responsibility required under the provisions of this section for the education of children with disabilities whose parents are not residents of the county in which the children are placed shall be borne by the department of education and not by any local government. This provision shall not act to reduce federal funds for children with disabilities or special education going to any local education agency;
      3. An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child; or
      4. An individual in another state with or without supervision by an appropriate officer under § 37-1-142;
    3. In those counties having a county department of children's services, commit the child to the custody of such county department; or
    4. Without making any of the foregoing orders, transfer custody of the child to the juvenile court of another state if authorized by and in accordance with § 37-1-141 if the child is or is about to become a resident of that state.
  2. Unless a child found to be dependent or neglected is found also to be delinquent, the child shall not be committed to or confined in an institution or other facility designed or operated for the benefit of delinquent children. Any disposition under this section shall be implemented as soon as possible after entry of the court's order. A disposition under subdivision (a)(2) or (3) shall, in no event, result in the child's detention in shelter care, as defined in § 37-1-116, or other temporary placement, without provision of necessary services consistent with the child's assessments or evaluations, in excess of thirty (30) days after entry of the court's order.
  3. No child who has been found to be a victim of severe child abuse shall be returned to the custody or residence of any person who engaged in or knowingly failed to protect the child from the brutality or abuse unless the court finds on the basis of clear and convincing evidence that the child will be provided a safe home free from further such brutality and abuse. The court shall file written findings of fact that are the basis of its conclusions on that issue within thirty (30) days of the close of the hearing or, if an appeal or petition for certiorari is filed, within five (5) days thereafter, excluding Sundays. No such child shall be returned to such custody on the basis of the court's order until five (5) days after entry of the order without the consent of the department and the petitioner.
    1. When the department determines that a child who has been committed to the department under this section is ready to return home, the department shall notify the court in writing of its intention to place the child at home on a trial home visit. If the court objects to the trial home visit, it must notify the department of its objection in writing or set a hearing within fifteen (15) days of the date of the notice, with such hearing to be held at the earliest possible date. If the hearing is not set nor a written objection received within fifteen (15) days of the date of the notice, the department may place the child on a trial home visit. The notice shall include the provision that the department's legal custody of the child shall terminate in ninety (90) days.
    2. If during the ninety-day period the department determines that the trial home visit is not in the child's best interest and removes the child on an emergency basis or seeks to remove the child on a non-emergency basis, the department shall file a motion for review by the court of the trial home visit and shall provide notice to the parent or parents, guardian or other custodian. The court shall hold a hearing on such motion within three (3) days of an emergency removal and shall set a hearing within fifteen (15) days to be held at the earliest possible date if the motion seeks the court's permission to make a non-emergency removal.
    3. During the ninety-day trial home visit, the court may periodically review the child's status and may make any orders that the best interest of the child may require.

Acts 1970, ch. 600, § 30; impl. am. Acts 1975, ch. 219, § 1; 1977, ch. 482, § 4; Acts 1978, ch. 886, § 1; 1979, ch. 143, § 9; T.C.A., § 37-230; Acts 1985 (1st Ex. Sess.), ch. 6, § 2; 1996, ch. 1079, §§ 73, 90, 91; 1999, ch. 508, § 7; 2007, ch. 372, § 3; 2011, ch. 314, §§ 1, 2; 2013, ch. 397, § 1.

Compiler's Notes. For the establishment of the Tennessee Children's Plan, see Executive Order No. 58 (June 29, 1994).

Cross-References. Education of children with disabilities, title 49, ch. 10.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rules 1 and 32 and in the text of Rule 32 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.1.

Law Reviews.

Indigent Parent's Right to Counsel in Child Neglect Cases, 46 Tenn. L. Rev. 649 (1979).

Attorney General Opinions. Authority of juvenile court to order or administer corporal punishment, OAG 95-040 (4/18/95).

Order removing child from home county and enjoining return, OAG 99-007 (1/25/99).

When the juvenile court has adjudicated a child dependent or neglected and has placed the child in the department of children's services' custody but has not terminated parental rights, the department of children's services has the right and duty to be present at a multi-disciplinary (IEP) team meeting, OAG 02-022 (2/26/02).

NOTES TO DECISIONS

1. Custody Arrangements.

The custody arrangements made in cases involving dependent, neglected, abandoned or unruly children, does not constitute confinement or deprivation of liberty. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

Divestment of custody of a mother's child from the Department of Children's Services to a maternal aunt did not constitute de facto termination of the mother's parental rights because the mother remained the child's mother and retained the right to visit the child and to petition the trial court to return custody to her; the transfer of legal custody or the creation of a permanent guardianship does not end the parent-child relationship, T.C.A. §§ 37-1-140(a), 37-1-803(a). In re Gina A., — S.W.3d —, 2012 Tenn. App. LEXIS 256 (Tenn. Ct. App. Apr. 19, 2012).

Trial court properly denied a mother's motion to modify a temporary order giving custody of her special needs child to the grandparents, resulting from a finding of dependency and neglect, T.C.A. § 37-1-102, because the grandparents established by clear and convincing evidence the child would face a risk of substantial harm if custody were awarded to the mother, T.C.A. § 37-1-129; the grandparents were addressing the child's medical and educational needs while the mother was unaware of those needs. In re Hannah v. S., — S.W.3d —, 2012 Tenn. App. LEXIS 849 (Tenn. Ct. App. Dec. 7, 2012).

Trial court ordered the child to remain in protective custody after finding he was a dependent and neglected child and the mother engaged in severe child abuse against him; as those findings were supported by the evidence, the order was affirmed. In re Colby W., — S.W.3d —, 2014 Tenn. App. LEXIS 451 (Tenn. Ct. App. July 30, 2014).

In a case where the trial court found that the three-year-old child was a victim of severe child abuse by aggravated sexual battery, the trial court acted within its authority in ordering the father not to contact the mother; and in denying the father visitation with his daughters. In re Emmalee O., 464 S.W.3d 311, 2015 Tenn. App. LEXIS 34 (Tenn. Ct. App. Jan. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 478 (Tenn. June 12, 2015), cert. denied, Overton v. Tenn. Dep't of Children's Servs., 193 L. Ed. 2d 230, 136 S. Ct. 330, — U.S. —, 2015 U.S. LEXIS 6517 (U.S. 2015).

After finding that the children were dependent and neglected, the trial court did not err by ordering that one child live with his paternal grandfather and the other child live with his maternal grandparents because there is no suggestion that the injuries one child sustained in his grandfather's care were of an abusive sort, the grandfather testified that he would not employ disciplinary techniques he had used against the father in the future, the record showed that the children were in good, stable households where their best interests are advanced, and the children would continue to see each other. In re E.Z., — S.W.3d —, 2019 Tenn. App. LEXIS 152 (Tenn. Ct. App. Mar. 26, 2019).

2. Medical Treatment.

State may submit minor to necessary treatment for life-threatening cancer over wishes of parents who claim this violates their first amendment rights to free exercise of religion. In re Hamilton, 657 S.W.2d 425, 1983 Tenn. App. LEXIS 711 (Tenn. Ct. App. 1983).

3. Immunity for Social Workers.

In performing their advisory role to the juvenile court, social workers in the department of children's services act in much the same fashion as probation officers who make sentencing recommendations to criminal courts for which they are entitled to absolute immunity. Rippy v. Hattaway, 270 F.3d 416, 2001 FED App. 387P, 2001 U.S. App. LEXIS 23706 (6th Cir. Tenn. 2001), cert. denied, 537 U.S. 812, 123 S. Ct. 72, 154 L. Ed. 2d 15, 2002 U.S. LEXIS 5484 (2002).

4. Severe Abuse.

There was clear and convincing evidence that mother committed severe child abuse under Tenn. Code Ann. § 37-1-102 because by deliberately and recklessly ignoring father's pedophilic interests, mother knowingly failed to protect her daughter from being raped by father and failed to protect her sons who were exposed to father's acts and the sexual environment that existed in her home; accordingly, circuit court properly found that the children were dependent and neglected because they suffered from severe abuse, mother injured or endangered her children's health, and mother was unfit to care for the children. In re H.L.F., 297 S.W.3d 223, 2009 Tenn. App. LEXIS 51 (Tenn. Ct. App. Feb. 4, 2009).

There was clear and convincing evidence that father engaged in severe child abuse because: (1) Several child witnesses stated that they observed him raping and/or sexually assaulting his daughter and one of her friends, both under the age of 13; (2) Children's testimony was corroborated by medical experts and the testimony of other professionals; (3) Children's statements were validated by numerous exhibits, photographs, magazines, videos, and “sex toys,” which the children accurately identified; (4) Father's 10-year-old son witnessed him having sex with the daughter; and (5) Father exposed the boys to his sexual abuse of at least two minor girls, to “sex toys,” to the parents'  sexual activity, and to numerous and varied pornographic materials; thus, circuit court properly found that the children were dependent and neglected because the children were severely abused, father injured or endangered the morals or health of his children or others, and father was unfit to care for them. In re H.L.F., 297 S.W.3d 223, 2009 Tenn. App. LEXIS 51 (Tenn. Ct. App. Feb. 4, 2009).

Mother's conduct in failing to feed her youngest child appropriately and failing to seek medical care for him constituted severe child abuse because an expert testified that the mother's actions of neglect toward the child resulting in severe nutritional malnourishment could produce severe developmental delay or intellectual disability in the child, and was likely to cause serious bodily injury or death; she admitted to hospital personnel that she noticed that the child was not growing approximately three months before he was admitted to the hospital; the mother was aware that it was not appropriate for the child to gain only eight ounces in six months; and, despite that knowledge, she did not seek medical treatment for the child. In re Chance D., — S.W.3d —, 2016 Tenn. App. LEXIS 902 (Tenn. Ct. App. Nov. 30, 2016).

Although the trial court properly found that the mother had committed severe child abuse against her youngest child, the foster parent's petition to terminate her parental rights was improperly denied as termination was in the child's best interests because the mother's 10-year history of abuse and neglect of her children had been extensive and damaging to the children, and showed that she was not a fit parent; she continued to deny any fault for the youngest child's failure to thrive and insisted that she fed him properly; and she had a long history of complying with requirements of child welfare agencies when necessary before returning to her abusive husband, her illicit drug use, and her patterns of abuse and neglect of her children. In re Chance D., — S.W.3d —, 2016 Tenn. App. LEXIS 902 (Tenn. Ct. App. Nov. 30, 2016).

Mother's conduct in failing to feed her youngest child appropriately and failing to seek medical care for him constituted severe child abuse because an expert testified that the mother's actions of neglect toward the child resulting in severe nutritional malnourishment could produce severe developmental delay or intellectual disability in the child, and was likely to cause serious bodily injury or death; she admitted to hospital personnel that she noticed that the child was not growing approximately three months before he was admitted to the hospital; the mother was aware that it was not appropriate for the child to gain only eight ounces in six months; and, despite that knowledge, she did not seek medical treatment for the child. In re Gabriella D., — S.W.3d —, 2016 Tenn. App. LEXIS 912 (Tenn. Ct. App. Nov. 30, 2016).

Although the trial court properly found that the mother had committed severe child abuse against her youngest child, the foster parent's petition to terminate her parental rights was improperly denied as termination was in the oldest child's best interests because the mother's 10-year history of abuse and neglect of her children had been extensive and damaging to them, and showed that she was not a fit parent; she continued to deny any fault for the youngest child's failure to thrive and insisted that she fed him properly; and she had a long history of complying with requirements of child welfare agencies when necessary before returning to her abusive husband, her illicit drug use, and her patterns of abuse and neglect of her children. In re Gabriella D., — S.W.3d —, 2016 Tenn. App. LEXIS 912 (Tenn. Ct. App. Nov. 30, 2016).

5. Hearing Appropriate.

In a dependency and neglect case, the finding that the child was dependent and neglected and that the child's best interests were served by remaining in the custody of his maternal uncle and aunt was proper because the circuit court did not err by hearing adjudicatory and dispositional proof at the same hearing, T.C.A. §§ 37-1-129(c), 37-1-130(a). The statutory language did not prohibit both the adjudicatory phase and the dispositional phase from occurring at the same hearing and there was no indication that the trial court was confused, applied the wrong statute, or improperly considered the evidence. In re Caleb L. C., 362 S.W.3d 581, 2011 Tenn. App. LEXIS 225 (Tenn. Ct. App. May 4, 2011), appeal denied, In re Caleb L.C., — S.W.3d —, 2011 Tenn. LEXIS 789 (Tenn. Aug. 25, 2011).

6. Hearing Required.

In a custody dispute between a father from California and the maternal grandparents from Tennessee, the orders of a Tennessee circuit court determining jurisdiction, custody, and any visitation to the father were vacated because it failed to conduct a de novo review of the dependency and neglect proceedings under T.C.A. § 37-1-130. In re Lillian F. W., — S.W.3d —, 2013 Tenn. App. LEXIS 659 (Tenn. Ct. App. Sept. 30, 2013), appeal denied, In re Lillian W., — S.W.3d —, 2014 Tenn. LEXIS 145 (Tenn. Feb. 13, 2014).

7. Adjudication “As Regards” A Specific Parent Not Required.

Alleged lack of an order adjudicating a child to be dependent and neglected “as regards” the child's father did not prohibit sustaining a termination of the father's parental rights because (1) nothing in T.C.A. §§ 37-1-102(b)(12) and 37-1-130 required an adjudication “as regards” a specific parent, and (2) the trial court's orders sufficiently found the child was dependent and neglected for reasons related to the father. In re Daymien T., 506 S.W.3d 461, 2016 Tenn. App. LEXIS 540 (Tenn. Ct. App. July 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 752 (Tenn. Oct. 21, 2016).

8. Trial Home Visit.

Trial court's order granting a temporary trial home visit was not a final judgment because the statute at issue contemplated and provided for “things left to do” for the trial court during the pendency of the 90-day trial home visit with the child's grandmother, the term “trial home visit” itself suggested the impermanent, modifiable, and non-final nature of the custody arrangement, it was clear that the issue of the best interest of the child remained an ongoing concern that had to be monitored and addressed by the Department of Children's Services and the trial court, if necessary, and the trial court's order specifically provided for a review in order to review the status of the trial home visit. In re Carter B., — S.W.3d —, 2017 Tenn. App. LEXIS 793 (Tenn. Ct. App. Dec. 12, 2017).

37-1-131. Delinquent child — Disposition — Restitution.

  1. If the child is found to be a delinquent child, the court may make any of the following orders of disposition best suited to the child's treatment, rehabilitation and welfare:
    1. Subject to conditions and limitations as the court prescribes, transfer temporary legal custody or grant permanent guardianship in accordance with part 8 of this chapter to any relative or other individual with a relationship with the child who is found by the court to be qualified to receive and care for the child, if the court finds that such a transfer or grant is in the best interest of the child;
        1. Placing the child on probation under the supervision of the probation officer of the court or the department of children's services, any person, or persons or agencies designated by the court, or the court of another state as provided in § 37-1-143, under conditions and limitations prescribed by the court in consultation with the supervising authority and consistent with a validated risk and needs assessment, which may include completion of substance abuse and mental health treatment services where appropriate;
        2. (a)  A child may be placed on probation for a maximum period of six (6) months, subject to this subdivision (a)(2)(A)(ii). Before expiration of the first six-month period or any extension period thereafter, and after notice and a hearing, the court may extend probation for additional periods not to exceed six (6) months each, but only if the court finds and issues a written order that:
          1. (ii)  (a)  A child may be placed on probation for a maximum period of six (6) months, subject to this subdivision (a)(2)(A)(ii). Before expiration of the first six-month period or any extension period thereafter, and after notice and a hearing, the court may extend probation for additional periods not to exceed six (6) months each, but only if the court finds and issues a written order that:
            1. States that it is in the best interest of the child that a condition or conditions of probation remain in effect; and
            2. Specifies the condition or conditions that shall remain in effect and why that continued effectiveness is in the best interest of the child; and
          2. If the requirements of subdivision (a)(2)(A)(ii)(a)  have been met, probation may continue only so long as it is in the best interest of the child that the condition or conditions of probation remain in effect;
        3. If the supervising authority finds the child has violated the conditions or limitations of probation, the supervising authority may file a petition alleging a violation of the conditions or limitations of probation with the court; provided, that the court, in its discretion, may direct the supervising authority that, in some or all circumstances, such a petition should be filed only if the supervising authority makes and documents attempts to address the noncompliant behavior and determines and documents the reasons for which court intervention is needed to address the noncompliance;
        4. If the court finds that no violation has occurred, the child shall be allowed to resume the former conditions of probation, or probation may be terminated; and
        5. If in a subsequent proceeding, the court finds the child has violated any of the conditions or limitations of probation, the court may modify conditions consistent with the results of the previously administered validated risk and needs assessment, including ordering a transfer or grant pursuant to subdivision (a)(1). The court shall not order a child placed in the custody of the department for a violation of the conditions or limitations of probation unless:
          1. The child is separately adjudicated dependent or neglected and placed pursuant to § 37-1-130;
          2. The child is separately adjudicated delinquent and placed pursuant to this section for an eligible delinquent offense arising out of a subsequent criminal episode other than the offense for which the child has been placed on probation; or
          3. (1)  The court finds by clear and convincing evidence that the child is in imminent risk of danger to the child's health or safety and needs specific treatment or services that are available only if the child is placed in the custody of the department; and
      2. The child needs services or treatment that are available only if the child is in custody; and
      3. The services or treatment the child needs are evidence-based and will be provided by a qualified provider;
      4. The court shall make a finding that the child's school shall be notified, if:
        1. The child has been adjudicated delinquent for any of the following offenses:
          1. First degree murder, as defined in § 39-13-202;
          2. Second degree murder, as defined in § 39-13-210;
          3. Rape, as defined in § 39-13-503;
          4. Aggravated rape, as defined in § 39-13-502;
          5. Rape of a child, as defined in § 39-13-522;
          6. Aggravated rape of a child, as defined in § 39-13-531;
          7. Aggravated robbery, as defined in § 39-13-402;
          8. Especially aggravated robbery, as defined in § 39-13-403;
          9. Kidnapping, as defined in § 39-13-303;
          10. Aggravated kidnapping, as defined in § 39-13-304;
          11. Especially aggravated kidnapping, as defined in § 39-13-305;
          12. Aggravated assault, as defined in § 39-13-102;
          13. Felony reckless endangerment pursuant to § 39-13-103;
          14. Aggravated sexual battery, as defined in § 39-13-504;
          15. Voluntary manslaughter, as defined in § 39-13-211;
          16. Criminally negligent homicide, as defined in § 39-13-212;
          17. Sexual battery by an authority figure, as defined in § 39-13-527;
          18. Statutory rape by an authority figure, as defined in § 39-13-532;
          19. Prohibited weapon, as defined in § 39-17-1302;
          20. Unlawful carrying or possession of a firearm, as defined in § 39-17-1307;
          21. Carrying weapons on school property, as defined in § 39-17-1309;
          22. Carrying weapons on public parks, playgrounds, civic centers, and other public recreational buildings and grounds, as defined in § 39-17-1311;
          23. Handgun possession, as defined in § 39-17-1319;
          24. Providing handguns to juveniles, as defined in § 39-17-1320; or
          25. Any violation of § 39-17-417 that constitutes a Class A or Class B felony; and
        2. School attendance is a condition of probation, or if the child is to be placed in the custody of a state agency and is to be placed in school by a state agency or by a contractor of the state agency;
      5. The court may make a finding that the child's school shall be notified based on the circumstances surrounding the offense if the adjudication of delinquency is for an offense not listed in this subsection (a);
      6. The court shall then enter an order directing the youth service officer, probation officer, or the state agency, if the child has been committed to the custody of the state agency, to notify the school principal in writing of the nature of the offense and probation requirements, if any, related to school attendance, within five (5) days of the order or before the child resumes or begins school attendance, whichever occurs first. In individual cases when the court deems it appropriate, the court may also include in the order a requirement to notify county and municipal law enforcement agencies having jurisdiction over the school in which the child will be enrolled;
      7. When the principal of a school is notified, the principal of the child's school, or the principal's designee, shall convene a meeting to develop a plan within five (5) days of the notification. Reasonable notice shall be given of the date and time of the meeting. The child, the department of children's services if the child is in state custody, the child's parent/guardian/legal caretaker if not in state custody, and other appropriate parties identified by the child, the department of children's services or parent/guardian/legal caretaker shall be invited to the meeting. The plan shall set out a list of goals to provide the child an opportunity to succeed in school and provide for school safety, a schedule for completion of the goals and the personnel who will be responsible for working with the child to complete the goals;
      8. The information shall be shared only with the employees of the school having responsibility for classroom instruction of the child and the school counselor, social worker or psychologist who is involved in developing a plan for the child while in the school, and with the school resource officer, and any other person notified pursuant to this section. The information is otherwise confidential and shall not be shared by school personnel with any other person or agency, except as may otherwise be required by law. Notification in writing of the nature of the offense committed by the child and any probation requirements and the plan shall not become a part of the child's student record;
      9. In no event shall a child be delayed from attending school for more than five (5) school days from the date of notice;
      10. Notwithstanding any other state law to the contrary, the department of children's services shall develop a written policy consistent with federal law detailing the information to be shared by the department with the school for children in its legal custody when notification is required;
      11. Upon the subsequent enrollment of any such student in any other LEA, the parents or custodians of the student, and the administrator of any school having previously received the same or similar notice pursuant to this section, shall notify the school in the manner specified in § 49-6-3051;
      12. A violation of the confidentiality provisions of subdivision (a)(2)(F) is a Class C misdemeanor;
        1. If the court does not place the child in state custody, but orders the child to complete an inpatient mental health treatment program at a hospital or treatment resource as defined in § 33-1-101, upon leaving that hospital or treatment resource, the principal of the child's school shall be notified and the principal of the child’s school or the principal’s designee shall convene a meeting to develop a transition plan within five (5) days of the notification. Reasonable notice shall be given of the date and time of the meeting. The child, child’s parent/guardian/legal caretaker, other relevant service providers, and other appropriate parties identified by the child and parent/guardian/legal caretaker shall be invited to the meeting;
        2. If an information release is executed in compliance with § 33-3-109 that provides the principal or other designated school personnel access to certain information concerning the child, the principal or other designated school personnel may work with the child's mental health provider to develop this plan. The transition plan shall set out a list of goals to provide the child an opportunity to succeed in school and provide for school safety, a schedule for completion of the goals and the personnel who will be responsible for working with the child to complete the goals. The information shall be shared only with employees of the school having responsibility for classroom instruction of the child, but the information is otherwise confidential and shall not be shared by school personnel with any other person or agency, except as may be otherwise required by law. The notification in writing of the nature of the offense committed by the child, any probation requirements, and the transition plan developed pursuant to this subdivision (a)(2)(K)(ii) shall not become a part of the child's student record;
        3. In no event shall a child be delayed from attending school for more than five (5) school days;
        4. A violation of the confidentiality provisions of subdivision (a)(2)(K)(ii) is a Class C misdemeanor;
    3. Placing the child in an institution, camp, or other facility for delinquent children operated under the direction of the court or other local public authority. Pursuant to this subdivision (a)(3), the court may order detention for a maximum of forty-eight (48) hours for the delinquent child to be served only on days the school in which the child is enrolled is not in session. The court may order the delinquent child to participate in programming at a nonresidential facility for delinquent children operated under the direction of the court or other local public authority after the period of detention. The court shall report each disposition of detention to the administrative office of the courts;
      1. Subject to the restrictions of § 37-1-129(c) and this subdivision (a)(4), commit the child to the department of children's services, which commitment shall not extend past the child's nineteenth birthday;
      2. A child is eligible for commitment to the department only if:
        1. The current offense for which the child has been adjudicated delinquent and is subject to disposition would constitute a felony if committed by an adult;
        2. (a)  The current offense for which the child has been adjudicated delinquent and is subject to disposition would constitute a misdemeanor if committed by an adult; and
          1. (ii)  (a)  The current offense for which the child has been adjudicated delinquent and is subject to disposition would constitute a misdemeanor if committed by an adult; and
          2. The child has previously been adjudicated delinquent for two (2) or more offenses arising from separate incidents that would constitute either a felony or misdemeanor if committed by an adult, including adjudications in other jurisdictions that, if committed in this jurisdiction, would constitute a felony or misdemeanor; or
        3. (a)  The court finds by clear and convincing evidence that the child is in imminent risk of danger to the child's health or safety and needs specific treatment or services that are available only if the child is placed in the custody of the department; and
          1. (iii)  (a)  The court finds by clear and convincing evidence that the child is in imminent risk of danger to the child's health or safety and needs specific treatment or services that are available only if the child is placed in the custody of the department; and
          2. A child placed in the custody of the department under this subdivision (a)(4)(B)(iii) shall remain in custody so long as necessary to complete the treatment or services, which shall be evidence-based and provided by a qualified provider, but shall remain in custody no longer than six (6) months; provided, that the court may order that the child remain in custody for up to an additional six (6) month period if the court finds after a hearing or stipulation that:
            1. The child needs treatment or services that are available only if the child is in custody; and
            2. The treatment or services the child needs are evidence-based and will be provided by a qualified provider;
      3. No charitable organization, municipality, county or political subdivision thereof utilizing juveniles performing community service work pursuant to this chapter shall be liable for any injury sustained by the juvenile or other person, proximately caused by the juvenile, while the juvenile is performing a work project for such organization or governmental entity, if the organization or governmental entity exercised due care in the supervision of the juvenile;
      4. No charitable organization, municipality, county or political subdivision thereof, nor any employee or officer thereof, shall be liable to any person for any act of a juvenile while the juvenile is on a community work project for such organization or governmental entity, if the organization or governmental entity exercised due care in the supervision of the juvenile;
      5. No charitable organization, municipality, county or political subdivision thereof, nor any employee or officer thereof, shall be liable to any juvenile or the juvenile's family for death or injuries received, proximately caused by the juvenile, while the juvenile is on a community work project for such organization or governmental entity, if the organization or governmental entity exercised due care in the supervision of the juvenile;
      6. The authority and protection from liability provided by this section is supplemental and in addition to any other authority and protection provided by law;
      7. The court shall not order a child placed in the custody of the department or otherwise remove the child from the child's home, including the home of a parent, guardian, or other legal custodian for any length of time, for failure to complete community service work or satisfy conditions associated with community service work as ordered by the court; and

        (A)  In lieu of committing a child to the custody of the department of children's services and subject to the requirements of subdivision (a)(8)(B), the court may order any of the following if the child is found to be a delinquent child:

        1. Assign a long-term mentor to such child; or
        2. Require that the delinquent child or any of the child's family members receive counseling services from any counseling service provided through or approved by the juvenile court;
      8. An order may be issued under subdivision (a)(8)(A) only if the funding necessary to implement such order is appropriated by the legislative body of the county in which the court is located or is provided by grants from public or private sources.
    1. If the child is found to be delinquent, the court shall determine if any monetary damages actually resulted from the child's delinquent conduct. Upon a determination that monetary damages resulted from such conduct, the court shall order the child to make restitution for such damages unless the court further determines that the specific circumstances of the individual case render such restitution, or a specified portion thereof, inappropriate. The court shall identify whether a restorative justice program addressing loss resulting from a delinquent act is available and may be utilized appropriately in the place of financial restitution. Any financial obligations or restitution assessed against the child or the child's parents, legal custodians, or guardians shall be considered collectively with community service work to ensure that the order of disposition is reasonable and, where applicable, prioritizes restitution to the victim. In determining whether an order of disposition is reasonable, the court may consider whether the child and the child's parents, legal custodians, or guardians have the ability to complete the requirements of the order within six (6) months.
      1. IF restitution is ordered pursuant to this subsection (b) in those cases where the court has made a finding that:
        1. A specified amount is owed;
        2. Such amount is ordered to be paid pursuant to a specific payment schedule; and
        3. The total amount of such ordered restitution is not paid by the time the juvenile court determines that discharge of a case is appropriate or no longer has jurisdiction over the child;

        THEN, notwithstanding § 37-1-133(b) or any other law to the contrary, the recipient of such restitution may convert the unpaid balance of the restitution ordered by the court into a civil judgment in accordance with the procedure set out in this subsection (b). The payment of such civil judgment shall be at the same payment schedule as that as when the offender was a juvenile.

      2. Under such judgment, payments shall be continued to be made under the specific payment schedule ordered by the juvenile court until the judgment has been satisfied.
    3. The restitution recipient shall file a certified copy of the juvenile court's restitution order with any court having jurisdiction over the total amount of restitution ordered.
    4. Upon receipt of such a restitution order, the court shall take proof as to the amount of ordered restitution actually paid. If the court finds that the amount of restitution actually paid is less than the total amount of restitution ordered by the juvenile court, it shall enter a judgment in favor of the restitution recipient and against the offender for the amount of the unpaid balance of such restitution.
    5. A judgment entered pursuant to this subsection (b) shall remain in effect for a period of ten (10) years from the date of entry and shall be enforceable by the restitution recipient in the same manner and to the same extent as other civil judgments; however, such civil judgment shall not be referred to any collection service as defined by § 62-20-102.
    1. This subsection (c) shall apply to a juvenile who is adjudicated delinquent, but not committed to the custody of the department of children's services, for an act that if committed by an adult would be one (1) or more of the following offenses:
      1. First degree murder, as prohibited by § 39-13-202;
      2. Second degree murder, as prohibited by § 39-13-210;
      3. Voluntary manslaughter, as prohibited by § 39-13-211;
      4. Criminally negligent homicide, as prohibited by § 39-13-212;
      5. Rape, as prohibited by § 39-13-503;
      6. Aggravated rape, as prohibited by § 39-13-502;
      7. Rape of a child, as prohibited by §  39-13-522;
      8. Aggravated rape of a child, as prohibited by § 39-13-531;
      9. Aggravated robbery, as prohibited by § 39-13-402;
      10. Especially aggravated robbery, as prohibited by § 39-13-403;
      11. Kidnapping, as prohibited by § 39-13-303;
      12. Aggravated kidnapping, as prohibited by § 39-13-304;
      13. Especially aggravated kidnapping, as prohibited by § 39-13-305;
      14. Aggravated assault, as prohibited by § 39-13-102;
      15. Felony reckless endangerment, as prohibited by § 39-13-103;
      16. Sexual battery, as prohibited by § 39-13-505;
      17. Aggravated sexual battery, as prohibited by § 39-13-504; or
      18. Any other Class A or Class B felony.
    2. If a court finds a juvenile to be delinquent as a result of an act listed in subdivision (c)(1), the court shall have broad discretion to issue orders and, in conjunction with representatives from the LEA, to change the educational assignment of the juvenile. The court shall involve representatives of the LEA, as necessary, to ascertain a proper educational assignment and the availability of secure educational facilities for the juvenile who, through actions of the court, is facing personal restrictions or being released with compulsory attendance in school as a condition of personal restriction or release. There shall be a presumption in favor of issuing a court order prohibiting the juvenile from attending the same educational placement as the victim.
    3. The court shall have discretion to determine how best to restrict future contact of the defendant with the victim while the victim is at school or in other public settings.
    4. When consulted by the court, the representatives of the LEA shall provide a list of alternatives to attendance at the school which is attended by the victim. This information shall include the availability of programs including another school assignment within the district, alternative school, virtual education, homebound instruction, adult education programs, and high school equivalency testing eligibility.
    5. The school resource officer shall be authorized to assist school officials in the enforcement of orders issued by the court and shall be made fully aware of the confidential nature of any order and the student's educational assignment.
    6. [Deleted by 2018 amendment, effective July 1, 2018.]
    1. Notwithstanding this section to the contrary, a juvenile who is adjudicated delinquent for conduct that, if committed by an adult, would constitute one (1) of the offenses set out in subdivision (d)(3) shall be committed to the department of children's services for a period of not less than one (1) year; provided, that for the offenses listed in subdivisions (d)(3)(D) and (E), a court may, upon a finding of good cause, order a commitment for a term of less than one (1) year or decline to order a commitment.
    2. The commitment required by subdivision (d)(1) must be the least restrictive disposition permissible for an applicable juvenile, and nothing in this subsection (d) prohibits the court from:
      1. Transferring a juvenile to whom this section applies to adult court to stand trial as an adult as provided in § 37-1-134;
      2. Extending the term of commitment beyond the one-year minimum required by this subsection (d); or
      3. Any other dispositional alternative more restrictive than this subsection (d).
    3. The offenses to which this subsection (d) applies are:
      1. First degree murder, as prohibited by § 39-13-202;
      2. Second degree murder, as prohibited by § 39-13-210;
      3. Voluntary manslaughter, as prohibited by § 39-13-211;
      4. Criminally negligent homicide, as prohibited by § 39-13-212; and
      5. Reckless homicide, as prohibited by § 39-13-215.

A child placed in the custody of the department under this subdivision (a)(2)(A)(v)(c)  shall remain in custody so long as necessary to complete the treatment or services, which shall be evidence-based and provided by a qualified provider, but shall remain in custody no longer than six (6) months; provided, that the court may order that the child remain in custody for up to an additional six (6) month period if the court finds after a hearing or stipulation that:

[Deleted by 2018 amendment, effective July 1, 2019.]

Committing the child to the custody of the county department of children's services in those counties having such a department, but only if the child is eligible for commitment to the department under subdivision (a)(4) and subject to the conditions applicable to department commitment under § 37-1-137;

(A)  Ordering the child to perform community service work with such work being in compliance with federal and state child labor laws. For first-time delinquent acts involving alcohol or beer, in its order for community service work, the court may require the juvenile to spend a portion of such time in the emergency room of a hospital, only if, and to the extent, the hospital agrees with such action;

Acts 1970, ch. 600, § 31; 1979, ch. 143, § 10; 1983, ch. 9, § 2; T.C.A., § 37-231; Acts 1985, ch. 374, §§ 1-3; 1985, ch. 441, § 2; 1989, ch. 278, § 38; 1993, ch. 276, § 2; 1995, ch. 380, § 1; 1996, ch. 815, § 1; 1996, ch. 982, § 1; 1996, ch. 1079, §§ 73, 74, 92, 93; 1997, ch. 500, § 1; 1997, ch. 525, § 1; 2003, ch. 238, § 5; 2005, ch. 57, § 1; 2005, ch. 265, § 1; 2007, ch. 200, § 1; 2007, ch. 314, § 1; 2008, ch. 1052, §§ 1-3; 2009, ch. 160, § 1; 2013, ch. 343, § 1; 2014, ch. 757, § 1; 2016, ch. 600, § 7; 2018, ch. 1025, § 1; 2018, ch. 1052, §§  22-31; 2019, ch. 313, § 1; 2019, ch. 510, § 6.

Compiler's Notes. Acts 1993, ch. 276, § 4 provided that the amendment by that act shall not affect or apply to any juvenile committed to the department of youth development (now department of children's services) on or before July 1, 1993, or to the subsequent de novo appeal of such case.

For the establishment of the Tennessee Children's Plan, see Executive Order No. 58 (June 29, 1994).

Acts 2018, ch. 1025, § 2 provided that the act, which amended this section, shall be known and  may be cited as “Sienna's Law.”

Acts 2018, ch. 1025, § 3 provided that the act, which amended this section, shall apply to all applicable delinquent acts occurring on or after July 1, 2018.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2014 amendment added (c).

The 2016 amendment added the last sentence to (a)(2)(A).

The 2018 amendment by ch. 1025, added (d).

The 2018 amendment by ch. 1052, effective July 1, 2018, added (a)(7)(F); in (b)(1), added the last three sentences; in (b)(2)(A)(iii), inserted “determines that discharge of a case is appropriate or”; in (b)(5), added “however, such civil judgment shall not be referred to any collection service as defined by § 62-20-102”; and deleted (c)(6).

The 2018 amendment by ch. 1052, effective July 1, 2019, rewrote (a)(1) which read “Any order authorized by § 37-1-130 for the disposition of a dependent or neglected child; deleted (a)(5) which read: “Assessing a fine not to exceed fifty dollars ($50.00) for each offense that constitutes a violation of a state law or municipal ordinance;”; redesignated former (a)(2)(A) as present (a)(2)(A)(i) and the present introductory language of (a)(2)(A)(v); added (a)(2)(A)(ii) through (a)(2)(A)(iv) and (a)(2)(A)(v)(a) through (a)(2)(A)(v)(c); in present (a)(2)(A)(i), substituted the language following “limitations” for “the court prescribes.”; in the present introductory language of (a)(2)(A)(v), substituted the language following “court may” for “make any disposition which would have been permissible in the original proceeding;”; in (a)(3), substituted “Ordering the child to participate in programming at a non-residential” for “Placing the child in an institution, camp or other” preceding “facility”; added (a)(4)(B); in present (a)(4)(A), substituted “§ 37-1-129(c) and this subdivision (a)(4)” for “§ 37-1-129(c)” following “restrictions of”; in (a)(6), added the language following “department”.

The 2019 amendment by ch. 313, rewrote (a)(2)(B) which read: “(B)  The court shall make a finding that the child's school shall be notified, if:“(i)  The adjudication of delinquency was for an offense involving:“(a )  First degree murder;“(b )  Second degree murder;“(c )  Rape;“(d )  Aggravated rape;“(e )  Rape of a child;“(f )  Aggravated rape of a child;“(g )  Aggravated robbery;“(h )  Especially aggravated robbery;“(i )  Kidnapping;“(j )  Aggravated kidnapping;“(k )  Especially aggravated kidnapping;“(l )  Aggravated assault;“(m )  Felony reckless endangerment; or“(n )  Aggravated sexual battery; or“(ii)  The adjudication of delinquency was for a violation of:“(a )  Voluntary manslaughter, as defined in § 39-13-211;“(b )  Criminally negligent homicide, as defined in § 39-13-212;“(c )  Sexual battery by an authority figure, as defined in § 39-13-527;“(d )  Statutory rape by an authority figure, as defined in § 39-13-532;“(e )  Prohibited weapon, as defined in § 39-17-1302;“(f )  Unlawful carrying or possession of a firearm, as defined in § 39-17-1307;“(g )  Carrying weapons on school property, as defined in § 39-17-1309;“(h )  Carrying weapons on public parks, playgrounds, civic centers, and other public recreational buildings and grounds, as defined in § 39-17-1311;“(i )  Handgun possession, as defined in § 39-17-1319;“(j )  Providing handguns to juveniles, as defined in § 39-17-1320; or“(k )  Any violation of § 39-17-417 that constitutes a Class A or Class B felony; and“(iii)  School attendance is a condition of probation, or if the child is to be placed in the custody of a state agency and is to be placed in school by a state agency or by a contractor of the state agency;”.

The 2019 amendment by ch. 510, effective July 1, 12:01a.m., rewrote (a)(3), which read: “Ordering the child to participate in programming at a non-residential facility for delinquent children operated under the direction of the court or other local public authority;”.

Effective Dates. Acts 2014, ch. 757, § 2. April 24, 2014.

Acts 2016, ch. 600, § 17. July 1, 2016.

Acts 2018, ch. 1025, § 3. July 1, 2018.

Acts 2018, ch. 1052, § 58. July 1, 2018; July 1, 2019; provided that for purposes of rulemaking, the act took effect May 21, 2018.

Acts 2019, ch. 313, § 3. May 8, 2019.

Acts 2019, ch. 510, § 7. July 1, 2019 at 12:01 a.m.

Cross-References. Admission to orphan asylums, §§ 71-3-603, 71-3-604, 71-3-606.

Assignment of blind children to state school, § 49-6-3015.

Commitments to subsidized receiving homes, § 37-2-314.

Confidentiality of public records, § 10-7-504.

Penalties for Class A and B felonies, § 40-35-111.

Penalty for Class C misdemeanor, § 40-35-111.

Youth development center, title 37, chapter 5, part 2.

Rule Reference. This section is referred to in the text and Advisory Commission Comments of Rule 32 of the Tennessee Rules of Juvenile Procedure.

This section is referred to in Rule 22 of the Rules Regulating Practice And Procedure  In The Juvenile Court Of Memphis And  Shelby County, Tennessee.

Law Reviews.

Blended Sentencing in Tennessee Courts, 44 U. Mem. L. Rev. 767 (2014).

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

Attorney General Opinions. Placement of delinquent in hardware secure facility not authorized, OAG 97-111 (8/06/97).

Order removing child from home county and enjoining return, OAG 99-007 (1/25/99).

The principal of the school in which a child will be enrolled and the employees of the school who are responsible for the child's classroom instruction can use information obtained as a result of the notification required in T.C.A. §§ 49-6-3051 and 37-1-131, but no other persons in the local education agency can know or use the information, OAG 01-158 (10/25/01).

The juvenile court may punish probation violations of delinquent children occurring after age eighteen in the same manner as those occurring prior to the age of eighteen, OAG 05-130 (8/24/05).

Construction of statutes requiring notification of the school when a student has been found delinquent by virtue of committing certain offenses, OAG 07-127, 2007 Tenn. AG LEXIS 127 (8/27/07).

NOTES TO DECISIONS

1. Confinement.

The commingling of status offenders with delinquent children in secure penal facilities operated for delinquent children is not rationally related to a legitimate governmental purpose and is therefore punishment; and, as this confinement amounts to punishment without an adjudication of guilt, the practice violates the principles of substantive due process under the Tennessee and U.S. constitutions. Doe v. Norris, 751 S.W.2d 834, 1988 Tenn. LEXIS 69 (Tenn. 1988).

Though the state's interest in protecting status offenders from harm is a compelling interest, the state's practice of placing status offenders in secure penal facilities and commingling them with delinquent offenders is not a practice “precisely tailored” to serve this compelling interest. Therefore, this practice violates the guarantees of equal protection under the Tennessee and U.S. constitutions. Doe v. Norris, 751 S.W.2d 834, 1988 Tenn. LEXIS 69 (Tenn. 1988).

2. Commitment to Department of Children's Services.

Criminal Court did not err in committing a juvenile to the custody of the Department of Children's Services (DCS) for an indefinite term because the juvenile's probation had been extended multiple times, he had pleaded guilty to three violations of probation, and the Court could impose any disposition that was permissible in an original proceeding, one of which was to commit him to DCS. In re Dontavis K.W., — S.W.3d —, 2015 Tenn. App. LEXIS 377 (Tenn. Ct. App. May 26, 2015).

Trial court did not err by finding that defendant violated his probation and ordering that he be committed to Department of Children's Services custody because defendant violated his Serious Habitual Offender Community Action Program (SHOCAP) probation by failing to report to his probation officer; defendant and his mother agreed to the terms of the SHOCAP probation, including the reporting requirement, and the trial court found that his violations were intentional and deliberate. In re A'reeyon L., — S.W.3d —, 2018 Tenn. App. LEXIS 53 (Tenn. Ct. App. Jan. 30, 2018).

3. Restitution.

Order directing defendant juvenile to pay restitution of over $9,000 at the rate of $50 a month was not improper because the parties agreed that the amount of restitution ordered reflected the monetary damages of the victim; the restitution statute applicable in juvenile cases did not require the court to consider the financial resources and future ability of defendant to pay or perform; defendant's claim that she was unable to remit restitution based on her family's limited means was misplaced as the restitution order was her responsibility, not her family's responsibility; and requiring restitution would aid in defendant's rehabilitation by requiring her to earn funds commensurate with the damages sustained by the victim. In re Cassie C., — S.W.3d —, 2015 Tenn. App. LEXIS 603 (Tenn. Ct. App. July 28, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 997 (Tenn. Nov. 24, 2015).

Collateral References.

Right to jury trial in juvenile court delinquency proceedings. 100 A.L.R.2d 1241.

37-1-132. Unruly child — Disposition.

  1. If the child is found to be an unruly child, the court may make such disposition as authorized by this section or § 37-1-131(a)(1), (a)(2), (a)(7), or (b) that is best suited to such child's treatment. However, no child found to be an unruly child may be placed on probation under the supervision of the department, unless such child is found to also be a delinquent child or is found to have committed a violation of a valid court order as provided for in the Appendix to the Tennessee Rules of Juvenile Procedure. No county government shall be required to increase local funding to implement this provision. The court has the additional dispositional alternative of ordering the department to provide non-custodial services to a child found to be unruly.
    1. An unruly child is eligible for commitment to the department only if:
      1. The child has previously been adjudicated for two (2) or more offenses arising from separate incidents that would constitute an unruly offense, or a felony or misdemeanor if committed by an adult, including adjudications in other jurisdictions that, if committed in this jurisdiction, would constitute a felony or misdemeanor; or
        1. The court finds by clear and convincing evidence that the child is in imminent risk of danger to the child's health or safety and needs specific treatment or services that are available only if the child is placed in the custody of the department;
        2. A child placed in the custody of the department under this subdivision (b)(1)(B) shall remain in custody so long as necessary to complete the treatment or services, which shall be evidence-based and provided by a qualified provider, but shall remain in custody no longer than six (6) months; provided, that the court may order that the child remain in custody for up to an additional six (6) month period if the court finds after a hearing or stipulation that:
          1. The child needs treatment or services that are available only if the child is in custody; and
          2. The treatment or services the child needs are evidence-based and will be provided by a qualified provider.
    2. If the court finds that it is in the best interest of the child and the public that any unruly child be removed from the home of a parent, guardian, or other legal custodian, the placement of the child shall be with the person, agency, or facility that presents the least drastic or restrictive alternative.
    3. Prior to committing an unruly child to the custody of the department of children's services, the court shall refer such child to the department's juvenile-family crisis intervention program under § 37-1-168. The court may commit the child to the department after such juvenile-family crisis intervention program certifies to the court that there is no other less drastic measure than court intervention. Nothing in this subsection (b) shall preclude placing a child in protective service custody.
    4. A disposition under this section shall, in no event, result in the child's detention in shelter care, as defined in § 37-1-116, or other temporary placement, without provision of necessary services consistent with the child's assessments or evaluations, in excess of thirty (30) days after entry of the court's order.
    5. Subject to subdivision (b)(6), an unruly child committed to the custody of the department under subdivision (b)(1)(A) for an indefinite time shall be discharged or placed on home placement supervision after a maximum of six (6) months, excluding any amount of time that a child is absent from placement for whatever reason, unless:
      1. The treatment and rehabilitation of the child require that the child remain in custody beyond six (6) months to complete an evidence-based program in a custodial setting addressing a treatment need identified by the previously administered validated risk and needs assessment;
      2. The child is alleged to have committed a new delinquent act; or
      3. The child is alleged to be an escapee from a secure juvenile facility or institution.
    6. The commissioner shall prescribe procedures whereby the child's treatment, rehabilitation, and progress shall be reviewed monthly and a recommendation for or against home placement or discharge shall be made to the commissioner or the commissioner's designee at least quarterly.
      1. When the department determines that a child who has been committed to the department under this section is ready to return home, the department shall notify the court in writing of its intention to place the child at home on a trial home visit. If the court objects to the trial home visit, it must notify the department of its objection in writing or set a hearing within fifteen (15) days of the date of the notice with such hearing being held at the earliest possible date. If a hearing is not set nor a written objection received within fifteen (15) days of the date of the notice, the department may place the child on a trial home visit. The notice shall include the provision that the department's legal custody of the child shall terminate in thirty (30) days.
      2. If during the thirty-day period the department determines that the trial home visit is not in the child's best interest and removes the child on an emergency basis or seeks to remove the child on a non-emergency basis, the department shall file a motion for review by the court of the trial home visit and shall provide notice to the parent, parents, guardian, or other custodian. The court shall hold a hearing on such motion within three (3) days of an emergency removal and shall set a hearing within fifteen (15) days to be held at the earliest possible date if the motion is for the court's permission to make a non-emergency removal.
      3. During the thirty-day trial home visit, the court may periodically review the child's status and may make any orders that the best interest of the child may require.
    1. A child ordered to probation under subsection (a) may be placed on probation for a maximum period of six (6) months, subject to this subdivision (c)(1). Before expiration of the first six-month period or any extension period thereafter, and after notice and a hearing, the court may extend probation for additional periods not to exceed six (6) months each, but only if the court finds and issues a written order that:
      1. States that it is in the best interest of the child that a condition or conditions of probation remain in effect; and
      2. Specifies the condition or conditions that shall remain in effect and why that continued effectiveness is in the best interest of the child.
    2. If the requirements of subdivision (c)(1) have been met, probation may continue only so long as it is in the best interest of the child that the condition or conditions of probation remain in effect.
    3. If the supervising authority finds the child has violated the conditions or limitations of probation, the supervising authority may file a petition alleging a violation of the conditions or limitations of probation with the court; provided, that the court, in its discretion, may direct the supervising authority that, in some or all circumstances, such a petition should be filed only if the supervising authority makes and documents attempts to address the noncompliant behavior and determines and documents the reasons for which court intervention is needed to address the noncompliance.
    4. If the court finds that no violation has occurred, the child shall be allowed to resume the former conditions of probation or probation may be terminated.
    5. If in a subsequent proceeding, the court finds the child has violated any of the conditions or limitations of probation, the court may modify conditions consistent with the needs of the child, including ordering a transfer or grant pursuant to § 37-1-131(a)(1). The court shall not order a child placed in the custody of the department for a violation of the conditions or limitations of probation unless:
      1. The child is separately adjudicated dependent or neglected and placed pursuant to § 37-1-130;
      2. The child is separately adjudicated delinquent and placed pursuant to § 37-1-131 for an eligible delinquent offense arising out of a subsequent criminal episode other than the offense for which the child has been placed on probation; or
        1. The court finds by clear and convincing evidence that the child is in imminent risk of danger to the child's health or safety and needs specific treatment or services that are available only if the child is placed in the custody of the department;
        2. A child placed in the custody of the department under this subdivision (c)(5)(C) shall remain in custody so long as necessary to complete the treatment or services, which shall be evidence-based and provided by a qualified provider, but shall remain in custody no longer than six (6) months; provided, that the court may order that the child remain in custody for up to an additional six (6) month period if the court finds after a hearing or stipulation that:
          1. The child needs treatment or services that are available only if the child is in custody; and
          2. The treatment or services the child needs are evidence-based and will be provided by a qualified provider.

If a child is adjudicated unruly in whole or in part for habitual and unlawful absence pursuant to § 49-6-3007, it is the intent of the general assembly that any disposition of the court be oriented toward family services and those interventions that address educational barriers and the root causes of truancy.

Acts 1970, ch. 600, § 32; 1979, ch. 289, § 5; 1982, ch. 882, § 2; T.C.A., § 37-232; Acts 1985 (1st Ex. Sess.), ch. 6, § 1; 1996, ch. 1079, § 94; 1999, ch. 508, § 8; 2007, ch. 372, § 4; 2018, ch. 1052, §§  32-35.

Compiler's Notes. Acts 1985 (1st Ex. Sess.), ch. 6, § 6 provided that any child found to be unruly and placed on probation under the supervision of the division of juvenile probation (now department of children's services) prior to April 1, 1986, and remaining on such probation on that date, was deemed to be on probation under the supervision of the probation officer of the court.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2018 amendment by ch. 1052, § 35, effective July 1, 2018, added (d).

The 2018 amendment by ch. 1052, §§ 32-34, effective July 1, 2019, in (a), substituted “this section or § 37-1-131(a)(1), (a)(2), (a)(7), or (b)” for “§§ 37-1-131(a)(1), (2), (5), or (7)” following “authorized by” and substituted “shall” for “may” following “government”; added present (b)(1) and redesignated former (b)(1) through (b)(3) as present (b)(2) through (b)(4); in present (b)(3), substituted “Prior to committing” for “If the court desires to commit” at the beginning, “the court shall” for “it shall, prior to ordering commitment” preceding “refer”, and “subsection (b)” for “subdivision (b)(2)” preceding “shall preclude”; and added (b)(5) through (b)(7); rewrote (c)(1) through (c)(3) which read:“(c)(1) When the department determines that a child who has been committed to the department under this section is ready to return home, the department shall notify the court in writing of its intention to place the child at home on a trial home visit. If the court objects to the trial home visit, it must notify the department of its objection in writing or set a hearing within fifteen (15) days of the date of the notice with such hearing being held at the earliest possible date. If a hearing is not set nor a written objection received within fifteen (15) days of the date of the notice, the department may place the child on a trial home visit. The notice shall include the provision that the department's legal custody of the child shall terminate in thirty (30) days.“(2) If during the thirty-day period the department determines that the trial home visit is not in the child's best interest and removes the child on an emergency basis or seeks to remove the child on a non-emergency basis, the department shall file a motion for review by the court of the trial home visit and shall provide notice to the parent(s), guardian or other custodian. The court shall hold a hearing on such motion within three (3) days of an emergency removal and shall set a hearing within fifteen (15) days to be held at the earliest possible date if the motion seeks the court's permission to make a non-emergency removal.“(3) During the thirty-day trial home visit, the court may periodically review the child's status and may make any orders that the best interest of the child may require.”; and added (c)(4) through (c)(6).

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; July 1, 2019; provided that for purposes of rulemaking, the act took effect May 21, 2018.

Rule Reference. This section is referred to in Rule 13 of the Rules of the Supreme Court of Tennessee.

This section is referred to in the Advisory Commission Comments under Rules 6 and 32 and in the text of Rule 32 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Minors, § 35.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

Attorney General Opinions. Order removing child from home county and enjoining return, OAG 99-007 (1/25/99).

Truancy enforcement — private and church-related schools, OAG 00-006 (1/11/00).

NOTES TO DECISIONS

1. Formal Hearings.

Where a child was adjudicated to be unruly for the first time by the juvenile court judge or referee (now magistrate), it was a violation of this section to commit her to the department even though she was on probation as a result of several “unruly” petitions previously filed against her, as such previous petitions had been handled by informal conferences with the state and juvenile court probation personnel. State ex rel. Hockett v. Hatler, 567 S.W.2d 472, 1977 Tenn. App. LEXIS 323 (Tenn. Ct. App. 1977).

2. Custody Arrangements.

The custody arrangements made in cases involving dependent, neglected, abandoned or unruly children do not constitute confinement or deprivation of liberty. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

3. Confinement.

The commingling of status offenders with delinquent children in secure penal facilities operated for delinquent children is not rationally related to a legitimate governmental purpose and is therefore punishment and, as this confinement amounts to punishment without an adjudication of guilt, the practice violates the principles of substantive due process under the Tennessee and U.S. constitutions. Doe v. Norris, 751 S.W.2d 834, 1988 Tenn. LEXIS 69 (Tenn. 1988).

Though the state's interest in protecting status offenders from harm is a compelling interest, the state's practice of placing status offenders in secure penal facilities and commingling them with delinquent offenders is not a practice “precisely tailored” to serve this compelling interest. Therefore this practice violates the guarantees of equal protection under the Tennessee and U.S. constitutions. Doe v. Norris, 751 S.W.2d 834, 1988 Tenn. LEXIS 69 (Tenn. 1988).

37-1-133. Order of adjudication — Noncriminal.

  1. An order of disposition or other adjudication in a proceeding under this part is not a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any state service or civil service application or appointment. A child shall not be committed or transferred to a penal institution or other facility used primarily for the execution of sentences of persons convicted of a crime, except as provided in § 37-1-134.
  2. The disposition of a child and evidence adduced in a hearing in juvenile court may not be used against such child in any proceeding in any court other than a juvenile court, whether before or after reaching majority, except in dispositional proceedings after conviction of a felony for the purposes of a pre-sentence investigation and report.
  3. A child found to be delinquent shall be exempt from the operation of laws applicable to infamous crimes, and such child shall not be rendered infamous by the judgment of the juvenile court in which such child is tried.

Acts 1970, ch. 600, § 33; T.C.A., § 37-233; Acts 2012, ch. 800, § 49.

Compiler's Notes. Acts 2012, ch. 800, § 1 provided that the act, which amended subsection (a), shall be known and cited as the “Tennessee Excellence, Accountability, and Management (T.E.A.M.) Act of 2012.”

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 609 of the Tennessee Rules of Evidence.

Textbooks. Tennessee Jurisprudence, 25 Tenn. Juris., Witnesses, § 37.1.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), Rule 609.

Law Reviews.

The Tennessee Supreme Court's Approval of Selected Federal Rules of Evidence (Donald F. Paine), 23 No. 1 Tenn. B.J. 17 (1987).

NOTES TO DECISIONS

1. Constitutionality.

The state's policy of protecting a juvenile offender is not sacrosanct, but must give way where proof of a prior juvenile adjudication is material to show bias, prejudice, or ulterior motive on the part of the witness. State v. Butler, 626 S.W.2d 6, 1981 Tenn. LEXIS 519 (Tenn. 1981).

The decision in State v. Butler, 626 S.W.2d 6, 1981 Tenn. LEXIS 519 (Tenn. 1981) did not abrogate completely the authority of this section. The statute was limited only as much as constitutionality required to allow the accused the right to confront the witnesses called by the prosecution. In all other respects, this section retains its vitality. State v. Dixon, 656 S.W.2d 49, 1983 Tenn. Crim. App. LEXIS 401 (Tenn. Crim. App. 1983).

2. Adoption of Federal Rule.

Federal R. Evid., Rule 608(b) was adopted in Tennessee by the decision in State v. Morgan, 541 S.W.2d 385, 1976 Tenn. LEXIS 544 (Tenn. 1976). State v. Dixon, 656 S.W.2d 49, 1983 Tenn. Crim. App. LEXIS 401 (Tenn. Crim. App. 1983).

In State v. Morgan, 541 S.W.2d 385, 1976 Tenn. LEXIS 544 (Tenn. 1976), the supreme court of Tennessee adopted Rule 609 of the Federal Rules of Evidence concerning the impeachment of a witness by evidence of a criminal conviction. The rule provided that a witness may be impeached by evidence of a conviction for any crime involving dishonesty or false statement, regardless of the punishment, or by evidence of a conviction for a crime punishable by imprisonment in excess of one year if the court determined that the probative value of the conviction outweighs its prejudicial effect. The question of whether a particular conviction was admissible was to be determined by the trial judge out of the presence of the jury. All convictions over ten years old were presumptively inadmissible unless the court determined that the probative value of the evidence of the conviction substantially outweighs the prejudicial effect and the party who intended to introduce the evidence gave the adverse party “sufficient advance written notice” of intent to use the conviction to impeach. The ten-year time limitation was measured from the date of conviction or the date of release from confinement, whichever was later. (See now Tenn. R. Evid. 609). State v. Davis, 741 S.W.2d 120, 1987 Tenn. Crim. App. LEXIS 2654 (Tenn. Crim. App. 1987).

When evidence is going to be offered to impeach under State v. Morgan, 541 S.W.2d 385, 1976 Tenn. LEXIS 544 (Tenn. 1976), the state should request the jury-out hearing before asking questions about prior convictions. State v. Davis, 741 S.W.2d 120, 1987 Tenn. Crim. App. LEXIS 2654 (Tenn. Crim. App. 1987).

3. Nature of Proceedings.

Until a juvenile has been “transferred” to the criminal court, the proceeding against him is civil in nature and appellate review and supervision of the cause resides in the civil and not the criminal courts of the state. State v. Womack, 591 S.W.2d 437, 1979 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1979).

4. Procedural Rights.

Although juvenile proceedings do, in many ways, partake of civil rather than criminal proceedings, the juvenile has a right to counsel, confrontation and cross-examination of witnesses, the privilege against self-incrimination and the right to have guilt established beyond a reasonable doubt. State v. Johnson, 574 S.W.2d 739, 1978 Tenn. LEXIS 685 (Tenn. 1978).

Despite the purpose and the theory underlying the juvenile court system stated in §§ 37-1-101 and 37-1-133, courts in recent years have emphasized that in practical effect persons involved in juvenile proceedings may be deprived of their liberty. Increasingly, concepts of the criminal law, and in particular constitutional principles designed to protect the rights of individuals charged with crime, have been deemed to be applicable to proceedings involving juvenile offenders. State v. Johnson, 574 S.W.2d 739, 1978 Tenn. LEXIS 685 (Tenn. 1978).

5. Evidence.

The admission of evidence of prior acts of juvenile delinquency committed by a 17-year-old defendant on trial for armed robbery was reversible error since this statute prohibits the use of such evidence except in specified instances. Cross v. State, 540 S.W.2d 289, 1976 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. 1976).

Defendant's constitutional right to confront witnesses overcame the statutory protection accorded by this section to the juvenile record of a witness, where the witness's testimony was important to the case. State v. Hill, 598 S.W.2d 815, 1980 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. 1980).

It is error to permit district attorney to question defendant about his prior bad acts of misconduct as a juvenile and about juvenile court proceedings. State v. Dixon, 656 S.W.2d 49, 1983 Tenn. Crim. App. LEXIS 401 (Tenn. Crim. App. 1983).

Evidence of juvenile convictions is not admissible against a criminal defendant in the guilt phase of a criminal case. State v. Davis, 741 S.W.2d 120, 1987 Tenn. Crim. App. LEXIS 2654 (Tenn. Crim. App. 1987).

Trial court did not err in excluding evidence of the minor guest's prior experiences with alcohol and evidence of alcohol-related juvenile court citations while admitting evidence of her knowledge of the effects of alcohol because although the trial court erred in holding that the evidence regarding the minor's prior experience was irrelevant, the trial court's exclusion of the evidence was not an abuse of discretion because it was properly excluded as unduly prejudicial under Tenn. R. Evid. 403; also the admission of the minor's juvenile court citations was barred under T.C.A. § 37-1-133(b). Biscan v. Brown, 160 S.W.3d 462, 2005 Tenn. LEXIS 308 (Tenn. 2005).

6. —Impeachment.

Where the trial court allowed the state to ask a character witness for defendant, who further testified as to the good character of the defendant, if he knew that it was part of defendant's reputation that he had been charged with various offenses in juvenile court, since the questions did not relate to the disposition of the juvenile or of evidence adduced against him and the court charged at the time that the jury was to only consider this as affecting the credibility of the witness and recharging this at the conclusion of all the proof, there was no violation of subsection (b). Stepheny v. State, 570 S.W.2d 356, 1978 Tenn. Crim. App. LEXIS 319 (Tenn. Crim. App. 1978).

Where the witness was a possible suspect and therefore might be suspected of giving biased testimony, the defendant clearly was entitled to inform the jury about her juvenile record and probationary status so that the jurors could properly determine the weight to be accorded her testimony. State v. Hill, 598 S.W.2d 815, 1980 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. 1980).

7. —Sentencing.

This section does not prohibit the use of juvenile records for sentencing. State v. Hicks, 835 S.W.2d 32, 1992 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. 1992), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 303 (Tenn. Aug. 2, 1993).

In sentencing defendant for conviction of four counts of arson, his juvenile record was relevant, since he was only 18 at the time, and it was noted the probation had been applied unsuccessfully. State v. Zeolia, 928 S.W.2d 457, 1996 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. 1996).

8. Effect of Finding of Delinquency.

A finding of delinquency is not equivalent, in legal theory, to conviction of a crime. State v. Johnson, 574 S.W.2d 739, 1978 Tenn. LEXIS 685 (Tenn. 1978).

9. Persistent Offender.

In making the determination to impose consecutive sentencing the court is not limited to consideration of criminal activity or conduct occurring after one reaches the age of eighteen (18) years. A juvenile record of criminal conduct may properly be considered in assessing a suitable sentence upon a felony conviction as an adult. State v. Stockton, 733 S.W.2d 111, 1986 Tenn. Crim. App. LEXIS 2529 (Tenn. Crim. App. 1986).

10. Juvenile Adjudication.

Defendant's fairly extensive juvenile record did not amount to a qualifying prior conviction for sentencing purposes. State v. Hill, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 147 (Tenn. Crim. App. Feb. 19, 2014).

Collateral References.

Use of judgment in prior juvenile court proceeding to impeach credibility of witness. 63 A.L.R.3d 1112.

Validity of service of summons or complaint on Sunday or holiday. 63 A.L.R.3d 423.

37-1-134. Transfer from juvenile court.

  1. After a petition has been filed alleging delinquency based on conduct that is designated a crime or public offense under the laws, including local ordinances, of this state, the court, before hearing the petition on the merits, may transfer the child to the sheriff of the county to be held according to law and to be dealt with as an adult in the criminal court of competent jurisdiction. The disposition of the child shall be as if the child were an adult if:
      1. The child was:
        1. Less than fourteen (14) years of age at the time of the alleged conduct and charged with first degree murder or second degree murder or attempted first or second degree murder;
        2. Fourteen (14) years of age or more but less than seventeen (17) years of age at the time of the alleged conduct and charged with the offense of first degree murder, second degree murder, rape, aggravated rape, rape of a child, aggravated rape of a child, aggravated robbery, especially aggravated robbery, aggravated burglary, especially aggravated burglary, kidnapping, aggravated kidnapping, especially aggravated kidnapping, commission of an act of terrorism, carjacking, or an attempt to commit any such offenses;
        3. Sixteen (16) years of age or more at the time of the alleged conduct and charged with the offense of robbery or attempt to commit robbery; or
        4. Seventeen (17) years of age or more at the time of the alleged conduct;
      2. The district attorney general shall not seek, nor shall any child transferred under this section receive, a sentence of death for the offense for which the child was transferred;
    2. A hearing on whether the transfer should be made is held in conformity with §§ 37-1-124, 37-1-126 and 37-1-127;
    3. Reasonable notice in writing of the time, place and purpose of the hearing is given to the child and the child's parents, guardian or other custodian at least fourteen (14) days prior to the hearing; and
    4. The court finds that there is probable cause to believe that:
      1. The child committed the delinquent act as alleged;
      2. The child is not committable to an institution for the developmentally disabled or mentally ill; and
      3. The interests of the community require that the child be put under legal restraint or discipline.
  2. In making the determination required by subsection (a), the court shall consider, among other matters:
    1. The extent and nature of the child's prior delinquency records;
    2. The nature of past treatment efforts and the nature of the child's response thereto;
    3. Whether the offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
    4. Whether the offense was committed in an aggressive and premeditated manner;
    5. The possible rehabilitation of the child by use of procedures, services and facilities currently available to the court in this state; and
    6. Whether the child's conduct would be a criminal gang offense, as defined in § 40-35-121, if committed by an adult.
  3. The transfer pursuant to subsection (a) terminates jurisdiction of the juvenile court with respect to any and all delinquent acts with which the child may then or thereafter be charged, and the child shall thereafter be dealt with as an adult as to all pending and subsequent criminal charges; provided, that if a child transferred pursuant to this section is acquitted in criminal court on the charge or charges resulting in such transfer, or if such charge or charges are dismissed in such court, this subsection (c) shall not apply and the juvenile court shall retain jurisdiction over such child. If a child is in the legal custody of the department at the time of transfer, such custody shall terminate at the transfer hearing, except that if a child is already committed to the department, the court may determine if it is in the best interest of the child to remain in the legal custody of the department until conviction occurs. In any case, legal custody by the department shall terminate upon any conviction in adult criminal court. If there is no conviction and charges so transferred are dismissed or acquittal occurs, the presiding trial judge shall notify the transferring juvenile court judge of such dismissal or acquittal so that the juvenile court may at its discretion set a hearing to ascertain status of the child as to the department's custody.
  4. If a person eighteen (18) years of age or older is to be charged with an offense that was alleged to have been committed prior to such person's eighteenth birthday, the petition shall be brought in the juvenile court that would have had jurisdiction at the time of the offense. The juvenile court shall either adjudicate the case under its continuing jurisdiction authority under § 37-1-102(b)(5)(B) and (C) or undertake transfer proceedings consistent with this section.
  5. No child, either before or after reaching eighteen (18) years of age, shall be prosecuted for an offense previously committed unless the case has been transferred as provided in subsection (a).
    1. Statements made by the child at the juvenile court hearing under this section are not admissible against the child, over objection, in the criminal proceedings following the transfer.
    2. In any county in which, on July 1, 1996, the general sessions court or juvenile court makes audio recordings, the court shall make or cause to be made an audio recording of each transfer hearing conducted pursuant to this section. Such recording shall include all proceedings in open court and such other proceedings as the judge may direct and shall be preserved as a part of the record of the hearing. The juvenile who is the subject of the hearing may, at the juvenile's own expense, transcribe the recording of the hearing and a transcript so prepared may be used for the purpose of an appeal as provided by law. In all other counties, transfer hearings shall be recorded using the procedure provided in title 40, chapter 14, part 3.
  7. If the case is not transferred, the judge who conducted the hearing shall not over objection of an interested party preside at the hearing on the petition. If the case is transferred to a court of which the judge who conducted the hearing is also the judge, the judge likewise is disqualified from presiding in the prosecution.
  8. After a child has been sentenced to an adult institution, the department of correction may file a petition requesting the committing court to allow the department to transfer the defendant to an institution for juvenile delinquents administered by the department of children's services. Upon the approval by such court, the defendant may be transferred by the department of correction to a child-caring institution to be held until the defendant's eighteenth birthday. At the defendant's eighteenth birthday, the defendant may be transferred to an adult institution if there is time remaining on the defendant's term. If the term expires prior to the eighteenth birthday, the defendant shall be released. Any child sentenced by a committing court pursuant to this section shall, for the purpose of parole, be treated as if such child were an adult. The provisions of this section relative to housing of juveniles who have obtained the age of eighteen (18) shall not be affected by subsections (i), (j) and (k).
  9. When a child transferred under this section is detained, the juvenile court may, in its discretion, order confinement in a local juvenile detention facility, or a juvenile detention facility with which it contracts or an adult detention facility separate and removed from adult detainees. The court having adult criminal jurisdiction may thereafter order detention in an adult detention facility separate and removed from adult detainees; provided, however, that during the period while such child is detained separately from adult detainees, such child shall otherwise abide by the same regulations and policies governing conditions of imprisonment that apply to adult detainees who are charged with similar offenses. Similar regulations and policies governing educational opportunities for adults shall be implemented for a child so detained, but such regulations and policies shall in no way affect or alter the manner in which a local education agency is required to provide educational services to a child under the federal Individuals with Disabilities Education Act, compiled in 20 U.S.C. § 1471 et seq.
  10. Any person, who was transferred under this section and who was less than sixteen (16) years of age at the time of the offense and who is subsequently convicted and committed, shall be housed in a juvenile correctional facility until such person reaches sixteen (16) years of age, at which time such person may be transferred upon the order of the committing court to an adult facility. Any person committed to an adult facility under this section shall be housed separate and removed from adult inmates. In exercising the commissioner's discretion under § 41-1-403 to determine the institutional location of any such person, the commissioner of correction shall take into consideration the proximity of the institution to the person's home. However, during any period while such person is confined separately from adult inmates within such regional facility, such person shall otherwise abide by the same regulations and policies governing conditions of imprisonment that apply to adult inmates who are confined for similar offenses. Similar regulations and policies governing educational opportunities for adults shall be implemented for a child so detained, but such regulations and policies shall in no way affect or alter the manner in which a local education agency is required to provide educational services to a child under the federal Individuals with Disabilities Education Act, compiled in 20 U.S.C. § 1471 et seq.
  11. Any person who is transferred under this section and who was sixteen (16) years of age or older at the time of the offense and is subsequently convicted and committed shall be housed in a juvenile correctional facility unless the committing court orders commitment to an adult facility. Any person committed to an adult facility under this section shall be housed, separate and removed from adult inmates. In exercising the commissioner's discretion under § 41-1-403 to determine the institutional location of any such person, the commissioner of correction shall take into consideration the proximity of the institution to the person's home. However, during any period while such person is confined separately from adult inmates within such regional facility, such person shall otherwise abide by the same regulations and policies governing conditions of imprisonment that apply to adult inmates who are confined for similar offenses. Similar regulations and policies governing educational opportunities for adults shall be implemented for a child so detained, but such regulations and policies shall in no way affect or alter the manner in which a local education agency is required to provide educational services to a child under the federal Individuals with Disabilities Education Act, compiled in 20 U.S.C. § 1471 et seq.
  12. It is the intent of the general assembly that children shall not be transferred under this section due to a lack of appropriate resources for effective treatment and rehabilitation in the juvenile justice system.

Acts 1970, ch. 600, § 34; 1975, ch. 296, § 1; 1976, ch. 745, § 2; 1980, ch. 838, §§ 1, 2; Acts 1982, ch. 637, §§ 1-4; T.C.A., § 37-234; Acts 1989, ch. 278, § 39; 1990, ch. 958, § 1; 1990, ch. 982, § 2; 1994, ch. 823, §§ 1, 2; 1994, ch. 895, §§ 1, 2; 1995, ch. 267, § 1; 1995, ch. 354, §§ 1-3; 1995, ch. 379, § 1; 1996, ch. 767, § 1; 1996, ch. 1079, §§ 73, 95; 1998, ch. 782, § 1; imp. am. Acts 2000, ch. 947, § 6; 2005, ch. 265, § 2; 2010, ch. 860, § 1; 2011, ch. 486, §§ 2, 3; 2016, ch. 600, §§ 5, 6; 2017, ch. 382, § 1; 2018, ch. 1052, §§ 36, 37.

Compiler's Notes. Acts 1994, ch. 823, § 3 provided that this section applies only to offenses committed on or after July 1, 1994.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2016 amendment substituted “fourteen (14) days” for “three (3) days” in (a)(3); and substituted “is probable cause” for “are reasonable grounds” in the introductory language of (a)(4).

The 2017 amendment, in (a)(2), substituted “aggravated kidnapping,” for “aggravated kidnapping or” following the first occurrence of “kidnapping” and inserted “, commission of an act of terrorism,” preceding “or an attempt”.

The 2018 amendment redesignated (a)(1) as (a)(1)(A) and (a)(1)(B); in the present introductory language of (a)(1)(A), substituted the colon for “sixteen (16)”; in (a)(1)(A)(i), substituted “Less than fourteen (14) years of age” for “years or more of age” and “, and charged with first degree murder or second degree murder or attempted first or second degree murder;” for “or the child was less than sixteen (16)” following “conduct”; in present (a)(ii), substituted “Fourteen (14) years of age or more but less than seventeen (17) years of age at the time of the alleged conduct and” for “years of age if such child was” preceding “charged”, inserted “aggravated burglary, especially aggravated burglary,” and “carjacking”; added (a)(1)(A)(iii) and (a)(1)(A)(iv); in present (a)(1)(B), twice substituted “shall” for “may”; and added (l).

Effective Dates. Acts 2016, ch. 600, § 17. July 1, 2016.

Acts 2017, ch. 382, § 2. May 18, 2017.

Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect May 21, 2018.

Rule Reference. This section is referred to in the text and Advisory Commission Comments of Rule 24 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 8.4, 8.6, 8.7, 8.8, 8.9, 8.11, 8.13, 8.14, 8.15, 8.16, 8.41, 16.56, 16.109.

Tennessee Jurisprudence, 17 Tenn. Juris., Jurisdiction, § 27; 18 Tenn. Juris., Minors, § 11.

Law Reviews.

A Noble Ideal Whose Time Has Come (Penny J. White), 18 Mem. St. U.L. Rev. 223 (1989).

Blended Sentencing in Tennessee Courts, 44 U. Mem. L. Rev. 767 (2014).

Success in Shelby County: A Roadmap to Systemic Juvenile Reform, 44 U. Mem. L. Rev. 727 (2014).

The DOJ Comes to Town: An Argument for Legislative Reform When the Juvenile Court Fails to Protect Due Process Rights, 44 U. Mem. L. Rev. 921 (2014).

Attorney General Opinions. Detention of juveniles transferred to criminal court to be dealt with as adults, OAG 05-121 (7/29/05).

NOTES TO DECISIONS

1. Constitutionality.

This section is not unconstitutional on the basis of being overbroad or vague. State v. Strickland, 532 S.W.2d 912, 1975 Tenn. LEXIS 617 (Tenn. 1975), appeal dismissed, Lovelace v. Tennessee, 425 U.S. 929, 96 S. Ct. 1657, 48 L. Ed. 2d 170, 1976 U.S. LEXIS 1297 (1976), cert. denied, Cotton v. Tennessee, 425 U.S. 940, 96 S. Ct. 1677, 48 L. Ed. 2d 183, 1976 U.S. LEXIS 1384 (1976), dismissed, Strickland v. Tennessee, 429 U.S. 805, 97 S. Ct. 38, 50 L. Ed. 2d 65, 1976 U.S. LEXIS 2323 (1976), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982), superseded by statute as stated in, State v. Lundy, 808 S.W.2d 444, 1991 Tenn. LEXIS 125 (Tenn. 1991), superseded by statute as stated in, Toler by Lack v. City of Cookeville, 952 S.W.2d 831, 1997 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1997).

This section establishes adequate criteria upon which the juvenile court judge can base his decision, and adequately informs the parties as to those criteria, and therefore is not unconstitutionally broad or vague. State v. Layne, 546 S.W.2d 220, 1976 Tenn. App. LEXIS 211 (Tenn. Ct. App. 1976).

2. Construction.

The conventional or prevailing attitude and belief evidenced by birthday commemorations and celebrations to the contrary notwithstanding, legally one attains any given age one day before his birthday. State v. Strickland, 532 S.W.2d 912, 1975 Tenn. LEXIS 617 (Tenn. 1975), appeal dismissed, Lovelace v. Tennessee, 425 U.S. 929, 96 S. Ct. 1657, 48 L. Ed. 2d 170, 1976 U.S. LEXIS 1297 (1976), cert. denied, Cotton v. Tennessee, 425 U.S. 940, 96 S. Ct. 1677, 48 L. Ed. 2d 183, 1976 U.S. LEXIS 1384 (1976), dismissed, Strickland v. Tennessee, 429 U.S. 805, 97 S. Ct. 38, 50 L. Ed. 2d 65, 1976 U.S. LEXIS 2323 (1976), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982), superseded by statute as stated in, State v. Lundy, 808 S.W.2d 444, 1991 Tenn. LEXIS 125 (Tenn. 1991), superseded by statute as stated in, Toler by Lack v. City of Cookeville, 952 S.W.2d 831, 1997 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1997).

It is evident that in this section, the legislature had in mind birthdays and ages in the conventional, usual and ordinary sense of these words. State v. Alley, 594 S.W.2d 381, 1980 Tenn. LEXIS 403 (Tenn. 1980).

3. Rule of Stevens.

In criminal cases, the Rule of Stevens has been applied to the capacity of a minor to commit a crime; essentially, this has now been codified in this section. Cardwell v. Bechtol, 724 S.W.2d 739, 1987 Tenn. LEXIS 820, 67 A.L.R.4th 479 (Tenn. 1987).

4. Due Process.

The right to a transfer hearing is sufficiently fundamental to be considered a matter of due process, in the context of juvenile justice, but can be waived. State v. Hale, 833 S.W.2d 65, 1992 Tenn. LEXIS 430 (Tenn. 1992).

5. Double Jeopardy.

Where the juvenile court, pursuant to this section, restricted its findings of guilt or innocence to the question of reasonable grounds to believe that the defendant had committed the delinquent act, such a finding did not raise a double jeopardy issue. McGaha v. Tennessee, 461 F. Supp. 360, 1978 U.S. Dist. LEXIS 15775 (E.D. Tenn. 1978).

The mere fact that some portion of the evidence that was ultimately introduced in a defendant's criminal trial was also introduced at his transfer hearing did not raise a double jeopardy issue. McGaha v. Tennessee, 461 F. Supp. 360, 1978 U.S. Dist. LEXIS 15775 (E.D. Tenn. 1978).

Where the juvenile judge blended a transfer hearing with a hearing on the merits of the petition, double jeopardy resulted when the appellants were again tried in criminal court. State v. Davis, 637 S.W.2d 471, 1982 Tenn. Crim. App. LEXIS 447 (Tenn. Crim. App. 1982).

5.5. Jurisdiction.

Judgment against the petitioner was not void as the initial transfer of the petitioner from juvenile court to criminal court terminated the jurisdiction of the juvenile court. Lurry v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1033 (Tenn. Crim. App. Nov. 10, 2014).

6. Rights in Juvenile Court.

There is no reason in justice and fairness that a juvenile should be deprived of his rights in juvenile court simply because he might later assert those rights in a later hearing before another court. State v. Womack, 591 S.W.2d 437, 1979 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1979).

7. —Right to Jury Trial.

There is no constitutional or statutory right to a jury trial at a transfer hearing. State v. Strickland, 532 S.W.2d 912, 1975 Tenn. LEXIS 617 (Tenn. 1975), appeal dismissed, Lovelace v. Tennessee, 425 U.S. 929, 96 S. Ct. 1657, 48 L. Ed. 2d 170, 1976 U.S. LEXIS 1297 (1976), cert. denied, Cotton v. Tennessee, 425 U.S. 940, 96 S. Ct. 1677, 48 L. Ed. 2d 183, 1976 U.S. LEXIS 1384 (1976), dismissed, Strickland v. Tennessee, 429 U.S. 805, 97 S. Ct. 38, 50 L. Ed. 2d 65, 1976 U.S. LEXIS 2323 (1976), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982), superseded by statute as stated in, State v. Lundy, 808 S.W.2d 444, 1991 Tenn. LEXIS 125 (Tenn. 1991), superseded by statute as stated in, Toler by Lack v. City of Cookeville, 952 S.W.2d 831, 1997 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1997).

8. —Right to Hearing.

The right of the juvenile to a full and fair hearing before the juvenile judge is virtually identical to the right of an adult to a full and fair preliminary hearing before a general sessions judge. State v. Womack, 591 S.W.2d 437, 1979 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1979).

A defendant who was actually a juvenile at the time of the offense, but who was not afforded a transfer hearing in juvenile court prior to his conviction in criminal court, because neither he nor the state knew that he was underage, was deprived of fundamental procedural right and was entitled to remand to trial court for de novo hearing as to whether or not defendant would have been transferred from juvenile to criminal court, based on facts existing at time of his indictment and trial. Sawyers v. State, 814 S.W.2d 725, 1991 Tenn. LEXIS 514 (Tenn. 1991).

9. Nature of Proceedings Before Transfer.

Until a juvenile has been “transferred” to the criminal court, the proceeding against him is civil in nature and appellate review and supervision of the cause resides in the civil and not the criminal courts of the state. State v. Womack, 591 S.W.2d 437, 1979 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1979).

10. Transfer Proceedings.

Juvenile defendant's motion to dismiss murder indictment on the ground that the juvenile court that found that he should be held for prosecution as an adult failed to keep minutes of the proceedings was properly denied where there was no defect on the face of the indictment and no showing of prejudice on the alleged failure, since defendant could have appealed from the judgment of the juvenile court. Braziel v. State, 529 S.W.2d 501, 1975 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. 1975).

A juvenile court judge is not free to adjudicate guilt or innocence pursuant to § 37-1-129(b) at the same time as he makes a transfer determination under this section. McGaha v. Tennessee, 461 F. Supp. 360, 1978 U.S. Dist. LEXIS 15775 (E.D. Tenn. 1978).

Under the Tennessee Juvenile Courts Act, read in context of federal constitutional principles relating to due process and the assistance of counsel, a juvenile court is required to grant a juvenile the right to counsel in the proceedings involving the question whether such court should waive its exclusive jurisdiction over a juvenile as a minor and authorize the juvenile to be subjected to felony prosecutions. Mullins v. Lane, 484 F. Supp. 237, 1979 U.S. Dist. LEXIS 11632 (E.D. Tenn. 1979).

Neither § 37-1-115, providing for the release of a child from custody, nor § 37-1-127, bestowing basic rights on a child charged with a delinquent act, apply upon the trial of a child transferred from juvenile court to be tried as an adult in the criminal courts of this state. Colyer v. State, 577 S.W.2d 460, 1979 Tenn. LEXIS 423 (Tenn. 1979), superseded by statute as stated in, State v. Manus, 632 S.W.2d 137, 1982 Tenn. App. LEXIS 463 (Tenn. Ct. App. 1982), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982).

The court declined to disturb the juvenile court's exercise of discretion and concluded that the record of transfer hearing amply supported the court's finding of reasonable grounds to believe that the juvenile committed the offenses to which he had confessed. State v. Carroll, 36 S.W.3d 854, 1999 Tenn. Crim. App. LEXIS 1346 (Tenn. Crim. App. 1999).

A juvenile court is precluded under T.C.A. § 37-1-134(a)(4)(B) from transferring juveniles to criminal court when those juveniles are subject to the “involuntary commitment” procedures of T.C.A. §§ 33-6-401 et. seq; amenability to “voluntary admission” of the juvenile pursuant to T.C.A. §§ 33-6-201 et. seq. does not prohibit a transfer of the juvenile to criminal court for trial as an adult. State v. Simmons, 108 S.W.3d 881, 2002 Tenn. Crim. App. LEXIS 433 (Tenn. Crim. App. 2002), appeal denied, State v. Jackson, — S.W.3d —, 2002 Tenn. LEXIS 534 (Tenn. Nov. 12, 2002).

In a juvenile defendant's murder case, although counsel was deficient for failing to secure an expert's mental evaluation of defendant and for failing to present the expert's findings during the juvenile transfer hearing, the error was harmless; in light of the inconsistencies between experts that defendant was not committable to a mental institution, even if defense counsel had presented the expert's report at the transfer hearing, the juvenile court would have had reasonable grounds to believe that defendant was not committable. Howell v. State, 185 S.W.3d 319, 2006 Tenn. LEXIS 190 (Tenn. 2006).

Juvenile court properly considered the factors enumerated in the statute, finding that petitioner juvenile met the requirements for transfer to criminal court, and it was reasonable for the juvenile court to believe that he committed the crimes for which he was charged and that the interests of the community required that he be put under legal restraint or discipline; because petitioner met the criteria, the juvenile court was required to transfer his case to the criminal court. Mayes v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1120 (Tenn. Crim. App. Dec. 18, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 309 (Tenn. Apr. 11, 2014).

As there was no objection to having a witness read her responses from a juvenile court transfer hearing transcript, any issue in this regard was waived, but waiver notwithstanding, her prior testimony was admissible because she was an unavailable witness based on a lack of memory, and there was no question that her prior testimony from the transfer hearing was reliable, even though it was hearsay, because defendants had a similar motive and chance to cross-examine her in that hearing. State v. Burress, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1088 (Tenn. Crim. App. Dec. 4, 2014).

Juvenile court did not abuse its discretion by transferring defendant's case to criminal court where reasonable grounds existed to believe defendant committed the offenses. State v. Polochak, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 16, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 396 (Tenn. May 14, 2015).

Juvenile court, which transferred defendant's case to adult court pursuant to T.C.A. § 37-1-134, properly considered the facts and nature of defendant's crimes when determining whether he was amenable to rehabilitation. The juvenile court's observation that no evidence regarding rehabilitation had been presented by either side did not transform this statutory factor into an affirmative defense. State v. Bell, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. Mar. 4, 2015).

Defendant failed to establish a violation of his Sixth Amendment right to a because the court held that the Tennessee juvenile hearing transfer statute did not fall within the scope of Apprendi. State v. Booker, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 226 (Tenn. Crim. App. Apr. 8, 2020).

Even though the court held that defendant was entitled to Brady material at the juvenile transfer hearing, the information concerning other potential suspects was neither favorable nor material to the hearing because the individuals did not appear to be legitimate suspects but rather stray leads that were dismissed early in the case. State v. Booker, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 226 (Tenn. Crim. App. Apr. 8, 2020).

11. Effect of Adult Status.

Where the statute mandates that a child be tried as if he were an adult, he may no longer have the benefit of statutes expressly applicable to children. Colyer v. State, 577 S.W.2d 460, 1979 Tenn. LEXIS 423 (Tenn. 1979), superseded by statute as stated in, State v. Manus, 632 S.W.2d 137, 1982 Tenn. App. LEXIS 463 (Tenn. Ct. App. 1982), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982).

T.C.A. § 37-1-134(c) clearly contemplates that following the transfer hearing and the termination of the juvenile court's jurisdiction, a defendant may be charged in an adult court with other criminal offenses. State v. Darden, 12 S.W.3d 455, 2000 Tenn. LEXIS 56 (Tenn. 2000).

Where defendant was transferred to a criminal court, the defendant no longer had the benefit of statutes expressly applicable to children, and due process did not preclude the application of the statute of limitations to defendant's post-conviction petition, because defendant's status as a minor was not enough to make a prima facie showing of incompetence to toll the limitations period. Stewart v. State, 95 S.W.3d 229, 2002 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2002 Tenn. LEXIS 747 (Tenn. Dec. 23, 2002).

Although T.C.A. § 37-1-134(a)(1) plainly states that an offender may not receive the death penalty “for the offense for which the child was transferred,” there is no statutory language prohibiting the use of a conviction for that offense to enhance the punishment for a conviction of a later offense. Indeed, had the legislature intended for such a restriction or limitation, it could have included the appropriate statutory language. State v. Davis, 141 S.W.3d 600, 2004 Tenn. LEXIS 663 (Tenn. 2004), cert. denied, Davis v. Tennessee, 125 S. Ct. 1306, 161 L. Ed. 2d 123, 543 U.S. 1156, 2005 U.S. LEXIS 1599 (U.S. Feb. 22, 2005).

12. Sufficiency of Evidence.

Where the alleged crimes were armed robbery, rape, and murder, this was sufficient evidence to support the court's holding that the juvenile would not be amenable to treatment or rehabilitation in the facilities provided in this section. State v. Strickland, 532 S.W.2d 912, 1975 Tenn. LEXIS 617 (Tenn. 1975), appeal dismissed, Lovelace v. Tennessee, 425 U.S. 929, 96 S. Ct. 1657, 48 L. Ed. 2d 170, 1976 U.S. LEXIS 1297 (1976), cert. denied, Cotton v. Tennessee, 425 U.S. 940, 96 S. Ct. 1677, 48 L. Ed. 2d 183, 1976 U.S. LEXIS 1384 (1976), dismissed, Strickland v. Tennessee, 429 U.S. 805, 97 S. Ct. 38, 50 L. Ed. 2d 65, 1976 U.S. LEXIS 2323 (1976), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982), superseded by statute as stated in, State v. Lundy, 808 S.W.2d 444, 1991 Tenn. LEXIS 125 (Tenn. 1991), superseded by statute as stated in, Toler by Lack v. City of Cookeville, 952 S.W.2d 831, 1997 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1997).

Where there was probable cause to believe that defendant committed the delinquent act, and in view of defendant's record of previous delinquencies and the juvenile judge's opinion that he was not amenable to rehabilitation, there was no error in transferring defendant to the circuit court to be tried as an adult. State v. Orange, 543 S.W.2d 344, 1976 Tenn. App. LEXIS 218 (Tenn. Ct. App. 1976).

There was sufficient proof that the interest of the community required that the defendant be put under legal restraint or discipline to support the trial judge's decision to accept the defendant for treatment as an adult. State v. Williams, 784 S.W.2d 660, 1989 Tenn. Crim. App. LEXIS 754 (Tenn. Crim. App. 1989).

13. —Appellate Review.

Review of juvenile court's transfer order is not to be determined on the basis of the appellate court's conception of the preponderance of the evidence, and where the defendant was accused of participation in armed robbery the juvenile court could reasonably determine that he should be tried as an adult. State v. Layne, 546 S.W.2d 220, 1976 Tenn. App. LEXIS 211 (Tenn. Ct. App. 1976).

Appellate court lacked jurisdiction to consider defendant's appeal because, while he utilized the proper method for challenging the juvenile court's decision at his transfer hearing and despite his substantially narrower statement of the issue on appeal, his certified questions were overly broad; they merely recited the basic statutory language of the transfer statute, did not state why he was entitled to relief, or particularly identify how the trial court failed to follow the statute; and, although defendant filed a motion to supplement the appellate record with a transcript and included a copy of the juvenile transfer hearing transcript as an attachment, he did not file the transcript with the trial court clerk. State v. Toone, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 199 (Tenn. Crim. App. Mar. 16, 2017).

14. Murder.

The legislature intended for juveniles 15 or more years of age to be amenable to trial as an adult for every type of “murder.” State v. Gribble, 655 S.W.2d 196, 1983 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. 1983).

15. —Felony Murder.

A juvenile is triable as an adult for the offense of “murder” when the offense is “felony-murder” regardless of whether he is triable as an adult for the underlying felony. State v. Gribble, 655 S.W.2d 196, 1983 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. 1983).

16. Ineffective Assistance of Counsel.

Where petitioner was convicted as an adult of a murder he committed at age 14, while his trial counsel was deficient for failing to present mental health testimony at the T.C.A. § 37-1-134 transfer hearing, petitioner did not show he was prejudiced thereby because he failed to demonstrate that, had counsel not advised him to waive the transfer hearing and all the evidence was presented at that hearing, there would have been no transfer. Clinard v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 1040 (Tenn. Crim. App. Dec. 17, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 474 (Tenn. May 8, 2013).

Although transfer counsel's representation was deficient due to his failure to properly investigate and prepare the case, petitioner juvenile failed to demonstrate that the deficient performance prejudiced him because counsel testified that almost all first-degree murder cases were transferred to the criminal court; petitioner had prior contacts with the juvenile court, the case involved an aggressive, premeditated offense against a person, and it was gang-related. Mayes v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1120 (Tenn. Crim. App. Dec. 18, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 309 (Tenn. Apr. 11, 2014).

Counsel admitted she incorrectly told petitioner that her transfer hearing testimony could be used against her at trial, but counsel also did not want petitioner to testify because of concern petitioner would be unable to control her temper on the witness stand, and no theory of defense was abandoned, and thus ineffective assistance was not shown in this regard and the denial of post-conviction relief was affirmed. Brown v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1014 (Tenn. Crim. App. Nov. 6, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 400 (Tenn. May 15, 2015).

Defendant, whose attorney agreed to his transfer from juvenile court to adult court in a murder case, was entitled to habeas relief based on ineffective assistance of counsel; in finding that defendant was not prejudiced, the state postconviction appellate court ignored its own factual finding that, in the mind of the judge who presided over the transfer hearing, the issue of transfer was very much in doubt when defendant's attorney agreed to waive the hearing. Clinard v. Lee,  — F.3d —, 2018  2018 FED App. 93N, 2018 U.S. App. LEXIS 4780 (6th Cir. Feb. 27, 2018).

Petitioner failed to demonstrate that counsel was deficient in waiving the transfer hearing and thus he was not entitled to post-conviction relief; counsel testified that the decision to waive the hearing was strategic so he was able to negotiate a bond, which petitioner wanted. Furthermore, petitioner failed to present any evidence that he would have been successful in preventing his case from being transferred if he had had a transfer hearing, and thus he also failed to demonstrate that he was prejudiced. Perkins v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 100 (Tenn. Crim. App. Feb. 19, 2020).

Petitioner failed to show his trial counsel was ineffective for waiving the juvenile transfer hearing, and therefore he was properly denied postconviction relief, because counsel testified that he waived the hearing to obtain open discovery and other advantages, that the juvenile judge always approved motions to transfer, and that it would have been fruitless to hold the hearing. In addition, a psychological exam indicated that petitioner was not committable to a psychiatric facility and that he could be transferred to adult court, and therefore the record did not contain evidence that petitioner would have been successful in preventing his case from being transferred if a transfer hearing had been conducted. Siler v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 24, 2020).

17. Transfer Valid.

All requirements were met to transfer the juvenile to the custody of the circuit court because an expert stated that while the juvenile was mentally ill he was not committable to a psychiatric institution, and the juvenile court did not restrict the juvenile's cross-examination of the expert. State v. Brown, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 673 (Tenn. Crim. App. Aug. 7, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 1015 (Tenn. Dec. 10, 2013).

Juvenile court did not abuse its discretion in determining that a transfer to criminal court was appropriate because, while defendant had no prior record, committed only crimes against property, and had no criminal gang associations, the court gave greater weight to its findings that the acts of vandalism by defendant were aggressive and premeditated, defendant was not amenable to rehabilitation as defendant had evidenced a sustained intent to violate the law which spanned multiple days, and the interests of the community required transfer. State v. Eckert, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 558 (Tenn. Crim. App. July 25, 2018).

Juvenile court did not err by transferring defendant's case to criminal court because the record showed that it had reasonable grounds to believe that defendant committed first-degree felony murder and it was concerned with the amount of time left to rehabilitate defendant in the juvenile system based on his age, 17. State v. Booker, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 226 (Tenn. Crim. App. Apr. 8, 2020).

Collateral References.

Homicide by juvenile as within jurisdiction of juvenile court. 48 A.L.R.2d 663.

Juvenile's guilty or no contest plea in adult court as waiver of defects in transfer or certification proceedings. 74 A.L.R.5th 453.

Use of judgment in prior juvenile court proceeding to impeach credibility of witness. 63 A.L.R.3d 1112.

37-1-135. Mentally ill or developmentally disabled child — Disposition.

If, at a dispositional hearing or at a hearing to transfer a child under § 37-1-134, there is reason to believe the child may be suffering from mental illness or is developmentally disabled, the court may proceed under § 37-1-128(d).

Acts 1970, ch. 600, § 35; 1973, ch. 127, § 17; 1980, ch. 639, § 2; T.C.A., § 37-235; Acts 1985, ch. 437, § 32; 1986, ch. 836, § 2; imp. am. Acts 2000, ch. 947, § 6.

Cross-References. Rehabilitation of inmates with mental illness or intellectual disabilities, § 33-5-301.

Rule Reference. This section is referred to in Rules 32 and 38 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.1.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1977).

37-1-136. Assessment reports in certain counties — Confidentiality — Limited access — Destruction.

  1. All reports and materials compiled by the juvenile court in connection with an assessment report shall be confidential, shall not be public record, and shall not be disclosed, except as specifically authorized by this section. Except for purposes directly connected with this section, a person shall not disclose, receive, make use of, authorize, or knowingly permit the use of assessment reports and related materials. Assessment reports and related materials shall not be subject to any court subpoena.
  2. Access to assessment reports and materials shall be granted to the following people, officials, or agencies only for the following limited purposes:
    1. A court official or employee for the purpose of compiling information, administering assessment tools, preparing reports, and assisting children and families with accessing identified services and programs. The court official or employee may disclose relevant information, but not the actual assessment reports or materials, to professionals or other agency providers as needed to assist the child and family in accessing services and programs;
    2. An attorney for the child to use in representing the child or a guardian ad litem for the child for use in representing the child's best interests; or
    3. The child who is the subject of the assessment report and the child's parent or legal guardian.
  3. A juvenile court judge, magistrate, or district attorney general may be provided with a limited report concerning a child adjudicated delinquent. The limited report may contain service recommendations developed from the assessment report for the purpose of reviewing the appropriateness of the recommendations.
  4. A juvenile court judge or magistrate may hear testimony regarding the contents of an assessment report in a delinquency case for a child adjudicated delinquent for the limited purpose of determining appropriate services and programs for the child who is the subject of the assessment report. If such testimony is introduced, the actual assessment report and materials shall not be submitted to the court and shall not become part of the court record.
  5. The materials, records, and assessment reports compiled by the juvenile court for use as discussed in this section are to be maintained separately from public court records. When a child who is the subject of such an assessment report reaches an age when they are no longer under the jurisdiction of the juvenile court, the assessment report and all materials used to compile the information in the assessment report in possession of the juvenile court shall be destroyed.
  6. A violation of this section is a Class B misdemeanor.
  7. As used in this section, “assessment report” means a report compiled by the juvenile court assessment team.
  8. This section shall apply to any assessment report or materials used in the creation of an assessment report in juvenile courts located in any county having a metropolitan form of government with a population of more than five hundred thousand (500,000), according to the 2010 federal census or any subsequent federal census, and this section may be adopted by the juvenile court in any county and applied to any assessment report or materials used in the creation of an assessment report in juvenile court.

Acts 2016, ch. 833, § 1; 2018, ch. 1052, § 38.

Compiler's Notes. Former § 37-1-136 (Acts 1970, ch. 600, § 36; impl. am. Acts 1975, ch. 219, § 1; 1977, ch. 482, § 5; T.C.A., § 37-236), concerning disposition of abandoned children, was repealed by Acts 1995, ch. 532, § 11, effective January 1, 1996. For present related provisions, see § 36-1-113.

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2018 amendment, in (h), substituted “apply” for “be limited in application” following “shall” and added “, and this section may be adopted by the juvenile court in any county and applied to any assessment report or materials used in the creation of an assessment report in juvenile court”.

Effective Dates. Acts 2016, ch. 833, § 2. April 21, 2016.

Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect May 21, 2018.

Cross-References. Confidentiality of public records, § 10-7-504.

Penalty for Class B misdemeanor, § 40-35-111.

37-1-137. Commitment of delinquent children to the department of children's services.

      1. An order of the juvenile court committing a delinquent child to the custody of the department of children's services shall be for an indefinite time.
      2. If a juvenile offender is tried and adjudicated delinquent in juvenile court for the offense of first degree murder, second degree murder, rape, aggravated rape, rape of a child, aggravated rape of a child, aggravated sexual battery, kidnapping, especially aggravated kidnapping, aggravated robbery, especially aggravated robbery, aggravated arson, aggravated burglary, especially aggravated burglary, commission of an act of terrorism, carjacking, or violations of § 39-17-417(b), (i) or (j), or an attempt to commit any such offenses, or has been previously adjudicated delinquent in three (3) felony offenses arising out of separate criminal episodes at least one (1) of which has resulted in institutional commitment to the department of children's services, or is within six (6) months of the child's eighteenth birthday at the time of the adjudication of the child's delinquency, the commitment may be for a determinate period of time but in no event shall the length of the commitment be greater than the sentence for the adult convicted of the same crime, nor shall such commitment extend past the offender's nineteenth birthday. Commitment under this section shall not exceed the sentences provided for by the Tennessee Criminal Sentencing Reform Act of 1989, compiled in title 40, chapter 35, and in no event shall a juvenile offender be sentenced to Range II or Range III.
    2. However, no child shall be committed to such department when the court deems it in the best interest of the child without a pre-commitment report including, but not limited to:
      1. Educational status;
      2. Family background information;
      3. Employment background;
      4. Physical examination and report; and
      5. Psychological report (if possible).
    3. Such report shall be prepared by the probation officer assigned to the juvenile to be committed.
    4. Notwithstanding subdivisions (a)(2) and (3), the information in a pre-commitment report shall be provided only when presently available and shall not be provided at an additional cost to the department.
    5. The department may place the child in a suitable state institution, foster home or group home, or the department may purchase services from any agency, public or private, that is authorized by law to receive or provide care or services for children.
    6. The commissioner, in consultation with the executive committee of the Tennessee council of juvenile and family court judges, shall promulgate rules and regulations relative to commitment criteria for the incarceration of juvenile offenders in facilities operated or managed by the department. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
    1. Subject to subsection (c), a delinquent child committed to the custody of the department for an indefinite time shall be discharged or placed on home placement supervision after a maximum of six (6) months, excluding any amount of time that a child is absent from placement for whatever reason, unless:
      1. The treatment and rehabilitation of the child require that the child remain in custody beyond six (6) months to complete an evidence-based program in a custodial setting addressing a treatment need identified by the previously administered validated risk and needs assessment;
      2. The child is alleged to have committed a new delinquent act; or
      3. The child is alleged to be an escapee from a secure juvenile facility or institution.
    2. The commissioner shall prescribe procedures whereby the child's treatment, rehabilitation, and progress shall be reviewed monthly and a recommendation for or against home placement or discharge shall be made to the commissioner or the commissioner's designee at least quarterly.
      1. The commissioner or the commissioner's designee, with the assent of the committing court, may make a home placement of a child under the continuing supervision of the department.
      2. Notification of a home placement of a child shall be made in writing to the committing court at least fifteen (15) days prior to the proposed date of such placement. Unless the committing court makes an objection in writing to the commissioner or the commissioner's designee or sets a hearing within the fifteen-day period with such hearing to be held at the earliest possible date, the court shall be considered to have assented to the home placement and the child shall immediately be released to home placement supervision.
      3. The first thirty (30) days after the child's return to home placement supervision shall be a trial home pass with the department retaining legal custody of the child. If the child successfully completes the trial home pass, at the end of the thirty-day trial home pass the child shall automatically continue on home placement supervision status, unless the court has ordered that supervision status is not necessary, and the department's legal custody of the child shall terminate. Such home placement supervision by the department shall continue until the court orders a discharge of such supervision under subdivision (g)(1).
      4. If the committing court objects to the home placement supervision, such objections shall be made in writing to the commissioner or the commissioner's designee setting forth the reasons for such objections. A valid ground for such objection shall include, but not be limited to, consideration of the nature of the offense committed by the juvenile. No juvenile shall be released on home placement supervision if the committing court objects in the prescribed written manner. Upon receiving the objection from the committing court, the commissioner or the commissioner's designee shall review the child's file and consult with the committing judge regarding such denial in the form of a hearing set by either the court or by motion of the department or any attorney for the child.
      5. If no agreement is reached between the department and the committing judge, then the commissioner or the commissioner's designee shall request a hearing on the proposed placement by a three- judge panel to be appointed by the executive committee of the Tennessee council of juvenile and family court judges. Such three-judge panel shall not include the committing judge. The panel will hear and resolve the controversy within thirty (30) days of receipt of the commissioner's or the commissioner's designee's request for a hearing by the executive secretary of the council and the decision of the panel shall be final.
    2. In the event the juvenile offender is a person described in subdivision (a)(1)(B) and is given a determinate commitment, and the commissioner or the commissioner's designee is of the opinion that the juvenile offender is a fit subject to return to home placement prior to the achievement of committal reduction credits as set out in subsection (h), the commissioner or the commissioner's designee shall request a hearing before the judge of the juvenile court in which the original commitment occurred. The request shall state the reasons for recommending the early release placement and shall make specific recommendations as to where the child will be placed. A copy of the request for a hearing shall be supplied to the district attorney general. If, on review of the record, the court is of the opinion that the request is well taken and the district attorney general has no objection, the judge may order the early release placement without a hearing. Otherwise, the court shall schedule a hearing within fifteen (15) days of the receipt of the request for hearing. At the hearing, the department, the juvenile offender, and the state shall be given an opportunity to be heard in support of or in opposition to the proposed early release placement and all of the parties may subpoena witnesses to testify on any issue raised by the proposed placement. The court may make such orders pertaining to such placement as the court determines are justified under the proof produced at the hearing for such early release placement. The court's decision may be appealed under § 37-1-302.
      1. If the designee of the department supervising a delinquent child on home placement supervision has reasonable cause to believe that such child has violated the conditions of home placement supervision in an important respect after the trial home pass has ended, the designee may file a petition alleging a violation of home placement supervision; provided, that, unless a new petition has been filed alleging the child has committed a new delinquent offense or habitual and unlawful absence pursuant to § 49-6-3007, the court, in its discretion, may direct the designee that, in some or all circumstances, such a petition should be filed only if the designee makes and documents attempts to address the noncompliant behavior and determines and documents the reasons for which court intervention is needed to address the noncompliance.
      2. The court may require that the child be placed in detention pending adjudication of the petition, but only in accordance with § 37-1-114. The department is prohibited from taking the child into custody until the court finds that the child has violated conditions of the home placement supervision by incurring an adjudication of delinquency for a new offense that meets the eligibility criteria for commitment to the department under § 37-1-131(a)(4) and the court terminates the home placement supervision. Nothing in this subdivision (d)(1) shall prevent the transfer of a juvenile under § 37-1-134.
    2. No such court permission is required during the trial home pass and the department is authorized to remove the child from the home, but only if the child cannot be located by the designee after documented efforts to locate the child or a new petition has been filed alleging the child has committed a delinquent offense arising from a separate incident from the original petition. A notice of such removal and disruption of the trial home pass shall be filed with the court within ten (10) days as a violation allegation or other appropriate petition or motion and the legal custody of the department is not terminated. A review hearing on such action shall be held within thirty (30) days of such filing. Nothing in this subdivision (d)(2) shall prevent the transfer of a juvenile under § 37-1-134.
  5. The juvenile court that committed the delinquent child to the department retains jurisdiction to determine allegations of violation of home placement supervision. Such court shall schedule a hearing within seven (7) days of the time the petition is filed alleging a violation of home placement supervision and cause written notice to be served on the child, the child's parent or parents, guardian, or other custodian, and the department's designee a reasonable time before the hearing. The written notice shall contain a copy of the petition and any other written report or statement detailing the violation or violations as well as the time, place, and purpose of the hearing. At the hearing, the court shall allow the child to be heard in person and to present witnesses or documentary evidence. The child shall also have the right to confront and cross-examine witnesses.
    1. If the court finds that no violation has occurred, the child shall be allowed to resume the former conditions of home placement.
    2. If the court finds that a violation occurred because the child has been adjudicated for a new offense eligible for commitment to the department under § 37-1-131(a)(4), the court may order that the child be re-committed to the department or utilize any other disposition option permitted by law. Such order shall contain the reasons relied on for terminating the home placement. Upon any such termination and commitment to the department, the child may be placed as the commissioner or the commissioner's designee may direct.
      1. If the court finds that a violation occurred but the child has not been adjudicated for a new offense that is eligible for commitment to the department, the court may modify conditions of home placement consistent with the results of the previously administered validated risk and needs assessment, including ordering a transfer or grant pursuant to § 37-1-131(a)(1), but shall not order that the child be re-committed to the department or otherwise remove the child from the child's home, including the home of a parent, guardian, or other legal custodian, unless the court finds by clear and convincing evidence that the child is in imminent risk of danger to the child's health or safety and needs specific treatment or services that are available only if the child is placed in the custody of the department.
      2. A child placed in the custody of the department under this subdivision (f)(3) shall remain in custody so long as necessary to complete the treatment or services, which shall be evidence-based and provided by a qualified provider, but shall remain in custody no longer than six (6) months; provided, that the court may order that the child remain in custody for up to an additional six (6) month period if the court finds after a hearing or stipulation that:
        1. The child needs treatment or services that are available only if the child is in custody; and
        2. The treatment or services the child needs are evidence-based and will be provided by a qualified provider.
    4. The child may appeal the disposition of the court as provided in § 37-1-159.
    1. The commissioner or the commissioner's designee may discharge a child placed on state probation pursuant to § 37-1-131(a)(2)(A) or under home placement supervision status by the department after legal custody ends pursuant to  subdivision (c)(1)(C) and thereby terminate supervision of the child by the department. Notification of discharge of a child shall be made in writing to the committing court at least fifteen (15) days prior to the proposed discharge. Unless the committing court makes an objection in writing to the commissioner or the commissioner's designee or sets a hearing within the fifteen-day period with such hearing to be held at the earliest possible date, the court shall be considered to have assented to the discharge from home placement supervision status of the department or from state probation, and such supervision by the department shall terminate.
    2. Upon receiving the written objection from the committing court, the commissioner or the commissioner's designee shall review the child's file and within fifteen (15) days of receipt of such objection may file a motion for a hearing. The court shall hold such hearing within thirty (30) days of the motion filing. A written decision will be rendered within ten (10) days of that hearing. If the department does not concur with the hearing decision, it shall notify the executive committee of the Tennessee council of juvenile and family court judges which shall appoint a panel of three (3) juvenile or family court judges to review the commissioner's final decision. Such three-judge panel will hear and resolve, by a majority vote, the controversy within thirty (30) days of the filing of the commissioner's request. The committing judge shall not be a member of the three-judge panel. The determination of the three-judge panel shall be final.
    3. In the event the juvenile offender is a person described in subdivision (a)(1)(B) and is given a determinate commitment, and the commissioner or the commissioner's designee is of the opinion that the juvenile offender is a fit subject for discharge, the commissioner or the commissioner's designee shall request a hearing before the judge of the juvenile court in which the original commitment occurred. The request shall state the reasons for recommending the discharge and shall make specific recommendations as to where the child will be placed. A copy of the request for a hearing shall be supplied to the district attorney general. If, on review of the record, the court is of the opinion that the request is well taken and the district attorney general has no objection, the judge may order the placement without a hearing. Otherwise, the court shall schedule a hearing within fifteen (15) days of the receipt of the request for hearing. At the hearing, the department, the juvenile offender and the state shall be given an opportunity to be heard in support of or in opposition to the proposed discharge and all of the parties may subpoena witnesses to testify on any issue raised by the proposed discharge. The court may make such orders pertaining to the continued commitment or discharge as the court determines are justified under the proof produced at the hearing. The court's decision shall be appealable under the provisions of § 37-1-302.
    1. Any juvenile offender who is given a determinate commitment shall be eligible to receive time credits toward the determinate sentence imposed. Such time credits shall be awarded for good institutional behavior or satisfactory performance, or both, within institutional programs. Notwithstanding any other law to the contrary, awarded time credits shall operate to reduce the time a juvenile offender must serve in the department on the determinate sentence.
    2. Each juvenile offender who exhibits good institutional behavior or exhibits satisfactory performance, or both, within a program may be awarded time credits toward the sentence imposed, varying between one (1) day and sixteen (16) days for each month served, with not more than eight (8) days for each month served for good institutional behavior and not more than eight (8) days for each month served for satisfactory program performance in accordance with criteria established by the department. No juvenile offender shall have the right to any such time credits nor shall any juvenile offender have the right to participate in any particular program and may be transferred from one (1) program to another without cause.
    3. Such sentence credits shall not be earned or credited automatically, but rather shall be awarded on a monthly basis to a juvenile offender at the discretion of the responsible superintendent in accordance with the criteria established by the department, and only after receipt by the superintendent of written documentation evidencing the juvenile offender's good institutional behavior or satisfactory program performance, or both.
    4. Such sentence credits may not be awarded for a period of less than one (1) calendar month or for any month in which a juvenile offender commits a major violation of which such juvenile offender is found guilty. No sentence credits for good institutional behavior may be awarded for any month in which a juvenile offender commits any disciplinary violation of which such juvenile offender is found guilty.
    5. A juvenile offender may be deprived of those sentence credits previously awarded pursuant to this subsection (h) only for the commission of any major infraction designated by the department as a major violation, or refusal to participate in a program.
    6. All determinately sentenced juvenile offenders, including those juveniles who are currently serving their sentences, are eligible for the sentence reduction credits authorized by this subsection (h). However, sentence reduction credits authorized by this subsection (h) may be awarded only for conduct or performance, or both, from and after July 1, 1987.

Acts 1970, ch. 600, § 37; impl. am. Acts 1971, ch. 76, § 1; 1972, ch. 786, §§ 1, 2; 1975, ch. 326, § 3; 1976, ch. 745, §§ 3, 4, 5; 1977, ch. 171, §§ 1, 2; 1979, ch. 297, § 1; 1980, ch. 907, § 1; T.C.A., § 37-237; Acts 1985, ch. 441, §§ 3-5; 1987, ch. 56, § 1; 1988, ch. 979, §§ 6, 7; 1989, ch. 278, § 44; 1990, ch. 958, §§ 2-4; 1990, ch. 982, § 3; 1993, ch. 276, § 3; 1996, ch. 1079, §§ 73, 96-98, 100-102; 2005, ch. 265, § 3; 2011, ch. 486, §§ 4-7; 2018, ch. 1052, §§  39-42; 2019, ch. 312, § 8.

Compiler's Notes. Acts 1993, ch. 276, § 4 provided that the amendment by that act shall not affect or apply to any juvenile committed to the department of youth development on or before July 1, 1993, or to the subsequent de novo appeal of such case.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2018 amendment by ch. 1052, § 41, effective July 1, 2018, in (e), at the end of the first sentence, inserted “supervision”, and, in the second sentence, substituted “petition is filed alleging a violation of home placement supervision” for “child is placed in detention” following “seven (7) days of the time” and “parent or parents” for “parent(s)” preceding “guardian”.

The 2018 amendment by ch. 1052, §§ 39, 40, and 42, effective July 1, 2019, added (b)(1); and, in present (b)(2), substituted “monthly” for “quarterly” following “reviewed” and “quarterly” for “semiannually” at the end; redesignated former (d)(1) as present (d)(1)(A) and (d)(1)(B); in (d)(1)(A), substituted “; provided, that, unless a new petition has been filed alleging the child has committed a new delinquent offense or habitual and unlawful absence pursuant to § 49-6-3007, the court, in its discretion, may direct the designee that, in some or all circumstances, such a petition should be filed only if the designee makes and documents attempts to address the noncompliant behavior and determines and documents the reasons for which court intervention is needed to address the noncompliance.” for “Notwithstanding any other law to the contrary, the court” following “a violation of home placement supervision”; in present (d)(1)(B), inserted “The court”, “, but only in accordance with § 37-1104”, and “by incurring an adjudication of delinquency for a new offense that meets the eligibility criteria for commitment to the department under § 37-1-131(a)(4)”; in (d)(2), substituted “but only if the child cannot be located by the designee after documented efforts to locate the child or a new petition has been filed alleging the child has committed a delinquent offense arising from a separate incident from the original petition. A” for “at its discretion, except that” preceding “notice of such removal”; added present (f)(3); redesignated the former introductory language of (f) as present (f)(1) and deleted “If the court finds that:” at the end; rewrote former (f)(1) and (f)(2) which read:“(1) A violation has occurred; and“(2) The violation was serious enough to justify termination, it shall order that the child be re-committed to the department. Such order shall contain the reasons relied on for terminating the home placement. Upon such termination, the child may be placed as the commissioner or the commissioner's designee may direct. The child may appeal the disposition of the court as provided in § 37-1-159.”, and redesignated them as present (f)(2) and (f)(4).

The 2019 amendment rewrote (a)(1)(B) which read: “(B)  If a juvenile offender is tried and adjudicated delinquent in juvenile court for the offense of first degree murder, second degree murder, aggravated rape, rape of a child, aggravated sexual battery, especially aggravated kidnapping, aggravated robbery, especially aggravated robbery, aggravated arson, attempt to commit first degree murder, or violations of § 39-17-417(b), (i) or (j), or has been previously adjudicated delinquent in three (3) felony offenses arising out of separate criminal episodes at least one (1) of which has resulted in institutional commitment to the department of children's services, or is within six (6) months of the child's eighteenth birthday at the time of the adjudication of the child's delinquency, the commitment may be for a determinate period of time but in no event shall the length of the commitment be greater than the sentence for the adult convicted of the same crime, nor shall such commitment extend past the offender's nineteenth birthday. Commitment under this section shall not exceed the sentences provided for by the Tennessee Criminal Sentencing Reform Act of 1989, compiled in title 40, chapter 35, and in no event shall a juvenile offender be sentenced to Range II or Range III.”

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; July 1, 2019; provided that for purposes of rulemaking, the act took effect May 21, 2018.

Acts 2019, ch. 312, § 11. July 1, 2019.

Cross-References. Commission on children and youth, title 37, ch. 3, part 1.

Criminal offenses and penalties concerning controlled substances, § 39-17-417.

Sentencing ranges, § 40-35-109.

Rule Reference. This section is referred to in the text of Rules 1, 2, 34 and 35 and in the Advisory Commission Comments of Rules 32 and 35 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Minors, § 11, 20 Tenn. Juris., Pardon and Parole, § 7.

Law Reviews.

Serious and Habitual Juvenile Offender Statutes: Reconciling Punishment and Rehabilitation Within the Juvenile Justice System, 48 Vand. L. Rev. 479 (1995).

Attorney General Opinions. Placement of delinquent in hardware secure facility not authorized, OAG 97-111 (8/06/97).

NOTES TO DECISIONS

1. Standard of Proof.

The standard of proof in a proceeding in juvenile court to revoke home placement is by a preponderance of the evidence rather than beyond a reasonable doubt. State ex rel. Gillard v. Cook, 528 S.W.2d 545, 1975 Tenn. LEXIS 627 (Tenn. 1975).

2. Appointment of Counsel.

The juvenile judge must consider each case on its merits to determine whether the appointment of counsel is required at a home placement revocation hearing using such criteria as whether the juvenile can speak capably for himself, or whether he alleges in a timely and colorable claim that he has not committed the violation or that there are substantial reasons mitigating the violation which are complex or difficult to present, within any doubt being resolved in favor of appointment of counsel. State ex rel. Gillard v. Cook, 528 S.W.2d 545, 1975 Tenn. LEXIS 627 (Tenn. 1975).

3. Judge Not Licensed to Practice Law.

In the context of a juvenile commitment, “the law of the land” provision of Tenn. Const., art. I, § 8 does not permit a judge who is not licensed to practice law to make any disposition of a juvenile that operates to confine him or deprive him of his liberty. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

4. Commitment to Department of Children's Services.

Criminal Court did not err in committing a juvenile to the custody of the Department of Children's Services (DCS) for an indefinite term because the juvenile's probation had been extended multiple times, he had pleaded guilty to three violations of probation, and the Court could impose any disposition that was permissible in an original proceeding, one of which was to commit him to DCS. In re Dontavis K.W., — S.W.3d —, 2015 Tenn. App. LEXIS 377 (Tenn. Ct. App. May 26, 2015).

Collateral References.

Liability of parent for support of child institutionalized by juvenile court. 59 A.L.R.3d 636.

37-1-138. Liability for expenses of returning juvenile to custody of department of children's services.

  1. The parent or other person who is the physical custodian of a juvenile shall reimburse the state for any expenses incurred by the state in returning such juvenile to the department if:
    1. The juvenile is in the legal custody of the department of children's services;
    2. The juvenile has been temporarily released for a definite period of time to the physical custody of such parent or custodian; and
    3. The juvenile has not returned to the physical custody of the department at the time designated for such return in the temporary release.
  2. The department shall notify the parent or other custodian of this liability prior to release of such juvenile.
  3. The department has the authority to initiate an appropriate civil action in order to collect any proceeds to which it is entitled under the provisions of subsection (a). For any judgment rendered in the state's favor, execution shall issue as provided by law.

Acts 1982, ch. 569, § 1; T.C.A., § 37-284; Acts 1989, ch. 278, § 38; 1996, ch. 1079, § 73.

Rule Reference. This section is referred to the Advisory Commission Comments under Rule 32 of the Tennessee Rules of Juvenile Procedure.

37-1-139. Modification of orders.

  1. Except as provided in § 36-1-113(q), an order of the court shall be set aside if it appears that:
    1. It was obtained by fraud or mistake sufficient to satisfy the legal requirements in any other civil action;
    2. The court lacked jurisdiction over a necessary party or of the subject matter; or
    3. Newly discovered evidence so requires.
  2. Except for an order terminating parental rights or an order of dismissal, an order of the court may be changed or modified:
    1. Upon a finding of changed circumstances and that the change or modification is in the best interest of the child;
    2. If the order contains clerical mistakes; or
    3. If newly discovered evidence so requires.
  3. In no event shall modification of an agreed order result in a child being placed into the custody of the department of children's services without the appropriate petition having been filed with the clerk of the court alleging the child to be dependent, neglected, abused, unruly, or delinquent. This subsection (c) shall not be construed as eliminating the judicial findings required for children in state custody by §§ 37-1-166 and 37-2-409 or as otherwise required by case law and federal regulations.
  4. [Deleted by 2016 amendment.]
  5. [Deleted by 2016 amendment.]

Acts 1970, ch. 600, § 38; T.C.A., § 37-238; Acts 1989, ch. 278, § 40; 1995, ch. 532, § 12; 1996, ch. 1079, § 73; 2007, ch. 199, §§ 5-8; 2016, ch. 600, §§ 8-10; 2016, ch. 717, § 6.

Amendments. The 2016 amendment by ch. 600, rewrote (b) which read: “(b) Except for an order terminating parental rights or an order of dismissal, an order of the court may also be changed, modified or vacated upon a finding of changed circumstances and that the change, modification or vacation is in the best interest of the child. An order granting probation to a child found to be delinquent or unruly may be revoked on the ground that the conditions of probation have not been observed.”; deleted “Pursuant to Rule 22 of the Tennessee Rules of Juvenile Procedure,” from the beginning of (c);  and deleted former (d) and (e) which read, “(d) Any party to the proceeding, the probation officer or other person having supervision or legal custody of or an interest in the child may petition the court for the relief provided in this section. The petition shall set forth in concise language the grounds upon which the relief is requested.“(e) After the petition is filed, the court shall fix a time for hearing and cause notice to be served as a summons is served under § 37-1-123 on the parties to the proceeding or affected by the relief sought. After the hearing, which may be informal, the court shall deny or grant relief as the evidence warrants.”

The 2016 amendment by ch. 717, purported to delete subsection (e); however, the change had been previously made by Acts 2016, ch. 600, effective July 1, 2016.

Effective Dates. Acts 2016, ch. 600, § 17. July 1, 2016.

Acts 2016, ch. 717, § 7. July 1, 2016.

Cross-References. Termination of parental rights, §§ 36-1-113, 37-1-147.

Rule Reference. This section is referred to the Advisory Commission Comments under Rule 34 of the Tennessee Rules of Juvenile Procedure.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1977).

Attorney General Opinions. Juvenile court's authority to release delinquent child from DCS custody.  OAG 10-20, 2010 Tenn. AG LEXIS 15 (2/23/10).

NOTES TO DECISIONS

1. Jurisdiction.

After a juvenile court had found a juvenile to be an unruly child, a circuit court erred in summarily dismissing the juvenile's appeal of the juvenile court's order denying a petition to vacate, T.C.A. § 37-1-139 and Tenn. R. Juv. P. 34, because the denial of the petition constituted an appealable order under T.C.A. § 37-1-159, the juvenile timely appealed, and the circuit court had jurisdiction to hear the appeal. In re A.W., — S.W.3d —, 2012 Tenn. App. LEXIS 81 (Tenn. Ct. App. Feb. 9, 2012).

Circuit court erred in summarily dismissing an appeal of a juvenile court's order denying a juvenile's petition to vacate, T.C.A. § 37-1-139 and Tenn. R. Juv. P. 34, because the denial of the petition constituted an appealable final order under T.C.A. § 37-1-159, the juvenile timely appealed, and the circuit court had jurisdiction to hear the appeal; the juvenile court had found the juvenile to be an unruly child. In re M.R., — S.W.3d —, 2012 Tenn. App. LEXIS 82 (Tenn. Ct. App. Feb. 9, 2012).

Circuit court erred in summarily dismissing an appeal of a juvenile court's order denying a juvenile's petition to vacate, pursuant to T.C.A. § 37-1-139 and Tenn. R. Juv. P. 34, because the denial of the petition constituted an appealable final order under T.C.A. § 37-1-159, the juvenile timely appealed, and the circuit court had jurisdiction to hear the appeal; the juvenile court had found the juvenile to be an unruly child. In re T.W., — S.W.3d —, 2012 Tenn. App. LEXIS 83 (Tenn. Ct. App. Feb. 9, 2012).

Circuit court erred in summarily dismissing an appeal of a juvenile court's order denying a juvenile's petition to vacate, T.C.A. § 37-1-139 and Tenn. R. Juv. P. 34, because the denial of the petition constituted an appealable final order under T.C.A. § 37-1-159, the juvenile timely appealed, and the circuit court had jurisdiction to hear the appeal; the juvenile court had found the juvenile to be an unruly child. In re B.R., — S.W.3d —, 2012 Tenn. App. LEXIS 84 (Tenn. Ct. App. Feb. 9, 2012).

2. Relief Not Available.

Although the father contended that the agency allegedly presented false testimony that the father was HIV positive on the dates of the offenses for which he was convicted, there was nothing to indicate that the trial court considered the testimony for any purpose whatsoever. In re Lakita E. P., — S.W.3d —, 2013 Tenn. App. LEXIS 567 (Tenn. Ct. App. Aug. 28, 2013).

Juvenile may not seek relief from a judgment to effectively eliminate the requirement that an appeal of an appealable order of a juvenile court be filed within a set period of time. Therefore, appellant, a juvenile, was unable to seek relief from judgment after being found to be an unruly child and placed on probation based on the grounds of clerical mistake, extraordinary relief, or modification for best interest of the child due to changed circumstances; this was just an attempt to make an untimely appeal. In re B.R., — S.W.3d —, 2013 Tenn. App. LEXIS 827 (Tenn. Ct. App. Dec. 26, 2013).

There was no basis for relief under either Tenn. R. Juv. P. 34 or Tenn. Code Ann. § 37-1-139, as this was not a direct appeal of the original appealable orders, but was an appeal only of the denial of the petition to vacate; absent any basis for relief, the court would not reach the issues raised by the juvenile, which could have been the basis for an appeal of the original appealable orders, as the court was obligated to apply the appropriate standard of review. In re A.W., — S.W.3d —, 2013 Tenn. App. LEXIS 828 (Tenn. Ct. App. Dec. 26, 2013).

Juvenile may not seek relief from judgment to effectively eliminate the requirement that an appeal of an appealable order of a juvenile court be filed within a set period of time. Therefore, a juvenile was unable to seek relief from judgment after being found to be an unruly child and placed on probation based on the grounds of clerical mistake, extraordinary relief, or modification for best interest of the child due to changed circumstances; this was just an attempt to make an untimely appeal. In re T.W., — S.W.3d —, 2013 Tenn. App. LEXIS 829 (Tenn. Ct. App. Dec. 26, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 374 (Tenn. May 14, 2014).

Juvenile may not seek relief from a judgment to effectively eliminate the requirement that an appeal of an appealable order of a juvenile court be filed within a set period of time. Therefore, a juvenile was unable to seek relief from judgment after being found to be an unruly child and placed on probation based on the grounds of clerical mistake, extraordinary relief, or modification for best interest of the child due to changed circumstances; this was just an attempt to make an untimely appeal. In re M.R., — S.W.3d —, 2013 Tenn. App. LEXIS 830 (Tenn. Ct. App. Dec. 26, 2013).

Trial court properly found that the father had physically or emotionally abused the children, giving it express statutory authority to prohibit visitation until there was no reasonable likelihood that such abuse would recur under T.C.A. § 36-1-301 because the court previously upheld the trial court's determination that the father committed sexual abuse against the child. In re Emmalee O., — S.W.3d —, 2018 Tenn. App. LEXIS 321 (Tenn. Ct. App. June 13, 2018).

3. Construction.

Neither the rule nor the statute are intended to allow a juvenile to, in effect, appeal a decision of the juvenile court long after the time has run for such an appeal; a juvenile may not simply by invoking the rule effectively eliminate the requirement that an appeal of an appealable order of a juvenile court be filed within a set period of time. In re A.W., — S.W.3d —, 2013 Tenn. App. LEXIS 828 (Tenn. Ct. App. Dec. 26, 2013).

4. Rehearing Denied.

Petition for rehearing was denied because no contact orders did not violate substantive due process; there was no evidence in the record to suggest a purpose to harm petitioner or that was arbitrary, irrational, improper, or egregious, and the orders did not “shock the conscience” or otherwise lead to the conclusion that any substantive due process rights had been violated. In re Emmalee O., — S.W.3d —, 2018 Tenn. App. LEXIS 364 (Tenn. Ct. App. June 27, 2018).

There were no grounds for vacating or modifying any of the existing orders because the purported “newly discovered evidence” petitioner raised would not have resulted in a different judgment at the original proceeding. In re Emmalee O., — S.W.3d —, 2018 Tenn. App. LEXIS 364 (Tenn. Ct. App. June 27, 2018).

Petition for rehearing was denied because petitioner did not demonstrate that fundamentally unfair procedures had been used at any time during the case. In re Emmalee O., — S.W.3d —, 2018 Tenn. App. LEXIS 364 (Tenn. Ct. App. June 27, 2018).

37-1-140. Legal custodian — Duties.

  1. A custodian to whom legal custody has been given by the court under this part has the right to the 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 and education, and the physical, mental and moral welfare of the child, subject to the conditions and limitations of the order and to the remaining rights and duties of the child's parents or guardian. A custodian is also responsible for providing notices as required in § 49-6-3051, to the principal of the school in which the child is enrolled.
  2. As an alternative to a parent or guardian transferring legal custody pursuant to this section or as otherwise provided by law, a parent or guardian may temporarily provide for the care of a child by executing a power of attorney for care of a minor child, pursuant to the Power of Attorney for Care of a Minor Child Act, compiled in title 34, chapter 6, part 3.

Acts 1970, ch. 600, § 39; T.C.A., § 37-239; Acts 2003, ch. 71, § 2; 2003, ch. 238, § 1.

Attorney General Opinions. When the juvenile court has adjudicated a child dependent or neglected and has placed the child in the department of children's services' custody but has not terminated parental rights, the department of children's services has the right and duty to be present at a multi-disciplinary (IEP) team meeting, OAG 02-022 (2/26/02).

The General Assembly has neither explicitly nor implicitly supplied the Department of Children's Services (DCS) with authority to make decisions about extraordinary medical care, and the juvenile court may not unilaterally confer such authority upon DCS, OAG 04-127 (8/11/04).

NOTES TO DECISIONS

1. In General.

The concept of “custody” includes the obligation to raise and support the child and the right to make fundamental decisions about the child's welfare, including the child's education, religious training, discipline, and medical care. Rust v. Rust, 864 S.W.2d 52, 1993 Tenn. App. LEXIS 447 (Tenn. Ct. App. 1993).

Divestment of custody of a mother's child from the Department of Children's Services to a maternal aunt did not constitute de facto termination of the mother's parental rights because the mother remained the child's mother and retained the right to visit the child and to petition the trial court to return custody to her; the transfer of legal custody or the creation of a permanent guardianship does not end the parent-child relationship, T.C.A. §§ 37-1-140(a), 37-1-803(a). In re Gina A., — S.W.3d —, 2012 Tenn. App. LEXIS 256 (Tenn. Ct. App. Apr. 19, 2012).

2. Construction.

Title defines legal custodian as someone who has the right to, inter alia, physical custody of the child, which implies that even within the title, physical custody is a distinct concept from legal custody. In re Joseph F., 492 S.W.3d 690, 2016 Tenn. App. LEXIS 227 (Tenn. Ct. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 377 (Tenn. May 10, 2016).

37-1-141. Residence change — Transfer of jurisdiction to another state.

  1. If the court finds that a child who has been adjudged to have committed a delinquent act or to be unruly or dependent or neglected is or is about to become a resident of another state, the court may defer a hearing on need for the treatment or rehabilitation and disposition and request, by any appropriate means, the juvenile court of the county of the child's residence or prospective residence to accept jurisdiction of the child.
  2. If the child becomes a resident of another state while on probation or under protective supervision under order of a juvenile court of this state, the court may request the juvenile court of the county of the state in which the child has become a resident to accept jurisdiction of the child and to continue the child's probation or protective supervision.
  3. Upon receipt and filing of an acceptance, the court of this state shall transfer custody of the child to the accepting court and cause the child to be delivered to the person designated by that court to receive the child's custody. It also shall provide that court with certified copies of the order adjudging the child to be a delinquent, unruly or dependent or neglected child, of the order of transfer, and, if the child is on probation or under protective supervision under order of the court, of the order of disposition. It also shall provide that court with a statement of the facts found by the court of this state and any recommendations and other information it considers of assistance to the accepting court in making a disposition of the case or in supervising the child on probation or otherwise.
  4. Upon compliance with subsection (c), the jurisdiction of the court of this state over the child is terminated.

Acts 1970, ch. 600, § 40; T.C.A., § 37-240.

Cross-References. Transfer within state, § 37-1-112.

Rule Reference. Sections 37-1-141 — 37-1-144 are referred to in the Advisory Commission Comments under Rule 1 of the Tennessee Rules of Juvenile Procedure.

37-1-142. Nonresident child — Transfer from another state.

  1. If a juvenile court of another state requests a juvenile court of this state to accept jurisdiction of a child found by the requesting court to have committed a delinquent act or to be an unruly or dependent or neglected child, and the court of this state finds, after investigation that the child is, or is about to become, a resident of the county in which the court presides, it shall promptly and not later than fourteen (14) days after receiving the request issue its acceptance in writing to the requesting court and direct its probation officer or other person designated by it to take physical custody of the child from the requesting court, and bring the child before the court of this state or make other appropriate provisions for the child's appearance before the court.
  2. Upon the filing of certified copies of the orders of the requesting court:
    1. Determining that the child committed a delinquent act or is an unruly or dependent or neglected child; and
    2. Committing the child to the jurisdiction of the juvenile court of this state, the court of this state shall immediately fix a time for a hearing on the need for treatment or rehabilitation and disposition of the child or on the continuance of any probation or protective supervision.
  3. The hearing and notice thereof and all subsequent proceedings are governed by this part. The court may make any order of disposition permitted by the facts and this part. The orders of the requesting court are conclusive that the child committed the delinquent act or is an unruly or dependent or neglected child and of the facts found by the court in making the orders, subject only to § 37-1-139. If the requesting court has made an order placing the child on probation or under protective supervision, a like order shall be entered by the court of this state. The court may modify or vacate the order in accordance with § 37-1-139.

Acts 1970, ch. 600, § 41; T.C.A., § 37-241.

Rule Reference. Sections 37-1-141 — 37-1-144 are referred to in the Advisory Commission Comments under Rule 1 of the Tennessee Rules of Juvenile Procedure.

37-1-143. Out-of-state custody and supervision.

Subject to the provisions of this part governing dispositions and to the extent that funds of the county are available, the court may place a child in the custody of a suitable person in another state. On obtaining the written consent of a juvenile court of another state, the court of this state may order that the child be placed under the supervision of a probation officer or other appropriate person designated by the accepting court. One (1) certified copy of the order shall be sent to the accepting court and another filed with the clerk of the county of the requesting court of this state.

Acts 1970, ch. 600, § 42; T.C.A., § 37-242.

Rule Reference. Sections 37-1-141 — 37-1-144 are referred to in the Advisory Commission Comments under Rule 1 of the Tennessee Rules of Juvenile Procedure.

37-1-144. Supervision under out-of-state order.

  1. Upon receiving a request of a juvenile court of another state to provide supervision of a child under the jurisdiction of that court, a court of this state may issue its written acceptance to the requesting court and designate its probation or other appropriate officer who is to provide supervision, stating the probable cost per day therefor.
  2. Upon the receipt and filing of a certified copy of the order of the requesting court placing the child under the supervision of the officer so designated, the officer shall arrange for the reception of the child from the requesting court, provide supervision pursuant to the order and to this part, and report thereon from time to time together with any recommendations the officer may have to the requesting court.
  3. The court of this state may terminate supervision at any time by notifying the requesting court. In that case, or if the supervision is terminated by the requesting court, the probation officer supervising the child shall return the child to a representative of the requesting court authorized to receive the child.

Acts 1970, ch. 600, § 43; T.C.A., § 37-243.

Rule Reference. Sections 37-1-141 — 37-1-144 are referred to in the Advisory Commission Comments under Rule 1 of the Tennessee Rules of Juvenile Procedure.

37-1-145. Out-of-state probation officers — Powers.

If a child has been placed on probation or protective supervision by a juvenile court of another state and the child is in this state with or without the permission of that court, the probation officer of that court or other person designated by that court to supervise or take custody of the child has all the powers and privileges in this state with respect to the child as given by this part to like officers or persons of this state, including the right of visitation, counseling, control and direction, taking into custody and returning to that state.

Acts 1970, ch. 600, § 44; T.C.A., § 37-244.

37-1-146. Juvenile traffic offenders.

  1. All cases of alleged traffic violations by children coming within this part shall be heard and disposed of upon a traffic ticket or citation signed by a law enforcement officer that describes in general terms the nature of the violation. Such cases may be disposed of through informal adjustment, pretrial diversion, or judicial diversion; in any case, however, the child or the child's parents may request and shall be granted a hearing before the judge.
  2. If the court finds that the child violated a traffic law or ordinance, the court may adjudicate the child to be a traffic violator, and the court may make one (1) or any combination of the following decisions:
    1. Suspend and hold the child's driver license for a specified or indefinite time;
    2. Limit the child's driving privileges as an order of the court;
    3. Order the child to attend traffic school, if available, or to receive driving instructions;
    4. Impose a fine of not more than fifty dollars ($50.00) against the child's parent or legal guardian;
    5. Perform community service work in lieu of a fine; or
    6. Place the child on probation pursuant to § 37-1-131(a)(2).
  3. In any case or class of cases, the judge of any juvenile court may waive jurisdiction of traffic violators who are sixteen (16) years of age or older, and such cases shall be heard by the court or courts having jurisdiction of adult traffic violations, or the child's parent or legal guardian may pay the stipulated fine to a traffic bureau.

Acts 1970, ch. 600, § 45; T.C.A., § 37-245; Acts 2016, ch. 600, § 11; 2018, ch. 1052, §§ 43, 44; 2019, ch. 312, § 9.

Compiler's Notes. Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2016 amendment added (b)(5).

The 2018 amendment, in (b)(4), inserted “against the child’s parent or legal guardian”; and, in (c), substituted “child’s parent or legal guardian” for “child” preceding “may pay”.

The 2019 amendment, in (a), substituted “through informal adjustment, pretrial diversion, or judicial diversion” for “nonjudicially under the supervision of the judge”; in (b), substituted “adjudicate” for “decree”, and substituted “the court” for “, in addition to any disposition provided for in this part for the disposition of a delinquent or unruly child, the judge”; and added (b)(6).

Effective Dates. Acts 2016, ch. 600, § 17. July 1, 2016.

Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Acts 2019, ch. 312, § 11. May 8, 2019.

Rule Reference. This section is referred to in Rule 1 of the Tennessee Rules of Juvenile Procedure.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

37-1-147. Termination of parental rights.

  1. The juvenile court shall be authorized to terminate the rights of a parent or guardian to a child upon the grounds and pursuant to the procedures set forth in title 36, chapter 1, part 1.
  2. Upon entering an order to terminate parental or guardian rights to a child, the court shall award guardianship or partial guardianship of the child as provided in the relevant provisions of title 36, chapter 1, part 1.
  3. The effect of the court's order terminating parental or guardian rights shall be as provided in § 36-1-113.

Acts 1970, ch. 600, § 46; 1977, ch. 482, § 6; 1981, ch. 316, § 4; 1981, ch. 348, §§ 3, 4; 1983, ch. 435, §§ 4, 5; T.C.A., § 37-246; Acts 1985, ch. 478, § 31; 1991, ch. 126, § 1; 1995, ch. 532, § 13.

Cross-References. Aggravated rape, § 39-13-502.

Mandatory child abuse reports, title 37, ch. 1, part 4.

Termination of parental rights, § 36-1-113.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 803 of the Tennessee Rules of Evidence.

This section is referred to in the Advisory Commission Comments under Rule 1 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.1.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77 (Neil P. Cohen), 45 Tenn. L. Rev. 451, 469, 493 (1978).

NOTES TO DECISIONS

1. Noncompliance with Requirements.

The department of human services' (now children's services) failure to comply with certain foster care requirements did not preclude a finding that it had made reasonable effort to rehabilitate the family unit under this section. Tennessee Dep't of Human Services v. Riley, 689 S.W.2d 164, 1984 Tenn. App. LEXIS 3446 (Tenn. Ct. App. 1984).

2. Best Interests of Child.

Totality of the evidence, including the pre-incarceration conduct of father coupled with the obvious inability of the father to establish and provide a stable home for the child and the total lack of any chance of an early integration of the child into a stable and permanent home unless parental rights of the father were terminated was so compellingly in the best interests of the child that his parental rights had to terminated. Department of Human Servs. v. Hauck, 872 S.W.2d 916, 1993 Tenn. App. LEXIS 700 (Tenn. Ct. App. 1993), appeal denied, 1994 Tenn. LEXIS 77 (Tenn. Feb. 28, 1994).

3. Mental Disability.

Mental disability can be the basis of termination of parental rights although the acts of the mentally disabled parent are not willful. State, Dep't of Human Services v. Smith, 785 S.W.2d 336, 1990 Tenn. LEXIS 70 (Tenn. 1990).

Collateral References.

Legal malpractice in defense of parents at proceedings to terminate parental rights over dependent or neglected children. 18 A.L.R.5th 902.

Parents' mental illness or mental deficiency as ground for termination of parental rights — Applicability of Americans With Disabilities Act. 119 A.L.R.5th 351.

Parents' mental illness or mental deficiency as ground for termination of parental rights — Best interests analysis. 117 A.L.R.5th 349.

Parents' mental illness or mental deficiency as ground for termination of parental rights — Constitutional issues. 110 A.L.R.5th 579.

Parents' mental illness or mental deficiency as ground for termination of parental rights — Effect on parenting ability and parental rights. 116 A.L.R.5th 559.

Parents' mental illness or mental deficiency as ground for termination of parental rights — Evidentiary issues. 122 A.L.R.5th 385.

Parents' mental illness or mental deficiency as ground for termination of parental rights — General considerations. 113 A.L.R.5th 349.

Parents' mental illness or mental deficiency as ground for termination of parental rights — Issues concerning guardian ad litem and counsel. 118 A.L.R.5th 561.

Parents'  mental illness or mental deficiency as ground for termination of parental rights — Issues concerning rehabilitative and reunification services. 12 A.L.R.6th 417.

Parent's use of drugs as factor in award of custody of children, visitation rights, or termination of parental rights. 20 A.L.R.5th 534.

Sufficiency of evidence to establish parent's knowledge or allowance of child's sexual abuse by another under statute permitting termination of parental rights for “allowing” or “knowingly allowing” such abuse to occur. 53 A.L.R.5th 499.

37-1-148. Illegal use of telecommunication device by minor.

  1. A minor commits illegal use of a telecommunication device who:
    1. Intentionally or knowingly, by use of a telecommunication device, transmits, distributes, publishes, or disseminates a photograph, video, or other material that contains a sexually explicit image of a minor; or
    2. Intentionally possesses a photograph, video, or other material that contains a sexually explicit image of a minor.
  2. A minor does not violate subdivision (a)(2) if:
    1. The minor did not solicit the photograph, video, or other material; and
    2. The minor:
      1. Deleted the photograph, video, or other material; or
      2. Reported the photograph, video, or other material to the minor's parent or legal guardian or to a school or law enforcement official.
  3. Illegal use of a telecommunication device committed under subsection (a) is considered an unruly act, for which a court may make a disposition as authorized by § 37-1-132.

Acts 2017, ch. 367, § 1.

Compiler's Notes. Former § 37-1-148 (Acts 1970, ch. 600, § 47; T.C.A., § 37-247), concerning the effect of orders terminating parental rights, was repealed by Acts 1995, ch. 532, § 14, effective January 1, 1996.

Effective Dates. Acts 2017, ch. 367, § 3. July 1, 2017.

37-1-149. Guardian ad litem — Special advocate — Appointment.

    1. The court at any stage of a proceeding under this part, on application of a party or on its own motion, shall appoint a guardian ad litem for a child who is a party to the proceeding if such child has no parent, guardian or custodian appearing on such child's behalf or such parent's, guardian's or custodian's interests conflict with the child's or in any other case in which the interests of the child require a guardian. The court, in any proceeding under this part resulting from a report of harm or an investigation report under §§ 37-1-401 — 37-1-411, shall appoint a guardian ad litem for the child who was the subject of the report. A party to the proceeding or the party's employee or representative shall not be appointed.
    2. Any guardian ad litem appointed by the court shall receive training appropriate to that role prior to such appointment. Such training shall include, but is not limited to, training in early childhood, child and adolescent development provided by a qualified professional.
    1. The court may also appoint a nonlawyer special advocate trained in accordance with that role and in accordance with the standards of the Tennessee Court Appointed Special Advocates Association (CASA) to act in the best interest of a child before, during and after court proceedings.
    2. The court-appointed special advocate shall conduct such investigation and make such reports and recommendations pertaining to the welfare of a child as the court may order or direct.
    3. Any guardian ad litem or special advocate so appointed by the court shall be presumed to be acting in good faith and in so doing shall be immune from any liability that might otherwise be incurred while acting within the scope of such appointment.

Acts 1970, ch. 600, § 48; 1973, ch. 81, § 4; T.CA., § 37-248; Acts 1990, ch. 929, § 1; 2004, ch. 584, §§ 1, 2; 2012, ch. 1016, § 2.

Rule Reference. This section is referred to in Rule 40 of the Rules of the Supreme Court of Tennessee.

This section is referred to in the Advisory Commission Comments under Rule 37 and in the text of Rule 39 of the Tennessee Rules of Juvenile Procedure.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VI. Juvenile Courts (Neil P. Cohen), 45 Tenn. L. Rev. 469 (1978).

Juvenile court hearsay (Donald F. Paine), 36 No. 10 Tenn. B.J. 35 (2000).

Protecting Our Most Vulnerable Citizens: New Guidelines Clarify, Strengthen Mission for Guardians Ad Litem, 38 No. 6 Tenn. B.J. 13 (2002).

Attorney General Opinions. Because a juvenile court has the authority to appoint counsel and to punish disobedience of its orders as contempt, an attorney who refuses a juvenile court order of appointment commits, and may be punished for, contempt, regardless whether she intends to practice in that court in the future, OAG 02-107 (10/01/02).

An attorney, including a Title 37 guardian ad litem, who files a criminal injuries compensation claim on behalf of a child at the request of the Department of Children's Services is eligible for attorney's fees, OAG 05-185 (12/28/05).

The Department of Children's Services (DCS) has the authority to request private attorneys, including a child's guardian ad litem appointed pursuant to T.C.A. § 37-1-149, to represent DCS in filing a criminal injuries compensation claim for the child, OAG 05-185 (12/28/05).

It would be inappropriate to attach guardian ad litem fees to a person's child support obligation because such fees are not child support, OAG 07-154 (11/21/07).

NOTES TO DECISIONS

1. Applicability.

This statute covers a guardian ad litem appointed for a child who is a party in a juvenile proceeding and is not applicable to a guardian ad litem appointed to represent the best interests of a child in a divorce/custody proceeding. Winchester v. Little, 996 S.W.2d 818, 1998 Tenn. App. LEXIS 882 (Tenn. Ct. App. 1998), cert. denied, 528 U.S. 1026, 120 S. Ct. 543, 145 L. Ed. 2d 421, 1999 U.S. LEXIS 7889 (1999).

2. Fees of Guardian Ad Litem.

In a proceeding to terminate parental rights, the fee allowed the guardian ad litem for the mother and the fee allowed the guardian ad litem of the child could not be assessed against the department of human services (now children's services), unless it was found that the parents were indigent and the petition was based on grounds set forth in § 37-1-403. In re Harris, 849 S.W.2d 334, 1993 Tenn. LEXIS 56 (Tenn. 1993).

37-1-150. Cost and expense for care of child.

  1. The following expenses may be a charge upon the funds of the county upon certification thereof by the court:
    1. The cost of medical and other examinations and treatment of a child that is ordered by the court. The cost of outpatient mental health evaluations under § 37-1-128(e)(1) shall be the responsibility of the state;
    2. Reasonable compensation for services and related expenses of counsel appointed by the court for a party; provided, however, that in the case of indigent persons appointed counsel pursuant to § 37-1-126, the state, through the administrative office of the courts, shall pay such compensation.  The supreme court shall prescribe by rule the nature of the expense for which compensation may be allowed hereunder, and such limitations and conditions for such compensation as it deems appropriate, subject to this subdivision (a)(2). Such rules shall specify the form and content of applications for compensation under this subdivision (a)(2). The court may adopt such other rules related to this subdivision (a)(2) as it deems appropriate in the public interest;
    3. Reasonable compensation for a guardian ad litem, except that in the case of indigent persons, the state, through the administrative office of the courts, shall pay for the guardian ad litem required by § 37-1-149 for proceedings alleging a child to be dependent and neglected or abused.  The supreme court shall prescribe by rule the nature of the expense for which compensation may be allowed hereunder, and such limitations and conditions for such compensation as it deems appropriate, subject to the provisions of this subdivision (a)(3). Such rules shall specify the form and content of applications for compensation under this subdivision (a)(3). The court may adopt such other rules related to this subdivision (a)(3) as it deems appropriate in the public interest;
    4. The cost of any preadjudicatory placement of a child pursuant to §§ 37-1-114 and 37-1-116, including necessary transportation of the child to such placement. A child alleged to be in violation of the conditions of home placement or charged with the commission of an offense that would be a felony if committed by an adult and eligible for secure detention as provided by § 37-1-114(c) who is taken into custody in a county that does not operate a secure juvenile detention facility may, with the approval of the court having jurisdiction in the matter, be transported to and from the nearest such facility in this state; the cost of such transportation and placement shall be paid by the state subject to appropriations to the commission on children and youth for juvenile court services. Payment may also be made from available federal funding;
    5. The expense of service of summons, notices, subpoenas, travel expense of witnesses, except as provided in subsection (b), transportation of the child, and other like expenses incurred in the proceedings under this part; and
    6. The reasonable cost of secretarial services for the court in performing its duties as a juvenile court.
    1. The cost of transporting a child who has been committed to a state correctional institution on an offense that would be a felony if committed by an adult shall be paid by the state. The cost of transportation of a child for mental health examination or evaluation when the examination or evaluation has been ordered by the juvenile court judge for a child charged with commission of an offense that would be a felony if committed by an adult shall be paid by the county.
    2. The cost of an inpatient mental health examination or evaluation ordered by the juvenile court judge for a child charged with commission of an offense that would be a felony if committed by an adult, and the cost incidental to the examination or evaluation, shall be paid by the city or county.
  3. The cost of transporting a child from another state for an offense that would be a felony if the child were an adult shall be paid by the state; otherwise, the city or county will bear the cost.
    1. If, after due notice to the parents, legal custodians or guardians, and after affording them an opportunity to be heard, the court finds that they are financially able to pay all or part of the costs and expenses stated in subdivisions (a)(1)-(5), the court may order them to pay the same and prescribe the manner of payment. Unless otherwise ordered, payment shall be made to the clerk of the juvenile court for remittance to the person to whom compensation is due or, if the costs and expenses have been paid by the county, to the appropriate officer of the county.
    2. If, after due notice to the parents, legal custodians or guardians, and after affording them an opportunity to be heard, the court finds that they are financially able to pay all or part of the costs and expenses of the mental evaluation or examination of the child, which have been paid by the city or county pursuant to subsection (b), the court may order them to pay the costs and prescribe the manner of payment. Unless otherwise ordered, payment shall be made to the clerk of the juvenile court for remittance to the person to whom compensation is due; or if the costs and expenses have been paid by the state, to the appropriate officer of the state.
    1. Attorneys appointed hereunder, other than public defenders, are entitled to reasonable compensation for their services, both prior to and at the hearing of the cause, and are entitled to reimbursement for their reasonable and necessary expenses in accordance with the rules of the supreme court.
    2. Each attorney seeking reimbursement or compensation hereunder shall file an application with the juvenile court, stating in detail the nature and amount of the expenses claimed, supporting such claim with receipts showing payment thereof and stating the nature and extent of the attorney's services, including those in connection with any preliminary hearing.
  6. Costs for proceedings under this title or the costs of the care or treatment of any child that is ordered by the court shall be paid by the state only when specifically authorized by this title or other provisions of law.
    1. In proceedings where the child is determined to be indigent pursuant to § 37-1-126 and the court appoints counsel or a guardian ad litem to represent the child, but finds the child's parents, legal custodians, or guardians are financially able to defray a portion or all of the cost of the child's representation, the court shall enter an order directing the child's parents, legal custodians, or guardians to pay into the registry of the clerk of the court any sum that the court determines the child's parents, legal custodians, or guardians are able to pay.
    2. In proceedings where an adult is determined to be indigent pursuant to § 37-1-126 and the court appoints counsel to represent the adult and finds the adult financially able to defray a portion or all of the cost of the adult's representation, the court shall enter an order directing the adult to pay into the registry of the clerk of the court any sum that the court determines the adult is able to pay.
    3. The sum to defray a portion or all of the costs shall be subject to execution as any other judgment. The court may provide for payments to be made at intervals, which the court shall establish, and upon terms and conditions as are fair and just. The court may also modify its order when there has been a change in circumstances.
    4. The clerk of the court shall collect all moneys paid pursuant to this subsection (g). The clerk shall notify the court of any failure to comply with the court’s order. At the conclusion of the proceedings, the court shall order the clerk to pay to the administrative office of the courts any funds that the clerk collected. The clerk of the court shall receive a commission of five percent (5%) of the moneys collected for the clerk's services in collecting, handling and making payment pursuant to the order of the court.
    5. If the administrative office of the courts receives funds greater than the total amount which appointed counsel or the guardian ad litem has claimed and has been reimbursed pursuant to Tennessee Supreme Court Rule 13, then any such excess funds shall be paid to the appointed attorney.

Acts 1970, ch. 600, § 49; 1971, ch. 107, § 1; 1972, ch. 755, § 1; 1973, ch. 258, § 1; 1974, ch. 483, § 1; 1977, ch. 482, §§ 7, 8; 1980, ch. 796, § 3; 1981, ch. 316, § 5; 1983, ch. 408, §§ 4, 5; T.C.A., § 37-249; Acts 1984, ch. 977, § 1; 1985, ch. 59, § 1; 1986, ch. 878, § 5; 1991, ch. 491, §§ 1, 2; 1993, ch. 66, §§ 49, 50; 1996, ch. 1079, §§ 73, 103; 1999, ch. 508, § 9; 2001, ch. 368, §§ 1, 2; 2009, ch. 549, §§ 3-5; 2012, ch. 857, §§ 6-10; 2018, ch. 1052, § 45.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2018 amendment, in (g)(1), substituted “the child's parents, legal custodians, or guardians” for “the child, the child's parents, legal custodians or guardians” and similar language throughout, and substituted “are” for “is” preceding “able to pay.”

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Cross-References. Support of child over 18 in high school, § 34-1-102.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 10 and in the text of Rules 30 and 37 of the Tennessee Rules of Juvenile Procedure.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281 (1977).

Attorney General Opinions. Authority of juvenile court to assess fees for services provided to the juvenile, OAG 99-147 (7/30/99).

If a juvenile court orders the pre-adjudication detention of a child who has pending delinquency charges and who is currently in the custody of the department of children's services as a dependent and neglected child, the cost of pre-adjudicatory detention cannot be taxed to the department as a “parent or other person legally obligated to care for and support the child,” OAG 01-130 (8/20/01).

NOTES TO DECISIONS

1. Construction.

The statutory power under this section to assess costs against the state is in derogation of the state's sovereignty and must be strictly construed. In re Harris, 849 S.W.2d 334, 1993 Tenn. LEXIS 56 (Tenn. 1993).

2. Compensation of Counsel.

The general assembly intended compensation for counsel for indigents at all stages of felony proceedings, including those before local committing magistrates such as general sessions or municipal courts; further, the right to compensation of counsel for indigents has been extended to misdemeanor cases as well as to felonies. The supreme court also has been directed to provide rules for compensation in all cases where appointment of counsel is required by law. Allen v. McWilliams, 715 S.W.2d 28, 1986 Tenn. LEXIS 840 (Tenn. 1986). (See Tenn. R. Sup. Ct. 13).

The intent of the general assembly in this section and T.C.A. § 20-12-134 was to allow the limited award of guardian ad litem fees against the state only in those excepted cases, rather than to allow fees unlimited as to amount in all other cases initiated by the state. In re Harris, 849 S.W.2d 334, 1993 Tenn. LEXIS 56 (Tenn. 1993).

In a proceeding to terminate parental rights, the fee allowed the guardian ad litem for the mother and the fee allowed the guardian ad litem of the child could not be assessed against the department of human services (now children's service), unless it was found that the parents were indigent and the petition was based on grounds set forth in T.C.A. § 37-1-403. In re Harris, 849 S.W.2d 334, 1993 Tenn. LEXIS 56 (Tenn. 1993).

Tenn. Sup. Ct. R. 13 did not limit the fees that could be awarded to a guardian ad litem because there was nothing deceptive in a guardian ad litem accepting compensation as limited by the rule and later requesting that payment be made by the parents when it appears that they are financially able to do so; the compensation limits of Rule 13 do not necessarily apply when a parent has been found to be financially able to defray a portion or all of the cost of the child's representation. In re Jackson H., — S.W.3d —, 2016 Tenn. App. LEXIS 811 (Tenn. Ct. App. Oct. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 101 (Tenn. Feb. 15, 2017).

3. Notice.

Notice given to the mother that she could be responsible for the guardian ad litem's fees was sufficient under the statute because the mother was represented by counsel, she objected to the juvenile court's indigence finding at the hearing, and at no time did the mother contend that she was indigent or lacked the means to pay all or part of the reasonable compensation of the guardian ad litem. In re Jackson H., — S.W.3d —, 2016 Tenn. App. LEXIS 811 (Tenn. Ct. App. Oct. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 101 (Tenn. Feb. 15, 2017).

37-1-151. Parents' liability for support.

  1. In any case in which the court shall find a child dependent and neglected, unruly or delinquent, it may in the same or subsequent proceeding, upon the parents of such child or either of them being duly summoned or voluntarily appearing, proceed to inquire into the ability of such parent to support the child or contribute to such child's support, and if the court shall find such parent or parents able to support the child or contribute thereto, the court may enter such order or decree as shall be according to equity in the premises, and may enforce the same by executing or in any way in which a court of equity may enforce its orders and decrees, including by imprisonment and fine for contempt. No property of such parents, except the homestead of either of them, shall be exempt from levy and sale under such execution or other process issued from the court.
    1. Notwithstanding subsection (a), placement of a child in the custody of an agency of the state shall make the parents of that child liable for support from the effective date of the court's order. The court's placement of the child's custody with the state shall be deemed as an automatic application by the state, as custodian of the child, for child support services from the department of human services Title IV-D child support program.
    2. In all cases in which the court places physical custody of any child with an agency of the state, and if no prior orders for the support of the child by each parent exist, the court shall immediately order child support or shall set a hearing, which hearing shall be held within forty-five (45) days of the date the child's custody is placed with the state, for the purpose of establishing child support and the provision of medical care, to be paid by each parent to the state for the child placed in the state's custody by the court. Such hearing may be set on the court's next regular child support docket within the forty-five-day period in accordance with the provisions of subdivision (b)(3).
      1. The parents and the Title IV-D office that is enforcing child support under Title IV-D of the Social Security Act, compiled in 42 U.S.C. §§ 651 et seq., for the county from which the child is placed shall receive at least ten (10) calendar days' notice of the child support hearing date unless child support was ordered at the custody hearing.
      2. The notice to the parents shall be in writing and may be given at the time of the hearing at which the child is placed in the custody of the state, and shall include a subpoena to each parent to bring to court any documents showing evidence of income, including, but not limited to, pay stubs, W-2 forms, or income tax returns. If not given to the parents at the hearing at which custody is placed with the state, the notice and subpoena shall be sent by mail to the parents or served upon them personally within five (5) working days of the date of the custody hearing, unless child support is ordered at the custody hearing.
      3. Unless child support is ordered at the custody hearing, within five (5) working days of the date of the custody hearing at which the child is placed in the custody of the state, the clerk shall by mail, personal delivery, or by electronic means if the clerk participates in the statewide child support enforcement computer system pursuant to title 36, notify the office that is enforcing child support under Title IV-D of the Social Security Act for the county from which the child is placed of the date of the child support hearing, the names, addresses, and social security numbers of the parents and child. If support was ordered at the time of the custody hearing, the clerk shall notify the Title IV-D office of the amount of support that was ordered.
      1. At any hearing at which support is ordered, the court shall set child support as the evidence demonstrates is appropriate and in accordance with the child support guidelines established pursuant to § 36-5-101(e), and the court shall order the parents to pay the premium for health insurance for the child if the insurance is available at a reasonable cost, or the court shall order the parents to pay a reasonable portion of the child's medical costs. The order for support and for medical care shall be retroactive to the date that custody of the child was placed with the state by any order of the court.
      2. The court shall order the child support payments and any payments that are ordered by the court to be made by the parents to the state to offset the child's medical costs to be paid by the parents to the clerk, or to the department if the clerk is not participating in the statewide child support enforcement computer system pursuant to title 36. The court shall order the health insurance premiums ordered to be paid by the parents to be directed by them to the health insurance provider for the child or to be deducted from the parent's income as provided in § 36-5-501(a)(3).
      3. When the court enters an order in which the paternity of a child is determined or support is ordered, enforced or modified for a child, each individual who is a party to any action pursuant to this part shall immediately file with the court and, if the case is a Title IV-D child support case, shall immediately file with the local Title IV-D child support office, for entry into the state registry of support cases, and shall update, as appropriate, the parties' and, for subdivisions (b)(4)(A)-(C), the child's or children's:
        1. Full name and any change in name;
        2. Social security number and date and place of birth;
        3. Residential and mailing addresses;
        4. Home telephone numbers;
        5. Driver license number;
        6. The name, address, and telephone number of the person's employer;
        7. The availability and cost of health insurance for the child; and
        8. Gross annual income.

        The requirements of this subdivision (b)(4)(C) may be included in the court's order.

      4. Each individual who is a party must update changes in circumstances of the individual for the information required by subdivision (b)(4)(C) within ten (10) days of the date of such change. At the time of the entry of the first order pertaining to child support after July 1, 1997, clear written notice shall be given to each party of the requirements of this subsection (b), procedures for complying with the subsection and a description of the effect or failure to comply. Such requirement may be noted in the order of the court.
      5. In any subsequent child support enforcement action, the delivery of written notice as required by Rule 5 of the Tennessee Rules of Civil Procedure to the most recent residential or employer address shown in the court's records or the Title IV-D agency's records as required in subdivision (b)(4)(C) shall be deemed to satisfy due process requirements for notice and service of process with respect to that party if there is a sufficient showing and the court is satisfied that a diligent effort has been made to ascertain the location and whereabouts of the party.
      6. Upon motion of either party, upon a showing of domestic violence or the threat of such violence, the court may enter an order to withhold from public access the address, telephone number, and location of the alleged victims(s) or threatened victims of such circumstances. The clerk of the court shall withhold such information based upon the court's specific order but may not be held liable for release of such information.
      7. The provisions of § 36-5-501(a)(3) shall apply with respect to enrollment of a child in the noncustodial parent's employer-based health care plan.
    5. The court shall order support paid by income assignment and by all other means provided for the support of children as may be necessary as provided in title 36, chapter 5, and the court may enforce its orders as provided in such chapter.
      1. If any prior order for support exists for a child who is placed in the custody of the state in which the obligor was ordered to pay child support to the office of the clerk, the office that enforces child support pursuant to Title IV-D of the Social Security Act may certify to the clerk of that court in which the current order of support exists that the child for whom the support was ordered is in the custody of the state, and the clerk shall immediately, without further order of any court, forward all payments by the obligor to the department for distribution.
      2. If the obligor is currently paying child support directly to the obligee under a support order that exists at the time the child is placed in the custody of the state, the court shall order the obligor to begin directing payments of support directly to the clerk of the juvenile court, or if the clerk is not participating in the statewide child support enforcement computer system pursuant to title 36, to the department.
      3. When the child is no longer in the physical custody of the state, the Title IV-D office shall notify the clerk of the court to which it had sent the certification, or the department if the clerk is not participating in the statewide child support enforcement computer system, and shall notify the obligor. Until otherwise ordered by the court that had originally set the support or that currently has jurisdiction to set support, the child support shall thereafter be paid by the obligor to the person to whom the child support obligation was paid prior to the child's placement in the custody of the state.
      4. Any child support funds remaining with the state after the child is returned to the physical custody of either parent or other custodian by court order shall be returned to the custodial parent or other custodian named in the order for use in the care of the child after reimbursement to the state of such costs incurred for the child's care by the state that are not otherwise prohibited by state or federal law or regulation.
  3. In establishing or enforcing any provision of child support, if the party seeking to establish or to enforce an order of support specifically prays for revocation of a license, or if the court determines on its own motion or on motion of the party seeking to establish or seeking to enforce an order of support that an individual party has failed to comply with a subpoena or a warrant in connection with the establishment or enforcement of an order of support, the court may invoke the provisions of § 36-5-101(f)(5).
  4. Judgments for child support payments for each child subject to the order for child support pursuant to this part shall be enforceable without limitation as to time.
  5. In any case in which a child is receiving assistance under a state program funded under Title IV-A of the Social Security Act, compiled in 42 U.S.C. § 601 et seq., including, but not limited to, temporary assistance as provided under title 71, and the payment of support for such child is overdue, then, the department of human services may issue an administrative order to direct an individual who owes overdue support to such a child to pay the overdue support in accordance with a plan for payment of all overdue support or engage in work activities, as otherwise required and defined by the provisions of § 36-5-113.

Acts 1970, ch. 600, § 56; T.C.A., § 37-256; Acts 1995, ch. 504, § 8; 1996, ch. 1079, § 73; 1997, ch. 551, §§ 20, 24, 27, 47, 50, 67; 1998, ch. 1098, §§ 58, 59; 2001, ch. 447, §§ 11, 19.

Cross-References. Decree for support of children, § 36-5-101.

Parents' powers and duties regarding support of minors, persons under and over 18 years of age, § 34-1-102.

Textbooks. Tennessee Jurisprudence, 15 Tenn. Juris., Injunctions, § 21.

Law Reviews.

The Tennessee Court System — Juvenile Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 447 (1977).

NOTES TO DECISIONS

1. Construction.

Court of appeals erred when it affirmed a trial court's decision and construed T.C.A. § 37-1-151(b), to limit liability for retroactive child support to 45 days prior to filing; the Supreme Court of Tennessee, agreeing with the court of appeal's dissent, held that T.C.A. § 37-1-151 unambiguously required a trial court to set child support retroactive to the date a child was placed in state custody, the statute did not include any limitation on the length of time for which retroactive support could be due, and a trial judge had no discretion to deviate from the statutorily imposed period of retroactive support. State v. Wilson, 132 S.W.3d 340, 2004 Tenn. LEXIS 329 (Tenn. 2004).

T.C.A. § 37-1-151(b) unambiguously required a trial court to set child support retroactive to the date a child was placed in state custody, the statute did not include any limitation on the length of time for which retroactive support could be due, and a trial judge had no discretion to deviate from the statutorily imposed period of retroactive support; moreover, this requirement was consistent with other statutes defining the obligations of parents to their children, under Tennessee law every parent was obligated to support his or her child during their minority. State v. Wilson, 132 S.W.3d 340, 2004 Tenn. LEXIS 329 (Tenn. 2004).

Court of appeals erred when it affirmed a trial court's decision and construed T.C.A. § 37-1-151(b), to limit liability for retroactive child support to 45 days prior to filing; the Supreme Court of Tennessee, agreeing with the court of appeal's dissent, held that T.C.A. § 37-1-151 unambiguously required a trial court to set child support retroactive to the date a child was placed in state custody, the amount of support was first to be calculated according to the guidelines. State v. Wilson, 132 S.W.3d 340, 2004 Tenn. LEXIS 329 (Tenn. 2004).

2. Jurisdiction.

Chancery court's order modifying child support and allocating a tax exemption was void because, before the order was entered, a juvenile court assumed exclusive jurisdiction in a dependency and neglect proceeding concerning the child, depriving the chancery court of subject matter jurisdiction, as (1) no statutory exceptions to the juvenile court's exclusive jurisdiction were present, (2) child support was a component of dependency and neglect proceedings, and (3) the tax exemption was an inevitable part of the juvenile court's decisions. Hance v. Hance, — S.W.3d —, 2018 Tenn. App. LEXIS 252 (Tenn. Ct. App. May 8, 2018).

Collateral References.

Liability of parent for support of child institutionalized by juvenile court. 59 A.L.R.3d 636.

Parent's involuntary confinement, or failure to care for child as result thereof, as evincing neglect, unfitness, or the like in dependency or divestiture proceeding. 79 A.L.R.3d 417.

37-1-152. Injunctive relief.

At the commencement or during the pendency of any matter, or as part of its dispositional order, the court may, on application of a party or on its own motion, grant injunctive relief upon such terms as the court may deem proper.

Acts 1970, ch. 600, § 50; 1983, ch. 196, §§ 1, 2; T.C.A., § 37-250; Acts 1985, ch. 478, § 39; 2016, ch. 600, § 12.

Amendments. The 2016 amendment rewrote this section which read: “(a) On application of a party, or on the court's own motion, the court may make an order restraining or otherwise controlling the conduct of a person if:“(1) An order of disposition of a delinquent, unruly or dependent or neglected child has been or is about to be made in a proceeding under this part, or if it appears that a person against whom the restraining order is sought should be prohibited from associating with or engaging in certain conduct in relation to such child either absolutely or conditionally;“(2) The court finds that the conduct:“(A) Is or may be detrimental or harmful to the child; and“(B) Will tend to defeat the execution of the order of disposition; and“(3) Due notice of the application or motion and the grounds therefor and an opportunity to be heard thereon have been given to the person against whom the order is directed.“(b) On application of a party or on the court's own motion, the court may issue an immediate ex parte temporary restraining order controlling the conduct of a person if:“(1) The court finds that a child otherwise subject to the jurisdiction of the court may be removed from such jurisdiction or the court finds that there is danger of immediate harm to a child; and“(2) Due notice of the order and the grounds therefor and the opportunity to be heard thereon is given to the party against whom the order is directed within three (3) days of the issuance of such order or upon such party's application for a hearing.“(c) On application of the department or the child protection team as defined in part 6 of this chapter, the court may make a no contact order for the removal of a suspected perpetrator of child sexual abuse from the home where the child resides and from all further contact with the child, if the court finds that there is probable cause to believe that such person committed an act of child sexual abuse as defined in part 6 of this chapter. Such an order does not relieve such person from the person's legal duty to provide financial support for the person's family. The court may imprison any person violating such an order for up to one (1) year for contempt of court, or the court may fashion such other remedy as it finds appropriate for the protection of the child. If the court determines that there is an immediate threat of harm to the child, the court may issue a no contact order as provided in subsection (b); otherwise, it shall provide that due notice of the application and the grounds therefor and an opportunity to be heard thereon have been given to the person against whom the order is directed.”

Effective Dates. Acts 2016, ch. 600, § 17. July 1, 2016.

Cross-References. Child protective teams, § 37-1-607.

Child sexual abuse defined, § 37-1-602.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 26 of the Tennessee Rules of Juvenile Procedure.

Law Reviews.

The Tennessee Court System — Juvenile Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 447 (1977).

37-1-153. Court files and records — Inspection limited — Exceptions for certain violent offenders — Confidentiality — Expunction.

  1. Except in cases arising under § 37-1-146, all files and records of the court in a proceeding under this part are open to inspection only by:
    1. The judge, officers and professional staff of the court;
    2. The parties to the proceeding and their counsel and representatives;
    3. A public or private agency or institution providing supervision or having custody of the child under order of the court;
    4. A court and its probation and other officials or professional staff and the attorney for the defendant for use in preparing a presentence report in a criminal case in which the defendant is convicted and who prior thereto had been a party to the proceeding in juvenile court; and
    5. With permission of the court, any other person or agency or institution having a legitimate interest in the proceeding or in the work of the court.
  2. Notwithstanding subsection (a), petitions and orders of the court in a delinquency proceeding under this part shall be opened to public inspection and their content subject to disclosure to the public if:
      1. The juvenile is fourteen (14) years of age or older at the time of the alleged act; and
      2. The conduct constituting the delinquent act, if committed by an adult, would constitute first degree murder, second degree murder, rape, aggravated rape, aggravated sexual battery, rape of a child, aggravated rape of a child, aggravated robbery, especially aggravated robbery, kidnapping, aggravated kidnapping, or especially aggravated kidnapping; or
    2. The conduct constituting the delinquent act, if committed by an adult, would constitute an act of terrorism, as defined by § 39-13-803, or an attempt to commit an act of terrorism.
  3. Notwithstanding the provisions of this section, if a court file or record contains any documents other than petitions and orders, including, but not limited to, a medical report, psychological evaluation or any other document, such document or record shall remain confidential.
    1. Except as otherwise permitted in this section, it is an offense for a person to intentionally disclose or disseminate to the public the files and records of the juvenile court, including the child's name and address.
    2. A violation of this subsection (d) shall be punished as criminal contempt of court as otherwise authorized by law.
  5. Notwithstanding other provisions of this section, where notice is required under § 49-6-3051, an abstract of the appropriate adjudication contained in the court file or record shall be made and provided to the parent, guardian, or other custodian of the juvenile, including the department, and this abstract shall be presented to the school in which the juvenile is, or may be, enrolled, in compliance with § 49-6-3051.
    1. Notwithstanding any law to the contrary, any person who is tried and adjudicated delinquent or unruly by a juvenile court may subsequently file a motion for expunction of all court files and the juvenile records. The court may order all or any portion of the requested expunction if, by clear and convincing evidence, the court finds that the movant:
        1. Is currently seventeen (17) years of age or older;
        2. Is at least one (1) year removed from the person's most recent delinquency  or unruly adjudication;
        3. Has never been convicted of a criminal offense as an adult, has never been convicted of a criminal offense following transfer from juvenile court pursuant to § 37-1-134, and has never been convicted of a sexual offense as defined in § 40-39-202, whether in juvenile court, following transfer from juvenile court pursuant to § 37-1-134, or as an adult;
        4. Does not have an adjudication of delinquency for a violent juvenile sexual offense as defined in § 40-39-202; and
        5. Does not have an adjudication of delinquency for a delinquent act that if committed by an adult, would constitute an act of terrorism, as defined by § 39-13-803, or an attempt to commit an act of terrorism;
      2. Has maintained a consistent and exemplary pattern of responsible, productive and civic-minded conduct for one (1) or more years immediately preceding the filing of the expunction motion; or
      3. Has made such an adjustment of circumstances that the court, in its discretion, believes that expunction serves the best interest of the child and the community.
    2. Nothing in this subsection (f) shall be construed to apply to any law enforcement records, files, fingerprints or photographs pertaining to any delinquency or unruly adjudication.
    3. Except as provided in subdivision (f)(13), in any case in which there is successful completion of an informal adjustment without adjudication under § 37-1-110, the juvenile records shall be expunged by the juvenile court after one (1) year, upon the filing of a motion for expunction and without cost to the child. The court shall inform the child, at the time of the informal adjustment, of the need to file the motion for expunction after a year of successful completion of an informal adjustment and provide the child with a model expunction motion prepared by the administrative office of the courts. The administrative office of the courts shall create a motion that can be completed by a child and shall be circulated to all juvenile court clerks. All juvenile court clerks shall make this model expunction motion accessible to all movants.
    4. Except as provided in subdivision (f)(13), in any case in which there is a successful completion of a pretrial diversion pursuant to § 37-1-110, the juvenile record shall be expunged by the juvenile court after one (1) year, upon the filing of a motion for expunction and without cost to the child. The court shall inform the child, at the time of the pretrial diversion, of the need to file the motion for expunction after a year of successful completion of the pretrial diversion and provide the child with a model expunction motion prepared by the administrative office of the courts. All juvenile court clerks shall make this model expunction motion accessible to all movants.
    5. Except as provided in subdivision (f)(13), in any case in which there is a successful completion of a judicial diversion pursuant to § 37-1-129, the juvenile record shall be expunged by the juvenile court after one (1) year, upon the filing of a motion for expunction and without cost to the child. The court shall inform the child, at the time of the judicial diversion, of the need to file the motion for expunction after a year of successful completion of the judicial diversion and provide the child with a model expunction motion prepared by the administrative office of the courts. All juvenile court clerks shall make this model expunction motion accessible to all movants.
    6. In any case that is dismissed, excluding a case dismissed after successful completion of an informal adjustment, pretrial diversion, or judicial diversion, the juvenile record shall be expunged by the juvenile court as a part of the court's order of dismissal, without the filing of a pleading for expunction, and at no cost to the child.
    7. A motion for expunction may be filed prior to the one-year period outlined in subdivisions (f)(3), (f)(4), and (f)(5). If the motion is filed, the court may order all or any portion of the requested expunction if the court finds by clear and convincing evidence that the movant has successfully completed the informal adjustment or diversion and has made such an adjustment of circumstances that the court, in its discretion, determines that expunction serves the best interest of the child and the community.
    8. In any case in which a child's juvenile record contains convictions solely for unruly adjudications or delinquency adjudications for offenses that would be misdemeanors if committed by an adult, the juvenile court shall expunge all court files and records after one (1) year from the child's completion of and discharge from any probation or conditions of supervision, upon the filing of a motion by the child. The court shall inform the child, at the time of adjudication, of the need to file a motion to expunge after a year from the successful completion of probation and provide the child with a model expunction motion prepared by the administrative office of the courts. The administrative office of the courts shall create a motion that can be completed by a child and shall circulate the motion to all juvenile court clerks. All juvenile court clerks shall make this model expunction motion accessible to all children. (9)  The order of expunction, the original delinquent or unruly petition, and the order of adjudication and disposition under subdivisions (f)(1)-(8) shall be sealed and maintained by the clerk of the court in a locked file cabinet and kept separate from all other records. In courts that maintain a case management system capable of expunging a record and only allowing access to the system administrator, paper copies need not be maintained. The sealed orders and petition shall not be released to anyone except at the written request of the person whose records are expunged or in response to an order of a court with proper jurisdiction. Any person whose records are expunged under subdivisions (f)(1)-(8) shall be restored to the status that the person occupied before arrest, citation, the filing of a juvenile petition, or referral. Once a person's juvenile record is expunged, the person shall not be held criminally liable under any provision of state law to be guilty of perjury or otherwise giving a false statement by reason of the person's failure to recite or acknowledge such record or arrest in response to any inquiry made of the person for any purpose.
      1. The juvenile is tried and adjudicated delinquent or unruly by a juvenile court for conduct that would constitute the offense of prostitution under § 39-13-513 or aggravated prostitution under § 39-13-516 if committed by an adult;
      2. The court finds that the conduct upon which the adjudication is based was found to have occurred as a result of the person being a victim of human trafficking under § 39-13-314; and
      3. The juvenile has filed a motion for expunction of all court files and juvenile records.

        A juvenile court shall not expunge a juvenile record following successful completion of an informal adjustment under § 37-1-110, pretrial diversion under § 37-1-110, or judicial diversion under § 37-1-129, if the child was accused of a delinquent act that if committed by an adult, would constitute an act of terrorism, as defined by § 39-13-803, or an attempt to commit an act of terrorism.

For purposes of this subsection (f), a juvenile record includes all documents, reports, and information received, kept, or maintained in any form, including electronic, by the juvenile court clerk or juvenile court staff relating to a delinquency or unruly case, with the exception of assessment reports under § 37-1-136.

The court shall inform the child, at the time of adjudication, of the need to file a motion to expunge the child's juvenile record. The administrative office of the courts shall create a motion that can be completed by a child and shall be circulated to all juvenile court clerks. All juvenile court clerks shall make this model expunction motion accessible to all children.

The court may order all or any portion of a juvenile's court files and juvenile records expunged if:

Acts 1970, ch. 600, § 51; T.C.A., § 37-251; Acts 1994, ch. 998, § 1; 1999, ch. 366, § 1; 2003, ch. 238, § 2; 2005, ch. 265, § 4; 2005, ch. 412, § 1; 2007, ch. 552, § 1; 2011, ch. 483, § 2; 2016, ch. 1017, §§ 1-4; 2017, ch. 196, § 1; 2017, ch. 197, §§ 1-3; 2017, ch. 199, §§ 1-6; 2018, ch. 1018, § 1; 2019, ch. 177, § 1; 2020, ch. 806, §§ 2-5.

Compiler's Notes. Acts 2018, ch. 1018, § 2 provided that the act, which amended this section, shall apply to motions filed on or after July 1, 2018.

Amendments. The 2016 amendment, in (f), inserted “or unruly” in the first sentence of the introductory language, substituted “delinquency or unruly adjudication” for “delinquency adjudication” in (1)(A)(ii) and (2);  and added (3) and (4).

The 2017 amendment by ch. 196 added (f)(11).

The 2017 amendment by ch. 197, in (f), substituted “ seventeen (17) years of age or older” for “eighteen (18) years of age or older” at the end of (1)(A)(i); and added (f)(8).

The 2017 amendment by ch. 199, in the introductory language of (f)(1), substituted “file a motion” for petition the juvenile court” and inserted “the juvenile” preceding “records” at the end of the first sentence, and substituted “movant” for “petitioner” in the second sentence; in (f)(1)(A), deleted the word “and” at the end of (f)(1)(A)(ii) and added it at the end of (f)(1)(A)(iii); in (f)(1)(B), substituted “motion” for “petition”; in (f)(1)(C), substituted “Has” for “The juvenile had”; rewrote (f)(3) and (4), which read:“(3)(A) In any case in which there is successful completion of an informal adjustment without adjudication under § 37-1-110, all court files and records shall be expunged by the juvenile court after one (1) year, upon a petition by the child pursuant to § 40-32-101(a), and without cost to the child. The court shall inform the child, at the time of the informal adjustment, of the need to petition for expunction after a year of successful completion of an informal adjustment and provide the child with a model expunction petition prepared by the administrative office of the courts. The administrative office of the courts shall create a petition that can be completed by a child and shall be circulated to all juvenile court clerks. All juvenile court clerks shall make this model expunction petition accessible to all petitioners.“(B) In any case that is dismissed, excluding a case dismissed after successful completion of an informal adjustment, all court files and records shall be expunged by the juvenile court as a part of the court's order of dismissal, without the filing of a petition for expunction, and at no cost to the child. In any case that is dismissed, excluding a case dismissed after successful completion of an informal adjustment, all court files and records shall be expunged by the juvenile court as a part of the court's order of dismissal, without the filing of a petition for expunction, and at no cost to the child.“(4) Any person whose records are expunged under subdivisions (f)(1)–(3) shall be restored to the status that the person occupied before arrest, citation, the filing of a juvenile petition, or referral.”;and added (f)(5) through (7), (9), and (10).

The 2018 amendment added (f)(12).

The 2019 amendment, inserted “aggravated sexual battery,” immediately following “aggravated rape,” in (b)(2).

The 2020 amendment redesignated former (b)(1) and (2) as present (b)(1)(A) and (B); in (b)(1)(A), deleted “or more” preceding “years of age” and inserted “or older”; added present (b)(2); added (f)(1)(A)(v) and (f)(13); and in (f)(3) – (f)(5), added “Except as provided in subdivision (f)(13),”.

Effective Dates. Act 2016, ch. 1017, § 5. April 28, 2016.

Acts 2017, ch. 196, § 2. July 1, 2017.

Acts 2017, ch. 197, § 4. July 1, 2017.

Acts 2017, ch. 199, § 9. July 1, 2017.

Acts 2018, ch. 1018, § 2. July 1, 2018.

Acts 2019, ch. 177, § 2. April 23, 2019.

Acts 2020, ch. 806, § 6. October 1, 2020.

Cross-References. Confidentiality of public records, § 10-7-504.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

Attorney General Opinions. The media does not have a legitimate interest in juvenile court proceedings such that they have the right to inspect juvenile court records and files that are otherwise protected as confidential by T.C.A. § 37-1-153(a)(5), since the media's interest in confidential juvenile court records and files as a source of potentially newsworthy information does not qualify as a legitimate interest, OAG 00-128 (8/10/00).

Construction of statutes requiring notification of the school when a student has been found delinquent by virtue of committing certain offenses, OAG 07-127, 2007 Tenn. AG LEXIS 127 (8/27/07).

Juvenile court official's providing copies of civil petitions alleging child abuse to district attorneys general.  OAG 10-124, 2010 Tenn. AG LEXIS 130 (12/30/10).

Under T.C.A. § 37-1-153(b), a judge, member of the court's staff, or clerk would not be prohibited from initiating disclosure of the offenses listed in (b)(2) if the offenses are identified in the pertinent petitions and orders that are open to public inspection. OAG 13-10, 2013 Tenn. AG LEXIS 11 (2/13/13).

NOTES TO DECISIONS

1. Construction.

It is clear that the legislature intended T.C.A. § 37-1-153(a) to apply to all records of juvenile court proceedings, including plea hearings. State v. Harris, 30 S.W.3d 345, 1999 Tenn. Crim. App. LEXIS 1072 (Tenn. Crim. App. 1999).

When T.C.A. § 37-1-153(a) is considered in context with T.C.A. § 37-1-153(b), it is evident that even though a petition and order that meet the specified requirements may be public records, they must be obtained from the juvenile court. State v. Harris, 30 S.W.3d 345, 1999 Tenn. Crim. App. LEXIS 1072 (Tenn. Crim. App. 1999).

Although the statute permits inspection by counsel, such permission is granted to a party's attorney in representative capacity only, and thus the attorney in this case failed to show or allege that she was seeking to vindicate an existing right. Reguli v. Guffee, — S.W.3d —, 2016 Tenn. App. LEXIS 810 (Tenn. Ct. App. Oct. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 123 (Tenn. Feb. 16, 2017).

Statute did not entitle plaintiffs to the requested recordings of juvenile court proceedings; although the first subsection permitted inspection of files and records, the third subsection specified that, besides petitions and orders, any other document or record was excluded, and except under limited circumstances, the legislature intended for juvenile court files and records to be kept confidential, and this intent is consistent with the express statutory purpose of providing for the protection of children coming within the juvenile court's jurisdiction. Reguli v. Guffee, — S.W.3d —, 2016 Tenn. App. LEXIS 810 (Tenn. Ct. App. Oct. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 123 (Tenn. Feb. 16, 2017).

It was not error to dismiss parents'  petition to hold a court-appointed special advocate in contempt for allegedly disclosing juvenile court records because (1) one alleged “record” concerning potential discovery questions was not a court record, and (2) the disclosure of a guardian ad litem's motion that was technically a court record was not done with the ill intent required for criminal contempt. In re Carolina M., — S.W.3d —, 2016 Tenn. App. LEXIS 813 (Tenn. Ct. App. Oct. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 103 (Tenn. Feb. 15, 2017).

2. Permission.

Counsel expressed concern about disclosing a juvenile court record, but such records were open to inspection with permission, and counsel should have sought permission; the record should have been supplemented and the procedure for filing the record should have been complied with by counsel. Ellithorpe v. Weismark, 479 S.W.3d 818, 2015 Tenn. LEXIS 827 (Tenn. Oct. 8, 2015).

3. Refusal.

Requests for declaratory and mandamus relief were proper ways for plaintiffs to challenge the judge's refusal, under the local rule, to release the requested recordings, but for either form of relief to be appropriate, the local rule had to conflict with the statute; the judge's decision did not violate the statute and the claims were properly dismissed. Reguli v. Guffee, — S.W.3d —, 2016 Tenn. App. LEXIS 810 (Tenn. Ct. App. Oct. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 123 (Tenn. Feb. 16, 2017).

Collateral References.

Expunction of juvenile court records. 71 A.L.R.3d 753.

Use of judgment in prior juvenile court proceeding to impeach credibility of witness. 63 A.L.R.3d 1112.

37-1-154. Law enforcement records — Inspection limited — Exceptions for certain violent offenders.

  1. Unless a charge of delinquency is transferred for criminal prosecution under § 37-1-134, the interest of national security requires or the court otherwise orders in the interest of the child, the law enforcement records and files shall not be open to public inspection or their contents disclosed to the public; but inspection of the records and files is permitted by:
    1. A juvenile court having the child before it in any proceeding;
    2. Counsel for a party to the proceeding;
    3. The officers of public institutions or agencies to whom the child is committed;
    4. Law enforcement officers of other jurisdictions when necessary for the discharge of their official duties; and
    5. A court in which such child is convicted of a criminal offense for the purpose of a presentence report or other dispositional proceeding, or by officials of penal institutions and other penal facilities to which such child is committed, or by a parole board in considering such child's parole or discharge or in exercising supervision over such child.
  2. Notwithstanding subsection (a), petitions and orders of the court in a delinquency proceeding under this part shall be opened to public inspection and their content subject to disclosure to the public if:
      1. The juvenile is fourteen (14) years of age or older at the time of the alleged act; and
      2. The conduct constituting the delinquent act, if committed by an adult, would constitute first degree murder, second degree murder, rape, aggravated rape, aggravated sexual battery, rape of a child, aggravated rape of a child, aggravated robbery, especially aggravated robbery, kidnapping, aggravated kidnapping, or especially aggravated kidnapping; or
    2. The conduct constituting the delinquent act, if committed by an adult, would constitute an act of terrorism, as defined by § 39-13-803, or an attempt to commit an act of terrorism.
  3. Notwithstanding the provisions of this section, if a court file or record contains any documents other than petitions and orders, including, but not limited to, a medical report, psychological evaluation or any other document, such document or record shall remain confidential.
    1. Except as otherwise permitted in this section, it is an offense for a person to intentionally disclose or disseminate to the public the law enforcement records concerning a charge of delinquency, including the child's name and address.
    2. A violation of this subsection (d) shall be punished as criminal contempt of court as otherwise authorized by law.
  5. Notwithstanding other provisions of this section, where notice is required under § 49-6-3051, an abstract of the appropriate adjudication contained in the court file or record shall be made and provided to the parent, guardian, or other custodian of the juvenile, including the department, and this abstract shall be presented to the school in which the juvenile is, or may be, enrolled, in compliance with § 49-6-3051.

Acts 1970, ch. 600, § 52; T.C.A., § 37-252; Acts 1994, ch. 998, § 1; 1999, ch. 366, § 2; 2003, ch. 238, § 3; 2005, ch. 265, § 5; 2020, ch. 806, § 1.

Amendments. The 2020 amendment redesignated former (b)(1) and (2) as present (b)(1)(A) and (B); in (b)(1)(B), inserted “aggravated sexual battery,” and “aggravated rape of a child,”; and added present (b)(2).

Effective Dates. Acts 2020, ch. 806, § 6. October 1, 2020.

Cross-References. Confidentiality of public records, § 10-7-504.

Contempt, title 29, ch. 9; Tenn. R. Crim. P. 42.

Rule Reference. This section is referred to in Rule 14 of the Rules of the Tennessee Court of Appeals.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

Attorney General Opinions. Construction of statutes requiring notification of the school when a student has been found delinquent by virtue of committing certain offenses, OAG 07-127, 2007 Tenn. AG LEXIS 127 (8/27/07).

A city/county school, university or college would not be prohibited by FERPA or HIPAA from sharing criminal incident report data with law enforcement.  Law enforcement officers and juvenile courts may share information regarding minor children when necessary for the discharge of their official duties.  OAG 10-70, 2010 Tenn. AG LEXIS 76 (5/21/10).

NOTES TO DECISIONS

1. Suspended Sentence.

The juvenile record of a defendant may be considered in determining whether or not to grant a suspended sentence. State v. Scott, 653 S.W.2d 406, 1983 Tenn. LEXIS 683 (Tenn. 1983).

Collateral References.

Use of judgment in prior juvenile court proceeding to impeach credibility of witness. 63 A.L.R.3d 1112.

37-1-155. Fingerprints and photographs — Use — When destroyed — Video and audio recordings.

    1. No child shall be fingerprinted or photographed in the investigation of delinquent acts without the permission of the court, unless the child is charged with a delinquent act that, if committed by an adult, would constitute a felony, in which case the child shall be fingerprinted and photographed at the time the child is taken into custody and such fingerprint file may be maintained in an automated fingerprint identification system. Such fingerprint file and photograph shall only be accessible to law enforcement officers, except as provided in § 37-1-154, and shall be maintained separate and apart from adult fingerprint files. The custody and maintenance of those fingerprints and photographs shall be the responsibility of the agency taking the child into custody.
    2. Law enforcement agencies shall not disclose such fingerprint or photograph files, except as permitted under § 37-1-154.
    1. Fingerprint and photograph records shall be destroyed:
      1. If the child is charged with a misdemeanor offense and is not adjudicated a delinquent child; or
      2. If a petition alleging delinquency is not filed or the case is transferred to the juvenile court as provided in § 37-1-109.
    2. If the child is charged with a felony and is not adjudicated a delinquent child, the fingerprint and photograph records shall be maintained until the subject reaches eighteen (18) years of age. The record is then subject to expunction at the direction of the court.
    3. If the child is adjudicated a delinquent child on a felony offense, the fingerprint and photograph records shall be maintained permanently.
    4. If the child is adjudicated a delinquent child on a misdemeanor offense, the fingerprint and photograph records shall be maintained until the child reaches eighteen (18) years of age, or permanently if the child was fourteen (14) years of age or older when the offense was committed.
    5. All fingerprint and photograph records maintained pursuant to the authority of this section shall be confidential and used for law enforcement purposes only, or as otherwise permitted by law.
  3. If latent fingerprints are found during the investigation of an offense and a law enforcement officer has probable cause to believe that they are those of a particular child, such officer may fingerprint the child regardless of age or offense for purposes of immediate comparison with the latent fingerprints. If the comparison is negative, the fingerprint card and other copies of the fingerprints taken shall be immediately destroyed. If the child is not referred to the court or the case is dismissed, the fingerprints shall be immediately destroyed.
  4. If during the investigation of an offense, a law enforcement officer receives a description of the offender and such law enforcement officer has reasonable suspicion to believe that the description is that of a particular child, such officer may photograph the child regardless of age or offense for purposes of identification. However, nothing in this subsection (d) shall be deemed as authorizing an unconstitutional seizure of a child for purposes of obtaining a photograph.
    1. Notwithstanding any other law to the contrary, a law enforcement officer, while acting in the course of official duties, may photograph, make a video recording or make an audio recording of a juvenile in the following circumstances:
      1. The juvenile is in the process of committing an offense;
      2. The law enforcement officer is conducting field sobriety tests based upon suspicion that the juvenile is driving under the influence of an intoxicant; or
      3. The juvenile is the victim of an offense and consents to photographing or recording. However, any photograph or recording of the victim taken pursuant to this subdivision (e)(1)(C) shall be taken solely for use as evidence in the case being investigated and not for any other purpose except as is already provided in this section.
    2. The photograph or recording shall be made solely for use as evidence, and if no charges are brought against the juvenile within the applicable statute of limitations for the offense under investigation, the photograph or recording shall be destroyed unless a court of competent jurisdiction orders otherwise.
    3. Notwithstanding any other law to the contrary, the photograph or recording shall not be considered a public record and shall not be released to the public except by order of the court having jurisdiction over the charges brought against the juvenile.

Acts 1970, ch. 600, § 53; impl. am. Acts 1971, ch. 162, § 3; T.C.A., § 37-253; Acts 1993, ch. 363, § 1; 1994, ch. 748, § 1; 2007, ch. 134, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 20.50.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VI. Juvenile Courts (Neil P. Cohen), 45 Tenn. L. Rev. 469 (1978).

Attorney General Opinions. Under T.C.A. § 37-1-155(a)(1), law enforcement is prohibited from videotaping or digitally recording juveniles while performing field sobriety tests, OAG 06-107 (7/5/06).

37-1-156. Contributing to delinquency — Penalty — Jurisdiction of court.

    1. Any adult who contributes to or encourages the delinquency or unruly behavior of a child, whether by aiding or abetting or encouraging the child in the commission of an act of delinquency or unruly conduct or by participating as a principal with the child in an act of delinquency, unruly conduct or by aiding the child in concealing an act of delinquency or unruly conduct following its commission, commits a Class A misdemeanor, triable in the circuit or criminal court.
    2. An adult convicted of a violation of this section shall be sentenced to the county jail or workhouse to serve one hundred percent (100%) of the maximum authorized sentence for a Class A misdemeanor if:
      1. The adult's conduct constituting a violation of this section involves supplying, giving, furnishing, selling, or permitting a child to buy or obtain, a product or substance that is unlawful for the child to possess; and
      2. As a proximate result of the product or substance, the child engages in conduct that causes the death of another.
  2. When any juvenile judge shall have reasonable ground to believe that any person is guilty of having contributed to the delinquency or unruly conduct of a child, such judge shall cause the person to be arrested and brought before such judge. In such case, when the defendant pleads not guilty, the juvenile court judge has the power to bind the defendant over to the grand jury or to proceed to hear the case on its merits without the intervention of a jury if the defendant requests the hearing in juvenile court and expressly waives in writing an indictment, presentment, grand jury investigation and jury trial. In the event the defendant enters a plea of guilty, the juvenile court judge has the same power as the circuit or criminal court in making final disposition of the case.
    1. If a child is found delinquent a second or subsequent time for conduct that constitutes the offense of vandalism under § 39-14-408, and the property vandalized is owned, operated, maintained or used by a governmental or other public entity, the parent or legal guardian of that child is in violation of this section.
    2. It is a defense to a violation of this subsection (c) if the parent or guardian demonstrates to the court that all reasonable means available were taken to prevent the child from engaging in the prohibited conduct.
    3. In lieu of the punishment prescribed in subsection (a), if the court finds that the parent or guardian of the delinquent child is in violation of this subsection (c), it may order the parent or guardian to repair, repaint, clean, refurbish or replace the property damaged as a result of the vandalism. If the damage does not lend itself to repair or cleaning, or if there is a legitimate reason why the parent or guardian is unable to do so, the court, in its discretion, may allow the parent or guardian to pay to have the damage repaired or replaced. If the parent or guardian is indigent and cannot afford to replace the damaged property, the court shall order the indigent parent or guardian to perform other community service work for which the parent or guardian is better suited.
    4. A violation of this subsection (c) may be heard and determined by the juvenile court.
    5. As a dispositional option for the delinquent act of vandalism, the court may also require the child responsible for the vandalism to assist in the repair or cleaning of the damage along with the child's parent or guardian.

Acts 1970, ch. 600, § 54; T.C.A., § 37-254; Acts 1989, ch. 591, § 111; 2007, ch. 353, § 1; 2010, ch. 1116, § 2.

Compiler's Notes. Acts 2010, ch. 1116, § 1 provided that the act, which added subdivision (a)(2), shall be known and may be cited as the “Markie Voyles Act.”

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 15 Tenn. Juris., Injunctions, § 21, 18 Tenn. Juris., Minors, § 36.

Law Reviews.

Constitutional Limitations on State Power to Hold Parents Criminally Liable for the Delinquent Acts of Their Children, 44 Vand. L. Rev. 441.

Attorney General Opinions. Jurisdiction of juvenile courts over misdemeanors of child abuse and neglect and contributing to delinquency, OAG 93-24 (3/29/93).

NOTES TO DECISIONS

1. Elements of Offense.

Defendant need not have knowledge of the age of the minor. Bentley v. State, 552 S.W.2d 778, 1977 Tenn. Crim. App. LEXIS 245 (Tenn. Crim. App. 1977).

2. Evidence.

Where pornographic photographs depicting defendant engaged in illegal sexual activity with prosecutrix were seized in violation of defendant's fourth amendment rights and improperly admitted into evidence at trial, the appellate court was unable to say that prosecutrix's testimony alone was sufficient to sustain defendant's conviction, and hence the case was remanded for a new trial. Bentley v. State, 552 S.W.2d 778, 1977 Tenn. Crim. App. LEXIS 245 (Tenn. Crim. App. 1977).

Evidence was sufficient to support conviction. State v. Seals, 735 S.W.2d 849, 1987 Tenn. Crim. App. LEXIS 2578 (Tenn. Crim. App. 1987).

Evidence supported defendant's convictions for assault and contributing to the delinquency of a minor because the testimony by the witnesses for the State of Tennessee established that defendant not only encouraged defendant's minor child to attack the minor victim and prevented other people from going to the victim's aid, but that defendant also struck the victim. The evidence further established that the victim was injured as a result of the attack State v. Edwards, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 434 (Tenn. Crim. App. June 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 589 (Tenn. Sept. 14, 2018).

Evidence that defendant picked the victim up at her house and that the victim did not have her parent's permission to leave supported a finding that he contributed to the delinquency of a minor. State v. Glatz, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 119 (Tenn. Crim. App. Feb. 21, 2020).

Collateral References.

Acts in connection with marriage of infant below marriageable age as contributing to delinquency. 68 A.L.R.2d 745.

Criminal liability for contributing to delinquency of minor by sexually immoral acts as affected by fact that minor was married at time of acts charged. 84 A.L.R.2d 1254.

Criminal responsibility of parent for act of child. 12 A.L.R.4th 673.

Giving, selling, or prescribing dangerous drugs as contributing to the delinquency of a minor. 36 A.L.R.3d 1292.

Mens rea or guilty intent as necessary element of offense of contributing to delinquency or dependency of minor. 31 A.L.R.3d 848.

37-1-157. Contributing to dependency — Penalties — Jurisdiction of court.

  1. When any child is alleged to be a dependent and neglected child, the parent, guardian or other person who by any willful act causes, contributes to or encourages such dependency and neglect commits a Class A misdemeanor, triable in the circuit or criminal court.
  2. In such a case when the defendant pleads not guilty, the juvenile court judge has the power to bind the defendant over to the grand jury as in cases of misdemeanors under the criminal laws of this state. In such case, when the defendant pleads not guilty, the juvenile court judge has the power to bind the defendant over to the grand jury or to proceed to hear the case on its merits without the intervention of a jury if the defendant requests the hearing in juvenile court and expressly waives in writing an indictment, presentment, grand jury investigation and jury trial. In the event the defendant enters a plea of guilty, the juvenile court judge has the same power as the circuit or criminal court in making final disposition of the case.
  3. Reliance by a parent, guardian or custodian upon remedial treatment, other than medical or surgical treatment for a child, when such treatment is legally recognized or legally permitted under the laws of this state, shall not subject such parent, guardian or custodian to any of the penalties hereunder.
  4. Subsection (a) shall not be construed to impose criminal liability upon a mother based solely upon her act of voluntarily delivering a newborn infant to a facility pursuant to § 68-11-255.

Acts 1970, ch. 600, § 55; 1971, ch. 189, § 6; 1980, ch. 796, § 4; T.C.A., § 37-255; Acts 1989, ch. 591, § 111; 2001, ch. 388, § 3.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Law Reviews.

Special Project, Family Law in the 1990s — New Problems, Strong Solutions, 46 Vand. L. Rev. 677 (1993).

Collateral References.

Liability of parent for injury to unemancipated child caused by parent's negligence — modern cases. 6 A.L.R.4th 1066.

Who has custody or control of child within terms of penal statute punishing cruelty or neglect by one having custody or control. 75 A.L.R.3d 933.

37-1-158. Contempt of court.

The court may punish a person for contempt of court for disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders by imposing a fine or imprisonment as prescribed for circuit, chancery or appellate courts pursuant to title 29, chapter 9.

Acts 1970, ch. 600, § 57; 1971, ch. 189, § 5; T.C.A., § 37-257.

Law Reviews.

Rules of Procedure for Courts with Juvenile Jurisdiction in Tennessee (R.B.J. Campbelle, Jr.), 18 No. 2 Tenn. B.J. 20 (1982).

NOTES TO DECISIONS

1. In General.

This section gives Tennessee's juvenile courts the same power to imprison for contempt that is possessed by other Tennessee courts. Parker v. Turner, 626 F.2d 1, 1980 U.S. App. LEXIS 15991 (6th Cir. Tenn. 1980).

Collateral References.

Interference with enforcement of judgment in criminal or juvenile delinquent case as contempt. 8 A.L.R.3d 657.

37-1-159. Appeals.

  1. The juvenile court shall be a court of record; and any appeal from any final order or judgment in a delinquency proceeding, filed under this chapter, except a proceeding pursuant to § 37-1-134, may be made to the criminal court or court having criminal jurisdiction that shall hear the testimony of witnesses and try the case de novo. However, if the child pleads guilty or no contest in a delinquency or unruly proceeding, the child waives the right to appeal the adjudication. If the plea includes an agreement as to disposition, the child also waives the right to appeal the disposition. Any appeal from any final order or judgment in an unruly child proceeding or dependent and neglect proceeding, filed under this chapter, may be made to the circuit court that shall hear the testimony of witnesses and try the case de novo. The appeal shall be perfected within ten (10) days, excluding nonjudicial days, following the entry of the juvenile court's order. If a hearing before a judge of a matter heard by a magistrate is not requested or provided pursuant to § 37-1-107, the date of the expiration of the time within which to request the hearing shall be the date of disposition for appeal purposes, and the parties and their attorneys shall be so notified by the magistrate. If there is a rehearing by the judge, the appeal period shall commence the day after the order of disposition is entered. All parties to the juvenile court proceeding shall be parties to the de novo appeal.
  2. An appeal does not suspend the order of the juvenile court, nor does it release the child from the custody of that court or of that person, institution or agency to whose care the child has been committed. Pending the hearing, the criminal court or circuit court may make the same temporary disposition of the child as is vested in juvenile courts; provided, that until the criminal court or circuit court has entered an order for temporary disposition, the order of the juvenile court shall remain in effect. A juvenile court shall retain jurisdiction to the extent needed to complete any reviews or permanency hearings for children in foster care as may be mandated by federal or state law.
  3. When an appeal has been perfected, the juvenile court shall cause the entire record in the case, including the juvenile court's findings and written reports from probation officers, professional court employees or professional consultants, to be taken forthwith to the criminal court or circuit court whose duty it is, either in term or in vacation, to set the case for an early hearing. When an appeal is taken from a juvenile court's decision that involves the removal of a child or children from the custody of their natural or legal parents or guardian or from the department of children's services, or when the decision appealed involves the deprivation of a child's liberty as the result of a finding that such child engaged in criminal activity, such hearing shall be held within forty-five (45) days of receipt of the findings and reports. In its order, the criminal court or circuit court shall remand the case to the juvenile court for enforcement of the judgment rendered by the criminal court or circuit court. Appeals from an order of the criminal court or circuit court pursuant to this subsection (c) may be carried to the court of appeals as provided by law.
  4. There is no civil or interlocutory appeal from a juvenile court's disposition pursuant to § 37-1-134. If and only if a nonlawyer judge presides at the transfer hearing in juvenile court, then the criminal court, upon motion of the child filed within ten (10) days of the juvenile court order, excluding nonjudicial days, shall hold a hearing as expeditiously as possible to determine whether it will accept jurisdiction over the child; provided, that if no such motion is filed with the criminal court within the ten-day period, excluding nonjudicial days, such child shall be subject to indictment, presentment or information for the offense charged and thus subject to trial as an adult. At this hearing, which is de novo, the criminal court shall consider:
    1. Any written reports from professional court employees, professional consultants as well as the testimony of any witnesses; and
    2. Those issues considered by the juvenile court pursuant to § 37-1-134(a) and (b).
  5. Following a hearing held pursuant to subsection (d), the criminal court may:
    1. Remand the child to the jurisdiction of the juvenile court for further proceedings and disposition pursuant to § 37-1-131, such remand order reciting in detail the court's findings of fact and conclusions of law; or
    2. Enter an order certifying that it has taken jurisdiction over the child. This order shall recite, in detail, the court's finding of fact and conclusions of law. Following the order, the child shall be subject to indictment, presentment or information for the offenses charged. The criminal court judge who conducted the hearing to accept jurisdiction shall not thereby be rendered disqualified to preside at the criminal trial on the merits.
  6. Appeals from an order of the criminal court pursuant to subsection (e) may be carried to the court of criminal appeals in the manner provided by the Tennessee Rules of Appellate Procedure only following a conviction on the merits of the charge. This is the exclusive method of appeal from a finding that the criminal court accepts jurisdiction. The state may appeal to the court of criminal appeals a finding that the child be remanded to the juvenile court upon the ground of abuse of discretion. Pending the appeal by the state, the criminal court shall make a determination of whether or not the child shall be released on the child's own recognizance, or on bond, or held in the custodial care of the sheriff of the county.
  7. Appeals in all other civil matters heard by the juvenile court shall be governed by the Tennessee Rules of Appellate Procedure.

Acts 1970, ch. 600, § 58; 1976, ch. 745, § 6; 1980, ch. 558, § 1; 1981, ch. 370, § 1; 1981, ch. 449, § 2(24); 1983, ch. 254, § 4; T.C.A., § 37-258; Acts 1985, ch. 328, § 1; 1986, ch. 612, §§ 2, 3; 1992, ch. 704, § 1; 1993, ch. 386, § 1; 1994, ch. 810, §§ 1, 2; 1996, ch. 1079, §§ 73, 104; 1997, ch. 516, § 1; 2009, ch. 235, § 1; 2016, ch. 637, §§ 1, 2; 2019, ch. 312, § 10.

Compiler's Notes. Acts 2009, ch. 235, § 1 directed the code commission to change all references Acts 2009, ch. 235, § 1 directed the code commission to change all references from “child support referee” and “juvenile referee” to “child support magistrate” and “juvenile magistrate” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Subsection (b) may be affected by T.R.A.P. 3(d).

Amendments. The 2016 amendment in (a) substituted “. Any” for “; and any” following the first instance of “case de novo” in the first sentence; substituted “entry of the juvenile court’s order” for juvenile court’s disposition” at the end of the second sentence; substituted “hearing before a judge” for “rehearing” following “If a” at the beginning of the third sentence; substituted “§ 37-1-107” for “§ 37-1-107(e)” in the middle of the third sentence; substituted “the hearing” for “rehearing” following “request” in the middle of the third sentence; and added the last sentence; and in (b), added the last sentence.

The 2019 amendment inserted the second and third sentence in (a).

Effective Dates. Acts 2016, ch. 637, §  3. July 1, 2016.

Acts 2019, ch. 312, § 11. May 8, 2019.

Cross-References. Appeals in paternity actions, § 36-2-315.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rules 4, 32 and 36 and in the text of Rules 24 and 36 in the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 8.2, 8.16, 8.17, 8.30, 8.31, 8.32, 8.40.

Tennessee Jurisprudence, 17 Tenn. Juris., Jurisdiction, § 27; 18 Tenn. Juris., Minors, § 11, 20 Tenn. Juris, Parent and Child, § 7.

Law Reviews.

Guidelines for Juvenile Court Practice (Andrew J. Shookhoff), 19 No. 2 Tenn. B.J. 5 (1983).

Attorney General Opinions. Clerk not authorized to refuse to file notice seeking appeal to the wrong court, OAG 96-136 (11/22/96).

Where a defendant charged with contributing to the delinquency of a child submits to the jurisdiction of the juvenile court, waives the right to a jury trial on that charge, and is then convicted, the defendant may file an appeal in either the circuit court or the criminal court, OAG 00-157 (10/17/00).

Pretrial diversion is not available to juveniles who are appealing a finding of delinquency, OAG 05-012 (1/26/05).

NOTES TO DECISIONS

1. Constitutionality.

This section is unconstitutional to extent that it allows an appeal and trial de novo in circuit court after juvenile was acquitted by juvenile court as it subjects juvenile to double jeopardy and deprives him of his right to due process of law. State v. Jackson, 503 S.W.2d 185, 1973 Tenn. LEXIS 440 (Tenn. 1973).

The 1997 amendment to T.C.A. § 37-1-159(d), which generally eliminated the need for an acceptance hearing, did not constitute a denial of due process in violation of either the United States or Tennessee Constitution. State v. Darden, 12 S.W.3d 455, 2000 Tenn. LEXIS 56 (Tenn. 2000).

2. In General.

An appeal from a juvenile adjudication does not automatically vacate the commitment. It operates as a complete and continuing denial of liberty unless and until the circuit court modifies the judgment of the juvenile court. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

Where defendant entered his guilty plea without reserving any question concerning the transfer from juvenile court, he waived appellate review of his juvenile court transfer. State v. Griffin, 914 S.W.2d 564, 1995 Tenn. Crim. App. LEXIS 856 (Tenn. Crim. App. 1995).

Order that the relatives attempted to appeal de novo to the circuit court was connected to the dependency and neglect proceeding and could not be transformed simply by the filing of a petition with a different caption; the order appealed arose out of a dependency and neglect proceeding, rather than from a termination proceeding, such that the relatives' appeal was properly perfected to the circuit court pursuant to T.C.A. § 37-1-159(a). State Dep't of Children's Servs. v. Owens, 129 S.W.3d 50, 2004 Tenn. LEXIS 182 (Tenn. 2004).

Court of appeals improperly blamed juvenile defendant for delays in his case because defendant was able to seek post-commitment relief after the time for filing an appeal was expired; the record showed that a notice of appeal was filed more than one year before defendant's 19th birthday, his appellate brief was served within five months of the notice, the state filed several requests for extensions before filing its briefs, oral argument was postponed for more than two months, and the opinion of the court of appeals was released only 14 days after defendant had reached the age of 19. State v. Rodgers, 235 S.W.3d 92, 2007 Tenn. LEXIS 744 (Tenn. Aug. 17, 2007).

Trial court improperly dismissed a mother's appeal from a juvenile court order finding her guilty of severe child abuse because T.C.A. § 37-1-159 required the trial to conduct a de novo trial on the appeal from juvenile court; the mother had the statutory right to a de novo hearing in the dependency neglect proceedings concerning her child, to determine whether the finding of severe child abuse was supported by clear and convincing evidence. In re Dannye J.C., — S.W.3d —, 2012 Tenn. App. LEXIS 14 (Tenn. Ct. App. Jan. 12, 2012).

After a juvenile court had found a juvenile to be an unruly child, a circuit court erred in summarily dismissing the juvenile's appeal of the juvenile court's order denying a petition to vacate, T.C.A. § 37-1-139 and Tenn. R. Juv. P. 34, because the denial of the petition constituted an appealable order under T.C.A. § 37-1-159, the juvenile timely appealed, and the circuit court had jurisdiction to hear the appeal. In re A.W., — S.W.3d —, 2012 Tenn. App. LEXIS 81 (Tenn. Ct. App. Feb. 9, 2012).

Circuit court erred in summarily dismissing an appeal of a juvenile court's order denying a juvenile's petition to vacate, T.C.A. § 37-1-139 and Tenn. R. Juv. P. 34, because the denial of the petition constituted an appealable final order under T.C.A. § 37-1-159, the juvenile timely appealed, and the circuit court had jurisdiction to hear the appeal; the juvenile court had found the juvenile to be an unruly child. In re M.R., — S.W.3d —, 2012 Tenn. App. LEXIS 82 (Tenn. Ct. App. Feb. 9, 2012).

Circuit court erred in summarily dismissing an appeal of a juvenile court's order denying a juvenile's petition to vacate, pursuant to T.C.A. § 37-1-139 and Tenn. R. Juv. P. 34, because the denial of the petition constituted an appealable final order under T.C.A. § 37-1-159, the juvenile timely appealed, and the circuit court had jurisdiction to hear the appeal; the juvenile court had found the juvenile to be an unruly child. In re T.W., — S.W.3d —, 2012 Tenn. App. LEXIS 83 (Tenn. Ct. App. Feb. 9, 2012).

Circuit court erred in summarily dismissing an appeal of a juvenile court's order denying a juvenile's petition to vacate, T.C.A. § 37-1-139 and Tenn. R. Juv. P. 34, because the denial of the petition constituted an appealable final order under T.C.A. § 37-1-159, the juvenile timely appealed, and the circuit court had jurisdiction to hear the appeal; the juvenile court had found the juvenile to be an unruly child. In re B.R., — S.W.3d —, 2012 Tenn. App. LEXIS 84 (Tenn. Ct. App. Feb. 9, 2012).

Although a trial court did not err under T.C.A. § 37-1-159 when it determined that it lacked subject matter jurisdiction over a mother's appeal in a custody matter, it erred by denying her appeal rather than transferring the appeal to the proper court. Clark v. Cooper, — S.W.3d —, 2013 Tenn. App. LEXIS 179 (Tenn. Ct. App. Mar. 18, 2013).

3. Construction.

T.C.A. § 37-1-159(d) in no way excuses a defendant's obligation to comply with Tenn. R. Crim. P. 12(b)(1) and (2), which requires that defenses and objections based on defects in the institution of the prosecution or in the indictment must be raised prior to trial. State v. Hale, 833 S.W.2d 65, 1992 Tenn. LEXIS 430 (Tenn. 1992).

The 1994 amendment which eliminated the de novo trial in circuit court and provided for an appeal of right to the court of appeals was procedural and could be applied retroactively. State Dep't of Human Servs. v. Defriece, 937 S.W.2d 954, 1996 Tenn. App. LEXIS 639 (Tenn. Ct. App. 1996), appeal denied, 1997 Tenn. LEXIS 60 (Tenn. Feb. 3, 1997).

In a dependency and neglect action, the finding that the child's best interests were served by remaining in the custody of his maternal uncle and aunt was proper because the 45 day provision in T.C.A. § 37-1-159 was directory in nature and the father did not show that he was prejudiced by the delay. In re Caleb L. C., 362 S.W.3d 581, 2011 Tenn. App. LEXIS 225 (Tenn. Ct. App. May 4, 2011), appeal denied, In re Caleb L.C., — S.W.3d —, 2011 Tenn. LEXIS 789 (Tenn. Aug. 25, 2011).

4. Jurisdiction of Courts.

Circuit court has jurisdiction in an action of common-law certiorari to correct a pretrial action of juvenile court. State v. Womack, 591 S.W.2d 437, 1979 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1979).

A possible transfer to criminal court is not sufficient grounds for negating the statutory general authority of the circuit court in favor of the specific, limited authority of the criminal court which does not arise until transfer. State v. Womack, 591 S.W.2d 437, 1979 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1979).

Because a mother's petition for a change of custody was a part of the prior dependency and neglect proceeding which granted custody to the father, the juvenile court's order denying the petition was appealable to circuit court for a de novo hearing under T.C.A. § 37-1-159(a). In re D.Y.H., 226 S.W.3d 327, 2007 Tenn. LEXIS 503 (Tenn. May 24, 2007).

Because a mother's petition for a change of custody was a part of the prior dependency and neglect proceeding which granted custody to the father, the juvenile court's order denying the petition was appealable to circuit court for a de novo hearing under T.C.A. § 37-1-159(a); when a juvenile court acquires jurisdiction from a dependency and neglect proceeding, its exclusive original jurisdiction continues until one of following events occur: (1) The case is dismissed; (2) The custody determination is transferred to another court; (3) A petition for adoption is filed; or (4) The child reaches the age of 18, pursuant to T.C.A. § 37-1-103(c). In re D.Y.H., 226 S.W.3d 327, 2007 Tenn. LEXIS 503 (Tenn. May 24, 2007).

Trial court did not err under T.C.A. § 37-1-159 when it held that the parties'  matter involved a custody determination, despite that the juvenile court had previously characterized the matter as one involving dependency and neglect; the parents had given custody of their child to the grandparents, and thereafter the mother sought to change the custody arrangement. Clark v. Cooper, — S.W.3d —, 2013 Tenn. App. LEXIS 179 (Tenn. Ct. App. Mar. 18, 2013).

Court of appeals did not have subject matter jurisdiction to hear a mother's appeal flowing from a dependency and neglect action because jurisdiction was with the circuit court, and thus, it transferred the case to the circuit court; the order from which the mother appealed flowed from the dependency and neglect proceedings, and the trial court lost subject matter jurisdiction over the child with the dismissal of the father's dependency and neglect petition. State ex rel. Blandford v. Blandford, — S.W.3d —, 2016 Tenn. App. LEXIS 204 (Tenn. Ct. App. Mar. 24, 2016).

Because the State's notice of appeal was timely filed within the ten-day period for appeals from juvenile court to circuit court, its appeal of an order denying its motion for relief from an agreed order forgiving a portion of a mother's child support arrearage had to be transferred to the circuit court; the court of appeals did not have subject matter jurisdiction to consider the State's appeal because jurisdiction was with the circuit court. State ex rel. Smith v. Thorne, — S.W.3d —, 2017 Tenn. App. LEXIS 294 (Tenn. Ct. App. May 8, 2017).

Court of appeals did not have subject matter jurisdiction to consider the State's appeal of an order denying its motion for relief from an agreed order forgiving a portion of a mother's child support arrearage because jurisdiction was with the circuit court, which assumed subject matter jurisdiction over the children upon the filing of the grandmother's dependency and neglect petition; the agreed order and order denying the State's motion flowed from the dependency and neglect proceedings. State ex rel. Smith v. Thorne, — S.W.3d —, 2017 Tenn. App. LEXIS 294 (Tenn. Ct. App. May 8, 2017).

Court of appeals lacked jurisdiction over a father's appeal of an order awarding permanent guardianship of his child to foster parents because the father's notice of appeal was filed twenty-eight days after the entry of the trial court's final order awarding permanent guardianship to the foster parents; therefore, the father's appeal was not timely filed and his appeal had to be dismissed In re Brian G., — S.W.3d —, 2018 Tenn. App. LEXIS 507 (Tenn. Ct. App. Aug. 30, 2018).

Court of appeals lacked jurisdiction over a father's appeal of an order awarding permanent guardianship of his child to foster parents because the order was properly appealed to trial court, which retained exclusive subject matter jurisdiction over the child; the Tennessee Department of Children's Services properly filed its motion in the trial court since it essentially sought to modify the trial court's initial custody decision. In re Brian G., — S.W.3d —, 2018 Tenn. App. LEXIS 507 (Tenn. Ct. App. Aug. 30, 2018).

Because this action was to establish paternity and visitation and not related to dependency or neglect, the circuit court did not err in finding a lack of subject matter jurisdiction, as the appeal to the circuit court was improper as any appeal rested within the court's jurisdiction; because the mother did not properly file an appeal to the circuit court, the jurisdiction of that court did not attach and the juvenile court retained jurisdiction to hear father's motion because an appeal as of right had not been perfected. In re Easton W., — S.W.3d —, 2020 Tenn. App. LEXIS 305 (Tenn. Ct. App. July 1, 2020).

5. Right to Counsel.

There is no right of access on petitions for post-commitment relief that arise purely under T.C.A. §§ 37-1-302 — 37-1-322, but incarcerated juveniles do have a right of access to counsel for an appeal of their adjudication of delinquency, because this section provides for an appeal as of right from an adjudication of delinquency. John L. v. Adams, 969 F.2d 228, 1992 U.S. App. LEXIS 16208 (6th Cir. Tenn. 1992), rehearing denied, — F.2d —, 1992 U.S. App. LEXIS 23378 (6th Cir. Sept. 22, 1992).

6. Right to a Transfer Hearing.

The right to a transfer hearing is sufficiently fundamental to be considered a matter of due process, in the context of juvenile justice, but can be waived. State v. Hale, 833 S.W.2d 65, 1992 Tenn. LEXIS 430 (Tenn. 1992).

7. Judge Not Licensed to Practice Law.

In the context of a juvenile commitment, “the law of the land” provision of Tenn. Const., art. I, § 8, does not permit a judge who is not licensed to practice law to make any disposition of a juvenile that operates to confine him or deprive him of his liberty. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

8. Jury Trial.

When a juvenile is charged with an offense that would constitute a felony under the penal code appeals to the circuit court for trial de novo under T.C.A. § 37-1-159(a), a demand for a jury trial pursuant to Tenn. R. Civ. P. 38, is not necessary. State v. Johnson, 574 S.W.2d 739, 1978 Tenn. LEXIS 685 (Tenn. 1978).

In a juvenile delinquency appeal, a jury trial may be waived, and the supreme court cannot hold that the strict statutory formalities for such waiver, as set out in § 40-2504 (repealed, see Tenn. R. Crim. P. 5, 23, 24), must necessarily be followed. But the requirements of the rules of civil procedure for demanding a jury do not apply and should not be invoked by the state or by the trial judge. State v. Johnson, 574 S.W.2d 739, 1978 Tenn. LEXIS 685 (Tenn. 1978).

Juveniles adjudged delinquent on the basis of an offense which would be a felony if committed by an adult are not entitled by the Tennessee constitution to a jury trial upon their de novo appeal to circuit court. State v. Burns, 205 S.W.3d 412, 2006 Tenn. LEXIS 848 (Tenn. 2006).

9. Acceptance Hearing.

Section 37-1-115, providing for the release of a child from custody, and § 37-1-127, bestowing basic rights on a child charged with a delinquent act, are applicable to an acceptance hearing in the criminal court under this section because such hearing is essentially a review of the juvenile court's action in transferring the child to criminal court to be tried as an adult; it is no part of the trial as an adult in criminal court. Colyer v. State, 577 S.W.2d 460, 1979 Tenn. LEXIS 423 (Tenn. 1979), superseded by statute as stated in, State v. Manus, 632 S.W.2d 137, 1982 Tenn. App. LEXIS 463 (Tenn. Ct. App. 1982), superseded by statute as stated in, State v. Gordon, 642 S.W.2d 742, 1982 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1982).

The 1997 amendment to subsection (d) generally eliminated the need for an acceptance hearing. State v. Darden, 12 S.W.3d 455, 2000 Tenn. LEXIS 56 (Tenn. 2000).

10. Dependency Proceedings.

Circuit court followed proper procedure in dismissing both petitions for dependency and neglect, pursuant to T.C.A. § 37-1-129(a)(1) and remanding the case to the juvenile court to enforce the circuit court's judgment, pursuant to T.C.A. § 37-1-159(c). The circuit court conducted a procedurally sound de novo hearing in the case. In re Alysia M. S., — S.W.3d —, 2013 Tenn. App. LEXIS 264 (Tenn. Ct. App. Apr. 11, 2013).

In a custody dispute between a father from California and the maternal grandparents from Tennessee, the orders of a Tennessee circuit court determining jurisdiction, custody, and any visitation to the father were vacated because it failed to conduct a de novo review of the dependency and neglect proceedings under T.C.A. § 37-1-130. In re Lillian F. W., — S.W.3d —, 2013 Tenn. App. LEXIS 659 (Tenn. Ct. App. Sept. 30, 2013), appeal denied, In re Lillian W., — S.W.3d —, 2014 Tenn. LEXIS 145 (Tenn. Feb. 13, 2014).

Circuit court erred in finding a child dependent and neglected and in awarding custody of the child jointly to the child's parent and grandparent, based on the parent's stipulation of dependency and neglect, because the record lacked clear and convincing evidence that the child was dependent and neglected as of the date of the de novo hearing by the court. In re Landon H., — S.W.3d —, 2016 Tenn. App. LEXIS 147 (Tenn. Ct. App. Feb. 25, 2016).

Grandparents were properly allowed to intervene in a dependency and neglect case because T.C.A. § 37-1-159(a), effective after an appeal was perfected, was retroactive, as the statute was procedural, since the statute created no substantive right, affected no vested right, and only said juvenile court parties were parties to a de novo appeal. In re Brooklyn S., — S.W.3d —, 2017 Tenn. App. LEXIS 736 (Tenn. Ct. App. Nov. 8, 2017).

Trial court properly conducted a de novo hearing on appeal from juvenile court because the court (1) heard live testimony, and admitted exhibits, and (2) properly received a transcript of juvenile court proceedings when a mother was unavailable due to asserting the right to remain silent, and the hearsay rule did not exclude the mother's former testimony. In re Brooklyn S., — S.W.3d —, 2017 Tenn. App. LEXIS 736 (Tenn. Ct. App. Nov. 8, 2017).

Circuit court found that mother's children were dependent and neglected within the meaning of the law, but did not reach the dispositional phase of the proceeding or make any determination regarding the proper placement for the children. Consequently, the order appealed was not a final, appealable judgment, and the appeal was dismissed for lack of jurisdiction. In re Ravyn R., — S.W.3d —, 2018 Tenn. App. LEXIS 211 (Tenn. Ct. App. Apr. 25, 2018).

Trial court did not err in considering a mother's Alford plea to child endangerment, along with other evidence, in reaching its decision that the mothers'  children were dependent and neglected at the time of the de novo hearing. Furthermore, the trial court did not rely solely on the juvenile court record (specifically the Alford plea) and did consider new evidence. In re Treylynn T., — S.W.3d —, 2020 Tenn. App. LEXIS 403 (Tenn. Ct. App. Sept. 9, 2020).

11. Motion to Dismiss.

Juvenile defendant's motion to dismiss murder indictment on the ground that the juvenile court that found that he should be held for prosecution as an adult failed to keep minutes of the proceedings was properly denied where there was no defect on the face of the indictment and no showing of prejudice on the alleged failure, since defendant could have appealed from the judgment of the juvenile court. Braziel v. State, 529 S.W.2d 501, 1975 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. 1975).

12. Paternity Actions.

This section was inapplicable to paternity cases. State ex rel. Winberry v. Brooks, 670 S.W.2d 631, 1984 Tenn. App. LEXIS 2752 (Tenn. Ct. App. 1984).

In matters of legitimation as provided in title 36, ch. 2, the appeal from the court of original jurisdiction is to the court of appeals. Cooper v. Thompson, 710 S.W.2d 944, 1985 Tenn. App. LEXIS 3289 (Tenn. Ct. App. 1985).

13. Fugitive Disentitlement Doctrine.

Circuit court properly determined that a juvenile's appeal of a juvenile court's determination of delinquency should be dismissed based upon application of the fugitive disentitlement doctrine. The juvenile had a long history of refusing to cooperate with the juvenile court, that the juvenile fled from a rehabilitation facility in which he was placed pursuant to a court order and engaged in additional delinquent acts during that time, and his fugitive status was directly related to the pending appeal. State v. Kelley, — S.W.3d —, 2012 Tenn. App. LEXIS 785 (Tenn. Ct. App. Nov. 9, 2012).

14. Appointment of Guardian.

Order of financial guardianship entered by the juvenile court was not void on its face and could not be attacked in a collateral proceeding, despite the order's errors and irregularities, because venue was properly established, the juvenile court was a “court of record,” and the orders corresponded with the petitions filed by a minor's half-sister requesting her appointment as guardian; an insurer was entitled to rely upon the juvenile court's facially valid order authorizing disbursement of proceeds. Hood v. Jenkins, 432 S.W.3d 814, 2013 Tenn. LEXIS 1009 (Tenn. Dec. 19, 2013).

15. Appeals.

Trial court did not err by admitting the transcript of the juvenile court testimony of two witnesses in lieu of their live testimony as they were unavailable because they were allowable under Tenn. R. Evid. 804(b)(1). The trial court also considered the live testimony of eight witnesses and therefore it conducted a proper de novo hearing under T.C.A.  37-1-159. In re Madison, — S.W.3d —, 2014 Tenn. App. LEXIS 599 (Tenn. Ct. App. Sept. 25, 2014).

Circuit court properly held that the mother lacked standing to appeal the juvenile court's dismissal of the Department of Children's Services' petition seeking to have the child found dependent and neglected due to the father's alleged sexual abuse where the reviewing court could not determine from the record whether the mother sought to align her interests directly with the Department's position, and the mother's rights were not impaired by the dismissal. In re Jocelyn L., — S.W.3d —, 2014 Tenn. App. LEXIS 818 (Tenn. Ct. App. Dec. 16, 2014).

Circuit court possessed subject matter jurisdiction to consider the award of fees to the guardian ad litem because the mother's appeal from the order requiring her to pay half of the fees was timely. In re Jackson H., — S.W.3d —, 2016 Tenn. App. LEXIS 811 (Tenn. Ct. App. Oct. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 101 (Tenn. Feb. 15, 2017).

Evidence preponderated against the juvenile's claim that the circuit court acted illegally by failing to hear his appeal on the merits within 45 days where there were insufficient facts from which determine whether the circuit court had jurisdiction or the date upon which it dismissed the appeal for lack of jurisdiction. In re B.T., — S.W.3d —, 2017 Tenn. App. LEXIS 208 (Tenn. Ct. App. Mar. 29, 2017).

State's issue regarding the trial court's denial of its motion to reconsider was pretermitted as moot because pending appeal to the circuit court, the trial court's order remained in effect. State ex rel. Smith v. Thorne, — S.W.3d —, 2017 Tenn. App. LEXIS 294 (Tenn. Ct. App. May 8, 2017).

Because a circuit court did not perform a reviewing function in an appeal from a dependency and neglect proceeding, the circuit court's order had to be vacated and the case remanded as the circuit court was to conduct a trial de novo and hear the evidence anew and make its own findings in the case. In re Jaiden A., — S.W.3d —, 2017 Tenn. App. LEXIS 787 (Tenn. Ct. App. Dec. 5, 2017).

Father's post-trial motion had no effect on the time for filing an appeal under subsection (a) because the father did not raise the denial of his post-trial motion in his appeal; the post-trial motion was filed more than thirty days following the entry of the trial court's final order of guardianship, well after the time for appealing expired, and past the time for filing a post-trial motion to alter or amend even if the case had been governed by the Tennessee Rules of Civil Procedure. In re Brian G., — S.W.3d —, 2018 Tenn. App. LEXIS 507 (Tenn. Ct. App. Aug. 30, 2018).

37-1-160. Interstate flight by juvenile felon — Applicability of part.

  1. This part shall not apply to any person who violates:
    1. Any law of this state defining a felony, and is at the time of such violation less than eighteen (18) years of age, if such person thereafter flees from this state. Any such person may be proceeded against in the manner otherwise provided by law for proceeding against persons accused of a felony. Upon the return of such person to this state by extradition or otherwise, proceedings shall be commenced in the manner provided for in this part;
    2. Any law of another state defining a felony, and is at the time of such violation less than eighteen (18) years of age, if such person thereafter flees from that state into this state. Any such person may be proceeded against as an adult in the manner provided in the Uniform Criminal Extradition Act, compiled in title 40, chapter 9. Pending rendition to the demanding state, the juvenile shall be detained as provided in § 37-1-116; provided, that nothing in this subdivision (a)(2) shall prevent a juvenile from being released pursuant to § 40-9-106.
  2. This section does not apply in any case where proceedings under the Interstate Compact for Juveniles, compiled in chapter 4, part 1 of this title, are applicable.

Acts 1977, ch. 219, § 1; T.C.A., §§ 37-282, 37-286.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 2.3, 8.3.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489 (1978).

37-1-161. Reimbursement account.

  1. There is hereby established a reimbursement account, which shall be comprised of such amount of federal funds as are set aside by the commission on children and youth from the state's allocation under the Juvenile Justice and Delinquency Prevention Act formula grant funds and of state funds, if funds for such purpose are appropriated in the general appropriations act. The reimbursement account shall be used to provide financial assistance to counties for removing children from adult jails.
    1. A child who meets the criteria of § 37-1-114(c) for placement in a secure facility and who is taken into custody in a county that does not operate a secure juvenile detention facility may, with the approval of the juvenile court having jurisdiction in the matter, receive alternative services provided through the reimbursement account.
    2. A child who meets the criteria of § 37-1-114(c) for placement in a secure facility and who is taken into custody in a county that has established a secure juvenile detention facility since the passage of legislation effective May 26, 1983, that prohibits the placement of children in adult jails may, with the approval of the juvenile court having jurisdiction in the matter, receive nonsecure alternative services provided through the reimbursement account.
  3. The commission on children and youth shall promulgate regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the administration of the reimbursement account. The regulations shall include, but not be limited to, the following factors:
    1. Reporting requirements;
    2. A maximum amount of payment per day;
    3. Maximum length of stay;
    4. Qualifications of service providers; and
    5. Allowable services, which shall include, but not be limited to, the following items:
      1. Transportation;
      2. Secure detention;
      3. Emergency shelter care;
      4. Emergency foster care; and
      5. Attendant care.
  4. The juvenile court having jurisdiction in the matter shall make a determination concerning the ability of a child's parent or guardian to pay for all or part of the services eligible for reimbursement account payment. If the parent or guardian is able to pay for all or part of such services, the court shall require such payment from the parent or guardian.

Acts 1984, ch. 856, § 1; 1986, ch. 837, §§ 3, 4; 1988, ch. 979, § 5; 2012, ch. 1026, § 1.

Compiler's Notes. The Juvenile Justice and Delinquency Prevention Act, referred to in this section, is compiled primarily in U.S.C. titles 18 and 42. The provisions pertaining to federal assistance for state plans under the act are codified in 42 USCS § 5633.

Cross-References. Dependent or neglected children not to be detained in facilities with criminal adults or delinquent children, § 37-1-116.

37-1-162. Supplement and account for juvenile court services improvement.

  1. A supplement shall be provided by the state each year to counties for the improvement of juvenile court services. Such supplements shall be administered by the department of children's services and distributed by the department to participating counties. Where more than one (1) court exercises juvenile court jurisdiction within a single county, each court shall receive an equitable share of the county's allocation, as determined by percentage of juvenile court intakes or some other appropriate measure. Each court accepting such funds shall employ a youth services officer to be appointed and supervised by the court.
  2. The department shall establish policies regarding application and reporting procedures, adequate minimum educational requirements for youth services officers, and permissible uses of funds received under this section, including, but not limited to, requirements that such funds shall not be used to supplant funds formerly used by counties for juvenile court services, to pay salaries or personal expenses of juvenile court judges, or to construct or remodel jails or other facilities used for the detention or housing of adults alleged to have committed or been convicted of criminal offenses.

Acts 1984, ch. 856, §§ 2, 3; 2012, ch. 1026, § 2.

Cross-References. Administration of children services, title 37, ch. 3.

37-1-163. Financial obligations.

  1. Financial obligations shall not be assessed against a child in a delinquent or unruly case, including in any order of disposition under § 37-1-131 or § 37-1-132, though this does not affect the assessment of restitution pursuant to § 37-1-131(b). However, the court may order parents, legal custodians, or guardians to pay financial obligations in accordance with the provisions of this part. Restitution to any victim shall be prioritized over all financial obligations.
  2. Failure to pay or timely pay any financial obligations or restitution assessed to the child or the child's parents, guardian, or legal custodian shall not serve as a sole basis for continued court jurisdiction over or supervision of a child.
  3. Failure to pay or timely pay any financial obligations or restitution assessed to the child, child's parents, legal custodians, or guardians shall not serve as a basis for placement in the custody of the department or other removal of the child from the child's home, including the home of a parent, guardian, or legal custodian, for any length of time.
  4. The court shall consider the child's parents, legal custodians, or guardians' financial ability to pay in determining the amount of any financial obligations incurred or assessed by the state or county as described in this part. The court may decline to assess financial obligations if the court determines that assessment would pose financial hardship to the parents, legal custodians, or guardians.
  5. Any financial obligations ordered shall not be referred to any collection service as defined by § 62-20-102.

Acts 2018, ch. 1052, § 47.

Compiler's Notes. Former §§ 37-1-163 and 37-1-164 (Acts 1985 (1st Ex. Sess.), ch. 6, §§ 3, 4; 1989, ch. 278, § 41), concerning placement in accredited facilities and a plan for a central intake system, were repealed by Acts 1996, ch. 1079, §§ 105 and 183.

Acts 2018, ch. 1052, § 1 provided that the act, which enacted this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

37-1-164. Risk and needs assessment.

  1. A validated risk and needs assessment shall be used in all delinquent cases post disposition in making decisions and recommendations regarding programming and treatment.
  2. The department may make available a validated tool for use by any juvenile court; however, any juvenile court may instead choose to use a different validated tool.
  3. Any risk and needs assessment tool that is adopted by a juvenile court or the department must periodically undergo a validation study to ensure that the risk and needs assessment is predictive of the risk of reoffending of the population on which the tool is being administered.
  4. Each delinquent child ordered to probation supervision under § 37-1-131 or committed to the custody of the department shall undergo a validated risk and needs assessment within seven (7) days of the court's disposition, excluding nonjudicial days, to inform supervision level, referrals to programs and services, and case planning.
  5. In delinquent cases, the court may order that a risk and needs assessment be conducted prior to disposition if there is written agreement from the child, the child's parent, guardian, or legal custodian, and, if applicable, the child's attorney. A child may undergo such a risk and needs assessment prior to disposition to identify specific factors that predict a child's likelihood of reoffending and, when appropriately addressed, may reduce the likelihood of reoffending, and the results of the risk and needs assessment shall be provided to the court prior to or at the time of the disposition of the child.

Acts 2018, ch. 1052, § 48.

Compiler's Notes. Former §§ 37-1-163 and 37-1-164 (Acts 1985 (1st Ex. Sess.), ch. 6, §§ 3, 4; 1989, ch. 278, § 41), concerning placement in accredited facilities and a plan for a central intake system, were repealed by Acts 1996, ch. 1079, §§ 105 and 183.

Acts 2018, ch. 1052, § 1 provided that the act, which enacted this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2019; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

37-1-165. Contracts among counties to pool juvenile justice supplements.

Any two (2) or more contiguous counties may contract to pool the state juvenile justice supplements received by such counties through the commission on children and youth in order to provide more effective and efficient provision of services, including the employment of one (1) or more persons to provide full-time assistance throughout the contracting counties. Any combination of counties may so contract, but where feasible, counties desiring to pool their supplements should attempt to act within the judicial district of which they constitute a part.

Acts 1985 (1st Ex. Sess.), ch. 6, § 5.

37-1-166. Orders committing or retaining a child within the custody of the department of children's services — Required determinations.

  1. At any proceeding of a juvenile court, prior to ordering a child committed to or retained within the custody of the department of children's services, the court shall first determine whether reasonable efforts have been made to:
    1. Prevent the need for removal of the child from such child's family; or
    2. Make it possible for the child to return home.
  2. Whenever a juvenile court is making the determination required by subsection (a), the department has the burden of demonstrating that reasonable efforts have been made to prevent the need for removal of the child or to make it possible for the child to return home.
  3. To enable the court to determine whether such reasonable efforts have been made, the department, in a written affidavit to the court in each proceeding where the child's placement is at issue, shall answer each of the following questions:
    1. Is removal of the child from such child's family necessary in order to protect the child, and, if so, then what is the specific risk or risks to the child or family that necessitates removal of the child?;
    2. What specific services are necessary to allow the child to remain in the home or to be returned to the home?;
    3. What services have been provided to assist the family and the child so as to prevent removal or to reunify the family?; and
    4. Has the department had the opportunity to provide services to the family and the child, and, if not, then what are the specific reasons why services could not have been provided?
  4. Whenever a juvenile court is making a determination required by subsection (a), based on all the facts and circumstances presented, the court must find whether:
    1. There is no less drastic alternative to removal;
    2. Reasonable efforts have been made to prevent the need for removal of the child from such child's family or to make it possible for the child to return home; and
    3. Continuation of the child's custody with the parent or legal guardian is contrary to the best interests of the child.
  5. All parties involved in each proceeding shall receive a copy of the department's affidavit and shall have an opportunity to respond as allowed by law.
  6. Unless emergency removal is necessary, the department shall be provided no more than thirty (30) days to investigate or offer services to the family and child in cases where the petition is not filed by the department.
    1. As used in this section, “reasonable efforts” means the exercise of reasonable care and diligence by the department to provide services related to meeting the needs of the child and the family. In determining reasonable efforts to be made with respect to a child, as described in this subdivision (g)(1), and in making such reasonable efforts, the child's health and safety shall be the paramount concern.
    2. Except as provided in subdivision (g)(4), reasonable efforts shall be made to preserve and reunify families:
      1. Prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home; and
      2. To make it possible for a child to safely return to the child's home.
    3. If continuation of reasonable efforts of the type described in subdivision (g)(2) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child.
    4. Reasonable efforts of the type described in subdivision (g)(2) shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that:
      1. The parent has subjected the child that is the subject of the petition or any sibling or half-sibling of the child who is the subject of the petition or any other child residing temporarily or permanently in the home to aggravated circumstances as defined in § 36-1-102;
      2. As set out in § 36-1-113, the parent has:
        1. Committed murder of any sibling or half-sibling of the child who is the subject of the petition or any other child residing temporarily or permanently in the home;
        2. Committed voluntary manslaughter of any sibling or half-sibling of the child who is the subject of the petition or any other child residing temporarily or permanently in the home;
        3. Aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter of the child or any sibling or half-sibling of the child who is the subject of the petition or any other child residing temporarily or permanently in the home; or
        4. Committed a felony assault that results in serious bodily injury to the child or any sibling or half-sibling of the child who is the subject of the petition or any other child residing temporarily or permanently in the home; or
      3. The parental rights of the parent to a sibling or half-sibling have been terminated involuntarily.
    5. If reasonable efforts of the type described in subdivision (g)(2) are not made with respect to a child as a result of a determination made by a court of competent jurisdiction in accordance with subdivision (g)(4):
      1. A permanency hearing shall be held for the child within thirty (30) days after the determination; and
      2. Reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child.
    6. Reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts of the type described in subdivision (g)(2).
  8. In determining whether to continue or restore custody to a parent is in the best interest of a child, the department shall not require a parent to:
    1. Obtain employment if such parent has sufficient resources from other means to care for the child; or
    2. Provide the child with the child's own bedroom, unless there are specific safety or medical reasons that would make placement of the child with another child unsafe.

Acts 1992, ch. 587, § 1; 1996, ch. 1079, § 73; 1998, ch. 1097, § 12; 2013, ch. 354, § 1.

NOTES TO DECISIONS

1. Reasonable Efforts.

Record contained clear and convincing evidence supporting the termination of the parents'  rights under T.C.A. § 36-1-113(g)(3)(A) based on persistence of conditions; the record contained clear and convincing evidence of approximately seven years of abuse and neglect, and most of the same problems reported in 1998 still existed in October 2004: (1) The parents expected their older daughters to care for their younger siblings; (2) The parents continued to be angry with each other and engaged in violent arguments in their children's presence; (3) They continued to use inappropriately severe corporal punishment on their children; and (4) They continued to ignore their children's education. The record also contained the testimony of Tennessee department of children's services'  employees and other service providers demonstrating the department's almost continual efforts over three years to assist the parents in creating a home environment that would enable the safe reunification of the family. In re Giorgianna H., 205 S.W.3d 508, 2006 Tenn. App. LEXIS 192 (Tenn. Ct. App. 2006).

Court erred in terminating a mother's parental rights because the state failed to provide reasonable efforts at rehabilitation; the case manager conceded that she never attempted to communicate with the mother in writing and that she never had any follow-up conversations with the mother about helping her obtain rehabilitative services. In re Tiffany B., 228 S.W.3d 148, 2007 Tenn. App. LEXIS 102 (Tenn. Ct. App. Feb. 26, 2007), appeal denied, In re T. B., — S.W.3d —, 2007 Tenn. LEXIS 379 (Tenn. Apr. 23, 2007), appeal denied, In re T. B., — S.W.3d —, 2007 Tenn. LEXIS 531 (Tenn. May 29, 2007).

Court erred in terminating a father's parental rights because the state failed to provide reasonable efforts at rehabilitation; the case manager conceded that no effort was made to communicate with the father in writing, and his third case manager admitted that she had only one face-to-face meeting with the father that occurred when he was incarcerated in the workhouse. On that occasion, the case manager admitted that she failed to provide the father with the written notice of the meeting that she had provided the mother earlier that same day and that she did not offer to make arrangements to provide him services at that time. In re Tiffany B., 228 S.W.3d 148, 2007 Tenn. App. LEXIS 102 (Tenn. Ct. App. Feb. 26, 2007), appeal denied, In re T. B., — S.W.3d —, 2007 Tenn. LEXIS 379 (Tenn. Apr. 23, 2007), appeal denied, In re T. B., — S.W.3d —, 2007 Tenn. LEXIS 531 (Tenn. May 29, 2007).

In a termination of parental rights case, the state's efforts were reasonable, because it made arrangements for the mother to participate in high-risk training classes for her children and to transport the mother to those classes; in addition, the state made efforts in arranging and supervising visits between the mother and her children. In re J.C.D., 254 S.W.3d 432, 2007 Tenn. App. LEXIS 741 (Tenn. Ct. App. Nov. 30, 2007), appeal denied, In re J. C. D., — S.W.3d —, 2008 Tenn. LEXIS 131 (Tenn. Feb. 25, 2008).

Order terminating mother's parental rights was vacated because the record failed to contain clear and convincing evidence that the department of children's services made reasonable efforts to reunite the mother with the child as required by T.C.A. § 37-1-166(a)(2), (g)(2) or that the mother abandoned the child by failure to support; none of the aggravated circumstances pertained to the mother's case and thus the department was not relieved of its affirmative duty to exert reasonable efforts to assist the mother to satisfy her goals under the permanency plans. In re R.L.F., 278 S.W.3d 305, 2008 Tenn. App. LEXIS 445 (Tenn. Ct. App. July 31, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 788 (Tenn. Oct. 20, 2008).

Termination of father's parental rights based on mental incompetence was proper because: (1) Assistance needed to ensure that father's children received proper care would have to essentially be a substitute parent, with father acting only as a caring but incompetent bystander; and (2) Doctor testified clearly that father's mental retardation was a lifelong condition and that he functioned in such a low range that no amount of training, education, or counseling could bring him up to the level where he could parent the children; thus, a showing of reasonable efforts to return the children to their home was unnecessary. Department of Children's Servs. v. Mims, 285 S.W.3d 435, 2008 Tenn. App. LEXIS 706 (Tenn. Ct. App. Nov. 24, 2008), appeal denied, In re N.B., — S.W.3d —, 2009 Tenn. LEXIS 146 (Tenn. Mar. 16, 2009).

In a termination case, the state made reasonable efforts at reunification because the mother moved around often and failed to stay in contact with the state, the state made efforts to help the mother obtain subsidized housing, and the mother's repeated stints in jail were a continuing obstacle; trial court found that the state provided job counseling to the mother during the intervals in which she was not incarcerated. State v. Estes, 284 S.W.3d 790, 2008 Tenn. App. LEXIS 773 (Tenn. Ct. App. Dec. 30, 2008), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 151 (Tenn. Mar. 16, 2009).

On appeal from the termination of her parental rights, the appellate court determined that the Department of Children's Services had exerted reasonable efforts to reunify the mother and her child, T.C.A. § 37-1-166(c). In part, a counselor testified that she helped the mother with her employment and housing search, which included taking the mother to a drug test in order to obtain a job; the counselor also provided the mother with a list of subsidized housing and career center information and counseled the mother on how to interview and dress for an interview. In re Arteria H., 326 S.W.3d 167, 2010 Tenn. App. LEXIS 486 (Tenn. Ct. App. July 27, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 949 (Tenn. Oct. 14, 2010).

In an action involving the termination of the father's parental rights, the finding that the Department of Children's Services proved reasonable efforts was improper, requiring that the trial court's finding on the ground of substantial noncompliance with the permanency plan under T.C.A. § 36-1-113(g)(2) be reversed. Prior to the filing of the termination petition, DCS efforts to work with the father to provide assistance to him in completing his responsibilities under the 2008 permanency plans were perfunctory at best, T.C.A. § 37-1-166(g)(1). In re Askia K. B., — S.W.3d —, 2011 Tenn. App. LEXIS 549 (Tenn. Ct. App. Oct. 7, 2011).

While a trial court erred in finding that clear and convincing evidence established mental incompetence, abandonment by failure to provide a suitable home, and persistent conditions under T.C.A. §§ 36-1-113(g)(1), (3)(A)-(C), (8), and 36-1-102(1)(A)(ii), termination of a mother's parental rights was proper under T.C.A. § 36-1-113(g)(2) because she did not substantially comply with the reasonable requirements set forth in the permanency plan, termination was in the child's best interest under § 36-1-113(c), and reasonable efforts under T.C.A. § 37-1-166(g) were shown. In re Zeylon T.S., — S.W.3d —, 2011 Tenn. App. LEXIS 573 (Tenn. Ct. App. Oct. 24, 2011).

Record contained clear and convincing evidence that the Department of Children's Services made reasonable efforts to assist the father in his attempts to reunite with the child as the record showed that the father had been provided with resources to access a mental health evaluation and parenting classes, that the Department had arranged therapeutic visitation between the father and the child, and that the case worker interviewed the father's suggested caregiver and completed a background check on the caregiver, the case worker took great measures to meet with the father and explain the steps of each permanency plan, but the father simply failed to follow her advice and take advantage of all of the resources that were offered to him In re Ronald L. D., — S.W.3d —, 2012 Tenn. App. LEXIS 49 (Tenn. Ct. App. Jan. 25, 2012).

Clear and convincing evidence supported a determination that the Department of Children's Services (DCS) made reasonable efforts to assist a mother in her attempts to reunite with her children, T.C.A. § 37-1-166, because the permanency plans at issue were not particularly lengthy or hard to follow, DCS advised the mother on the steps she needed to take to reunite with the children, but the mother simply failed to comply with the requirements, namely to remain drug free and provide a home for the children, and once the mother was incarcerated, DCS could not provide the assistance the mother needed. In re Zachary G., — S.W.3d —, 2012 Tenn. App. LEXIS 141 (Tenn. Ct. App. Mar. 2, 2012).

Department of Children's Services made reasonable efforts to assist the father with following through with the requirements of the permanency plan, including referring to father for mental health services and parenting education, and offering the father public transportation and utility assistance. In re Izaiah J., — S.W.3d —, 2012 Tenn. App. LEXIS 180 (Tenn. Ct. App. Mar. 20, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 409 (Tenn. June 13, 2012).

Tennessee Department of Children's Services (DCS) made reasonable efforts to assist a parent in working toward reunification, as the DCS provided pest control and cleaning supplies to the parent and provided or organized other resources to supply the family with food, utility service and rent. In re Johnny J.E.M., — S.W.3d —, 2012 Tenn. App. LEXIS 346 (Tenn. Ct. App. May 29, 2012), appeal denied, In re Johnny M., — S.W.3d —, 2012 Tenn. LEXIS 622 (Tenn. Aug. 22, 2012).

Trial court properly found that the Department of Children's Services had made reasonable efforts to assist the father as the father's own testimony showed that he had regular contact with the case manager while he was in prison, the case manager did everything she could to assist the father in the case, and the father failed to take advantage of the opportunities. In re Michael B. Q., — S.W.3d —, 2012 Tenn. App. LEXIS 466 (Tenn. Ct. App. July 12, 2012).

Clear and convincing evidence supported a trial court's finding that the Department of Children's Services (DCS) made reasonable efforts, pursuant to T.C.A. § 37-1-166(a)(2), to reunify a father with his children because DCS offered substance abuse, parenting, and mental health services but the father refused the services offered and hindered DCS's ability to assist. In re William S., — S.W.3d —, 2012 Tenn. App. LEXIS 482 (Tenn. Ct. App. July 20, 2012).

Agency made reasonable efforts to reunify a mother and a father with their children as the evidence showed that the agency provided and paid for numerous services for the mother and father, provided drug and alcohol assessments, provided multiple drug screens and supervised visits, paid the parents'  rent and utility bill when they were in danger of losing their home, paid for all services provided and worked very close with the counseling center to assist the parents with their drug abuse, anger management, domestic violence, and parenting issues. The mother and father failed to take advantage of the services offered to them. In re Steven P.D., — S.W.3d —, 2012 Tenn. App. LEXIS 490 (Tenn. Ct. App. July 25, 2012).

Trial court properly found that a department exerted reasonable efforts to both the mother and the father as the record showed that the department assisted the father in obtaining an alcohol/drug assessment but that the father did not follow through with the recommendations; that the department offered transportation to supervised visitation but that the father failed to attend at least half the time; that the department aided the father in arranging parenting classes but that the father failed to complete the required classes; that the department provided the mother with transportation to her visits with the children; and that the department arranged fro the mother to enroll in long-term inpatient drug and alcohol treatment program but that the mother failed to attend it. In re Jeffery B., — S.W.3d —, 2012 Tenn. App. LEXIS 716 (Tenn. Ct. App. Oct. 12, 2012).

Termination of parents'  rights based on persistence of conditions pursuant to T.C.A. § 36-1-113(g)(3) required the Department of Children's Services to prove that it made reasonable efforts at reunification with respect to the father, as a determination that termination was warranted due to his severe child abuse had been reversed pursuant to T.C.A. §§ 36-1-102 and 37-1-166(a); however, the record indicated that such efforts were satisfactorily made. In re Dakota C.R., 404 S.W.3d 484, 2012 Tenn. App. LEXIS 844 (Tenn. Ct. App. Dec. 7, 2012), appeal denied, In re Dakota R., — S.W.3d —, 2013 Tenn. LEXIS 230 (Tenn. Mar. 6, 2013).

Trial court properly found that the department of children's services made reasonable efforts to reunify the parents with the children. Further, based on the severe abuse of the children by both the mother and the father, the department was relieved of any obligation to work toward restoring custody of the children to them. In re Devonta L.C., — S.W.3d —, 2013 Tenn. App. LEXIS 61 (Tenn. Ct. App. Jan. 31, 2013), appeal denied, In re Devonta C., — S.W.3d —, 2013 Tenn. LEXIS 505 (Tenn. June 18, 2013).

Tennessee Department of Children's Services exerted more than reasonable efforts that were appropriately fashioned to assist a parent in remedying the problems that lead to removal of the parent's children, including specifically the parent's mental health issues that presented obstacles to reunification with the children; the Department hired a professional counselor to attend the parent's weekly visitation sessions with the children. In re Keisheal N. E., — S.W.3d —, 2013 Tenn. App. LEXIS 70 (Tenn. Ct. App. Feb. 4, 2013).

Tennessee Department of Children's Services (DCS) made reasonable efforts to assist parents in developing their ability to parent their child, as the DCS arranged for and financed twice-monthly two-hour therapeutic visitation sessions and two two-hour follow-up therapeutic assessments; during each therapeutic session, a case worker observed the parents interact with the child and provided prompts and instruction regarding proper parenting techniques and developmental milestones. In re Dakota M. S., — S.W.3d —, 2013 Tenn. App. LEXIS 72 (Tenn. Ct. App. Feb. 5, 2013), appeal denied, In re Dakota S., — S.W.3d —, 2013 Tenn. LEXIS 433 (Tenn. Apr. 23, 2013), appeal denied, In re Dakota S., — S.W.3d —, 2013 Tenn. LEXIS 430 (Tenn. Apr. 29, 2013).

Record supported the trial court's findings that an agency made reasonable efforts to provide the mother with the services she needed to be reunited with the children as the record showed that the agency provided the mother with visitation, mental health assessments, mental health counseling, alcohol and drug assessment, domestic violence treatment, and housing referrals, assisting the mother's homelessness and stability issues by working with independent program to ensure that the mother would not be asked to leave as long as she followed program rules; however, despite the agency's services and the trial home visit, the mother was unable to remedy the instability that prevented her from being able to adequately parent the children. In re Kelsie M.P., — S.W.3d —, 2013 Tenn. App. LEXIS 91 (Tenn. Ct. App. Feb. 12, 2013), appeal denied, In re Alyssa P., — S.W.3d —, 2013 Tenn. LEXIS 410 (Tenn. Apr. 12, 2013).

Record showed that an agency made reasonable efforts to reunify a mother and her two children as it showed that the agency offered assistance to the mother from the time that the older child was removed, through the mother's pregnancy with the younger child, and to the time of trial. The agency's efforts spanned two years and two states and were often met with indifference on the mother's part. In re Cheyenne E. H., — S.W.3d —, 2013 Tenn. App. LEXIS 174 (Tenn. Ct. App. Mar. 7, 2013), appeal denied, In re Cheyenne H., — S.W.3d —, 2013 Tenn. LEXIS 436 (Tenn. May 2, 2013), appeal denied, In re Cheyenne H., — S.W.3d —, 2013 Tenn. LEXIS 435 (Tenn. May 6, 2013).

In proceedings to terminate a father's parental rights to five children, the Department of Children's Services made reasonable efforts to reunify the children with the father because the Department assisted the father in obtaining better housing, the father was granted additional time to improve his circumstances, including his housing, and the father failed to contact the Department after a new caseworker was assigned. In re Shannon P., — S.W.3d —, 2013 Tenn. App. LEXIS 457 (Tenn. Ct. App. July 16, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 789 (Tenn. Oct. 16, 2013).

Tennessee Department of Children's Services (DCS) made reasonable efforts to reunify a parent with the parent's children, as the DCS facilitated visits between the parent and the children by transporting the children, as well as assisting the parent with transportation through provision of a gas card; the DCS also provided a referral for a mental health assessment and arranged and paid for parenting classes to be performed in the parent's home. In re Stephen B., — S.W.3d —, 2013 Tenn. App. LEXIS 490 (Tenn. Ct. App. July 31, 2013).

Agency exerted reasonable efforts to assist a father in regaining his children as the evidence showed that, despite the agency's extensive efforts, its efforts were not successful because the father made no effort to change his behavior and his circumstances. In re Aayden L. B., — S.W.3d —, 2013 Tenn. App. LEXIS 497 (Tenn. Ct. App. July 30, 2013).

Department of Children's Services exerted reasonable efforts to assist a parent to achieve the parent's goals, as the Department attempted to assist the parent with the parent's mental health requirements by arranging and paying for a series of mental health therapy sessions, and acquired employment applications for the parent. In re Kaitlyn B.S., — S.W.3d —, 2013 Tenn. App. LEXIS 546 (Tenn. Ct. App. Aug. 21, 2013).

Termination of the mother's parental rights was proper based on abandonment as she did not provide a suitable home for the children; she had no plans to end her relationship with her boyfriend who abused the children; when the children were removed in 2007, all of the children had worms, were severely dehydrated, and had multiple cavities; and, when the children were removed in 2011, one of the children again had worms, another child had sores that bled through her clothes, and another child was noticeably underweight for his size; and the efforts of Tennessee Department of Child Services to reunify the mother and the children were reasonable as they exceeded the efforts made by the mother. In re Caleb F.N.P., — S.W.3d —, 2013 Tenn. App. LEXIS 698 (Tenn. Ct. App. Oct. 25, 2013).

Department of Children's Services made reasonable efforts to reunify a mother and a father with their six children but the mother and father did not make reasonable efforts to rehabilitate themselves because both parents refused to engage in mental health treatment, did not maintain adequate housing, and did not make any improvement in their ability to earn a sustainable income. In re David L. R., — S.W.3d —, 2013 Tenn. App. LEXIS 796 (Tenn. Ct. App. Dec. 6, 2013), appeal denied, In re David R., — S.W.3d —, 2014 Tenn. LEXIS 233 (Tenn. Mar. 6, 2014).

Department of Children's Services (DCS) made reasonable efforts to reunify a mother with her child because the mother was present in person or by phone when each permanency plan was developed, the mother did not express her concerns about the efforts of DCS when given the opportunity, and the mother did not contest the trial court's findings of the efforts DCS expended to assist her. In re Candice S., — S.W.3d —, 2014 Tenn. App. LEXIS 75 (Tenn. Ct. App. Feb. 12, 2014).

Trial court erred in terminating a father's parental rights because the Department of Children's Services (DCS) was required to make reasonable efforts to assist the father in reunification even when the ground alleged was abandonment by wanton disregard and the trial court made no findings regarding whether DCS exercised reasonable efforts to assist the father. In re Kaliyah S., — S.W.3d —, 2014 Tenn. App. LEXIS 110 (Tenn. Ct. App. Feb. 28, 2014), rev'd, 455 S.W.3d 533, 2015 Tenn. LEXIS 14 (Tenn. Jan. 22, 2015).

Department exerted reasonable efforts to assist the mother to achieve the stated goals; in part, the department arranged mental health counseling, individual therapy, and parenting classes, funded therapeutic supervised visitation with a third-party provider as well as an unlimited bus pass for transportation, and helped the mother obtain social security disability benefits. In re Aaliyah R., — S.W.3d —, 2014 Tenn. App. LEXIS 343 (Tenn. Ct. App. June 17, 2014).

State made reasonable efforts because the father was able to find the money for illegal drugs and cigarettes, but was unable to find the money to spend on the doctor's visits to obtain medication for the mother during her pregnancy. The record was replete with evidence showing that the father considered his own needs and not the needs of his unborn child. In re Alexis C., — S.W.3d —, 2014 Tenn. App. LEXIS 363 (Tenn. Ct. App. June 25, 2014).

Department of Children's Services (DCS) made reasonable efforts to assist a mother in regaining custody of her four children because DCS: (1) provided therapeutic visitation services; (2) paid for the mother's housing and $ 900 in to facilitate the mother's procurement of housing; (3) provided the mother with gas cards to assist her in traveling for visitation; and (4) informed the Mother it would assist her in obtaining a mental health intake if she did not qualify for insurance. In re Nicholas G., — S.W.3d —, 2014 Tenn. App. LEXIS 454 (Tenn. Ct. App. July 31, 2014).

Mother's transient lifestyle prevented the department from providing her with services related to her issues, her choice to remain in Louisiana prevented her from seizing the department's offers to schedule visitation, and her insistence that she had secured services herself rendered further efforts by the department unnecessary; the department made reasonable efforts regarding grounds of abandonment by failure to visit, failure to support, substantial non-compliance with a permanency plan, and persistent of conditions. In re Terry S.C., — S.W.3d —, 2014 Tenn. App. LEXIS 467 (Tenn. Ct. App. July 31, 2014).

Record contained clear and convincing evidence that the Tennessee Department of Children's Services made reasonable efforts to assist the mother in her attempts to reunite with her child under T.C.A. § 37-1-166 because she failed to remain drug free and provide a stable home for the child. In re Aireona H.W., — S.W.3d —, 2014 Tenn. App. LEXIS 497 (Tenn. Ct. App. Aug. 20, 2014).

In a termination of parental rights case, the efforts made toward reunification were clearly reasonable, despite the mother's hostile attitude during the attempts to provide assistance; referrals for employment were made, housing referrals were provided, visitation was arranged while the mother was not incarcerated, and the mother was given bus passes. In re Anya G., — S.W.3d —, 2014 Tenn. App. LEXIS 516 (Tenn. Ct. App. Aug. 27, 2014).

Tennessee Department of Children's Services' reunification efforts were reasonable where the mother was difficult to locate, generally unresponsive to assistance, and never made a corresponding effort to remedy the conditions that led to the children's removal. In re Christopher J. B., — S.W.3d —, 2014 Tenn. App. LEXIS 640 (Tenn. Ct. App. Oct. 9, 2014).

Tennessee Department of Children's Services made reasonable efforts to assist a father in completing his requirements under a permanency plan, as despite the father's frequent incarceration, the Department provided him with referrals for programs and classes he was required to attend under the plan, and with transportation. In re Alexus F., — S.W.3d —, 2014 Tenn. App. LEXIS 727 (Tenn. Ct. App. Nov. 13, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 200 (Tenn. Mar. 9, 2015).

Affidavit of the Tennessee Department of Children's Services satisfied the requirements of subsection (c)(3) because it listed all of the services provided to the mother and the dates they were provided; each entry identified what the services were, and the affidavit listed the services that were provided up until two weeks before the termination hearing, not just prior to the child's removal. In re J.C.B., — S.W.3d —, 2014 Tenn. App. LEXIS 746 (Tenn. Ct. App. Nov. 17, 2014).

Efforts of the Tennessee Department of Children's Services (DCS) to reunify a mother with her child were reasonable the mother voluntarily engaged in conduct that led to her incarceration and thwarted DCS's efforts by providing incorrect contact information, failing to stay in contact with DCS, and failing to keep it informed; the mother testified that she knew of the responsibilities she had under the permanency plans, but she still chose to miss her meetings and not visit her child. In re J.C.B., — S.W.3d —, 2014 Tenn. App. LEXIS 746 (Tenn. Ct. App. Nov. 17, 2014).

Tennessee Department of Children's Services did not violate the statute by failing to seeking a court order and to put forth enough effort throughout the entire course of the case because it made reasonable efforts throughout the case, and there was no evidence to suggest that there was any point in time prior to the termination hearing when it stopped doing so; the primary case worker tried to contact the mother and met with her in prison up until two weeks before the termination hearing. In re J.C.B., — S.W.3d —, 2014 Tenn. App. LEXIS 746 (Tenn. Ct. App. Nov. 17, 2014).

Because the Tennessee Department of Children's Services did provide services, there was no need to provide any explanation in its affidavit. In re J.C.B., — S.W.3d —, 2014 Tenn. App. LEXIS 746 (Tenn. Ct. App. Nov. 17, 2014).

Trial court did not err by finding that the Tennessee Department of Children's Services (DCS) made reasonable efforts to reunify the mother with her children where she acknowledged the caseworker's exhaustive efforts to provide her visitation with the children, she completed two rehabilitation programs, and there was no indication that she was ignorant of the resources available to her or that DCS failed to make the resources known. In re Chelsia J., — S.W.3d —, 2014 Tenn. App. LEXIS 814 (Tenn. Ct. App. Dec. 16, 2014).

Clear and convincing evidence supported the finding that the Department of Children's Services (DCS) made reasonable efforts to reunite parents with their eight-month-old child because there was evidence specifically identifying the requirements of the permanency plans and DCS referrals, including potential employers, mental health services, anger management, marriage counseling, but, at the time of trial, the parents had not, with one exception completed any required classes. In re Jaden W., — S.W.3d —, 2014 Tenn. App. LEXIS 856 (Tenn. Ct. App. Dec. 26, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 280 (Tenn. Mar. 25, 2015).

Actions of the Tennessee Department of Children's Services to assist a mother in establishing a suitable home were reasonable because the Department submitted an affidavit of reasonable efforts by its representative, detailing the services provided during the four months after the children's removal from the home; the Department developed a permanency plan, and it provided the mother with money to pay pay overdue utility bills in order to help her obtain suitable housing. In re Billy T.W., — S.W.3d —, 2017 Tenn. App. LEXIS 641 (Tenn. Ct. App. Sept. 27, 2017).

Tennessee Department of Children's Services'  (DCS) effort were reasonable where it attempted to assist the mother for well over a year before filing the petition to terminate her parental rights, DCS applied for funding and provided her with access to a parenting assessment, paid for an expensive bed for her disabled child, visited the mother monthly, made recommendations as how she could make her home suitable for the children, and invited her to all family meetings, foster care meetings, and permanency plan meetings. The mother's refusal to provide DCS with a release form so that it could obtain her medical records hindering DCS's attempts to offer her additional assistance. In re Roderick R., — S.W.3d —, 2018 Tenn. App. LEXIS 192 (Tenn. Ct. App. Apr. 11, 2018).

2. Reasonable Efforts Not Required.

Termination of a mother's parental rights pursuant to T.C.A. § 36-1-113(g)(1) was proper because the mother abandoned the child by willful failure to visit and by willful failure to support the child; the mother did not visit or make payments toward the child's support during the relevant period, although the department was prepared to assist the mother with transportation in order to visit, if mother cooperated with a drug screen requirement, but she did not and the mother received $ 1,700 a month in VA benefits for five years, but provided no financial support for the child. The department was not required to provide evidence that it made “reasonable efforts” to make it possible for the child to return home for termination based on abandonment. In re Natasha A., — S.W.3d —, 2013 Tenn. App. LEXIS 140 (Tenn. Ct. App. Feb. 27, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 493 (Tenn. May 21, 2013).

Since the trial court held that the father committed severe child abuse, the agency was excused from making reasonable efforts to reunite the family. In re Lakita E. P., — S.W.3d —, 2013 Tenn. App. LEXIS 567 (Tenn. Ct. App. Aug. 28, 2013).

In a termination of parental rights case, because the juvenile court found at a hearing that the mother committed severe abuse by exposing the youngest child to methamphetamine in utero and relieved the Department of Children's Services (DCS) of its obligation of further reasonable efforts toward reunification, and because the mother was afforded notice and an opportunity to be heard at the hearing and the adjudication of the dependency and neglect action, the mother's due process rights were not violated when the DCS discontinued funding for drug counseling services. In re C.L., — S.W.3d —, 2014 Tenn. App. LEXIS 312 (Tenn. Ct. App. May 28, 2014).

Any issue concerning lack of reasonable efforts to reunify a family was without merit because of aggravating circumstances as the evidence presented at trial was clear and convincing that the parents engaged in severe child abuse against each of their children. In re Samuel P., — S.W.3d —, 2014 Tenn. App. LEXIS 367 (Tenn. Ct. App. June 24, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 816 (Tenn. Sept. 22, 2014).

Because both parents were found to have committed severe child abuse, the Tennessee Department of Children's Services was relieved of making reasonable efforts toward reunification with a parent whose parental rights were terminated. In re Jayden G., — S.W.3d —, 2014 Tenn. App. LEXIS 615 (Tenn. Ct. App. Sept. 30, 2014).

There was substantial evidence that the Department of Children's Services (DCS) did expend reasonable efforts to achieve the goals of the permanency plan, plus DCS was ultimately relieved of making reasonable efforts as to the mother pursuant to the determination that she had subjected one of the children to severe child abuse. In re Telisha B., — S.W.3d —, 2015 Tenn. App. LEXIS 941 (Tenn. Ct. App. Nov. 30, 2015).

Mother was found to have committed severe child abuse as defined in T.C.A. § 37-1-102, which was a final judgment, and she was precluded from relitigating this issue; this finding established grounds for the termination of the mother's parental rights under T.C.A. § 36-1-113(g)(4) and relieved the Department of Children's Services from its obligation to make reasonable efforts to reunify the mother and the child, for purposes of T.C.A. § 37-1-166(g)(4)(A). In re Martese P., — S.W.3d —, 2017 Tenn. App. LEXIS 353 (Tenn. Ct. App. May 24, 2017).

3. Permanency Plan Provisions.

Termination of the putative father's rights to four children was appropriate under T.C.A. § 36-1-113(g)(2)-(3) because the conditions that required the removal of the children continued without substantial change and there was little likelihood that they would be remedied at an early date; the Department of Children's Services had been providing services and support to the putative father for almost four years, which were catalogued in accordance with T.C.A. § 37-1-166(c). The responsibilities and goals in the putative father's permanency plans were reasonable and he failed to comply substantially with many of those goals. In re Bernard T., 319 S.W.3d 586,  2010 Tenn. LEXIS 683 (Tenn. Aug. 26, 2010).

Terms of permanency plans were reasonable and related to remedying the conditions which necessitated removal of children from their parents'  home and placement of the children in foster care, as a caseworker performed therapeutic visitation on 13 occasions that focused on parenting skills, interacting with the children, cleaning and maintaining a safe home, monitoring the children, and being attentive to them. In re Angel S. F., — S.W.3d —, 2013 Tenn. App. LEXIS 185 (Tenn. Ct. App. Mar. 18, 2013), appeal denied, In re Angel F., — S.W.3d —, 2013 Tenn. LEXIS 545 (Tenn. June 13, 2013).

4. Reunification.

As termination of parents'  rights over one child was based on numerous instances of severe child abuse, which constituted “aggravating circumstances,” termination of their rights over their other child was proper without efforts towards reunification pursuant to T.C.A. §§ 37-1-166 and 36-1-102. In re Keara J., 376 S.W.3d 86, 2012 Tenn. App. LEXIS 26 (Tenn. Ct. App. Jan. 13, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 274 (Tenn. Apr. 11, 2012).

In proceedings to terminate parental rights, the Department of Children's Services (DCS) was not required to reunite five children with their mother and father, T.C.A. § 37-1-166(g)(4)(A), because the parents had committed severe child abuse, which constituted “aggravating circumstances” and excused DCS from making reasonable efforts to reunite the family. In re Sandra M., — S.W.3d —, 2012 Tenn. App. LEXIS 549 (Tenn. Ct. App. Aug. 7, 2012).

Parenting plan adopted by a trial court after a dispositional hearing was not deficient, even though it did not state that its primary goal was family reunification, nor did it set out a plan for a child's custody to be returned to the mother, because the Department of Children's Services (DCS) was never involved in the instant custody matter, and, as such, the trial court was under no obligation, pursuant to T.C.A. § 37-1-166, to direct the grandparents, who had custody of the child, or DCS use reasonable efforts to provide the mother with services or otherwise to make it possible for the child to return to the mother's custody. In re Hannah v. S., — S.W.3d —, 2012 Tenn. App. LEXIS 849 (Tenn. Ct. App. Dec. 7, 2012).

Trial court did not err in determining that based on the severe abuse committed against the children, the appropriate disposition was to place the children in the custody of the Tennessee Department of Children's Services without allowing any visitation with the parent and without requiring the Department to expend any effort at reunification; the parents committed severe abuse against four of the children at issue in this case, and thus the trial court was authorized to order a disposition of the child that did not include an effort toward reunification. In re Tamera W., 515 S.W.3d 860, 2016 Tenn. App. LEXIS 859 (Tenn. Ct. App. Nov. 10, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 88 (Tenn. Feb. 8, 2017).

Trial court did not err in failing to direct that reunificaiton be sought where the mother participated in and failed to protect the children from abuse that was likely to and did cause serious bodily injury and severe depression. In re Nehemiah H., — S.W.3d —, 2020 Tenn. App. LEXIS 311 (Tenn. Ct. App. July 8, 2020).

5. Grounds for Terminating Parental Rights.

Termination of the mother's parental rights was proper based upon the persistence of conditions which led to removal because she was not able to provide a safe and sanitary home for the child; because the Tennessee Department of Children's Services took great measures to reunite the mother with the child; the mother's limited cognitive ability greatly impaired the DCS's efforts and qualified as additional conditions that prevented the child's safe return; and because the continuation of the mother's limited relationship with the child greatly diminished his integration into a safe, stable and permanent home. In re Thomas A.H., — S.W.3d —, 2014 Tenn. App. LEXIS 88 (Tenn. Ct. App. Feb. 21, 2014).

Termination of the father's parental rights under the ground of persistent conditions was proper because the Department of Children's Services (DCS) exerted reasonable efforts under the circumstances and the conditions which led to the child's removal persisted. The father failed to keep DCS informed of his address telephone number while he was living on the streets addicted to drugs and DCS could not be expected to provide services to a parent who chose to remain unreachable. In re Aiden W., — S.W.3d —, 2014 Tenn. App. LEXIS 240 (Tenn. Ct. App. Apr. 28, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 582 (Tenn. July 14, 2014).

Trial court's finding that the father was in substantial noncompliance with the permanency plan was supported by clear and convincing evidence where he failed to address the primary issue that prohibited his reunification with the child, namely his inability to abide by the law and he was not released from jail until after the termination petition had already been filed. In re Ayden J. C., — S.W.3d —, 2014 Tenn. App. LEXIS 569 (Tenn. Ct. App. Sept. 15, 2014).

Trial court's finding that the mother was in substantial noncompliance with the permanency plan was supported by clear and convincing evidence where she failed to regularly remit child support and she failed to address the primary issue that prohibited her reunification with the child, namely her alleged drug abuse. The mother was uncooperative in each of the three alcohol and drug assessments, she refused to submit to several drug screens, and she failed to provide current prescription information to account for some of her positive drug screens. In re Ayden J. C., — S.W.3d —, 2014 Tenn. App. LEXIS 569 (Tenn. Ct. App. Sept. 15, 2014).

37-1-167. Removal from abusive parent or other party.

If a child has suffered either sexual abuse or aggravated child abuse at the hands of a parent, legal guardian or caregiver, that child shall not be placed back in the care of the abusive party unless the judge finds by clear and convincing evidence that a threat to the child's safety no longer exists.

Acts 1994, ch. 978, § 6.

37-1-168. Juvenile-family crisis intervention programs — General provisions.

  1. The department of children's services shall establish juvenile-family crisis intervention programs to provide continuous twenty-four (24) hour on-call service designed to attend and stabilize juvenile-family crises. The crisis intervention program may, in appropriate cases, work with the family on a short-term basis. The juvenile-family crisis intervention program may make referrals for appropriate services needed to continue resolution of the crisis.
  2. The juvenile-family crisis intervention programs may serve as an alternative to juvenile court in situations where a juvenile-family crisis exists and there has been either:
    1. A request by a parent or juvenile for intervention; or
    2. A referral by a public or private agency, educational institution or any other organization serving children, that has contact with the juvenile or family, and has reason to believe that a family crisis exists.
  3. If there has already been court intervention through the filing of a petition or otherwise, the court may refer appropriate cases to the juvenile-family crisis intervention program. If the department is providing non-custodial services to a child or family, or both, it may provide services through its juvenile-family crisis intervention program if appropriate.
  4. If, in the judgment of the juvenile-family crisis intervention program, a juvenile-family crisis continues to exist despite the provision of crisis intervention services and the exhaustion of appropriate community services, then the juvenile-family crisis intervention program shall, in writing or through sworn testimony, certify to the juvenile court that there is no other less drastic measure than court intervention. The court may then proceed by accepting a petition or acting on a pending petition and hold a hearing to determine what is in the best interest of the child consistent with § 37-1-132 and any other applicable laws under this part.

Acts 1994, ch. 1000, §§ 2, 4; 1996, ch. 1079, § 106; 2008, ch. 906, § 1.

Compiler's Notes. Acts 1994, ch. 1000, § 1 provided that the intent of the general assembly in enacting this section is to implement services to reduce the number of unruly children, as defined in T.C.A. § 37-1-102, who are referred to juvenile court and to reduce the number of unruly children who are placed in state custody.

The office of children's services administration in the department of finance and administration is responsible for implementing the provisions of Acts 1994, ch. 1000. See Executive Order No. 58 (June 29, 1994).

37-1-169. Referrals by juvenile court to crisis intervention program.

  1. By promulgation of local rules of the juvenile court, a referral may be made to the department of children's services juvenile-family crisis intervention program in the following instances:
    1. Where there is an allegation that a child is unruly; or
    2. Where there is an allegation that a juvenile-family crisis exists.
  2. Nothing in this section shall preclude the court or the department from taking any necessary action that shall be required to provide to a child any protective services, including, but not limited to, emergency protective custody.

Acts 1994, ch. 1000, § 3; 1996, ch. 1079, § 107.

Compiler's Notes. Acts 1994, ch. 1000, § 1 provided that the intent of the general assembly in enacting this section is to implement services to reduce the number of unruly children, as defined in T.C.A. § 37-1-102, who are referred to juvenile court and to reduce the number of unruly children who are placed in state custody.

The office of children's services administration in the department of finance and administration is responsible for implementing the provisions of Acts 1994, ch. 1000. See Executive Order No. 58 (June 29, 1994).

37-1-170. Joinder of parents or guardians in juvenile court actions.

  1. A juvenile court may, when the court determines that it is in the best interests of the child, join the child's parent or guardian and the person with whom the child resides, if other than the child's parent or guardian, as a respondent to a juvenile court action and may issue a summons requiring the parent or guardian and the person with whom the child resides, if other than the child's parent or guardian, to appear with the child at all proceedings under this chapter involving the child. If the parent or guardian of any child cannot be found, the court, in its discretion, may proceed with the case without the presence of such parent or guardian.
    1. For the purposes of this section, “parent” includes a natural parent who has sole or joint custody, regardless of whether the parent is designated as the primary residential custodian, or an adoptive parent. This subsection (b) does not apply to any person whose parental rights have been terminated pursuant to this title or the parent of an emancipated minor.
    2. For the purposes of this section, “emancipated minor” has the same meaning as set forth in § 39-11-106.
  3. The summons shall require the person or persons having the physical custody of the juvenile, if other than a parent or guardian, to appear and to bring the juvenile before the court at a time and place stated.
  4. Whenever a parent or guardian or person with whom the juvenile resides, if other than the parent or guardian, who has received a summons to appear fails, without good cause, to appear on any date set by the court, a bench warrant shall be issued for the parent, guardian or person with whom the juvenile resides and the parent, guardian or person with whom the juvenile resides shall be subject to contempt.
  5. For purposes of subsection (d), good cause for failing to appear includes, but is not limited to, a situation where a parent or guardian:
    1. Does not have physical custody of the child and resides outside Tennessee;
    2. Has physical custody of the child, but resides outside of Tennessee and appearing in court will result in undue hardship to such parent or guardian; or
    3. Resides in Tennessee, but is outside of the state at the time of the juvenile proceeding for reasons other than avoiding appearance before the court and appearing in court will result in undue hardship to such parent or guardian.
  6. This section shall not be applicable to any proceeding in a case that has been transferred to the criminal court pursuant to the provisions of § 37-1-134.
  7. The general assembly hereby declares that every parent or guardian whose child is the subject of a juvenile proceeding under this title should attend any such proceeding as often as is practicable.
  8. Nothing in this section shall be construed to create a right for any juvenile to have a parent or guardian present at any proceeding at which such juvenile is present.

Acts 1995, ch. 191, § 1.

37-1-171. Written orders — Presumptions — Forms.

  1. When a court desires to commit a child to the department of children's services under this part, it shall do so by written order that finds that the child has been adjudicated dependent and neglected, unruly, delinquent or meets the criteria in § 37-1-175. If the written order fails to make a specific adjudication of the child, it shall be presumed that the court has found the child dependent and neglected. Commitments to the department shall be consistent with all other laws regarding adjudication and commitment to the department. Nothing in this part shall be interpreted as prohibiting taking children into emergency protective services custody without a prior adjudication.
  2. When a court commits a child to the department, the court shall address the issue of child support under § 37-1-151(b).
  3. The department shall prepare a form for the court to use when committing a child to custody. Such form shall be completed and transmitted along with the court's commitment order to the department at the time of the child's commitment.

Acts 1996, ch. 1079, § 72; 2000, ch. 947, § 8G.

37-1-172. Use and disposition of federal funds.

  1. The court shall not direct the department of children's services' or its contractors' or agents' use or disposition of any federal funds for which any child or person in the care of the department is eligible or may receive and for which the department may be payee on behalf of such child or person including, but not limited to, Social Security survivors benefits under Title II of the federal Social Security Act, compiled in 42 U.S.C. § 401 et seq., and supplemental security income benefits under Title XVI of the federal Social Security Act, compiled in 42 U.S.C. § 1381 et seq., foster care or adoption assistance benefits received pursuant to Title IV-E of the Adoption Assistance Act of 1980 of the federal Social Security Act, compiled in 42 U.S.C. § 670 et seq., or veteran's benefits, railroad retirement benefits or black lung benefits or any successor entitlements that are provided by federal law.
  2. Funds received under any federal benefits programs shall be processed, utilized and accounted for by the department pursuant only to federal regulations or federal court orders governing those programs.

Acts 1996, ch. 1079, § 75.

Compiler's Notes. Acts 1996, ch. 1079, § 184 provided:

“Any provision of this act, or the application thereof, which is inconsistent with federal law, rule or regulation shall be deemed to be construed as being consistent with federal law, rule or regulation.”

37-1-173. Individualized case plans and behavior responses.

  1. An individualized case plan shall be developed by the department or supervising authority for every child adjudicated for a delinquent or unruly offense. The case plan shall be updated as appropriate and, in the case of a delinquent offense, shall be informed by the results of a validated risk and needs assessment.
    1. For any child ordered to probation supervision pursuant to § 37-1-131 or § 37-1-132, the supervising authority shall develop and implement an individualized case plan in consultation with the child's parents, guardian, or legal custodian, the child's school, and other appropriate parties, and, for delinquent offenses, such plan shall be based upon the results of a validated risk and needs assessment conducted within seven (7) days of the court's disposition, excluding nonjudicial days.
    2. The person or persons supervising probation shall work with the child and the child's parents, guardian, or legal custodian, and other appropriate parties to implement the case plan following disposition.
    3. At a minimum, the case plan shall:
      1. Identify the actions to be taken by the child and, if appropriate, the child's parents, guardian, or legal custodian, and other appropriate parties to ensure future lawful conduct and compliance with the court's order of disposition; and
      2. Identify the services to be offered and provided to the child and, if appropriate, the child's parents, guardian, or legal custodian, and other appropriate parties, including, where appropriate:
        1. Mental health and substance abuse services;
        2. Education services;
        3. Individual, group, and family counseling services;
        4. Victim or community restitution; and
        5. Services to address other relevant concerns identified by the supervising authority.
    1. For any child committed to the department for a delinquent offense, the department shall ensure, in conjunction with any service provider, that it develops and implements an individualized case plan based upon the recommendations of the child, the child's parents, guardian, or custodian, and other appropriate parties and the results of the validated risk and needs assessment. The case plan shall cover the child's period of commitment to the department as well as home placement supervision.
    2. The department shall work with the child, the child's parents, guardian, or legal custodian, other appropriate parties, and the child's service provider to implement the case plan.
    3. At a minimum, the case plan shall:
      1. Specify treatment goals and the actions to be taken by the child in order to demonstrate satisfactory attainment of each goal;
      2. Specify the services to be offered and provided by the department and any service provider; and
      3. Ensure appropriate reintegration of the child to the child's parents, guardian, or legal custodian, other appropriate parties, the child's school, and the community following the satisfactory completion of the case plan treatment goals, with a protocol and timeline for engaging the child's parents, guardian, or legal custodian prior to the release of the child.
  4. The department and each juvenile court providing supervision services shall adopt a behavior response system that incorporates the following principles:
    1. Behavior responses to children on all types of supervision should be swift, certain, and proportionate and provide for a continuum of options to address violations of the terms and conditions of supervision as well as incentivize positive behaviors on supervision; and
    2. Behavior responses should be targeted to the child's risk and needs and to the severity of the violation of the terms and conditions of supervision.
  5. The behavior response system shall be utilized by all supervising authorities involved in the juvenile justice system and in administering behavior responses on probation, home placement supervision, diversion, or any other type of supervision. The supervising authorities shall use the least restrictive behavior responses, and all violations and positive behaviors shall be documented in the child's individual case plan within three (3) days of occurrence, excluding nonjudicial days, including the type of violation or positive behavior, the response, and the results of the response.

Acts 2018, ch. 1052, § 49.

Compiler's Notes. Former § 37-1-173 (Acts 1996, ch. 1079, § 76; 2000, ch. 947, § 8G), concerning status review for persons eighteen years of age or older, was repealed by Acts 2008, ch. 906, § 2, effective July 1, 2008.

Acts 2018, ch. 1052, § 1 provided that the act, which enacted this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2019; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

37-1-174. Order affecting delinquent juvenile's parent or guardian.

  1. If an unemancipated child commits a delinquent or unruly act that brings the child within the jurisdiction of the juvenile court and if the child's parent or legal guardian, who is not the victim of the act that brings the child within the jurisdiction of the juvenile court, did not take reasonable steps to control such delinquent or unruly conduct, then the court may order the parent or legal guardian to do one (1) or more of the following:
    1. Participate in the child's program of treatment and rehabilitation;
    2. Seek assistance from school officials, social service officials or other appropriate public or private resources and authorities to provide treatment and rehabilitation for the child;
    3. Complete community service work individually or jointly with the child; or
    4. Provide supervision to ensure that the child complies with any and all conditions and requirements that the court has ordered the child to follow.
  2. If the parent or legal guardian violates or refuses to comply with the order of the juvenile court, then the parent or legal guardian may be held in contempt pursuant to § 37-1-158; and the juvenile court may fine the parent or legal guardian up to fifty dollars ($50.00), may incarcerate the parent or legal guardian in the county jail for up to ten (10) days or may impose both fine and incarceration. However, prior to holding any such parent or guardian in contempt, the parent or legal guardian shall be served with notice and shall be given a reasonable opportunity to be heard by the court.
  3. This section shall not apply to the department of children's services acting in its capacity as custodian or guardian of any child.

Acts 1997, ch. 465, § 2; 2000, ch. 834, §§ 1, 2.

Cross-References. Punishment for contempt, title 29, ch. 9.

37-1-175. Temporary legal custody for children with mental illnesses.

IF AND ONLY IF

  1. a child is the subject of a proceeding under this chapter, AND
  2. the child is mentally ill, AND
  3. the child needs care, training, or treatment because of the mental illness, AND
  4. all available less drastic alternatives to committing the child to the temporary legal custody of the department are unsuitable to meet the child's needs for care, training, or treatment for the mental illness,

    THEN

  5. a juvenile court may commit the child to the temporary legal custody of the department in proceedings conducted in conformity with §§ 33-3-602 — 33-3-608, 33-3-610 — 33-3-620, and 33-6-505 — 33-6-508, to meet the child's needs for care, training, or treatment for the mental illness.

Acts 1986, ch. 836, § 3; 1996, ch. 1079, §§ 37-39; T.C.A., § 33-3-203; Acts 2000, ch. 947, § 7.

Compiler's Notes. Acts 1986, ch. 836, § 8, provided that the implementation of the provisions of this section as enacted by that act and the expenditure of any funds to implement such provisions shall be subject to the approval of the commissioner of finance and administration.

For the establishment of the Tennessee Children's Plan, see Executive Order No. 58 (June 29, 1994).

For transfer of certain case management functions from the department of mental health and mental retardation [department of mental health and developmental disabilities] to the department of health, see Executive Order No. 5 (November 9, 1995).

Law Reviews.

Reducing Unintended Ambiguity in Statutes: An Introduction to Normalization of Statutory Drafting (Grayfred B. Gray), 54 Tenn. L. Rev. 433 (1987).

Attorney General Opinions. Commitment of juveniles, OAG 87-188 (12/14/87).

37-1-176. Providing care, training or treatment in least drastic alternative way.

IF

  1. a juvenile court commits a child to the temporary legal custody of the department under § 37-1-175,

    THEN

  2. the department shall provide the necessary care, training, or treatment for the child in the least drastic alternative way that is available and suitable to meet the child's needs, AND
  3. community mental health centers and community programs that receive grants or contracts from the department to provide such services to children shall, at the direction of the department, provide the community-based services necessary to meet the child's needs for treatment in the least drastic alternative to hospitalization, AND

    IF AND ONLY IF

    1. placing the child in inpatient care in a hospital or treatment resource is the least drastic alternative way that is available to the department and is suitable to meet the child's needs,

      THEN

    2. the department shall apply for the child's admission to a hospital or treatment resource under title 33, chapter 6, part 2 or 4 or shall initiate proceedings under title 33, chapter 6, part 5.

Acts 2000, ch. 947, § 7.

37-1-177. Person filing for commitment.

If an evaluation under § 37-1-128(d) shows that a child may be subject to commitment to the temporary legal custody of the department, the juvenile court may direct any person it determines to be suitable for the purpose to file a complaint under § 37-1-175.

Acts 2000, ch. 947, § 7.

37-1-178. Discharge.

If a child no longer meets the standards under which the child was hospitalized or admitted to a treatment resource under § 37-1-176(4), the child shall be discharged under title 33, chapter 6, part 7, and the child shall remain in the custody of the department until the department's custody is terminated under §§ 37-1-179 and 37-1-180.

Acts 2000, ch. 947, § 7.

37-1-179. Reporting status of child who no longer meets commitment standards — Retention of custody.

If a child no longer meets the standards under which the child was committed to the custody of the department under § 37-1-175, the department shall make a full report of the status of the child to the committing court. If the committing court objects to the termination of the department's custody, the court shall set a hearing on the matter within fifteen (15) days of the date of the report, with such hearing to be held at the earliest possible date. The department shall retain custody pending the outcome of the hearing. If the court does not set a hearing, the department's custody terminates at the end of the fifteenth day after the date of the report unless the court has approved an earlier termination.

Acts 2000, ch. 947, § 7.

37-1-180. Rights of child in hearing to review custody.

If the court sets a hearing to review the status of the child under § 37-1-179, the child shall have the same rights as in the original commitment proceeding under §§ 33-3-605, 33-3-608, 33-3-610 — 33-3-616, and 33-3-620. If and only if the court finds on the basis of clear, unequivocal, and convincing evidence that the child is subject to commitment to the custody of the department under § 37-1-175, the court may order that the child remain in the temporary legal custody of the department. If the court does not so find, the department's custody terminates at the end of the hearing.

Acts 2000, ch. 947, § 7.

37-1-181. Judges to conduct proceedings.

Proceedings under §§ 37-1-175 — 37-1-181 may be held only by judges who are lawyers or by magistrates.

Acts 2000, ch. 947, § 7; 2009, ch. 235, § 1.

Compiler's Notes. Acts 2009, ch. 235, § 1 directed the code commission to revise appropriate references from “child support referees” and “juvenile referees” to “child support magistrates” and “juvenile magistrates” in the code as supplements are published and volumes are replaced.

37-1-182. Juvenile records task force.

    1. There is established a task force on the submission of juvenile fingerprints and reporting of juvenile court dispositions, which shall be named the juvenile records task force.
    2. The task force shall have the following members:
      1. The director of the Tennessee bureau of investigation (TBI) or the director's designee, who shall be a member of the director's staff;
      2. A juvenile court judge or magistrate from each grand division of the state, who shall be appointed by the director of the administrative office of the courts;
      3. A clerk or deputy clerk whose primary duties include the maintenance of juvenile court records, to be appointed by the president of the state court clerks' conference;
      4. The commissioner of children's services or the commissioner's designee;
      5. The attorney general and reporter or attorney general and reporter's designee, who shall be an ex officio member of the task force;
      6. The chair of the judiciary committee of the senate and the chair of the committee of the house of representatives having jurisdiction over children and families or their designees, who shall be members of the task force;
      7. The executive director of the Tennessee commission on children and youth or the executive director's designee.
    3. Appointments shall be made within sixty (60) days after July 1, 2007. The governor shall designate the chair of the task force, who shall set the date of the first meeting. At the organizational meeting, a secretary shall be elected from the task force's membership.
    1. The task force is authorized to request and receive assistance from any department, agency or entity of state government, upon request from the chair.
    2. Members of the task force are volunteers and shall serve without pay, except that nonlegislative members may be reimbursed for travel expenses in accordance with travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter. Members of the general assembly shall be compensated in accordance with the provisions of § 3-1-106.
  3. The task force is directed to assess and examine:
    1. The process of the submission of juvenile fingerprints to the TBI and to the federal bureau of investigation;
    2. The maintenance of juvenile fingerprint cards;
    3. The reporting of dispositions of juvenile offenses;
    4. The disclosure or nondisclosure of juvenile offenses for employment or volunteer purposes;
    5. Whether a juvenile offender repository is needed;
    6. Whether any of the statutes referring to juvenile records and/or juvenile fingerprints are in direct conflict with other statutes and, if so, to determine how to correct any ambiguities; and
    7. Any other relevant issues that concern juvenile fingerprint submissions, dispositions, and disclosures of juvenile records.
  4. The task force is directed to submit a report of its findings and recommendations, including any suggested legislation, to the general assembly and the governor no later than February 15, 2008.

Acts 2007, ch. 552, §§ 2-5; 2009, ch. 235, §  1; 2011, ch. 410, § 3(d); 2013, ch. 236, § 21; 2019, ch. 345, § 34.

Compiler's Notes. Acts 2009, ch. 235, § 1 directed the code commission to revise appropriate references from “child support referees” and “juvenile referees” to “child support magistrates” and “juvenile magistrates” in the code as supplements are published and volumes are replaced.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment substituted “the chair of the committee of the house of representatives having jurisdiction over children and families” for “the chair of the civil justice committee of the house of representatives” in (a)(2)(F).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

37-1-183. Dependent and neglected child to remain in related caregiver’s custody if in best interest of child.

If the court finds that a child is dependent and neglected as defined in § 37-1-102(b)(13)(J), the court shall order the child to remain in the related caregiver's custody if such an arrangement is in the best interest of the child. Any future order for modification or termination of the related caregiver's custody brought by the child's parent shall be based on a finding, by a preponderance of the evidence, that there has been a material change in circumstances. When making such a determination, the court may consider whether the child's parent is currently able and willing to care for the child or that the related caregiver is unable to continue to care for the child.

Acts 2009, ch. 411, § 11; 2017, ch. 263, § 4.

Compiler's Notes. Acts 2009, ch. 411, § 12 provided that the act, which amended §§ 36-1-102, 36-1-108, 37-1-102, 37-2-402 and added new § 37-1-183, shall apply to conduct covered by the provisions of the act that occurs on or after July 1, 2009. The eighteen (18) month time period set out in § 37-1-102(b)(12)(J) shall not commence until July 1, 2009.

Amendments. The 2017 amendment substituted “§ 37-1-102(b)(13)(J)” for “§ 37-1-102(b)(12)(J)” in the first sentence.

Effective Dates. Acts 2017, ch. 263, § 5. July 1, 2017.

37-1-184. Provider performance metrics.

  1. The department shall develop a system of performance-based metrics and incentives to use with the state institutions, foster and group homes, and any other entities, public or private, that are authorized by law to receive or provide care or services for children under this part.
  2. These metrics and incentives should encourage use of graduated responses, evidence-based programming, and an intended timeline of three (3) to six (6) months for successful program completion.

Acts 2018, ch. 1052, § 50.

Compiler's Notes. Acts 2018, ch. 1052, § 1 provided that the act, which enacted this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

37-1-185. Report on juvenile justice data collection.

The administrative office of the courts, the department of children's services, and the commission on children and youth shall jointly submit a report addressing statewide data collection in the juvenile justice system, on or before January 1, 2019, to the governor, speaker of the senate, and speaker of the house of representatives. Appropriate school and law enforcement personnel shall be consulted in preparing the report. This report shall include:

  1. A plan to effectuate comprehensive, accurate collection of data and performance measures from all juvenile courts in the state pursuant to § 37-1-506 and other relevant statutory provisions;
  2. Uniform definitions and criteria for data collection to ensure clear and consistent reporting across all agencies and counties;
  3. Proposed forms for future data collection from juvenile courts and county-level agencies; and
  4. Any other recommendations relevant to improving statewide data collection in the juvenile justice system.

Acts 2018, ch. 1052, § 51.

Compiler's Notes. Acts 2018, ch. 1052, § 1 provided that the act, which enacted this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Effective Dates. Acts 2018, ch. 1052, § 58. May 21, 2018; provided that for purposes of rulemaking, the act took effect May 21, 2018.

37-1-186. Notification of resources and funding for relative caregivers — Distribution of information.

  1. As used in this section, “relative caregiver” means a person within a first, second, or third degree of relationship to the parent or step-parent of a child who may be related through blood, marriage, or adoption.
  2. Any court that issues an order granting custody or guardianship of a child to a person who qualifies as a relative caregiver shall notify the relative caregiver that resources and funding for relative caregivers may be available through programs administered by the department.
  3. The department shall distribute information on available relative caregiver resources to the administrative office of the courts, and the administrative office of the courts shall distribute the information to each court within the state that issues orders regarding child custody or guardianship. For purposes of satisfying the requirements of this subsection (c), the distribution of resource information may be accomplished by electronic means.

Acts 2019, ch. 130, § 1.

Effective Dates. Acts 2019, ch. 130, § 2. July 1, 2019;  provided that for administrative and rulemaking purposes, the act took effect April 9, 2019.

Part 2
Juvenile Court Restructure Act of 1982

37-1-201. Short title — Legislative intent.

  1. This part shall be known and may be cited as the “Juvenile Court Restructure Act of 1982.”
  2. It is the purpose of this part to provide in every county of this state adequate juvenile court services as contemplated in the laws of Tennessee, as stated in this title and other general laws of the state of Tennessee now in force and effect, or hereafter to become of force and effect.

Acts 1982, ch. 934, § 1; T.C.A., § 37-261.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.2.

Law Reviews.

“The Politics of Protecting Children”: Keynote Address Revisiting Luzerne County: Promoting Fairness, Transparency and Accountability In Juvenile Court (Robert Schwartz), 7 Tenn. J. L. & Pol'y 263 (2011).

“The Politics of Protecting Children”: Panel Discussion 2: Litigation For Change (Jacqueline Dixon, Professor Dean Rivkin and Robert Schwartz),  7 Tenn. J. L. & Pol'y 218 (2011).

“The Politics of Protecting Children”: Panel Discussion 3: Confronting Political and Economic Challenges (Representative Sherry Jones, Connie Steere and Mary Walker), 7 Tenn. J. L. & Pol'y 289 (2011).

“The Politics of Protecting Children”: Panel Discussion 4: Best Practices In Representing Children in Court (The Honorable Timothy Irwin, Carlton Lewis and Dwight Stokes), 7 Tenn. J. L. & Pol'y 324 (2011).

37-1-202. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “District juvenile court” means a special juvenile court with jurisdiction in more than one (1) county; and
  2. “Special juvenile court” means a court created by law with jurisdiction limited to those matters contemplated in this title and other general laws of this state.

Acts 1982, ch. 934, § 2; T.C.A., § 37-262.

37-1-203. Jurisdiction of general sessions court.

The general sessions courts shall exercise juvenile court jurisdiction in all of the counties of this state, except in the counties or municipalities in which juvenile courts are, or may hereafter be, specially provided by law; provided, that only general sessions court judges who are attorneys may order commitment of a delinquent child to the department of children's services.

Acts 1982, ch. 934, § 3; T.C.A., § 37-263; Acts 1989, ch. 278, § 37; 1996, ch. 1079, §§ 73, 108.

Attorney General Opinions. Constitutionality of provision for designation of juvenile court clerk, OAG 99-027 (2/16/99).

Authority over the juvenile court system and its employees, OAG 07-004 (1/11/07).

Under T.C.A. §§ 37-1-203 and 37-1-210(a), because the a county general sessions court also exercises juvenile court jurisdiction, the law requires that the general sessions court clerk shall serve as the juvenile court clerk, OAG 07-097 (7/3/07).

NOTES TO DECISIONS

1. In General.

The general assembly never intended to make the juvenile court a general sessions court; the intention was to transfer jurisdiction of the juvenile court to the general sessions court and to make the general sessions court a juvenile court when the subject matter before the court was within the jurisdiction conferred upon juvenile courts. Thus, the laws dealing with appeals from the general sessions court when that court is exercising nonjuvenile court jurisdiction were not controlling in an action to establish paternity, the controlling laws were the appellate procedures provided for juvenile courts. State ex rel. Winberry v. Brooks, 670 S.W.2d 631, 1984 Tenn. App. LEXIS 2752 (Tenn. Ct. App. 1984).

2. Salary Supplements.

General sessions judge received jurisdiction over mental health commitments by operation of the law under this section and thus was entitled to a salary supplement for the exercise of that jurisdiction in addition to the salary supplement he received for the exercise of juvenile jurisdiction, even though the exercise of the latter jurisdiction was a necessary prerequisite to the exercise of mental health commitment jurisdiction. Wilson v. Johnson County, 879 S.W.2d 807, 1994 Tenn. LEXIS 165 (Tenn. 1994).

37-1-204. Procedure in general sessions court.

Any general sessions court exercising juvenile court jurisdiction shall, when exercising such jurisdiction, have the title and style of juvenile court of  county, and shall maintain a separate juvenile court docket and minutes, and hearings pursuant to this title shall be separate from general sessions court proceedings.

Acts 1982, ch. 934, § 4; T.C.A., § 37-264.

NOTES TO DECISIONS

1. In General.

The general assembly never intended to make the juvenile court a general sessions court; the intention was to transfer jurisdiction of the juvenile court to the general sessions court and to make the general sessions court a juvenile court when the subject matter before the court was within the jurisdiction conferred upon juvenile courts. Thus, the laws dealing with appeals from the general sessions court when that court is exercising nonjuvenile court jurisdiction were not controlling in an action to establish paternity, the controlling laws were the appellate procedures provided for juvenile courts. State ex rel. Winberry v. Brooks, 670 S.W.2d 631, 1984 Tenn. App. LEXIS 2752 (Tenn. Ct. App. 1984).

37-1-205. Special district juvenile courts.

Special juvenile courts may be created by law to exercise juvenile court jurisdiction in a county or in several contiguous counties. Funds for the operation of such special district juvenile courts shall be furnished by the counties within each special juvenile court district. Counties within the juvenile court district shall, by contract, enter into such agreements as they may deem necessary and desirable in order to provide for the conducting of business affairs and financing of the court as provided in § 5-1-114.

Acts 1982, ch. 934, § 5; T.C.A., § 37-265.

37-1-206. Magistrates — Court personnel — Signs.

Judges of juvenile courts shall appoint magistrates where constitutionally required and such other court personnel as may be necessary to assure availability of juvenile court services in every county of this state. Every court having juvenile jurisdiction shall have a sign in a conspicuous place identifying it as the “Juvenile Court.”

Acts 1982, ch. 934, § 6; T.C.A., § 37-266; Acts 2009, ch. 235, § 1.

Compiler's Notes. Acts 2009, ch. 235, § 1 directed the code commission to revise appropriate references from “child support referees” and “juvenile referees” to “child support magistrates” and “juvenile magistrates” in the code as supplements are published and volumes are replaced.

37-1-207. Special juvenile courts — Judges.

Any special juvenile court created by law shall have such title and style as the act creating such court may provide. Each juvenile court shall be a court of record, presided over by a judge who shall have such qualifications and salary as may be provided by law. Upon creation of a special juvenile court, a judge of the court shall be appointed as provided by law until the next general election and a person duly qualified is elected, and until a successor qualifies. The term of office shall be the same as other judges of the state. In the event the office of judge of the juvenile court becomes vacant by reason of death, resignation, retirement or other cause, before the expiration of the term of the judge, the vacancy shall be filled as provided by law.

Acts 1982, ch. 934, § 7; T.C.A., § 37-267.

37-1-208. Contracts between counties.

Unless otherwise provided by law, the counties within a special juvenile court district may enter into contracts of agreement providing such terms and conditions therein as the parties deem best for the joint financial support, operation and maintenance of such special juvenile courts.

Acts 1982, ch. 934, § 8; T.C.A., § 37-268.

37-1-209. Disbursements of moneys.

All moneys derived from fees, fines and costs assessed by the judge and collected by the clerk shall be paid to the county, or, in the case of a juvenile court serving more than one (1) county, revenue shall be disbursed in accordance with the contract between the various county governments.

Acts 1982, ch. 934, § 9; T.C.A., § 37-269.

Attorney General Opinions. Juvenile court fees collected by county clerk, OAG 99-093 (4/19/99).

37-1-210. Clerks of general sessions courts.

  1. In those counties in which the general sessions court is also the juvenile court, the clerk of the court exercising juvenile jurisdiction in such counties prior to May 19, 1982, shall serve as clerk of the general sessions court when it is exercising juvenile jurisdiction after May 19, 1982, unless otherwise provided by law. No later than July 1, 2006, in those counties in which the general sessions court is also the juvenile court, the clerk of the court of general sessions or the clerk and master shall also serve as the juvenile court clerk, unless otherwise provided by law. Such clerks shall maintain separate minutes, dockets and records for all matters pertaining to juvenile court proceedings as required by law. County legislative bodies may, in their discretion, provide additional compensation to general sessions court judges in such counties.
  2. Notwithstanding subsection (a), the clerk who is serving as clerk of the court with juvenile jurisdiction in any county having a population of not less than forty-six thousand eight hundred (46,800) nor more than forty-six thousand nine hundred (46,900), according to the 2000 federal census of population or any subsequent federal census, on June 30, 2003, shall continue to serve as the clerk of the court with juvenile jurisdiction after July 1, 2003.
  3. The second sentence of subsection (a) and the provisions of subsection (b) shall not apply in counties having a population, according to the 2000 federal census or any subsequent federal census, of:

    not less than  nor more than

    5,500 5,600

    11,369 11,450

    27,700 27,800

    37,200 37,300

  4. Nothing in the second sentence of subsection (a) and the provisions of subsection (b) shall be construed as affecting special juvenile courts authorized by law or elected juvenile court clerks.

Acts 1982, ch. 934, § 10; T.C.A., § 37-270; Acts 2003, ch. 226, §§ 1, 3-8; 2007, ch. 275, §§ 1, 2; 2008, ch. 1153, § 1.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Attorney General Opinions. For an opinion of the attorney general opining that certain language concerning additional compensation for general sessions judges is unconstitutional, see OAG 87-150 (9/17/87).

The 2003 amendment of this section does not override conflicting private acts, and it does not apply at all in those counties exempted from its operation, OAG 03-122 (9/25/03).

Under T.C.A. §§ 37-1-203 and 37-1-210(a), because the county general sessions court also exercises juvenile court jurisdiction, the law requires that the general sessions court clerk shall serve as the juvenile court clerk, OAG 07-097 (7/3/07).

NOTES TO DECISIONS

1. Constitutionality.

The last sentence of this section which permits counties to provide additional compensation to general sessions judges who also exercise juvenile court jurisdiction is unconstitutional. Franks v. State, 772 S.W.2d 428, 1989 Tenn. LEXIS 261 (Tenn. 1989).

Under Tenn. Const., art. VI, § 7, the power to ascertain and fix the compensation of juvenile judges is vested in the legislature, and cannot be delegated to county courts or any other body. Franks v. State, 772 S.W.2d 428, 1989 Tenn. LEXIS 261 (Tenn. 1989).

2. Effect of Unconstitutional Provision.

Where the juvenile judge and the county executive (now county mayor) were acting in good faith in paying and receiving the salary supplement fixed by the county legislative body, the judge should not be required to pay back the supplemental salary. In such circumstances, it is appropriate to apply the principle that the unconstitutional act was voidable until condemned by judicial pronouncement. Franks v. State, 772 S.W.2d 428, 1989 Tenn. LEXIS 261 (Tenn. 1989).

37-1-211. Clerks of special juvenile courts.

  1. The appropriate legislative body of a county having a special juvenile court may, by resolution, designate the duly elected clerk of another court of that county to serve as clerk of the special juvenile court. In any county in which the legislative body does not designate a duly elected clerk of another court to serve as clerk of the special juvenile court, the judge of such special juvenile court shall appoint a clerk or an administrator of the court, except in counties where a duly elected clerk is otherwise provided by law. Clerks of such special juvenile courts shall, under the supervision of the judge, keep all records of the court, and shall have all the duties, authorities, and obligations provided by law for clerks of other courts of record of this state, and shall give an appropriate surety bond for the faithful performance of their duties.
  2. Subsection (a) shall only apply in counties having a population, according to the 2000 federal census or any subsequent federal census, of:

    not less than  nor more than

    5,500 5,600

    11,369 11,450

    14,300 14,400

    17,800 17,875

    27,700 27,800

    37,200 37,300

    62,300 62,400

  3. Nothing in this section shall be construed as affecting special juvenile courts authorized by law or elected juvenile court clerks.

Acts 1982, ch. 934, § 11; T.C.A., § 37-271; Acts 1988, ch. 629, § 1; 2003, ch. 226, §§ 2-6, 8.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Attorney General Opinions. Constitutionality of provision for designation of juvenile court clerk, OAG 99-027 (2/16/99).

Authority over the juvenile court system and its employees, OAG 07-004 (1/11/07).

NOTES TO DECISIONS

1. Constitutionality.

The appointing authority given the juvenile court judge by this section, as amended in 1988, is in violation of the Constitution of Tennessee. The juvenile court is an inferior court within the meaning of Tenn. Const., art. VI, § 13, which provides that the clerks of the inferior courts shall be elected. Shelby County Election Com. v. Turner, 755 S.W.2d 774, 1988 Tenn. LEXIS 146 (Tenn. 1988).

37-1-212. Rules and regulations.

The judge is authorized and empowered to make and promulgate rules and regulations for the administration of the court, to fix the times and places at which all persons in the jurisdiction of the court shall have their causes set for hearing.

Acts 1982, ch. 934, § 12; T.C.A., § 37-272.

Attorney General Opinions. The judge of the juvenile court may promulgate rules and regulations providing for the court clerk to carry out the clerk's duties as part of the judge's authority to promulgate rules and regulations “for the administration of the court,” OAG 00-112 (6/20/00).

Authority over the juvenile court system and its employees, OAG 07-004 (1/11/07).

37-1-213. Deputies.

The sheriffs of the various counties shall furnish the necessary deputies and special deputies to attend and dispense with the business of such courts.

Acts 1982, ch. 934, § 13; T.C.A., § 37-273.

Attorney General Opinions. Appointment of court officer authorized to carry weapon in courtrooms; required training, qualifications, etc.  OAG 10-77, 2010 Tenn. AG LEXIS 83 (6/1/10).

POST certification of bailiffs and court officers.  OAG 10-107, 2010 Tenn. AG LEXIS 113 (10/28/10).

37-1-214. Compensation of judges pro tempore.

Any judge pro tempore elected under this part shall be paid the usual and customary rate of compensation.

Acts 1982, ch. 934, § 18; T.C.A., § 37-275.

Part 3
Juvenile Post-Commitment Procedures Act

37-1-301. Short title.

This part shall be known and may be cited as the “Juvenile Post-Commitment Procedures Act.”

Acts 1978, ch. 750, § 1; T.C.A., § 37-1701.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Minors, § 11.

NOTES TO DECISIONS

1. Purposes of Part.

One of the principal purposes of this part is to require that claims be adjudicated in the county in which the judgment of the juvenile's commitment was entered. State ex rel. Huskey v. Hatler, 606 S.W.2d 534, 1980 Tenn. LEXIS 502 (Tenn. 1980).

Some of the objectives sought to be achieved by this part were to relieve the courts of the county in which juveniles are held in custody of the burden of entertaining habeas corpus petitions filed by juveniles committed from the other counties throughout the state and to save the time, energy and money expended by juvenile judges, clerks, witnesses and attorneys who often must travel from their home counties to the court of the county in which the juvenile is incarcerated and in which he has filed his petition for habeas corpus. State ex rel. Huskey v. Hatler, 606 S.W.2d 534, 1980 Tenn. LEXIS 502 (Tenn. 1980).

37-1-302. Petition for post-commitment relief.

A juvenile in the custody of the department of children's services pursuant to a commitment by a juvenile court of this state may petition for post-commitment relief under this part at any time after the juvenile has exhausted the juvenile's appellate remedies or time for an appeal to the circuit court pursuant to § 37-1-159, or the juvenile's appeal in the nature of a writ of error from the judgment of the circuit court has passed and before the juvenile has been discharged from the custody of the department.

Acts 1978, ch. 750, § 2; T.C.A., § 37-1702; Acts 1989, ch. 278, § 34; 1996, ch. 1079, § 73.

NOTES TO DECISIONS

1. Right to Counsel.

There is no right of access on petitions for post-commitment relief that arise purely under this section and T.C.A. §§ 37-1-303 — 37-1-322, but incarcerated juveniles do have a right of access to counsel for an appeal of their adjudication of delinquency, because T.C.A. § 37-1-159 provides for an appeal as of right from an adjudication of delinquency. John L. v. Adams, 969 F.2d 228, 1992 U.S. App. LEXIS 16208 (6th Cir. Tenn. 1992), rehearing denied, — F.2d —, 1992 U.S. App. LEXIS 23378 (6th Cir. Sept. 22, 1992).

2. Time for Appeal.

Court of appeals improperly blamed juvenile defendant for delays in his case because defendant was able to seek post-commitment relief after the time for filing an appeal was expired; the record showed that a notice of appeal was filed more than one year before defendant's 19th birthday, his appellate brief was served within five months of the notice, the state filed several requests for extensions before filing its briefs, oral argument was postponed for more than two months, and the opinion of the court of appeals was released only 14 days after defendant had reached the age of 19. State v. Rodgers, 235 S.W.3d 92, 2007 Tenn. LEXIS 744 (Tenn. Aug. 17, 2007).

37-1-303. Filing of petition — Designation of judge to hear and determine petition.

  1. To begin proceedings under this part, the petitioner shall file a written petition with the clerk of the chancery or circuit court in the county in which the commitment occurred, naming the state of Tennessee as the respondent. No filing fee shall be charged.
  2. The petition shall be heard by the judge of the chancery or circuit court in which the petition was filed. If the petition is filed in the circuit court where a de novo hearing regarding the petitioner's juvenile court commitment was heard, the case shall be heard by the chancellor of the county or other trial judge by interchange as authorized by title 17, chapter 2. Where an issue is raised as to the effective assistance of counsel representing the petitioner at the de novo hearing in the circuit court, the circuit court judge who presided over that hearing, where available, shall hear and determine the petition.

Acts 1978, ch. 750, § 3; 1980, ch. 752, § 1; T.C.A., § 37-1703.

NOTES TO DECISIONS

1. Constitutionality.

The relief and procedure authorized by the Juvenile Post-Commitment Procedures Act, compiled in T.C.A. § 37-1-301 et seq., are neither inadequate nor ineffective. State ex rel. Bodkins v. Cook, 633 S.W.2d 477, 1981 Tenn. App. LEXIS 598 (Tenn. Ct. App. 1981).

2. Purpose.

One of the principal purposes of this part is to require that claims be adjudicated in the county in which the judgment of the juvenile's commitment was entered. State ex rel. Huskey v. Hatler, 606 S.W.2d 534, 1980 Tenn. LEXIS 502 (Tenn. 1980).

37-1-304. Contents of petition.

  1. The petition shall briefly and clearly state:
    1. Petitioner's full name and address;
    2. The charge upon which petitioner's commitment is based;
    3. The name and location of the juvenile court that committed the petitioner;
    4. The date of commitment;
    5. What restraint of liberty is presently being imposed;
    6. Who is imposing the present restraint, and when it commenced;
    7. Any appeals and all other applications for relief previously filed, including the date decided, the court, the grounds asserted, and the results;
    8. The names of the attorneys who have represented petitioner and at what stage of the proceedings;
    9. Facts establishing the grounds upon which the claim for relief is based, whether they have been previously presented to any court and, if not, why not;
    10. Whether the petitioner has an attorney and, if not, whether the petitioner has funds to hire an attorney; and
    11. Any other information required by rule of the Tennessee supreme court.
  2. The petition shall have attached affidavits, records, or other evidence supporting its allegations, or shall state why they are not attached.

Acts 1978, ch. 750, § 4; T.C.A., § 37-1704.

37-1-305. Grounds for relief.

Relief under this part shall be granted when petitioner's commitment is void or voidable because of the abridgement in any way of any right guaranteed by the laws or constitution of this state, or the Constitution of the United States, including a right that was not recognized as existing at the time of the trial if either constitution requires retrospective application of that right.

Acts 1978, ch. 750, § 5; T.C.A., § 37-1705.

Cross-References. Relief granted, § 37-1-317.

NOTES TO DECISIONS

1. In General.

This part affords plenary relief, encompassing claims relating to denial of counsel in commitment proceedings. State ex rel. Huskey v. Hatler, 606 S.W.2d 534, 1980 Tenn. LEXIS 502 (Tenn. 1980).

37-1-306. Court action upon receipt of petition.

When the chancery or circuit court receives any petition applying for relief under this part, it shall forthwith:

  1. Make three (3) copies of the petition;
  2. Docket and file the original petition and its attachments;
  3. Mail one (1) copy of the petition to the attorney general and reporter;
  4. Mail or forward one (1) copy of the petition to the district attorney general of the district in which the petition was filed;
  5. Mail or forward one (1) copy of the petition to petitioner's attorney; and
  6. Notify the juvenile court judge responsible for committing the petitioner.

Acts 1978, ch. 750, § 6; T.C.A., § 37-1706.

37-1-307. Petition not to be dismissed for failure to follow form — Amended petition.

  1. No petition for relief shall be dismissed for failure to follow the prescribed form or procedure until the court has given the petitioner reasonable opportunity, with the aid of counsel, to file an amended petition.
  2. Nothing in this section shall be construed to prohibit the court from dismissing a petition under this part when it does not state a proper claim for relief.

Acts 1978, ch. 750, § 7; T.C.A., § 37-1707.

Cross-References. Withdrawal or amendment of petition, technical defects not grounds for dismissal without opportunity to amend, § 37-1-315.

37-1-308. Application for habeas corpus — When allowed.

An application for a writ of habeas corpus on behalf of a petitioner entitled to apply pursuant to this part shall not be entertained if it appears that the applicant has failed to apply for relief pursuant to this part with the chancery or circuit court in the county of commitment, unless the petitioner establishes that an application under this part would be inadequate or ineffective.

Acts 1978, ch. 750, § 8; 1980, ch. 752, § 2; T.C.A., § 37-1708.

NOTES TO DECISIONS

1. Remedy Exclusive.

The remedy provided in this part is to be exclusive, leaving the remedy of habeas corpus available only in rare cases. State ex rel. Huskey v. Hatler, 606 S.W.2d 534, 1980 Tenn. LEXIS 502 (Tenn. 1980).

2. Inadequate or Ineffective Remedy.

That Davidson County was a forum more convenient than the counties of petitioners' commitment or that petitioners' present legal counsel would not be available to represent them in presenting their claims in the counties of their commitment and did not render the Juvenile Post-Commitment Procedures Act remedy “inappropriate or inadequate” within the meaning of this section as enacted in 1978. State ex rel. Huskey v. Hatler, 606 S.W.2d 534, 1980 Tenn. LEXIS 502 (Tenn. 1980).

The relief and procedure authorized by the Juvenile Post-Commitment Procedures Act, compiled in title 37, ch. 1, part 3, are neither inadequate nor ineffective. State ex rel. Bodkins v. Cook, 633 S.W.2d 477, 1981 Tenn. App. LEXIS 598 (Tenn. Ct. App. 1981).

37-1-309. Grounds for dismissal of petition — Hearing on petition — Issuance of orders or stays.

  1. When the petition has been competently drafted, and all pleadings, files and records of the case that are before the court conclusively show that the petitioner is entitled to no relief, the court may order the petition dismissed.
  2. In all other cases, the court shall grant a hearing as soon as practicable.
  3. The court shall issue such interlocutory order, including a stay of execution, as may be required.

Acts 1978, ch. 750, § 9; T.C.A., § 37-1709.

37-1-310. Appearance of petitioner at hearing — Transportation of petitioner.

  1. If the petitioner has had no prior evidentiary hearing under this part and in other cases where the petitioner's petition raises substantial questions of facts as to events in which the petitioner participated, the petitioner shall appear and testify.
    1. The superintendent of the institution that has custody of the petitioner shall arrange for transportation of the petitioner to and from the court upon proper orders issued by the judge. The sheriff of the county where the proceedings are pending shall have the authority to receive and transport the petitioner to and from the institution and the court, if the court so orders, or if for any reason the superintendent is unable to transport the petitioner.
    2. The sheriff shall be entitled to the same costs allowed for the transportation of prisoners as provided in criminal cases upon the presentation of the account certified by the judge and district attorney general.

Acts 1978, ch. 750, § 10; T.C.A., § 37-1710.

37-1-311. Scope of hearing.

The scope of the hearing shall extend to all grounds the petitioner has stated in the petitioner's petition, except those grounds that the court finds should be excluded because they have been waived or previously determined, as defined in § 37-1-312.

Acts 1978, ch. 750, § 11; T.C.A., § 37-1711.

37-1-312. Grounds for relief “previously determined” or “waived” defined.

  1. A ground for relief is “previously determined” if a court of competent jurisdiction has ruled on the merits after a full hearing.
  2. A ground for relief is “waived” if the petitioner knowingly and understandingly fails to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented. There is a rebuttable presumption that a ground for relief not raised in any such proceeding that was held was waived.

Acts 1978, ch. 750, § 12; T.C.A., § 37-1712.

37-1-313. Documents and records furnished to indigent petitioner.

After a petition has been filed, if the judge finds that the petitioner is indigent as defined in § 40-14-201, the judge is empowered to issue an order directed to the clerk of any court in Tennessee to furnish to the petitioner or to petitioner's counsel, without cost to the petitioner, certified copies of such documents or parts of the record on file in the clerk's office as may be required.

Acts 1978, ch. 750, § 13; T.C.A., § 37-1713.

Cross-References. Indigency, § 37-1-320.

37-1-314. District attorney general to represent state — Attorney general and reporter to represent state on appeal.

    1. The district attorney general of the district in which the petition was filed shall represent the state and respond by proper pleading on behalf of the state within thirty (30) days after receiving notice of the docketing or within such time as the court orders.
    2. If the petition does not include the records or transcripts, or parts of records or transcripts that are material to the questions raised therein, the district attorney general is empowered to obtain them at the expense of the state and shall file them with the responsive pleading or within a reasonable time thereafter.
    3. The district attorney general shall be reimbursed for any expenses, including travel incurred in connection with the preparation and trial of any proceeding under this part. These expenses shall be paid by the state of Tennessee, and shall not be included in the expense allowance now received by the various district attorneys general.
  2. It is the duty and function of the attorney general and reporter and the attorney general and reporter's staff to lend whatever assistance may be necessary to the district attorney general in the trial and disposition of such cases.
  3. In the event an appeal to the court of appeals is taken from the judgment of the trial court hearing a petition pursuant to this part, or in the event a delayed appeal in the nature of a writ of error is granted from the judgment of the circuit court pursuant to § 37-1-319, the attorney general and reporter and the attorney general and reporter's staff shall represent the state and prepare and file all necessary briefs in the same manner as now performed in connection with criminal appeals.

Acts 1978, ch. 750, § 14; T.C.A., § 37-1714.

37-1-315. Withdrawal or amendment of petition — Technical defects not grounds for dismissal without opportunity to amend.

  1. The court may grant leave to withdraw the petition at any time prior to the entry of the judgment, may freely allow amendments, and shall require amendments needed to achieve substantial justice and a full and fair hearing of all available grounds for relief. The district attorney general shall be allowed a reasonable time to respond to any amendments.
  2. The court shall look to the substance rather than the form of the petition, and no petition shall be dismissed for technical defects, incompleteness or lack of clarity until after the petitioner has had reasonable opportunity, with aid of counsel, to file amendments.

Acts 1978, ch. 750, § 15; T.C.A., § 37-1715.

Cross-References. Petition not to be dismissed for failure to follow form, amended petition, § 37-1-307.

37-1-316. Evidence — Oral testimony, depositions, affidavits.

Evidence may be taken orally or by deposition or, in the discretion of the court, by affidavit. If affidavits are admitted, any party shall have the right to propound written interrogatories to the affiants or to file answering affidavits.

Acts 1978, ch. 750, § 16; T.C.A., § 37-1716.

37-1-317. Relief granted — Costs — Final order — Record of counsel's consultations with petitioner.

  1. If the court finds that there was such a denial or infringement of the constitutional or statutory rights of the juvenile so as to render the commitment void or voidable, the court shall vacate and set aside the judgment or order a delayed appeal as hereinafter provided, and shall enter an appropriate order and any supplementary orders that may be necessary and proper.
  2. Costs shall be taxed as in criminal cases.
  3. Upon the final disposition of every petition, the court shall enter a final order, and, except where the proceedings for delayed appeal are allowed, shall set forth in the order or a written memorandum of the case all of the grounds presented and shall state the findings of fact and conclusions of law with regard to each ground.
  4. Where the petitioner has court-appointed counsel, the court may require petitioner's counsel to file a verified statement of dates and times counsel has consulted with petitioner, and this statement shall become part of the record.

Acts 1978, ch. 750, § 17; T.C.A., § 37-1717.

Cross-References. Grounds for relief, § 37-1-305.

NOTES TO DECISIONS

1. Relief Granted.

There is no authority for the substitution of an oral directive for a valid court order, and therefore juvenile defendant was entitled to post-commitment relief after he was found to be in violation of the terms of probation based on an oral mandate for house arrest since he was entitled to notice under U.S. Const. amend. XIV, § 1 and Tenn. Const. art. I, § 8; moreover, the appeal was not moot because a finding of a probation violation could have had adverse consequences in the future. State v. Rodgers, 235 S.W.3d 92, 2007 Tenn. LEXIS 744 (Tenn. Aug. 17, 2007).

37-1-318. Copies of final judgment.

The clerk of the court shall send a copy of the final judgment to the petitioner, the petitioner's counsel of record, any authority imposing restraint on the petitioner, the district attorney general, and the attorney general and reporter.

Acts 1978, ch. 750, § 18; T.C.A., § 37-1718.

37-1-319. Delayed appeal — Grounds for granting — Finality of order.

  1. When the judge conducting a hearing pursuant to this part finds that the petitioner was denied the right to an appeal to the circuit court from the judgment of the juvenile court or to an appeal from the judgment of the circuit court in violation of the laws and Constitution of Tennessee or the Constitution of the United States, the judge can grant a delayed appeal to the circuit court or a delayed appeal in the nature of a writ of error from the judgment of the circuit court, whichever is appropriate.
  2. Any bill of exceptions filed pursuant to this section may be approved by any judge of the court wherein the petitioner's hearing occurred, irrespective of whether such judge presided over the case at the time of the original hearing.
  3. An order granting proceedings for a delayed appeal shall be deemed a final judgment for purposes of the review provided by § 37-1-321.
  4. The judge of the court that committed a juvenile who has sought and obtained relief from that commitment by any procedure in a federal court is likewise empowered to grant the relief provided in this section.

Acts 1978, ch. 750, § 19; T.C.A., § 37-1719.

Rule Reference. This section is referred to the Advisory Commission Comments under Rule 36 of the Tennessee Rules of Juvenile Procedure.

37-1-320. Indigency.

Indigency shall be determined, and counsel and court reporters appointed and reimbursed, as now provided for criminal and habeas corpus cases by title 40, chapter 14, parts 2 and 3.

Acts 1978, ch. 750, § 20; T.C.A., § 37-1720.

Cross-References. Documents and records furnished to indigent petitioner, § 37-1-313.

NOTES TO DECISIONS

1. Right to Counsel.

The right to legal counsel is the same under the Juvenile Post-Commitment Procedures Act, compiled in title 37, chapter 1, part 3, as under the habeas corpus statutes. State ex rel. Bodkins v. Cook, 633 S.W.2d 477, 1981 Tenn. App. LEXIS 598 (Tenn. Ct. App. 1981).

37-1-321. Finality of order — Appeal.

The order granting or denying relief under the provisions of this part shall be deemed a final judgment, and an appeal may be taken to the court of appeals by simple appeal. A motion for a new trial shall not be required for such an appeal.

Acts 1978, ch. 750, § 21; T.C.A., § 37-1721.

37-1-322. Promulgation of rules by supreme court — Release of petitioner on bail or temporary custody.

  1. The supreme court may promulgate rules of practice and procedure consistent with this part, including rules prescribing the form and contents of the petition, the preparation and filing of the record and assignments of error for simple appeal and for delayed appeal in the nature of a writ of error and may make petition forms available for use by petitioners.
  2. When an appeal to the circuit court or a delayed appeal in the nature of a writ of error from the judgment of such court is granted pursuant to § 37-1-319, release on bail or temporary custody placement within the jurisdiction shall be discretionary with the circuit court judge pending further proceedings. In all other cases, the petitioner shall not be entitled to bail.

Acts 1978, ch. 750, § 22; T.C.A., § 37-1722.

Part 4
Mandatory Child Abuse Reports

37-1-401. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Child” means a person who is under eighteen (18) years of age or who is reasonably presumed to be under eighteen (18) years of age;
  2. “Department” means the department of children's services; and
  3. “Report of harm” means a report filed under § 37-1-403.

Acts 1973, ch. 81, § 1; impl. am. Acts 1975, ch. 219, § 1; T.C.A., § 37-1201; Acts 1987, ch. 145, § 25; 1988, ch. 964, § 4; 1996, ch. 1079, § 73.

Cross-References. Confidentiality of marital and family therapist communications with client, § 63-22-114.

Family violence shelters and child abuse prevention services and reports, title 71, ch. 6, part 2.

Report of child sexual abuse, title 37, ch. 1, part 6.

Rule Reference. Sections 37-1-401 — 37-1-411 are referred to in Rule 13 of the Rules of the Supreme Court of Tennessee.

This part is referred to in the Advisory Commission Comments under Rule 501 of the Tennessee Rules of Evidence.

Textbooks. Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), Rule 501.

Law Reviews.

Better Protection for the Defenseless — Tennessee's Revised Mandatory Child Abuse Reporting Statute, 4 Mem. St. U.L. Rev. 585 (1973).

Chilling Child Abuse Reporting: Rethinking the CAPTA Amendments, 51 Vand. L. Rev. 183 (1998).

Differential Response in Child Protection Services: Perpetuating the Illusion of Voluntariness  (Soledad A. McGrath), 42 U. Mem. L. Rev. 629 (2012).

NOTES TO DECISIONS

1. Marital Communications.

The marital privilege does not apply to prevent the admission of testimony by a defendant's spouse concerning acts of violence or personal injury inflicted by the defendant upon the children of either spouse or upon minor children in the custody of or under the dominion and control of either spouse. Adams v. State, 563 S.W.2d 804, 1978 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1978).

Collateral References.

Validity and construction of penal statute prohibiting child abuse. 1 A.L.R.4th 38.

37-1-402. Purpose and construction of part.

  1. The purpose of this part is to protect children whose physical or mental health and welfare are adversely affected by brutality, abuse or neglect by requiring reporting of suspected cases by any person having cause to believe that such case exists. It is intended that, as a result of such reports, the protective services of the state shall be brought to bear on the situation to prevent further abuses, to safeguard and enhance the welfare of children, and to preserve family life. This part shall be administered and interpreted to provide the greatest possible protection as promptly as possible for children.
  2. Except as expressly herein provided, this part shall not be construed as repealing any provision of any other statute but shall be supplementary thereto and cumulative thereof.

Acts 1973, ch. 81, § 1; 1974, ch. 538, § 2; 1977, ch. 343, § 4; T.C.A., §§ 37-1202, 37-1212, 37-1213.

Cross-References. Child sexual abuse, title 37, ch. 1, part 6.

Rule Reference. Sections 37-1-401 — 37-1-411 are referred to in Rule 13 of the Rules of the Supreme Court of Tennessee.

Attorney General Opinions. Juvenile court official's providing copies of civil petitions alleging child abuse to district attorneys general.  OAG 10-124, 2010 Tenn. AG LEXIS 130 (12/30/10).

Collateral References.

Physical abuse of child by parent as ground for termination of parent's right to child. 53 A.L.R.3d 848.

Sexual abuse of child by parent as ground for termination of parent's right to child. 58 A.L.R.3d 1074.

37-1-403. Reporting of brutality, abuse, neglect or child sexual abuse — Notification to parents of abuse on school grounds or under school supervision — Confidentiality of records.

    1. Any person who has knowledge of or is called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition shall report such harm immediately if the harm is of such a nature as to reasonably indicate that it has been caused by brutality, abuse or neglect or that, on the basis of available information, reasonably appears to have been caused by brutality, abuse or neglect.
    2. Any such person with knowledge of the type of harm described in this subsection (a) shall report it, by telephone or otherwise, to the:
      1. Judge having juvenile jurisdiction over the child;
      2. Department, in a manner specified by the department, either by contacting a local representative of the department or by utilizing the department's centralized intake procedure, where applicable;
      3. Sheriff of the county where the child resides; or
      4. Chief law enforcement official of the municipality where the child resides.
    3. If any such person knows or has reasonable cause to suspect that a child has been sexually abused, the person shall report such information in accordance with § 37-1-605, relative to the sexual abuse of children, regardless of whether such person knows or believes that the child has sustained any apparent injury as a result of such abuse.
  2. The report shall include, to the extent known by the reporter, the name, address, telephone number and age of the child, the name, address, and telephone number of the person responsible for the care of the child, and the facts requiring the report. The report may include any other pertinent information.
    1. If a law enforcement official or judge becomes aware of known or suspected child abuse, through personal knowledge, receipt of a report, or otherwise, such information shall be reported to the department immediately upon the receipt of such information, and, where appropriate, the child protective team shall be notified to investigate the report for the protection of the child in accordance with this part. Further criminal investigation by such official shall be appropriately conducted in coordination with the team or department to the maximum extent possible.
    2. A law enforcement official or judge who knows or becomes aware of a person who is convicted of a violation of § 55-10-401 and sentenced under § 55-10-402(b), because such person was at the time of the offense accompanied by a child under eighteen (18) years of age, shall report such information, as provided in subdivision (c)(1), and the department shall consider such information to be appropriate for investigation in the same manner as other reports of suspected child abuse or neglect.
      1. If the department receives information containing references to alleged human trafficking or child pornography which does or does not result in an investigation by the department, the department shall notify the appropriate law enforcement agency immediately upon receipt of such information.
      2. If the department initiates an investigation of severe child abuse, including, but not limited to, child sexual abuse, the department shall notify the appropriate local law enforcement agency immediately upon assignment of such case to a department child protective services worker.
      3. Both the department and law enforcement shall maintain a log of all such reports of such information received and confirmation that the information was sent to the appropriate party, pursuant to this subdivision (c)(3).
  4. Any person required to report or investigate cases of suspected child abuse who has reasonable cause to suspect that a child died as a result of child abuse shall report such suspicion to the appropriate medical examiner. The medical examiner shall accept the report for investigation and shall report the medical examiner's findings, in writing, to the local law enforcement agency, the appropriate district attorney general, and the department. Autopsy reports maintained by the medical examiner shall not be subject to the confidentiality requirements provided for in § 37-1-409.
  5. Reports involving known or suspected institutional child sexual abuse shall be made and received in the same manner as all other reports made pursuant to chapter 478 of the Public Acts of 1985, relative to the sexual abuse of children. Investigations of institutional child sexual abuse shall be conducted in accordance with § 37-1-606.
  6. Every physician or other person who makes a diagnosis of, or treats, or prescribes for any sexually transmitted disease set out in § 68-10-112, or venereal herpes and chlamydia, in children thirteen (13) years of age or younger, and every superintendent or manager of a clinic, dispensary or charitable or penal institution, in which there is a case of any of the diseases, as set out in this subsection (f), in children thirteen (13) years of age or younger shall report the case immediately, in writing on a form supplied by the department of health to that department. If the reported cases are confirmed and if sexual abuse is suspected, the department of health will report the case to the department of children's services. The department of children's services will be responsible for any necessary follow-up.
  7. Every physician or other person who makes an initial diagnosis of pregnancy to an unemancipated minor, and every superintendent or manager of a clinic, dispensary or charitable or penal institution in which there is a case of an unemancipated minor who is determined to be pregnant, shall provide to the minor's parent, if the parent is present, and the minor consents, any readily available written information on how to report to the department of children's services an occurrence of sex abuse that may have resulted in the minor's pregnancy, unless disclosure to the parent would violate the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d et seq., or the regulations promulgated pursuant to the act.
    1. Failure to provide the written information shall not subject a person to the penalty provided by § 37-1-412.
    2. The department of children's services shall provide to the department of health the relevant written information. The department of health shall distribute copies of the written information to all licensees of the appropriate health-related boards through the boards' routinely issued newsletters. At the time of initial licensure, these boards shall also provide new licensees a copy of the relevant written information for distribution pursuant to this subsection (g).
  8. Nothing in this section shall be construed to prohibit any hospital, clinic, school, or other organization responsible for the care of children, from developing a specific procedure for internally tracking, reporting, or otherwise monitoring a report made by a member of the organization's staff pursuant to this section, including requiring a member of the organization's staff who makes a report to provide a copy of or notice concerning the report to the organization, so long as the procedure does not inhibit, interfere with, or otherwise affect the duty of a person to make a report as required by subsection (a). Nothing in this section shall prevent staff of a hospital or clinic from gathering sufficient information, as determined by the hospital or clinic, in order to make an appropriate medical diagnosis or to provide and document care that is medically indicated, and is needed to determine whether to report an incident as defined in this part. Those activities shall not interfere with nor serve as a substitute for any investigation by law enforcement officials or the department; provided, that, if any hospital, clinic, school or other organization responsible for the care of children develops a procedure for internally tracking, reporting or otherwise monitoring a report pursuant to this section, the identity of the person who made a report of harm pursuant to this section or § 37-1-605 shall be kept confidential.
    1. Any school official, personnel, employee or member of the board of education who is aware of a report or investigation of employee misconduct on the part of any employee of the school system that in any way involves known or alleged child abuse, including, but not limited to, child physical or sexual abuse or neglect, shall immediately upon knowledge of such information notify the department of children's services or anyone listed in subdivision (a)(2) of the abuse or alleged abuse.
    2. Notwithstanding § 37-5-107 or § 37-1-612, if a school teacher, school official, or other school personnel has knowledge or reasonable cause to suspect that a child who attends the school may be a victim of child abuse or child sexual abuse sufficient to require reporting pursuant to this section, then the school teacher, school official, or other school personnel must follow the procedures outlined in § 49-6-1601.
    3. For purposes of this subsection (i), “school” means any public or privately operated child care agency, as defined in § 71-3-501; child care program, as defined in § 49-1-1102; preschool; nursery school; kindergarten; elementary school; or secondary school.

Acts 1973, ch. 81, § 1; 1977, ch. 343, § 1; 1978, ch. 886, § 2; T.C.A., § 37-1203; Acts 1985, ch. 478, §§ 26, 32, 40; 1987, ch. 145, § 10; 1994, ch. 901, § 2; 1996, ch. 1079, § 73; 2001, ch. 351, § 1; 2005, ch. 185, §§ 1, 2, 3; 2005, ch. 437, § 2; 2006, ch. 843, § 1; 2007, ch. 305, § 1; 2008, ch. 1011, § 1; 2009, ch. 283, §§ 2, 3; 2009, ch. 358, § 2; 2010, ch. 979, §§ 1-4; 2013, ch. 154, § 31; 2020, ch. 708, § 2.

Compiler's Notes. For codification of Acts 1985, ch. 478, see Session Law Disposition Tables in Volume 13.

Acts 2008, ch. 1011, § 4 provided that the state board of education, acting in consultation with the department of children's services, is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added subsection (i). The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Amendments. The 2020 amendment rewrote (i)(2) which read: “Notwithstanding § 37-5-107 or § 37-1-612 or any other law to the contrary, if a school teacher, school official or any other school personnel has knowledge or reasonable cause to suspect that a child who attends such school may be a victim of child abuse or child sexual abuse sufficient to require reporting pursuant to this section and that the abuse occurred on school grounds or while the child was under the supervision or care of the school, then the principal or other person designated by the school shall verbally notify the parent or legal guardian of the child that a report pursuant to this section has been made and shall provide other information relevant to the future wellbeing of the child while under the supervision or care of the school. The verbal notice shall be made in coordination with the department of children's services to the parent or legal guardian within twenty-four (24) hours from the time the school, school teacher, school official or other school personnel reports the abuse to the department of children's services, judge or law enforcement; provided, that in no event may the notice be later than twenty-four (24) hours from the time the report was made. The notice shall not be given to any parent or legal guardian if there is reasonable cause to believe that the parent or legal guardian may be the perpetrator or in any way responsible for the child abuse or child sexual abuse.”; deleted former (i)(3) which read: “Once notice is given pursuant to subdivision (i)(2), the principal or other designated person shall provide to the parent or legal guardian all school information and records relevant to the alleged abuse or sexual abuse, if requested by the parent or legal guardian; provided, that the information is edited to protect the confidentiality of the identity of the person who made the report, any other person whose life or safety may be endangered by the disclosure and any information made confidential pursuant to federal law or § 10-7-504(a)(4). The information and records described in this subdivision (i)(3) shall not include records of other agencies or departments.”; and redesignated former (i)(4) as present (i)(3) and inserted “; child care program, as defined in § 49-1-1102;”.

Effective Dates. Acts 2020, ch. 708, § 4. August 1, 2020.

Cross-References. Child abuse or child sexual abuse on school grounds, title 49, ch. 6, part 16.

Confidentiality of public records, § 10-7-504.

Departmental availability for receiving reports, § 37-1-606.

Duty to report known or suspected child sexual abuse, § 37-1-605.

False reporting of child sexual abuse, § 37-1-413.

Rule Reference. Sections 37-1-401 — 37-1-411 are referred to in Rule 13 of the Rules of the Supreme Court of Tennessee.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 28.119.

Law Reviews.

Tennessee's Adoption of the Planning-Operational Test for Determining Discretionary Function Immunity Under the Governmental Tort Liability Act, 60 Tenn. L. Rev. 633 (1993).

Attorney General Opinions. Juvenile court official's providing copies of civil petitions alleging child abuse to district attorneys general.  OAG 10-124, 2010 Tenn. AG LEXIS 130 (12/30/10).

NOTES TO DECISIONS

1. Civil Damage Liability.

Civil damage liability for failing to report complaints of child sexual abuse will only arise when it proximately causes injury to another. Jane Doe A v. Coffee County Bd. of Educ., 852 S.W.2d 899, 1992 Tenn. App. LEXIS 1019 (Tenn. Ct. App. 1992).

The failure to report suspected child abuse can give rise to civil liability. Ham v. Hospital of Morristown, 917 F. Supp. 531, 1995 U.S. Dist. LEXIS 20570 (E.D. Tenn. 1995).

Where parents and a student alleged that a principal made Department of Children's Services reports in retaliation for the parents'  disability accommodation requests, the retaliation claims under the Rehabilitation Act of 1973 and the Americans with Disabilities Act survived because: (1) The actions of the principal in making the reports constituted adverse action, (2) The evidence, including both temporal proximity and evidence calling into question the truthfulness of the reports themselves, was sufficient to meet the minimal burden to put forth evidence permitting a reasonable inference of causation, and (3) They presented sufficient evidence of pretext. A.C. v. Shelby County Bd. of Educ., 711 F.3d 687, 2013 FED App. 86P, 2013 U.S. App. LEXIS 6426 (6th Cir. Apr. 1, 2013).

2. —Physician Negligence.

Physicians are immune from liability only to the extent that their conduct arises from their duty to report suspicions of child abuse, which may include diagnosing a child's medical condition, contacting authorities, and preparing and testifying as to their opinions; they are not shielded from other actions beyond the reporting requirement. Bryant-Bruce v. Vanderbilt Univ., 974 F. Supp. 1127, 1997 U.S. Dist. LEXIS 11552 (M.D. Tenn. 1997).

Physicians were entitled to immunity from civil liability where plaintiffs' failed to demonstrate by clear and convincing evidence that the physicians acted in bad faith in reporting suspicions of child abuse based on gross negligence in their diagnosis of the child's condition. Bryant-Bruce v. Vanderbilt Univ., 974 F. Supp. 1127, 1997 U.S. Dist. LEXIS 11552 (M.D. Tenn. 1997).

3. Child Custody Disputes.

Court rejected a mother's argument that finding a material change in circumstances based on one parent reporting the other for suspected child sexual abuse was against public policy because anyone, including a parent, was required by law to report a child's accusations of sexual abuse to the appropriate authorities; any concern about reporting allegations of child sexual abuse had to be balanced with the awareness that false accusations of such abuse can be a reprehensible tool against an ex-spouse, remarkable for its brutal effectiveness. Keisling v. Keisling, 196 S.W.3d 703, 2005 Tenn. App. LEXIS 747 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 474 (Tenn. 2006).

Collateral References.

Validity, construction, and application of state statute requiring doctor or other person to report child abuse. 73 A.L.R.4th 782.

37-1-404. Retention of custody of child by hospital or physician — Protective custody.

  1. Any person in charge of a hospital or similar institution or any physician treating a child may keep that child in custody until the next regular weekday session of the juvenile court without the consent of the parents, legal guardian or legal custodian, whether or not additional medical treatment is required, if the circumstances are such, or if the condition of the child is such, that continuing the child in the child's place of residence or in the care or custody of the parents, legal guardian, or legal custodian presents an imminent danger to the child's life or physical or mental health.
  2. Any person taking a child into protective custody shall immediately notify the department, whereupon the department shall immediately begin a child protective investigation in accordance with the provisions of § 37-1-606, and shall make every reasonable effort to immediately notify the parents, legal guardian or legal custodian that such child has been taken into protective custody.
  3. If the department determines, according to the criteria set forth in § 37-1-114, that the child should remain in protective custody longer than the next regular weekday session of the juvenile court, it shall petition the court for an order authorizing such custody in the same manner as if the child were placed in a shelter.
  4. The department shall attempt to avoid the placement of a child in an institution whenever possible.

Acts 1973, ch. 81, § 1; 1975, ch. 3, § 1; T.C.A., § 37-1204; Acts 1987, ch. 145, § 8.

Cross-References. Protective custody of sexually abused children by hospitals or similar institutions, § 37-1-608.

Rule Reference. Sections 37-1-401 — 37-1-411 are referred to in Rule 13 of the Rules of the Supreme Court of Tennessee.

37-1-405. Reference of reported cases to local director — Notice to judge.

    1. All cases reported to the juvenile court judge or to state or local law enforcement officers shall be referred immediately to the local director of the county office of the department for investigation.
    2. If the court or law enforcement officer finds that there are reasonable grounds to believe that the child is suffering from illness or injury or is in immediate danger from the child's surroundings and that the child's removal is necessary, appropriate protective action shall be taken under part 1 of this chapter.
    1. The county office of the department or the office of the sheriff or the chief law enforcement official of the municipality where the child resides, upon receipt of a report of harm or sexual abuse, shall give notice of the report to the judge having juvenile jurisdiction where the child resides.
    2. If the case appears to involve severe child abuse as defined in § 37-1-102, including child sexual abuse, the county director of the department shall immediately notify and consult with the district attorney general where the harm occurred, and the district attorney general may take such action as the district attorney general deems appropriate, including petitioning the court for removal of the child or termination of parental rights in accordance with part 1 of this chapter. Whenever there are multiple investigations, the department, the district attorney general, law enforcement, and, where applicable, the child protection team, shall coordinate their investigations to the maximum extent possible so that interviews with the victimized child shall be kept to an absolute minimum. Reference to the audio or videotape or tapes made by the child protection team or department should be utilized whenever possible to avoid additional questioning of the child.
    3. If, before the investigation is complete, the county office of the department or the local district attorney general determines that immediate removal is necessary to protect the child or other children, or if the district attorney general determines that influence is being exerted on a child victim of sexual abuse to change the child victim's testimony, the department or the district attorney general may proceed under part 1 of this chapter.

Acts 1973, ch. 81, § 1; 1977, ch. 482, § 9; 1980, ch. 776, §§ 1, 2; T.C.A., § 37-1205; Acts 1985, ch. 478, §§ 33, 41.

Cross-References. Termination of parental rights, §§ 36-1-113, 37-1-147.

Rule Reference. Sections 37-1-401 — 37-1-411 are referred to in Rule 13 of the Rules of the Supreme Court of Tennessee.

NOTES TO DECISIONS

1. Videotaped Interviews.

Ex parte videotape interviews under this section are not designed to take the place of depositions in criminal cases as authorized by Tenn. R. Crim. P. 15. State v. Pilkey, 776 S.W.2d 943, 1989 Tenn. LEXIS 395 (Tenn. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 426 (1989), cert. denied, Pilkey v. Tennessee, 494 U.S. 1032, 110 S. Ct. 1483, 108 L. Ed. 2d 619, 1990 U.S. LEXIS 1318 (1990), cert. denied, Tennessee v. Pilkey, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1305 (1990), cert. denied, In re Disbarment of Marcone, 108 L. Ed. 2d 967, 110 S. Ct. 1839, 494 U.S. 1092, 1990 U.S. LEXIS 1998 (1990).

37-1-406. Availability for receiving reports — Commencement of investigations — Examination and observation of child — Reports — Services provided — Investigators — Interpreter for child who is deaf or hard of hearing.

  1. The department shall be capable of receiving and investigating reports of child abuse twenty-four (24) hours a day, seven (7) days a week. The county office shall make a thorough investigation promptly after receiving either an oral or written report of harm. All representatives of the child protective services agency shall, at the initial time of contact with the individual who is subject to a child abuse and neglect investigation, advise the individual of the complaints or allegations made against the individual consistent with laws protecting the rights of the informant. If it appears that the immediate safety or well being of a child is endangered, that the family may flee or the child will be unavailable, or that the facts otherwise warrant, the department shall commence an investigation immediately, regardless of the time of day or night. In the event the report involves child sexual abuse, the department shall follow the procedures outlined in subsection (b).
  2. In cases involving child sexual abuse, the investigation shall be conducted by a child protective investigation team as defined in § 37-1-602 relative to child sexual abuse pursuant to the provisions of § 37-1-606. In the event an immediate investigation has been initiated, the department shall notify the child protection team as soon as possible and the team shall proceed with the investigation in accordance with the provisions of chapter 478 of the Public Acts of 1985. Other cases of child abuse may be investigated by the team in the discretion of each individual team.
  3. All private schools, as defined by § 49-6-3001, church-related schools, as defined by § 49-50-801, and state, county and local agencies shall give the team access to records in their custody pertaining to the child and shall otherwise cooperate fully with the investigation.
  4. The investigation shall include:
    1. The nature, extent and cause of the harm, including a determination of whether there exists a threat of harm, and the nature and extent of any present or prior injuries or abuse;
    2. The identity of the person responsible for it;
    3. The nature and extent of any previous allegations, complaints, or petitions of abuse or dependency and neglect against the parent or person responsible for the care of the child;
    4. The names and conditions of the other children in the home;
    5. An evaluation of the parents or persons responsible for the care of the child, the home environment, and the relationship of each child to the parents or persons responsible for such child's care;
    6. The identity of any other persons in the same household;
    7. The identity of any other children in the care of any adult residing in the household; and
    8. All other pertinent data.
  5. The investigation shall include a visit to the child's home, an interview with and the physical observation of the child, an interview with and the physical observation of any other children in the child's home, and an interview with the parent or parents or other custodian of the child and any other persons in the child's home. If the investigator deems it necessary, the investigation shall also include medical, psychological or psychiatric examinations of the child and any other children in the child's home or under the care of any person alleged to have permitted or caused abuse, neglect or sexual abuse to the child. If the investigator determines, based on a visit to the child's home, observation of and interview with the subject child, and interview with other persons in the child's home, that the report of harm was wholly without substance, the investigator may determine that physical and psychological examinations of the subject child are unnecessary, in which case they will not be required. If admission to the home, school, or any place where the child may be, or permission of the parents or persons responsible for the child's care for the physical and psychological or psychiatric examinations cannot be obtained, the juvenile court, upon cause shown, shall order the parents or person responsible for the care of the child or the person in charge of any place where the child may be, to allow entrance for the interview, examination, and investigation. If the report of harm indicates that the abuse, neglect or sexual abuse occurred in a place other than the child's home, then, in the discretion of the investigator, the investigation may include a visit to the location where the incident occurred or a personal interview with the child and the parents or other custodians in another location instead of a visit to the child's home.
  6. Any person required to investigate cases of child abuse may take or cause to be taken photographs of the areas of trauma visible on a child who is the subject of a report and of any objects or conditions in the child's home or surroundings that could have caused or contributed to the harm to the child. If the nature of the child's injuries indicate a need for immediate medical examination or treatment, the investigator may take or cause the child to be taken for diagnosis to a licensed physician or an emergency department in a hospital without the consent of the child's parents, legal guardian or legal custodian. Any licensed physician who, based on information furnished by the investigator, the parents or other persons having knowledge of the situation, or the child, or on personal observation of the child, suspects that an injury was the result of child abuse, may authorize appropriate examinations to be performed on the child without the consent of the child's parent, legal guardian or legal custodian.
  7. At the initial investigation of child abuse and at any subsequent investigation as deemed appropriate by the investigator, audio or videotape recording may be taken of the traumatized victim. Such tape shall be admissible as evidence in cases of child sexual abuse if it meets the standards established in title 24 for the use of recorded statements. Regardless of whether such recording is used in evidence, it shall be made available for use as provided in § 37-1-405(b)(2).
  8. The investigator shall interview the child outside the presence of the parent(s) or other persons allegedly responsible for the harm and, wherever possible, shall interview the child in a neutral setting other than the location where the alleged abuse occurred.
  9. No later than sixty (60) days after receiving the initial report, the department or team in cases of child sexual abuse or the department in all other cases shall determine whether the reported abuse was indicated or unfounded and report its findings to the department's abuse registry. Each member of the team shall be provided with a copy of the report in any case investigated by the team. In any case investigated solely by the department, the department shall make a complete written investigation report, including its recommendation, to the juvenile court. The district attorney general shall also be provided a copy of any report in all cases where the investigation determines that the report was indicated. Further proceedings shall be conducted pursuant to part 1 of this chapter, as appropriate.
  10. If the department or team in cases of child sexual abuse or the department in all other cases determines that the protection of the child so requires, the department shall provide or arrange for services necessary to prevent further abuse, to safeguard and enhance the welfare of children, and to preserve family life. Such services may include provision for protective shelter, to include room and board; medical and remedial care; day care; homemaker; caretaker; transportation; counseling and therapy; training courses for the parents or legal guardian; and arranging for the provision of other appropriate services. All such services shall be provided when appropriate within the limits of available resources. These services shall first be offered for the voluntary acceptance by the parent or other person responsible for the care of the child, unless immediate removal is needed to protect the child. At any point if the department or team in cases of child sexual abuse or the department in all other cases deems that the child's need for protection so requires, it may proceed with appropriate action under part 1 of this chapter.
  11. If the investigator, as a result of the investigation, determines that there is cause to classify the report of severe abuse as indicated rather than unfounded, the team in cases of child sexual abuse or the department in all other cases may recommend that criminal charges be filed against the alleged offender. Any interested person who has information regarding the offenses may forward a statement to the district attorney general as to whether such person believes prosecution is justified and appropriate. Within fifteen (15) days of the completion of the district attorney general's investigation of a report of severe abuse, the district attorney general shall advise the department or team whether or not prosecution is justified and appropriate, in the district attorney general's opinion, in view of the circumstances of the specific case.
  12. The legislative intent of this section is to protect the legal rights of the family in an investigation and to ensure that no activity occurs that compromises the department's child abuse investigation or any ongoing concurrent criminal investigation conducted by law enforcement.
    1. In jurisdictions that have implemented the multi-level response system, in addition to other investigative procedures under this section, local law enforcement officers and district attorneys general having jurisdiction shall assist the department, on request in writing, if the department determines that it is likely that the case may result in criminal prosecution or that a child protective services worker may be at risk of harm while investigating the following reports of harm:
      1. Any report of harm alleging facts that, if proved, would constitute severe child abuse as defined in § 37-1-102;
      2. Any report of harm alleging facts that, if proved, would constitute child sexual abuse as defined in § 37-1-602;
      3. Any report of harm alleging facts that, if proved, would constitute the following physical injuries to a child:
        1. Head trauma;
        2. Broken bones;
        3. Inflicted burns;
        4. Organic functional impairment, as defined by the department;
        5. Broken skin;
        6. Shaken baby syndrome;
        7. Defensive injuries;
        8. Injuries related to physical confinement; or
        9. Infants exposed to illegal narcotics, including methamphetamine;
      4. Any report of harm alleging facts that, if proved, would constitute the following types of neglect:
        1. A child left without supervision in a dangerous environment;
        2. Lack of food or nurturance resulting in a failure to thrive;
        3. Abandonment of a child under the age of eight (8);
        4. Lack of care that results in a life-threatening condition or hospitalization; or
        5. Inaction of the parent resulting in serious physical injury;
      5. Any report of harm alleging facts that would result in the removal of a child from the home pursuant to department policy or rule;
      6. Any report of harm alleging facts that involve a caretaker at any institution, including, but not limited to, any licensed day care center, public or private school, or hospital; or
      7. Any report of harm alleging facts that, if proved, would constitute any other class of injury identified by the department through policy or rule as necessitating investigation.
    2. If a local law enforcement agency or district attorney general assisting the department under this subsection (m) decides not to proceed with prosecution or terminates prosecution after undertaking it, the agency or district attorney general shall make a written report on a standardized check-off form developed by the department and the Tennessee district attorneys general conference to the department and the juvenile court on the basis for its decision. The department shall compile such reports and present them to the judiciary committee of the senate and the committee of the house of representatives having oversight over children and families as part of its report pursuant to the multi-level response system for children and families, compiled in chapter 5, part 6 of this title. The department shall make quarterly reports to local law enforcement agencies and district attorneys general as to the number and types of cases the department is handling in their jurisdictions on the basis of reports of harm or sexual abuse or of children at risk of being so harmed or sexually abused.
  14. If the report of child abuse alleges physical abuse, it shall be in the best interest of the child that the child be referred to a child advocacy center or that the investigation be conducted by a child protective services investigator who is adequately trained in investigating physical abuse reports.  Under no circumstances shall the investigation be performed by a probation officer previously assigned to the child.
    1. Any investigator or law enforcement officer who is investigating a possible domestic abuse or child abuse incident that may have involved or occurred in the presence of a child who is deaf or hard of hearing shall not use the child's parent or family member as an interpreter. The investigator or officer shall instead communicate with the child who is deaf or hard of hearing using an interpreter trained as a sign language interpreter.
    2. The interpreter may interpret from a remote location by communicating with the child using video remote interpreting. If the child is unable to understand, then a live, qualified interpreter from the list identified in subdivision (o)(3) shall be used. The communication shall occur outside the presence of the child's parent, other family members, or potential abusers.
    3. Law enforcement agencies shall maintain a list of interpreters developed from a list provided by the Tennessee council for the deaf, deaf-blind, and hard of hearing.

Acts 1985, ch. 478, § 41; 1987, ch. 145, §§ 6, 7, 18, 19, 21, 31; 1988, ch. 964, § 2; 2004, ch. 740, §§ 2, 3; 2005, ch. 391, § 10; 2009, ch. 336, § 1; 2011, ch. 410, § 3(e); 2012, ch. 888, § 1; 2013, ch. 236, § 21; 2015, ch. 231, § 1; 2019, ch. 329, § 1; 2019, ch. 345, § 35; 2019, ch. 510, § 1, 2.

Compiler's Notes. For codification of Acts 1985, ch. 478, see Session Law Disposition Tables in Volume 13.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2015 amendment added (o).

The 2019 amendment by ch. 329 substituted “child who is deaf or hard of hearing” for “hearing-impaired child” twice in (o)(1).

The 2019 amendment ch. 345 substituted “the committee of the house of representatives having oversight over children and families” for “the civil justice committee of the house of representatives” in (m)(2).

The 2019 amendment by. ch. 510 added (d)(3); and in (e), inserted “the” preceding “physical”, and inserted “, an interview with and the physical observation of any other children in the child's home” following “the child”.

Effective Dates. Acts 2015, ch. 231, § 2. April 21, 2015.

Acts 2019, ch. 329, § 9. May 8, 2019.

Acts 2019, ch. 345, § 148. May 10, 2019.

Acts 2019, ch. 510, § 7. June 3, 2019.

Cross-References. Child sexual abuse, title 37, ch. 1, part 6.

Examination of sexually abused children, § 37-1-609.

Rule Reference. Sections 37-1-401 — 37-1-411 are referred to in Rule 13 of the Rules of the Supreme Court of Tennessee.

Law Reviews.

Better Protection for the Defenseless — Tennessee's Revised Mandatory Child Abuse Reporting Statute, 4 Mem. St. U.L. Rev. 585 (1973).

Attorney General Opinions. DCS authority to reverse child protection team determination of sexual abuse.  OAG 10-101, 2010 Tenn. AG LEXIS 103 (10/1/10).

NOTES TO DECISIONS

1. Videotaped Interviews.

Ex parte videotape interviews under this section are not designed to take the place of depositions in criminal cases as authorized by Tenn. R. Crim. P. 15. State v. Pilkey, 776 S.W.2d 943, 1989 Tenn. LEXIS 395 (Tenn. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 426 (1989), cert. denied, Pilkey v. Tennessee, 494 U.S. 1032, 110 S. Ct. 1483, 108 L. Ed. 2d 619, 1990 U.S. LEXIS 1318 (1990), cert. denied, Tennessee v. Pilkey, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1305 (1990), cert. denied, In re Disbarment of Marcone, 108 L. Ed. 2d 967, 110 S. Ct. 1839, 494 U.S. 1092, 1990 U.S. LEXIS 1998 (1990).

2. Retaliation.

Where parents and a student alleged that a principal made Department of Children's Services reports in retaliation for the parents'  disability accommodation requests, the retaliation claims under the Rehabilitation Act of 1973 and the Americans with Disabilities Act survived because: (1) The actions of the principal in making the reports constituted adverse action, (2) The evidence, including both temporal proximity and evidence calling into question the truthfulness of the reports themselves, was sufficient to meet the minimal burden to put forth evidence permitting a reasonable inference of causation, and (3) They presented sufficient evidence of pretext. A.C. v. Shelby County Bd. of Educ., 711 F.3d 687, 2013 FED App. 86P, 2013 U.S. App. LEXIS 6426 (6th Cir. Apr. 1, 2013).

3. “Indicated.”

Foster parents were properly indicated as perpetrators of abuse or neglect and their due process rights were not violated because the preponderance of the evidence supported an administrative law judge's ultimate conclusion that they did not properly supervise the children after finding a seven-year old fondling his three-year old brother's genitals, the foster parents were provided with adequate notice of the facts, and the executive action did not shock the conscience. Fitzpatrick v. State Dep't of Children's Servs., — S.W.3d —, 2014 Tenn. App. LEXIS 151 (Tenn. Ct. App. Mar. 18, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 680 (Tenn. Sept. 22, 2014).

Collateral References.

Physical abuse of child by parent as ground for termination of parent's right to child. 53 A.L.R.3d 848.

37-1-407. Guidelines for child safety training programs.

By January 1, 2019, the department shall develop instructional guidelines for child safety training programs for members of professions that frequently deal with children who may be at risk of abuse, which programs include the common signs of child abuse, human trafficking when a child is the victim, and child sexual abuse; how to identify children at risk of abuse, human trafficking, or sexual abuse; and the reporting requirements of this part. The department shall work with each licensing board to ensure that any child safety training program created by a licensing board fully and accurately reflects the best practices for identifying and reporting child abuse, human trafficking when a child is the victim, and child sexual abuse as appropriate for each profession.

Acts 2018, ch. 964, § 1.

Compiler's Notes. Former § 37-1-407 (Acts 1977, ch. 343, § 4; 1978, ch. 886, § 3; T.C.A., § 37-1207; Acts 1996, ch. 1079, § 73), concerning child abuse review teams, was repealed by Acts 2009, ch. 238, § 1, effective May 20, 2009.

Effective Dates. Acts 2018, ch. 964, § 2. May 15, 2018.

37-1-408. Development of guidelines for identifying and reporting signs of child abuse, child sexual abuse, and human trafficking of children — Annual child abuse training program for teachers.

  1. By January 1, 2019, the department of children's services shall develop guidelines on the best practices for identifying and reporting signs of child abuse, child sexual abuse, and human trafficking in which the victim is a child. The department of education shall use the guidelines to identify child abuse training programs appropriate for teachers. The programs identified by the department of education must train teachers on the common signs of child abuse, child sexual abuse, and human trafficking in which the victim is a child; how to identify children at risk of abuse, sexual abuse, or human trafficking; maintenance of professional and appropriate relationships with students; and the requirements for reporting suspected child abuse and sexual misconduct.
  2. Beginning with the 2019-2020 school year, each LEA and each public charter school shall ensure its teachers complete a child abuse training program identified by the department of education pursuant to subsection (a), or a training program that meets the guidelines established by the department of children's services pursuant to subsection (a), as part of the teacher's annual in-service training. Each LEA and each public charter school shall annually report its compliance with this section to the department of education.

Acts 2018, ch. 983, § 1.

Compiler's Notes. Former § 37-1-408 (Acts 1973, ch. 81, § 1; 1977, ch. 343, § 4; T.C.A., §§ 37-1207, 37-1208; Acts 1985, ch. 478, § 40; 1987, ch. 145, §§ 22, 28-30, 32; 1988, ch. 964, § 1; 1992, ch. 833, § 1; 1996, ch. 1079, § 73), concerning the screening of child care providers by the state registry, was repealed by Acts 2000, ch. 981, § 17, effective July 1, 2000.

Effective Dates. Acts 2018, ch. 983, § 2. May 21, 2018.

37-1-409. Reports confidential — Authorized access to information — Penalty for violation.

    1. Except as otherwise provided by this section and §§ 37-1-612 and 37-5-107, reports of harm made under this part and the identity of the reporter are confidential, except when the juvenile court in which the investigation report is filed, in its discretion, determines the testimony of the person reporting to be material to an indictment or conviction.
    2. Except as may be ordered by the juvenile court as herein provided, the name of any person reporting child abuse shall not be released to any person, other than employees of the department or other child protection team members responsible for child protective services, the abuse registry, or the appropriate district attorney general upon subpoena of the Tennessee bureau of investigation, without the written consent of the person reporting. Such person's identity shall be irrelevant to any civil proceeding and shall, therefore, not be subject to disclosure by order of any court. This shall not prohibit the subpoenaing of a person reporting child abuse when deemed necessary by the district attorney general or the department to protect a child who is the subject of a report; provided, that the fact that such person made the report is not disclosed.
  2. Except as otherwise provided in this part, it is unlawful for any person, except for purposes directly connected with the administration of this part, to disclose, receive, make use of, authorize or knowingly permit, participate in, or acquiesce in the use of any list or the name of, or any information concerning, persons receiving services pursuant to this part, or any information concerning a report or investigation of a report of harm under this part, directly or indirectly derived from the records, papers, files or communications of the department or divisions thereof acquired in the course of the performance of official duties.
  3. In addition to such other purposes as may be directly connected with the administration of this part, the department shall also grant access to information to those persons specified in § 37-1-612.
  4. The department may confirm whether a child abuse or neglect investigation has been commenced, but may not divulge, except as permitted under this part, any details about the case, including, but not limited to, the name of the reporter, the alleged victim, or the alleged perpetrator.
  5. The department shall adopt such rules as may be necessary to carry out the following purposes:
    1. The establishment of administrative and due process procedures for the disclosure of the contents of its files and the results of its investigations for the purpose of protecting children from child sexual abuse, physical abuse, emotional abuse, or neglect; and
    2. For other purposes directly connected with the administration of this chapter, including, but not limited to, cooperation with schools, child care agencies, residential and institutional child care providers, child protection agencies, individuals providing care or protection for the child, medical and mental health personnel providing care for the child and the child's family and the perpetrator of any form of child abuse or neglect, law enforcement agencies, the judicial and correctional systems, and for cooperation with scientific and governmental research on child abuse and neglect.
  6. Except as specifically provided in this chapter, nothing in this chapter shall prevent the department from sharing information with the district attorney general and law enforcement personnel for the purpose of cooperating with a law enforcement investigation. Information from departmental records that is shared with the district attorney general or law enforcement by the department shall remain confidential to the same extent that information not shared with the district attorney general and law enforcement is confidential. Unless otherwise ordered by a court, or to the extent that such information is used for criminal prosecution, or to the extent required under the Tennessee rules of criminal procedure after criminal charges have been filed, any portion of shared information that does not become part of a court record shall remain confidential to the same extent as information not shared by the department remains confidential.
  7. A violation of this section is a Class B misdemeanor.

Acts 1973, ch. 81, § 1; 1977, ch. 343, § 4; Acts 1978, ch. 886, § 4; T.C.A., §§ 37-1208, 37-1209; Acts 1985, ch. 478, § 42; 1987, ch. 145, §§ 15, 23; 1988, ch. 964, § 3; 1989, ch. 591, § 112; 2000, ch. 981, § 51; 2005, ch. 391, § 11; 2008, ch. 1146, § 3; 2009, ch. 358, § 3.

Cross-References. Child sexual abuse autopsy reports exempted from confidentiality requirements, § 37-1-403.

Confidentiality of child sexual abuse records and reports, § 37-1-612.

Confidentiality of public records, § 10-7-504.

Penalty for Class B misdemeanor, § 40-35-111.

Rule Reference. Sections 37-1-401 — 37-1-411 are referred to in Rule 13 of the Rules of the Supreme Court of Tennessee.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VIII. Child Abuse (Neil P. Cohen), 45 Tenn. L. Rev. 493 (1978).

Attorney General Opinions. Confidentiality of department of children's services complaints. OAG 13-93, 2013 Tenn. AG LEXIS 108 (11/27/13).

NOTES TO DECISIONS

1. Exceptions.

In a § 1983 action against DHS, DCS and several individuals, balancing of the need for confidentiality, as evidenced by this section, against the need for accurate fact finding led the court to amend the magistrate's protective order so as to allow disclosure of child abuse records by DHS and DCS to the parties and counsel in the action. Farley v. Farley, 952 F. Supp. 1232, 1997 U.S. Dist. LEXIS 1691 (M.D. Tenn. 1997).

Because all of the electronically stored information data from the Tennessee Department of Mental Health and Developmental Disabilities'  and the Department of Children's Services'  incident reporting data and another database contained highly relevant information on defendants'  violation of federal law and plaintiffs'  federal constitutional rights and because an appropriate protective order for discovery and trial could avoid disclosures of the identities of the children, doctors and other protected persons, under Fed. R. Evid. 501, the state law privileges under T.C.A. §§ 37-1-409(a)(2), 37-1-615(b), 37-5-107, 37-1-612, 37-2-408, 36-1-125, 36-1-126, 36-1-138 did not bar discovery. John B. v. Goetz, 879 F. Supp. 2d 787, 2010 U.S. Dist. LEXIS 8821 (M.D. Tenn. Jan. 28, 2010).

2. Testimony.

Because a police Sergeant's testimony was confidential under T.C.A. § 37-1-409, it should have been excluded. Strickland v. Strickland, — S.W.3d —, 2012 Tenn. App. LEXIS 899 (Tenn. Ct. App. Dec. 21, 2012).

Mother was prejudiced where an employee of the Department of Children's Services improperly divulged details of the investigation, which was confidential and inadmissible under the mandates of T.C.A. § 37-1-409 and the assertion that the mother's alleged coaching of the child was “child abuse” as contemplated in T.C.A. § 37-1-612(h), was only supported by the speculative remarks of the witness that she had a “concern” that there was a “possibility” that the child had been coached. Strickland v. Strickland, — S.W.3d —, 2012 Tenn. App. LEXIS 899 (Tenn. Ct. App. Dec. 21, 2012).

Trial court did not err in a termination of parental rights proceeding by permitting a case worker to testify as to the conditions observed in the home because, under the circumstances of the case, the Tennessee Department of Children's Services could provide otherwise confidential information to the court for the purpose of protecting the child from future neglect of the child by the parent. In re Kandace D., — S.W.3d —, 2018 Tenn. App. LEXIS 4 (Tenn. Ct. App. Jan. 8, 2018).

37-1-410. Immunity from civil or criminal liability for reporting abuse — Damages for employment change because of making report.

    1. IF a health care provider makes a report of harm, as required by § 37-1-403; AND

      IF the report arises from an examination of the child performed by the health care provider in the course of rendering professional care or treatment of the child; OR

      IF the health care provider who is highly qualified by experience in the field of child abuse and neglect, as evidenced by special training or credentialing, renders a second opinion at the request of the department or any law enforcement agency, whether or not the health care provider has examined the child, rendered care or treatment, or made the report of harm; THEN

      The health care provider shall not be liable in any civil or criminal action that is based solely upon:

      1. The health care provider's decision to report what the provider believed to be harm;
      2. The health care provider's belief that reporting the harm was required by law;
      3. The fact that a report of harm was made; or
      4. The fact that an opinion as described in this subdivision (a)(1) was requested and provided.
    2. For the purposes of this subsection (a), by providing a second opinion, a report, information or records at the request of the department or any law enforcement agency the health care provider has satisfied all requirements to make a report of harm as required by §§ 37-1-403 and 37-1-605.
    3. As used in this subsection (a), “health care provider” means any physician, osteopathic physician, medical examiner, chiropractor, nurse, hospital personnel, mental health professional or other health care professional.
    4. Nothing in this subsection (a) shall be construed to confer any immunity upon a health care provider for a criminal or civil action arising out of the treatment of the child about whom the report of harm was made.
      1. IF absolute immunity is not conferred upon a person pursuant to subdivision (a)(1); AND

        IF, acting in good faith, the person makes a report of harm, as required by § 37-1-403; THEN

        The person shall not be liable in any civil or criminal action that is based solely upon:

        1. The person's decision to report what the person believed to be harm;
        2. The person's belief that reporting the harm was required by law; or
        3. The fact that a report of harm was made.
      2. Because of the overriding public policy to encourage all persons to report the neglect of or harm or abuse to children, any person upon whom good faith immunity is conferred pursuant to this subdivision (a)(5) shall be presumed to have acted in good faith in making a report of harm.
    6. No immunity conferred pursuant to this subsection (a) shall attach if the person reporting the harm perpetrated or inflicted the abuse or caused the neglect.
    7. A person furnishing a report, information or records as required, requested, or authorized under this part shall have the same immunity and the same scope of immunity with respect to testimony such person may be required to give or may give in any judicial or administrative proceeding or in any communications with the department or any law enforcement official as is otherwise conferred by this subsection (a) upon the person for making the report of harm.
    8. If the person furnishing a report, information or records during the normal course of the person's duties as required or authorized or requested under this part is different from the person originally reporting the harm, then the person furnishing the report, information or records shall have the same immunity and the same scope of immunity with respect to testimony the person may be required to give or may give in any judicial or administrative proceeding or in any communications with the department or any law enforcement official as is otherwise conferred by this subsection (a) upon the person who made the original report of harm.
  2. Any person reporting under this part shall have a civil cause of action against any person who causes a detrimental change in the employment status of the reporting party by reason of the report.

Acts 1973, ch. 81, § 1; 1977, ch. 343, §§ 3, 4; T.C.A., §§ 37-1209, 37-1210; Acts 2001, ch. 351, § 2; 2008, ch. 1060, § 1.

Cross-References. Immunity from liability for reporting child sexual abuse, § 37-1-613.

Rule Reference. Sections 37-1-401 — 37-1-411 are referred to in Rule 13 of the Rules of the Supreme Court of Tennessee.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 27.71.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VIII. Child Abuse (Neil P. Cohen), 45 Tenn. L. Rev. 493 (1978).

NOTES TO DECISIONS

1. Immunity.

T.C.A. § 37-1-410(a) did not afford immunity to the physician unless he informed the caseworker and the detective that the x-rays and CT scan of the child indicated child abuse; the determination of whether the physician reported suspected child abuse and thus was entitled to summary judgment involved a disputed issue of material fact precluding summary judgment. Draper v. Westerfield, 181 S.W.3d 283, 2005 Tenn. LEXIS 824 (Tenn. 2005).

Where parents and a student alleged that a principal made Department of Children's Services reports in retaliation for the parents'  disability accommodation requests, the retaliation claims under the Rehabilitation Act of 1973 and the Americans with Disabilities Act survived because: (1) The actions of the principal in making the reports constituted adverse action, (2) The evidence, including both temporal proximity and evidence calling into question the truthfulness of the reports themselves, was sufficient to meet the minimal burden to put forth evidence permitting a reasonable inference of causation, and (3) They presented sufficient evidence of pretext. A.C. v. Shelby County Bd. of Educ., 711 F.3d 687, 2013 FED App. 86P, 2013 U.S. App. LEXIS 6426 (6th Cir. Apr. 1, 2013).

37-1-411. Evidentiary privileges not applicable to child abuse cases.

Neither the husband-wife privilege as preserved in § 24-1-201, nor the psychiatrist-patient privilege as set forth in § 24-1-207, nor the psychologist-patient privilege as set forth in § 63-11-213 is a ground for excluding evidence regarding harm or the cause of harm to a child in any dependency and neglect proceeding resulting from a report of such harm under § 37-1-403 or a criminal prosecution for severe child abuse.

Acts 1973, ch. 81, § 1; 1977, ch. 343, § 4; T.C.A., §§ 37-1210, 37-1211; Acts 1985, ch. 478, § 20.

Cross-References. Child sexual abuse, title 37, ch. 1, part 6.

Evidentiary privileges inapplicable in child sexual abuse cases, § 37-1-614.

Rule Reference. Sections 37-1-401 — 37-1-411 are referred to in Rule 13 of the Rules of the Supreme Court of Tennessee.

Law Reviews.

Hell Hath No Fury Like a Spouse Scorned — A Focus on Tennessee's Marital Privilege for Confidential Communications, 19 Mem. St. U.L. Rev. 57 (1989).

NOTES TO DECISIONS

1. Marital Communications.

The marital privilege does not apply to prevent the admission of testimony by a defendant's spouse concerning acts of violence or personal injury inflicted by the dependent upon the children of either spouse or upon minor children in the custody of or under the dominion and control of either spouse. Adams v. State, 563 S.W.2d 804, 1978 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1978).

Collateral References.

Admissibility of expert medical testimony on battered child syndrome. 98 A.L.R.3d 306.

37-1-412. Violation of duty to report — Power of juvenile court — Penalty.

    1. Any person who knowingly fails to make a report required by § 37-1-403 commits an offense.
      1. A violation of subdivision (a)(1) is a Class A misdemeanor.
      2. A second or subsequent violation of subdivision (a)(1) is a Class E felony.
    3. Any person who intentionally fails to make a report required by § 37-1-403 commits a Class E felony.
    1. A juvenile court having reasonable cause to believe that a person is guilty of violating this section may have the person brought before the court either by summons or by warrant. If the defendant pleads not guilty, the juvenile court judge shall bind the defendant over to the grand jury.
    2. If the defendant pleads guilty to a first offense under subdivision (a)(1) and waives, in writing, indictment, presentment, grand jury investigation, and trial by jury, the juvenile court judge shall sentence the defendant with a fine not to exceed two thousand five hundred dollars ($2,500).

Acts 1973, ch. 81, § 1; 1977, ch. 343, § 4; T.C.A., §§ 37-1211, 37-1-1212; Acts 1989, ch. 591, § 111; 2005, ch. 256, § 1; 2019, ch. 499, § 3.

Amendments. The 2019 amendment rewrote the section which read, “(a) Any person who knowingly fails to make a report required by § 37-1-403 commits a Class A misdemeanor.“(b) A juvenile court having reasonable cause to believe that a person is guilty of violating this section may have the person brought before the court either by summons or by warrant. If the defendant pleads not guilty, the juvenile court judge shall bind the defendant over to the grand jury. If the defendant pleads guilty and waives, in writing, indictment, presentment, grand jury investigation, and trial by jury, the juvenile court judge shall sentence the defendant under this section with a fine not to exceed two thousand five hundred dollars ($2,500).”

Effective Dates. Acts 2019, ch. 499, § 10. July 1, 2019.

Cross-References. Child abuse and neglect, penalty, § 39-15-401.

Penalty for Class A misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

Rule Reference. This section is referred to in Rule 1 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 7.1.

NOTES TO DECISIONS

1. Lesser Included Offense.

Trial court did not err by refusing to instruct the jury that a violation of the duty to report under this section was a lesser included offense of aggravated child neglect as charged because all of the elements of a violation of the duty to report were not included within the offense of aggravated child neglect. State v. Higgins, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 602 (Tenn. Crim. App. July 27, 2015).

Collateral References.

Physical abuse of child by parent as ground for termination of parent's right to child. 53 A.L.R.3d 848.

37-1-413. False reporting of child sexual abuse or false accusation that a child has sustained any wound, injury, disability or physical or mental condition caused by brutality, abuse or neglect — Penalty.

Any person who either verbally or by written or printed communication knowingly and maliciously reports, or causes, encourages, aids, counsels or procures another to report, a false accusation of child sexual abuse or false accusation that a child has sustained any wound, injury, disability or physical or mental condition caused by brutality, abuse or neglect commits a Class E felony.

Acts 1985, ch. 478, § 43; 1989, ch. 591, § 33; 2008, ch. 1171, § 1.

Cross-References. Penalty for Class E felony, § 40-35-111.

37-1-414. Persons working with children — Fingerprinting — Release of investigative and criminal records.

  1. A religious, charitable, scientific, educational, athletic or youth service institution or organization may require any person, who applies to work with children as a volunteer or as a paid employee, to do one (1) or more of the following:
    1. Agree to the release of all investigative records to such religious, charitable, scientific, educational, athletic, or youth service institution or organization for examination for the purpose of verifying the accuracy of criminal violation information contained on an application to work for such institution or organization;
    2. Supply fingerprint samples and submit to a criminal history records check to be conducted by the Tennessee bureau of investigation and the federal bureau of investigation; or
    3. Attend a comprehensive youth protection training program that includes adult training on recognition, disclosure, reporting and prevention of abuse and submit to character, employment, education and reference checks.
  2. Any costs incurred by the Tennessee bureau of investigation or the federal bureau of investigation in conducting such investigation of applicants shall be paid by the religious, charitable, scientific, educational, or athletic institution or organization requesting such investigation and information. Payment of such costs are to be made in accordance with the provisions of § 38-6-103.

Acts 1993, ch. 350, § 2; 1995, ch. 325, § 1; 2003, ch. 30, §§ 1, 2.

Part 5
Council of Juvenile and Family Court Judges

37-1-501. Creation and membership of council.

  1. There is created the Tennessee council of juvenile and family court judges, which shall be the official organization of the judges having juvenile and family court jurisdiction in this state.
  2. The membership of the council shall consist of all judges of juvenile courts in this state.

Acts 1972, ch. 833, § 1; 1983, ch. 131, § 1; T.C.A., § 37-278.

Cross-References. Representatives of council of juvenile and family court judges as ex officio members of child sexual abuse task force, § 37-1-603.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

37-1-502. Rules, regulations and by-laws — Officers — Recommending rules to supreme court — Development of plan to establish demonstration sites.

    1. The council is authorized to adopt and, from time to time, amend such rules, regulations or bylaws as it considers necessary for the conduct of its affairs.
    2. Such rules, regulations or bylaws may provide for such officers as the council considers advisable, for the method of selection of such officers, for the selection of a time and place within this state for annual meetings of the council, and for such other matters consistent with the general laws of the state as the council may choose.
    1. The council shall make recommendations to the supreme court as to rules governing the practice and procedure in juvenile courts of this state. The supreme court may consider the council's recommendations in prescribing rules as provided in § 16-3-402.
    2. Prior to submitting its recommended rules to the supreme court, the council shall send a draft of its recommendation to the commission on children and youth. The commission shall distribute the draft to state agencies that, in the commission's opinion, may be affected by the recommended rules, and the commission will be responsible for accumulating and transmitting the comments of such agencies promptly to the council, so that the comments can be taken into account by the council in an orderly manner when preparing its final proposal of rules to be submitted to the supreme court. Thereafter, the commission shall present such accumulated comments to the court in such manner as the court may provide for receiving comment upon the proposed rules.
  3. Notwithstanding any law to the contrary, the council shall assist the council on children's mental health care in developing a plan that will establish demonstration sites in certain geographic areas where children's mental health care is child-centered, family-driven, and culturally and linguistically competent and that provides a coordinated system of care for children's mental health needs in this state.

Acts 1972, ch. 833, § 2; 1982, ch. 790, § 1; T.C.A., § 37-279; Acts 2008, ch. 1062, § 7.

Compiler's Notes. For the Preamble to the act regarding to the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

37-1-503. Executive secretary of council.

The president of the council, with the approval of a majority of the executive committee, shall appoint an executive secretary, a staff attorney and such other personnel as may be necessary to conduct its affairs, whose specific duties and responsibilities shall be as prescribed by the council in its rules, regulations or bylaws.

Acts 1982, ch. 937, § 1; T.C.A., § 37-282; Acts 1998, ch. 892, § 1.

37-1-504. Annual meeting — Subject matter.

  1. The council shall meet annually for the consideration of any and all matters pertaining to the discharge of the official duties and obligations of its members, to the end that there shall be a more efficient and prompt administration of justice in the juvenile courts of this state, and to the end that the causes of dependency, neglect and delinquency of juveniles be consistently better understood and dealt with through the use of all available sources, including the resources of the departments of education, mental health and substance abuse services, intellectual and developmental disability, and children's services.
  2. It is the legislative intent and direction that the council actively pursue the ends and purposes set out in this section.

Acts 1972, ch. 833, § 3; impl. am. Acts 1975, ch. 219, § 1; impl. am. Acts 1975, ch. 248, § 1; T.C.A., § 37-280; Acts 1996, ch. 1079, § 73; imp. am. Acts 2000, ch. 947, § 6; 2010, ch. 1100, § 52; 2012, ch. 575, § 1.

Compiler's Notes. Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

37-1-505. Annual meeting — Expenses.

  1. It is the official duty of each member of the council to attend upon its meetings unless otherwise officially engaged, or for other good and sufficient reasons.
  2. Each member who attends the annual meeting or training sessions shall be compensated for the member's actual and reasonable expenses in attending such meeting or training sessions. Unless such funds are provided by the state, such expenses shall be paid upon a verified statement of expenses being filed with the county mayor by any member incurring such expenses. Expenses shall be paid by the trustee upon warrant of the county mayor from the general fund of the county in which the member serves as judge; provided, that funds for such purpose have been appropriated by the county legislative body.

Acts 1972, ch. 833, § 4; 1982, ch. 937, §§ 2, 3; 1983, ch. 387, § 1; T.C.A., § 37-281; Acts 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

37-1-506. Report and publishing of juvenile court information, including cases, informal adjustments, pretrial diversions and identifying information — Expungement of child's information upon order of expunction of charge that had resulted in probation or prevention services.

  1. The clerk of each juvenile court shall, each month, report to the executive secretary such information as the council may require concerning cases handled by such court, including, but not limited to, informal adjustments, appointment of counsel, pretrial diversions, and all other dispositions made by the court. Notwithstanding § 37-1-153 or any other law to the contrary, the council may require identifying information to be reported in order that the council may more accurately track recidivism rates and other pertinent trends relating to juveniles. Notwithstanding any law to the contrary, identifying information received by the council shall be confidential; shall not be published, released, or otherwise disseminated; and shall be maintained in accordance with state and federal laws and regulations regarding confidentiality. The council shall publish data and make such data available to properly concerned agencies and individuals, or to any person upon request. Any such publication or release of data shall be limited to nonidentifying information. The council shall develop guidelines and procedures to expunge identifying information collected on juveniles; provided, that such expunction shall occur only after the juvenile reaches the age that is beyond jurisdiction of the juvenile court.
  2. On or before September 1 of each year, the clerk of each juvenile court operating county probation programs shall furnish to the department the names and birthdates of all children receiving county probation services, and the length of probation for each child. Upon receipt of an order of expunction of the charge for which the child was placed on county probation, the department shall expunge that child's information from its records.
  3. On or before September 1 of each year, the clerk of each juvenile court receiving prevention grants or other prevention funding through the department shall furnish to the department the names and birthdates of all children receiving prevention services, the amount of time each child was provided services, and the percentage of prevention services provided that are evidence-based for the previous fiscal year. Upon receipt of an order of expunction of the charge for which the child received prevention services, the department shall expunge that child's information from its records.
    1. Except as provided in subdivision (d)(2), nothing in this section shall be construed to mandate any change in a county's decision regarding the division of reporting responsibility between the juvenile court clerk and the youth services officer or any other juvenile court staff member.
    2. Notwithstanding this section to the contrary, in counties with a youth services officer, the youth services officer shall be responsible for furnishing the information to the department required by subsections (b) and (c).

Acts 1982, ch. 937, § 1; T.C.A., § 37-283; Acts 1990, ch. 1024, § 19; 1999, ch. 264, §§ 1, 2; 2016, ch. 1005, § 2; 2017, ch. 140, § 1; 2018, ch. 1052, § 52.

Compiler's Notes. Acts 2018, ch. 1052, § 1 provided that the act, which enacted this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2016 amendment added (b) and (c); and redesignated former (b) as present (d).

The 2017 amendment added (d)(2); and, in (d)(1), added “Except as provided in subdivision (d)(2),” at the beginning and added “or any other juvenile court staff member” at the end.

The 2018 amendment, in (a), inserted “appointment of counsel,”, substituted “shall” for “may” preceding “publish data”, and substituted “nonidentifying” for “non-identifying” following “shall be limited to”.

Effective Dates. Act 2016, ch. 1005, § 3. July 1, 2016.

Acts 2017, ch. 140, § 2. July 1, 2017.

Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Cross-References. Confidentiality of public records, § 10-7-504.

37-1-507. Program to reimburse counties for costs of inpatient mental health evaluations, examinations and detention of juveniles charged as adults — Rules and regulations.

  1. The council of juvenile and family court judges is authorized to establish and administer a program to reimburse counties for the costs associated with inpatient mental health evaluations and examinations conducted on juveniles charged with an offense which would constitute a felony if committed by an adult. Such a program is subject to available state funding and may include full or partial reimbursements to counties for the costs of inpatient mental health examinations or evaluations ordered by a juvenile court judge, as well as the costs of transportation of the child for a mental health examination or evaluation. The program may also include reimbursement to counties for costs of detention incurred pursuant to § 37-1-116(f) for the purposes of obtaining an outpatient evaluation or examination at a detention facility located in another county.
  2. The council may adopt rules and regulations governing such a reimbursement program pursuant to § 37-1-502.

Acts 2009, ch. 593, § 1.

Part 6
Child Sexual Abuse

37-1-601. Prevention of child sexual abuse deemed priority of state — Comprehensive approach — Purpose and construction of part.

  1. The general assembly finds and declares that:
    1. The incidence of child sexual abuse has a tremendous impact on the victimized child, siblings, family structure, and inevitably on all citizens of this state;
    2. The detection, intervention, prevention and treatment of child sexual abuse, including a focus on the sexual abuse that occurs within the home, shall be a priority of this state;
    3. Sexual abuse in any form is destructive to the physical and mental health of a child;
    4. Ninety-three percent (93%) of all sexual abuse is inflicted by a family member or acquaintance in the child's home environment;
    5. It is necessary that curriculum addressing sexual abuse include a focus on the in-home abuse; and
    6. A comprehensive approach for the detection, intervention, prevention and treatment of child sexual abuse, including such abuse that may occur in the home, should be developed for the state and that this planned, comprehensive approach should be used as a basis for funding.
  2. The purpose of this part shall be the same as that of part 4 of this chapter, and, except as may be expressly herein provided, the provisions of this part shall not be construed as repealing any provisions of part 4 of this chapter or of any other statute, but shall be supplementary thereto and cumulative thereof.

Acts 1985, ch. 478, § 2; 1987, ch. 145, § 1; 2014, ch. 706, § 2.

Compiler's Notes. Acts 2014, ch. 706, § 1 provided that this act shall be known and may be cited as “Erin's Law.”

Amendments. The 2014 amendment rewrote (a) which read: “The incidence of child sexual abuse has a tremendous impact on the victimized child, siblings, family structure, and inevitably on all citizens of this state, and has caused the general assembly to determine that the prevention of child sexual abuse shall be a priority of this state. To further this end, it is the intent of the general assembly that a comprehensive approach for the detection, intervention, prevention and treatment of child sexual abuse be developed for the state and that this planned, comprehensive approach be used as a basis for funding.”

Effective Dates. Acts 2014, ch. 706, § 4. July 1, 2014.

Cross-References. Access to Tennessee bureau of investigation computer registry files to verify criminal violation information of persons applying to work with children, § 38-6-109.

Competency of sexually abused child as witness in judicial proceedings, Tenn R. Evid. R. 601.

Courses in detection and treatment of child sexual abuse, § 49-7-117.

Criminal injuries compensation for child sexual abuse victims, §§ 29-13-106, 29-13-108.

Criminal injuries compensation fund privilege tax on persons committing sexual offenses upon children, § 40-24-107.

False reporting of child sexual abuse, § 37-1-413.

Offenders with severe impairments, title 33, ch. 6, part 3.

Notice to judge of child sexual abuse, § 37-1-405.

Physician, health personnel or institutional report of venereal disease, herpes or chlamydia in children, § 37-1-403.

Restraining orders, § 37-1-152.

Severe child abuse defined, § 37-1-102.

Sex crime prosecution units, § 8-7-109.

Sexual abuse treatment program for sex offenders, § 41-21-235.

Tennessee bureau of investigation central registry of sexual offenders, § 38-6-110.

Termination of parental rights for commission of aggravated rape upon child, § 37-1-147.

Termination of parental rights for severe child abuse, § 37-1-406.

Law Reviews.

Video Taping and the Tennessee Child Sexual Abuse Act of 1985 (Jerry N. Estes), 22 No. 5, Tenn. B.J. 29 (1986).

“The Politics of Protecting Children”: Panel Discussion 2: Litigation For Change (Jacqueline Dixon, Professor Dean Rivkin and Robert Schwartz),  7 Tenn. J. L. & Pol'y 218 (2011).

“The Politics of Protecting Children”: Panel Discussion 4: Best Practices In Representing Children in Court (The Honorable Timothy Irwin, Carlton Lewis and Dwight Stokes), 7 Tenn. J. L. & Pol'y 324 (2011).

“The Politics of Protecting Children”: Panel Discussion 3: Confronting Political and Economic Challenges (Representative Sherry Jones, Connie Steere and Mary Walker), 7 Tenn. J. L. & Pol'y 289 (2011).

“The Politics of Protecting Children”: Keynote Address Revisiting Luzerne County: Promoting Fairness, Transparency and Accountability In Juvenile Court (Robert Schwartz), 7 Tenn. J. L. & Pol'y 263 (2011).

Differential Response in Child Protection Services: Perpetuating the Illusion of Voluntariness  (Soledad A. McGrath), 42 U. Mem. L. Rev. 629 (2012).

37-1-602. Part definitions — Harm to child's health or welfare.

  1. For purposes of this part and §§ 8-7-109, 37-1-152, 37-1-403, 37-1-406, 37-1-413 and 49-7-117, unless the context otherwise requires:
    1. “Child care agency” is as defined in §§ 71-3-501 and 37-5-501;
    2. “Child protection team” means the investigation team created by § 37-1-607;
      1. “Child sexual abuse” means the commission of any act involving the unlawful sexual abuse, molestation, fondling or carnal knowledge of a child under thirteen (13) years of age that prior to November 1, 1989, constituted the criminal offense of:
        1. Aggravated rape under § 39-2-603 [repealed];
        2. Aggravated sexual battery under § 39-2-606 [repealed];
        3. Assault with intent to commit rape or attempt to commit rape or sexual battery under § 39-2-608 [repealed];
        4. Begetting child on wife's sister under § 39-4-307 [repealed];
        5. Crimes against nature under § 39-2-612 [repealed];
        6. Incest under § 39-4-306 [repealed];
        7. Promotion of performance including sexual conduct by minor under § 39-6-1138 [repealed];
        8. Rape under § 39-2-604 [repealed];
        9. Sexual battery under § 39-2-607 [repealed]; or
        10. Use of minor for obscene purposes under § 39-6-1137 [repealed];
      2. “Child sexual abuse” also means the commission of any act involving the unlawful sexual abuse, molestation, fondling or carnal knowledge of a child under thirteen (13) years of age that on or after November 1, 1989, constituted the criminal offense of:
        1. Aggravated rape under § 39-13-502;
        2. Aggravated sexual battery under § 39-13-504;
        3. Aggravated sexual exploitation of a minor under § 39-17-1004;
        4. Criminal attempt as provided in § 39-12-101 for any of the offenses in (a)(3)(B)(i)-(iii);
        5. Especially aggravated sexual exploitation of a minor under § 39-17-1005;
        6. Incest under § 39-15-302;
        7. Rape under § 39-13-503;
        8. Sexual battery under § 39-13-505; or
        9. Sexual exploitation of a minor under § 39-17-1003;
      3. “Child sexual abuse” also means one (1) or more of the following acts:
        1. Any penetration, however slight, of the vagina or anal opening of one (1) person by the penis of another person, whether or not there is the emission of semen;
        2. Any contact between the genitals or anal opening of one (1) person and the mouth or tongue of another person;
        3. Any intrusion by one (1) person into the genitals or anal opening of another person, including the use of any object for this purpose, except that it shall not include acts intended for a valid medical purpose;
        4. The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of either the child or the perpetrator, except that it shall not include:
          1. Acts that may reasonably be construed to be normal caretaker responsibilities, interactions with, or affection for a child; or
          2. Acts intended for a valid medical purpose;
        5. The intentional exposure of the perpetrator's genitals in the presence of a child, or any other sexual act intentionally perpetrated in the presence of a child, if such exposure or sexual act is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose;
        6. The sexual exploitation of a child, which includes allowing, encouraging, or forcing a child to:
          1. Solicit for or engage in prostitution; or
          2. Engage in an act prohibited by § 39-17-1003;
        7. The commission of any act towards the child prohibited by § 39-13-309; and
      4. For the purposes of the reporting, investigation, and treatment provisions of §§ 37-1-603 — 37-1-615 “child sexual abuse” also means the commission of any act specified in subdivisions (a)(3)(A)-(C) against a child thirteen (13) years of age through seventeen (17) years of age if such act is committed against the child by a parent, guardian, relative, person residing in the child's home, or other person responsible for the care and custody of the child;
    4. “Department” means the department of children's services;
    5. “Guardian ad litem” means a responsible adult who is appointed by the court to represent the best interests of a child in a proceeding as provided for by law, who shall be a party to any judicial proceeding as a representative of the child, and who shall serve until discharged by the court;
    6. “Institutional child sexual abuse” means situations of known or suspected child sexual abuse in which the person allegedly perpetrating the child sexual abuse is an employee of a public or private child care agency, public or private school, or any other person responsible for the child's care;
    7. “Mental injury” means an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the child's ability to function within the child's normal range of performance and behavior, with due regard to the child's culture; and
    8. “Other person responsible for a child's care or welfare” includes, but is not limited to, the child's legal guardian, legal custodian, or foster parent; an employee of a public or private child care agency, public or private school; or any other person legally responsible for the child's welfare in a residential setting.
  2. Harm to a child's health or welfare can occur when the parent or other person responsible for the child's welfare:
    1. Commits, or allows to be committed, child sexual abuse as defined in subdivisions (a)(3)(A)-(C); or
    2. Exploits a child under eighteen (18) years of age, or allows such child to be exploited, as provided in §§ 39-17-1003 — 39-17-1005.

Acts 1985, ch. 478, § 3; 1988, ch. 953, § 12; 1996, ch. 1079, § 73; 2000, ch. 981, §§ 51, 55; 2008, ch. 893, §§ 1, 2; 2017, ch. 292, § 3.

Compiler's Notes. Sections in title 39, chs. 1-6, referred to in this section, were repealed by Acts 1989, ch. 591.

Amendments. The 2017 amendment added (3)(C)(vii) in the definition of “child sexual abuse”.

Effective Dates. Acts 2017, ch. 292, § 4. July 1, 2017.

Cross-References. Severe child abuse defined, § 37-1-102.

NOTES TO DECISIONS

1. “Child Sexual Abuse.”

Trial court properly denied motion to exclude clergymen's testimony about defendant's confessions of sex with child victim; the privileged communication doctrine that applied to clergymen did not apply pursuant to T.C.A. § 37-1-602(a)(3)(D) because defendant resided in the victim's home, was responsible for the child's care and custody, and was acting as the victim's parent. State v. Workman, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 909 (Tenn. Crim. App. Dec. 13, 2011), review denied and ordered not published, — S.W.3d —, 2012 Tenn. LEXIS 569 (Tenn. Aug. 16, 2012).

If the order outlining the conditions that led to the removal of the child is pending appeal, that order is not res judicata, and until that order has reached its final completion, the prior order cannot form the basis alone for termination on any ground that contemplates reliance on a previous finding or order; because the current posture of the father's appeal from the order on dependency and neglect, where the juvenile court found the child was a victim of sexual abuse, could be determined, the trial court erred in terminating his rights on the ground of persistence of conditions. In re S.S.-G., — S.W.3d —, 2015 Tenn. App. LEXIS 917 (Tenn. Ct. App. Nov. 16, 2015).

Trial court stated only that the father had sexually abused the child, which constituted severe abuse, but the trial court's failure to include the specific statutory definitions that it relied upon prevented meaningful review; where the statute provides several possible definitions for a ground, the trial court must specify the exact definition that it relies upon in reaching its ultimate conclusion, and the termination of the father's rights on the ground of severe child abuse was vacated. In re S.S.-G., — S.W.3d —, 2015 Tenn. App. LEXIS 917 (Tenn. Ct. App. Nov. 16, 2015).

37-1-603. Comprehensive state plan.

  1. The department shall develop a state plan that encompasses and complies with the scope of all provisions of this part for the detection, intervention, prevention and treatment of child sexual abuse. The department of education and the state board of education shall participate and fully cooperate in the development of the state plan. Furthermore, appropriate state and local agencies and organizations shall be provided an opportunity to participate in the development of the state plan. Appropriate groups and organizations shall include, but not be limited to, community mental health centers; the juvenile courts; the school boards of the local school districts; private or public organizations or programs with recognized expertise in working with children who are sexually abused, physically abused, emotionally abused, or neglected and with expertise in working with the families of such children; private or public programs or organizations with expertise in maternal and infant health care; multi-disciplinary child protection teams; child care centers; and law enforcement agencies. The state plan to be provided to the general assembly, the appropriate committees and the governor shall include, as a minimum, the information required of the various groups in subsection (b).
  2. The development of the comprehensive state plan shall be accomplished in the following manner:
    1. The department of children's services shall establish a task force composed of representatives from the department of mental health and substance abuse services, department of intellectual and developmental disabilities, the commission on children and youth created by § 37-3-102, a child abuse agency as defined in § 37-5-501, a treatment resource as defined in § 33-1-101, and a local child service agency. Representatives of the departments of children's services, education, health, the Tennessee bureau of investigation, district attorneys general conference, Tennessee council of juvenile and family court judges, and local law enforcement agencies shall serve as ex officio members of the task force. The task force shall be responsible for:
      1. Developing a plan of action for better coordination and integration of the goals, activities, and funding of the department pertaining to the detection, intervention, prevention, and treatment of child sexual abuse in order to maximize staff and resources, including the effective utilization of licensure personnel in determining whether children are properly cared for and protected by the child care agencies licensed by the department of children's services or human services. The department shall develop ways not only to inform and instruct all personnel in the child care agencies in the detection, intervention, prevention and treatment of child sexual abuse, but shall develop ways for licensure personnel at least annually to require that all such agencies present a prevention program to the children enrolled in and cared for by the agency. Licensing staff shall provide training to such agencies if needed to assist them in presenting such a program and shall review and approve the materials to be presented. The department shall formulate an effective and efficient method for updating files of victims of child sexual abuse. The plan for accomplishing this end shall be included in the comprehensive state plan;
      2. Preparing the state plan for submission to the members of the general assembly and the governor. Such preparation shall include the cooperative plans as provided in this section and the plan of action for coordination and integration of departmental activities into one (1) comprehensive plan. The comprehensive plan shall include a section reflecting general conditions and needs, an analysis of variations based on population or geographic areas, identified problems, and recommendations for change; and
      3. Working with the specified agency in fulfilling the requirements of subdivisions (b)(2), (3), (4), (5) and (6);
    2. The department of education and the state board of education and the department of children's services shall work together in developing ways to inform and instruct appropriate school personnel and children in all school districts in the detection, intervention, prevention and treatment of child sexual abuse and in the proper action that should be taken in a suspected case of child sexual abuse. The plan for accomplishing this end shall be included in the comprehensive state plan;
    3. The departments of education and children's services, and the state board of education, shall work together on the enhancement or adaptation of curriculum materials to assist instructional personnel in providing instruction through a multi-disciplinary approach on the detection, intervention, prevention and treatment of child sexual abuse, including such abuse that may occur in the home, including, but not limited to, instruction provided as part of a family life curriculum pursuant to § 49-6-1304. The curriculum materials shall be geared toward a sequential program of instruction at progressional levels for kindergarten through grade twelve (K-12). Strategies for utilizing the curriculum shall be included in the comprehensive plan;
      1. The Jerry F. Agee Tennessee Law Enforcement Academy, the Tennessee peace officer standards and training commission, and the department of children's services shall work together in developing ways to inform and instruct appropriate local law enforcement personnel in the detection of child sexual abuse and in the proper action that should be taken in a suspected case of child sexual abuse:
        1. Guidelines shall be prepared establishing a standard procedure that may be followed by police agencies in the investigation of cases involving sexual abuse of children, including police response to, and treatment of, victims of such crimes;
        2. The course of training leading to the basic certificate issued by the Tennessee peace officer standards and training commission shall include adequate instruction in the procedures described in subdivision (b)(4)(A) and shall be included as a part of the in-service training requirement to be eligible for the salary supplement authorized in § 38-8-111;
        3. A course of study pursuant to such procedures for the training of specialists in the investigation of child sexual abuse cases shall be implemented by the Jerry F. Agee Tennessee Law Enforcement Training Academy. Officers assigned as investigation specialists for these crimes shall successfully complete their training;
        4. The peace officers standards and training commission may authorize the certification of officers under this section if the officers have received training meeting the criteria established in subdivision (b)(4)(A) from any other approved training course at sites other than the Jerry F. Agee Tennessee Law Enforcement Training Academy; and
        5. It is the intent of the general assembly to encourage the establishment of child sex crime investigation units in sheriffs' departments and police agencies throughout the state, which units shall include investigating crimes involving sexual abuse of children;
      2. The plan for accomplishing this end shall be included in the comprehensive state plan;
    5. The department of children's services shall work with other appropriate public and private agencies to emphasize efforts to educate the general public about the problem of and ways to detect, intervene in, prevent and treat child sexual abuse, and in the proper action that should be taken in a suspected case of child sexual abuse. Such plan shall include a method for publicizing and notifying the general public of the resources and agencies available to provide help and services for victimized children and their families. The plan for accomplishing this end shall be included in the comprehensive state plan; and
    6. The department of children's services and the joint task force on children's justice and child sexual abuse shall work together in developing a mechanism to inform and instruct judges with juvenile, divorce and criminal jurisdiction in the detection, intervention, prevention and treatment of child sexual abuse and in the proper action that should be taken in a known or suspected case of child sexual abuse. The plan for accomplishing this end shall be included in the comprehensive state plan.
    1. All budget requests submitted by the department of children's services, the department of education, or any other agency to the general assembly for funding of efforts for the detection, intervention, prevention, and treatment of child sexual abuse shall be based on the state comprehensive plan developed pursuant to this section.
    2. The department of children's services shall readdress the plan one (1) year following its initial presentation and at least biennially thereafter, and shall make necessary revisions. No later than January 31, 1987, and no later than January 31 of every uneven year thereafter, such revisions shall be submitted to the government operations committees of both houses of the general assembly and to the governor.

Acts 1985, ch. 478, § 4; 1987, ch. 145, § 27; 1988, ch. 953, § 13; 1989, ch. 278, § 36; 1996, ch. 1079, § 73; 2000, ch. 947, § 6; 2000, ch. 981, §§ 51, 56; 2009, ch. 238, § 2; 2010, ch. 1100, § 53; 2012, ch. 575, § 1; 2014, ch. 706, § 3; 2018, ch. 609, § 3; 2019, ch. 420, § 26.

Compiler's Notes. Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2014, ch. 706, § 1 provided that this act shall be known and may be cited as “Erin's Law.”

Acts 2018, ch. 609, § 4 provided that the act, which amended this section, shall apply to  the 2018-2019 school year and each school year thereafter.

Amendments. The 2014 amendment in (b)(3) added “, including such abuse that may occur in the home.” to the first sentence and substituted “kindergarten through grade twelve (K-12)” for “kindergarten (K) through grade six (6)” in the second sentence.

The 2018 amendment added “, including, but not limited to, instruction provided as part of a family life curriculum pursuant to § 49-6-1304” at the end of first sentence in (b)(3).

The 2019 amendment substituted “joint task force on children's justice and child sexual abuse” for “judicial council” near the beginning of (b)(6).

Effective Dates. Acts 2014, ch. 706, § 4. July 1, 2014.

Acts 2018, ch. 609, § 4. April 2, 2018.

Acts 2019, ch. 420, § 27. May 21, 2019.

37-1-604. Legislative intent relating to investigations, protective services and reports.

The intent of §§ 37-1-604 — 37-1-615 is to provide for the investigation of child sexual abuse by the child protection team, and to provide for comprehensive protective services for sexually abused children found in the state by requiring that reports of each sexually abused child be made to the department and the office of the district attorney general in an effort to prevent further harm to the child or any other children living in the home and to preserve the family life of the parents and children, to the maximum extent possible, by enhancing the parental capacity for adequate child care.

Acts 1985, ch. 478, § 5.

37-1-605. Reports of known or suspected child sexual abuse — Investigations — Notification to parents of abuse on school grounds or while under school supervision — Confidentiality of records.

  1. Any person including, but not limited to, any:
    1. Physician, osteopathic physician, medical examiner, chiropractor, nurse or hospital personnel engaged in the admission, examination, care or treatment of persons;
    2. Health or mental health professional other than one listed in subdivision (1);
    3. Practitioner who relies solely on spiritual means for healing;
    4. School teacher or other school official or personnel;
    5. Judge of any court of the state;
    6. Social worker, day care center worker, or other professional child care, foster care, residential or institutional worker;
    7. Law enforcement officer;
    8. Authority figure at a community facility, including any facility used for recreation or social assemblies, for educational, religious, social, health, or welfare purposes, including, but not limited to, facilities operated by schools, the boy or girl scouts, the YMCA or YWCA, the boys and girls club, or church or religious organizations; or
    9. Neighbor, relative, friend or any other person;

      who knows or has reasonable cause to suspect that a child has been sexually abused shall report such knowledge or suspicion to the department in the manner prescribed in subsection (b).

    1. Each report of known or suspected child sexual abuse pursuant to this section shall be made immediately to the local office of the department responsible for the investigation of reports made pursuant to this section or to the judge having juvenile jurisdiction or to the office of the sheriff or the chief law enforcement official of the municipality where the child resides. Each report of known or suspected child sexual abuse occurring in a facility licensed by the department of mental health and substance abuse services, as defined in § 33-2-403, or any hospital, shall also be made to the local law enforcement agency in the jurisdiction where such offense occurred. In addition to those procedures provided by this part, § 37-1-405 shall also apply to all cases reported hereunder.
    2. If a law enforcement official or judge becomes aware of known or suspected child sexual abuse, through personal knowledge, receipt of a report or otherwise, such information shall be reported to the department immediately and the child protective team shall be notified to investigate the report for the protection of the child in accordance with this part. Further criminal investigation by such official shall be appropriately conducted.
    3. Reports involving known or suspected institutional child sexual abuse shall be made and received in the same manner as all other reports made pursuant to this section.
  3. Any person required to report or investigate cases of suspected child sexual abuse who has reasonable cause to suspect that a child died as a result of child sexual abuse shall report such suspicion to the appropriate medical examiner. The medical examiner shall accept the report for investigation and shall report the medical examiner's findings, in writing, to the local law enforcement agency, the appropriate district attorney general, and the department. Autopsy reports maintained by the medical examiner shall not be subject to the confidentiality requirements provided for in § 37-1-612.
    1. Notwithstanding § 37-5-107 or § 37-1-612, if a school teacher, school official, or other school personnel has knowledge or reasonable cause to suspect that a child who attends the school may be a victim of child abuse or child sexual abuse sufficient to require reporting pursuant to this section, then the school teacher, school official, or other school personnel must follow the procedures outlined in § 49-6-1601.
    2. For purposes of this subsection (d), “school” means any public or privately operated child care agency, as defined in § 71-3-501; child care program, as defined in § 49-1-1102; preschool; nursery school; kindergarten; elementary school; or secondary school.

Acts 1985, ch. 478, § 6; 1987, ch. 145, §§ 2, 11; 1988, ch. 953, § 14; 1993, ch. 439, § 2; 1994, ch. 901, § 2; 2000, ch. 947, §§ 6, 8M; 2008, ch. 1011, § 2; 2009, ch. 283, §§ 4, 5; 2010, ch. 1100, § 54; 2012, ch. 575, § 1; 2014, ch. 761, § 1; 2020, ch. 708, § 3.

Compiler's Notes. Acts 2008, ch. 1011, § 4 provided that the state board of education, acting in consultation with the department of children's services, is authorized to promulgate rules and regulations to effectuate the purposes of the act. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Amendments. The 2014 amendment, deleted “or” at the end of (a)(7), added (a)(8) and redesignated former (a)(8) as present (a)(9).

The 2020 amendment rewrote (d)(1) which read: “Notwithstanding § 37-5-107 or § 37-1-612 or any other law to the contrary, if a school teacher, school official or any other school personnel has knowledge or reasonable cause to suspect that a child who attends such school may be a victim of child abuse or child sexual abuse sufficient to require reporting pursuant to this section and that the abuse occurred on school grounds or while the child was under the supervision or care of the school, then the principal or other person designated by the school shall verbally notify the parent or legal guardian of the child that a report pursuant to this section has been made and shall provide other information relevant to the future well-being of the child while under the supervision or care of the school. The verbal notice shall be made in coordination with the department of children's services to the parent or legal guardian within twenty-four (24) hours from the time the school, school teacher, school official or other school personnel reports the abuse to the department of children's services; provided, that in no event may the notice be later than twenty-four (24) hours from the time the report was made. The notice shall not be given to any parent or legal guardian if there is reasonable cause to believe that the parent or legal guardian may be the perpetrator or in any way responsible for the child abuse or child sexual abuse.”;  deleted former (d)(2) which read: “Once notice is given pursuant to subdivision (d)(1), the principal or other designated person shall provide to the parent or legal guardian all school information and records relevant to the alleged abuse or sexual abuse, if requested by the parent or legal guardian; provided, that the information is edited to protect the confidentiality of the identity of the person who made the report, any other person whose life or safety may be endangered by the disclosure, and any information made confidential pursuant to federal law or § 10-7-504(a)(4). The information and records described in this subdivision (d)(2) shall not include records of other agencies or departments.”; and redesignated former (d)(3) as present (d)(2) and inserted “; child care program, as defined in § 49-1-1102;”.

Effective Dates. Acts 2014, ch. 761, § 2. July 1, 2014.

Acts 2020, ch. 708, § 4. August 1, 2020.

Cross-References. Child Rape Protection Act of 2006, § 39-15-210.

Confidentiality of public records, § 10-7-504.

False reporting of child sexual abuse, § 37-1-413.

Penalty for failure to report child sexual abuse, § 37-1-615.

Physician, health personnel or institutional report of venereal disease in children, § 37-1-403.

Tennessee bureau of investigation central registry of sexual offenders, § 38-6-110.

Reporting by physicians performing elective abortions, § 39-15-210.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 501 of the Tennessee Rules of Evidence.

Textbooks. Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), Rule 501.

Law Reviews.

Tennessee's Adoption of the Planning-Operational Test for Determining Discretionary Function Immunity Under the Governmental Tort Liability Act, 60 Tenn. L. Rev. 633 (1993).

Attorney General Opinions. Duty of school officials to report student's sending of photographs depicting nudity of minor.  OAG 13-83, 2013 Tenn. AG LEXIS 84 (10/28/13).

NOTES TO DECISIONS

1. Civil Damage Liability.

Civil damage liability for failing to report complaints of child sexual abuse will only arise when it proximately causes injury to another. Jane Doe A v. Coffee County Bd. of Educ., 852 S.W.2d 899, 1992 Tenn. App. LEXIS 1019 (Tenn. Ct. App. 1992).

2. Child Custody Disputes.

Court rejected a mother's argument that finding a material change in circumstances based on one parent reporting the other for suspected child sexual abuse was against public policy because anyone, including a parent, was required by law to report a child's accusations of sexual abuse to the appropriate authorities; any concern about reporting allegations of child sexual abuse had to be balanced with the awareness that false accusations of such abuse can be a reprehensible tool against an ex-spouse, remarkable for its brutal effectiveness. Keisling v. Keisling, 196 S.W.3d 703, 2005 Tenn. App. LEXIS 747 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 474 (Tenn. 2006).

37-1-606. Departmental availability for receiving reports — Commencement of investigations — Institutional abuse.

  1. The department shall be capable of receiving and investigating reports of known or suspected child sexual abuse twenty-four (24) hours a day, seven (7) days a week. If it appears that the immediate safety or well-being of a child is endangered, that the family may flee or the child will be unavailable for purposes of conducting a child protective investigation, or that the facts otherwise so warrant, the department shall commence an investigation immediately, regardless of the time of day or night. In all other child sexual abuse cases, a child protective investigation shall be commenced within twenty-four (24) hours of receipt of the report.
  2. If, as a result of an investigation of a report of institutional child sexual abuse, the department removes children under its care from such institution, the department shall notify parents who have children enrolled in such institution on such date of its action. The institution's records shall be utilized to obtain such information. The notification shall be sufficient if it states that children under the care of the department are being removed. If the department validates child sexual abuse in such institution or revokes or suspends the license of a child care agency as a result of child sexual abuse occurring in the agency, the department, in accordance with administrative and due process rules, shall notify the parents of the children accordingly.

Acts 1985, ch. 478, § 7; 1987, ch. 145, §§ 3, 4; 1988, ch. 953, §§ 15-17; 2000, ch. 981, § 51.

Compiler's Notes. Former subdivisions (a)(2) and (4), concerning reports and investigations of child sexual abuse, were transferred to § 37-1-607(b)(2) and (3) in 1987.

Cross-References. Admissibility into evidence of audio-visually recorded testimony in child sexual abuse proceedings, § 24-7-117.

Child sexual abuse autopsy reports exempted from confidentiality requirements, § 37-1-403.

Protective custody of child by hospital or physician, § 37-1-404.

Sex crime prosecution units, § 8-7-109.

Video recording of investigations authorized, § 37-1-609.

37-1-607. Child protective teams — Investigations — Services.

      1. The department shall coordinate the services of child protective teams. At least one (1) child protective team shall be organized in each county. The district attorney general of each judicial district shall, by January 15 of each year, report to the judiciary committee of the senate and the committee of the house of representatives having oversight over children and families on the status of the teams in the district attorney general's district as required by this section, and the progress of the child protective teams that have been organized in the district attorney general's district. The department shall, with the cooperation of all statutorily authorized members of the child protective team, establish a procedure and format for data collection. The procedure and format developed shall include at a minimum the following information:
        1. The number of reports received for investigation by type (i.e., sexual abuse, serious physical abuse, life-threatening neglect);
        2. The number of investigations initiated by type;
        3. The number of final dispositions of cases obtained in the current reporting year by type of disposition as follows:
          1. Unsubstantiated, closed, no service;
          2. Unsubstantiated, referred for non-custodial support services;
          3. Substantiated, closed, no service;
          4. Substantiated, service provided, no prosecution;
          5. Substantiated, service provided, prosecution, acquittal; or
          6. Substantiated, service provided, prosecution, conviction;
        4. Age, race, gender, and relationship to the victim of perpetrators identified in cases that are included in subdivisions (a)(1)(A)(iii)(c )-(f ); and
        5. The type and amount of community-based support received by child protective teams through linkages with other local agencies and organizations and through monetary or in-kind, or both, donations.
      2. Such data shall be reported by January 15 of each year to the judiciary committee of the senate and the committee of the house of representatives having oversight over children and families, along with a progress report on the teams and any recommendations for enhancement of the child sexual abuse plan and program.
    2. Each team shall be composed of one (1) person from the department, one (1) representative from the office of the district attorney general, one (1) juvenile court officer or investigator from a court of competent jurisdiction, and one (1) properly trained law enforcement officer with countywide jurisdiction from the county where the child resides or where the alleged offense occurred. The team may also include a representative from one (1) of the mental health disciplines. It is in the best interest of the child that, whenever possible, an initial investigation shall not be commenced unless all four (4) disciplines are represented. An initial investigation may, however, be commenced if at least two (2) of the team members are present at the initial investigation. In those geographical areas in which a child advocacy center meets the requirements of § 9-4-213(a) or (b), child advocacy center directors, or their designees, shall be members of the teams under this part and part 4 of this chapter for the purposes of provision of services and functions established by § 9-4-213 or delegated pursuant to that section. In such event, child advocacy center directors, or their designees, may access and generate all necessary information, which shall retain its confidential status, consistent with § 37-1-612.
    3. It is the intent of the general assembly that the child protective investigations be conducted by the team members in a manner that not only protects the child but that also preserves any evidence for future criminal prosecutions. It is essential, therefore, that all phases of the child protective investigation be appropriately conducted and that further investigations, as appropriate, be properly conducted and coordinated.
    1. The department shall convene the appropriate team when a report of child sexual abuse has been received. Nothing in this section shall be construed to remove or reduce the duty and responsibility of any person to report all suspected or actual cases of child sexual abuse. The role of the teams shall be to conduct child protective investigations of reported child sexual abuse and to support and provide services to sexually abused children upon referral as deemed by the teams to be necessary and appropriate for such children.
      1. For each child sexual abuse report it receives, the department shall immediately notify the child protection investigation team, which shall commence an on-site child protective investigation. The team shall:
        1. Determine the composition of the family or household, including the name, address, age, sex and race of each child named in the report; any siblings or other children in the same household or in the care of the same adults; the parents or other persons responsible for the child's welfare; and any other adults in the same household;
        2. Determine whether there is any indication that any child in the family or household is sexually abused, including a determination of harm or threatened harm to each child; the nature and extent of present or prior injuries, or abuse, and any evidence thereof; and a determination as to the person or persons apparently responsible for the abuse;
        3. Determine the immediate and long-term risk to each child if the child remains in the existing home environment; and
        4. Determine the protective, treatment and ameliorative services necessary to safeguard and ensure the child's well-being and development and, if possible, to preserve and stabilize family life.
      2. The team shall seek to interview the child in a neutral setting, other than where the alleged abuse occurred, whenever possible.
    3. Immediately upon receipt of a report alleging, or immediately upon learning during the course of an investigation, that:
      1. Child sexual abuse has occurred; or
      2. An observable injury or medically diagnosed internal injury occurred as a result of the sexual abuse;

        the department shall orally notify the team, the appropriate district attorney general and the appropriate law enforcement agency whose criminal investigations shall be coordinated, whenever possible, with the child protective team investigation. In all cases, the team and the department shall make a full written report to the district attorney general within three (3) days of the oral report. If, as a result of an investigation, there is cause to believe a violation of title 39, chapter 17, part 10 has occurred, an appropriate report shall be filed by the district attorney general requesting an investigation by the Tennessee bureau of investigation. If independent criminal investigations are made, interviews with the victimized child shall be kept to an absolute minimum and, whenever possible, reference to the videotape or tapes made by the child protective teams should be utilized.

    4. In addition to the requirements of this part, the provisions of § 37-1-406 shall apply to any investigation conducted hereunder.
    5. As a result of its investigation, the team may recommend that criminal charges be filed against the alleged offender. Any interested person who has information regarding the offenses described in this subsection (b) may forward a statement to the district attorney general as to whether prosecution is warranted and appropriate. Within fifteen (15) days of the completion of the district attorney general's investigation, the district attorney general shall advise the department and the team whether or not prosecution is justified and appropriate in the district attorney general's opinion in view of the circumstances of the specific case.
    1. The specialized diagnostic assessment, evaluation, coordination, consultation, and other supportive services that the team shall be capable of providing, to the extent funds are specifically appropriated therefor, or by referral shall be capable of obtaining for the protection of the child, include, but are not limited to, the following:
      1. Telephone consultation services in emergencies and in other situations;
      2. Medical evaluation related to the sexual abuse;
      3. Such psychological and psychiatric diagnosis and evaluation services for the child, siblings, parent or parents, guardian or guardians, or other care givers, or any other individual involved in a child sexual abuse case, as a child protection team may determine to be needed;
      4. Short-term psychological treatment. It is the intent of the general assembly that the department provide or refer a child whose case has been validated by the department, and the child's family, for short-term psychological treatment before the department may close its case. Such short-term treatment shall be limited to no more than six (6) months' duration after treatment is initiated, except that the commissioner may authorize such treatment for individual children beyond this limitation if the commissioner deems it appropriate;
      5. Expert medical, psychological and related professional testimony in court cases;
      6. Case staffings to develop, implement and monitor treatment plans for a child whose case has been validated by the department. In all such case staffings, consultations, or staff activities involving a child, at least one (1) member of the team involved in the initial investigation shall continue to monitor the progress and status of the child whenever possible and within the same geographic area; and
      7. Case service coordination and assistance, including the location of services available from other public and private agencies in the community.
    2. In all instances where a child protection team is providing or has obtained by referral certain services to sexually abused children, other offices and units of the department shall avoid duplicating the provision of those services.

Acts 1985, ch. 478, § 8; 1987, ch. 145, §§ 3, 5; T.C.A., § 37-1-606(a)(2), (4); Acts 1988, ch. 953, §§ 9, 18-20; 1996, ch. 675, § 17; 1999, ch. 453, §§ 1, 2; 2001, ch. 401, § 1; 2011, ch. 410 , § 3(f); 2012, ch. 925, § 5; 2013, ch. 236, § 81; 2019, ch. 345, § 36.

Compiler's Notes. Acts 2001, ch. 401, § 4, provided that the amendment to this section, which added subdivision (a)(1)(B), shall apply to any investigation or any civil cause of action pending or filed on or after June 19, 2001.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment substituted “the committee of the house of representatives having oversight over children and families” for “the civil justice committee of the house of representatives” in (a)(1)(A) and (B).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Confidentiality of public records, § 10-7-504.

Disclosure to law enforcement agencies of felonious acts of bodily harm or sexual offenses on premises of a facility or hospital whose records are confidential, § 33-3-104.

Use of child protective teams in child sexual abuse investigations, § 37-1-406.

Attorney General Opinions. DCS authority to reverse child protection team determination of sexual abuse.  OAG 10-101, 2010 Tenn. AG LEXIS 103 (10/1/10).

37-1-608. Protective custody of children.

  1. A law enforcement officer, authorized person of the department, or other authorized person may take a child into custody as provided in part 1 of this chapter.
  2. Any person in charge of a hospital or similar institution or any physician treating a child may keep that child in custody until the next regular weekday session of the juvenile court without the consent of the parents, legal guardian or legal custodian, whether or not additional medical treatment is required, if the circumstances are such, or if the condition of the child is such, that continuing the child in the child's place of residence or in the care or custody of the parents, legal guardian or legal custodian presents an imminent danger to the child's life or physical or mental health. Any person taking a child into protective custody shall immediately notify the department, whereupon the department shall immediately begin a child protective investigation in accordance with the provisions of § 37-1-606, and shall make every reasonable effort to immediately notify the parents, legal guardian or legal custodian that such child has been taken into protective custody. If the department determines, according to the criteria set forth in § 37-1-114, that the child should remain in protective custody longer than the next regular weekday session of the juvenile court, it shall petition the court for an order authorizing such custody in the same manner as if the child were placed in a shelter. The department shall attempt to avoid the placement of a child in an institution whenever possible.

Acts 1985, ch. 478, § 9.

Cross-References. Retention of abused children by hospitals, § 37-1-404.

37-1-609. Photographs and examinations of suspected abuse — Video recordings.

  1. Any person required to investigate cases of suspected child sexual abuse may take or cause to be taken photographs of the areas of trauma visible on a child who is the subject of a report and, if the condition of the child indicates a need for a medical examination, may cause the child to be referred for diagnosis to a licensed physician or an emergency department in a hospital without the consent of the child's parents, legal guardian or legal custodian. Any licensed physician who, based on information furnished by the investigator, the parents or other persons having knowledge of the situation, or the child, or on personal observation of the child, suspects that a child has been sexually abused may authorize appropriate examinations to be performed on the child without the consent of the child's parents, legal guardian or legal custodian.
  2. Any photograph or report on examinations made or x-rays taken pursuant to this section, or copies thereof, shall be sent to the department as soon as possible, at which point such records shall be available to the members of the team. All state, county and local agencies shall give the team or the department access to records in their custody and shall otherwise cooperate fully with the investigation.
  3. At the initial investigation of child sexual abuse by the child protection team, and at any subsequent investigations as deemed appropriate by the team, when a justifiable suspicion of sexual abuse exists, a videotape recording that meets the standards as established by § 24-7-117 may be taken of the traumatized victim. The video recording shall be taken for the purpose of indicating the child's physical or mental condition at the time the report is investigated and shall be made available for future reference and for utilization as provided in this part.

Acts 1985, ch. 478, § 10; 1987, ch. 145, § 20; 1988, ch. 953, § 11.

Cross-References. Admissibility into evidence of audio-visually recorded testimony in child sexual abuse proceedings, § 24-7-117.

Examination of abused children, § 37-1-406.

Physician, health personnel or institutional reports of venereal disease, venereal herpes or chlamydia in children, § 37-1-403.

Reference to audio-visual tapes in child sexual abuse proceedings, §§ 37-1-405, 37-1-406.

Use of photographs in child sexual abuse examinations, § 37-1-406.

Use of video recordings in child abuse and child sexual abuse proceedings, § 37-1-406.

Use of video tapes in termination of parental rights proceedings for severe child abuse, § 37-1-405.

Utilization of references to video tapes made by child protective teams in independent criminal investigations, § 37-1-607.

NOTES TO DECISIONS

1. Videotaped Interviews.

Ex parte videotape interviews under this section are not designed to take the place of depositions in criminal cases as authorized by Tenn. R. Crim. P. 15. State v. Pilkey, 776 S.W.2d 943, 1989 Tenn. LEXIS 395 (Tenn. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 426 (1989), cert. denied, Pilkey v. Tennessee, 494 U.S. 1032, 110 S. Ct. 1483, 108 L. Ed. 2d 619, 1990 U.S. LEXIS 1318 (1990), cert. denied, Tennessee v. Pilkey, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1305 (1990), cert. denied, In re Disbarment of Marcone, 108 L. Ed. 2d 967, 110 S. Ct. 1839, 494 U.S. 1092, 1990 U.S. LEXIS 1998 (1990).

37-1-610. Guardian ad litem — Parental reimbursement of costs and expenses.

  1. A guardian ad litem shall be appointed to represent the child in any child sexual abuse civil or juvenile judicial proceeding and in general sessions or criminal court at the discretion of the court. Any person participating in such proceeding resulting from such appointment shall be presumed prima facie to be acting in good faith and in so doing shall be immune from any liability, civil or criminal, that otherwise might be incurred or imposed.
  2. In those cases in which the parents are financially able, the court may order such parent or parents to reimburse the court to the extent of insurance coverage; provided, that the court shall order the perpetrator in all cases, whether such person is a parent or other person, to fully reimburse the court for such expenses, for the cost of provision of guardian ad litem services and any medical and treatment costs resulting from the child sexual abuse. Reimbursement to the individual providing such services shall not be contingent upon successful collection by the court from the parent or parents.

Acts 1985, ch. 478, § 11.

Attorney General Opinions. Because a juvenile court has the authority to appoint counsel and to punish disobedience of its orders as contempt, an attorney who refuses a juvenile court order of appointment commits, and may be punished for, contempt, regardless whether she intends to practice in that court in the future, OAG 02-107(10/01/02).

37-1-611. Duties of department of children's services — Cooperation with department — Publicity and education program.

  1. The department shall:
    1. Have prime responsibility for strengthening and improving child sexual abuse detection, prevention and treatment efforts;
    2. Seek and encourage the development of improved or additional programs and activities, the assumption of prevention and treatment responsibilities by additional agencies and organizations, and the coordination of existing programs and activities;
    3. To the fullest extent possible, cooperate with and seek cooperation of all appropriate public and private agencies, including health, education, social services, and law enforcement agencies, and courts, organizations, or programs providing or concerned with children's services related to the prevention, detection, intervention or treatment of child sexual abuse; and
    4. Provide ongoing protective, treatment and ameliorative services to, and on behalf of, children in need of protection to safeguard and ensure their well-being and, whenever possible, to preserve and stabilize family life.
  2. All state, county, and local agencies have a duty to give such cooperation, assistance, and information to the department as will enable it to fulfill its responsibilities.
  3. The department shall conduct a continuing publicity and education program to encourage the fullest degree of reporting of suspected child sexual abuse for staff and officials required to report and any other appropriate persons. The program shall include, but not be limited to, information concerning the responsibilities, obligations, and powers provided under this part; the methods for diagnosis of child sexual abuse; and the procedures of the child protective service program, the juvenile court, and other duly authorized agencies. In developing training programs for staff, the department shall place emphasis on preservice and inservice training for single intake, protective services, and foster care staff, which would include skills in diagnosis and treatment of child sexual abuse and procedures of the child protective system and judicial process.

Acts 1985, ch. 478, § 12; 1996, ch. 1079, § 73.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 501 of the Tennessee Rules of Evidence.

Textbooks. Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), Rule 501.

37-1-612. Confidentiality of records and reports — Violations — Access to records — Confirmation of investigation — Anonymity of abuse reporters.

  1. In order to protect the rights of the child and the child's parents or other persons responsible for the child's welfare, all records concerning reports of child sexual abuse, including files, reports, records, communications and working papers related to investigations or providing services; video tapes; reports made to the abuse registry and to local offices of the department; and all records generated as a result of such processes and reports, shall be confidential and exempt from other provisions of law, and shall not be disclosed, except as specifically authorized by chapter 5, part 5 of this title, this part and part 4 of this chapter.
  2. Except as otherwise provided in § 37-5-107, this part or part 4 of this chapter, it is unlawful for any person, except for purposes directly connected with the administration of this part, to disclose, receive, make use of, authorize or knowingly permit, participate in, or acquiesce to the use of any list or name, or any information concerning a report or investigation of a report of harm under this part, directly or indirectly derived from the records, papers, files or communications of the department or other entities authorized by law to assist the department when such information was acquired in the course of the performance of official duties. Disclosure may be made to persons and entities directly involved in administration of this part, including:
    1. Department employees, medical professionals, and contract or other agency employees who provide services, including those from child advocacy centers, to children and families; and
    2. The attorney or guardian ad litem for a child who is the subject of the records. Information shared with such persons and entities does not lose its character as confidential.
  3. In addition to such other purposes as may be directly connected with the administration of this part, access to such records, excluding the name of the reporter, which shall be released only as provided in subsection (g), shall be granted to the following persons, officials, or agencies for the following purposes:
    1. A law enforcement agency investigating a report of known or suspected child sexual abuse;
    2. The district attorney general of the judicial district in which the child resides or in which the alleged abuse occurred;
    3. A grand jury, by subpoena, upon its determination that access to such records is necessary in the conduct of its official business;
    4. Any person engaged in bona fide research or audit purposes. However, no information identifying the subjects of the report shall be made available to the researcher unless such information is absolutely essential to the research purpose, suitable provision is made to maintain the confidentiality of the data and the department has given written approval;
    5. A court official, probation and parole officer, designated employee of the department of correction or board of probation and parole or other similarly situated individual charged with the responsibility of preparing information to be presented in any administrative or judicial proceeding concerning any individual charged with or convicted of any offense involving child abuse or neglect or child sexual abuse;
    6. An attorney or next friend who is authorized to act on behalf of the child, who is the subject of the records, for the purpose of recovering damages or other remedies authorized by law in a civil cause of action against the perpetrator or other person or persons who may be responsible for the actions of the perpetrator;
    7. An attorney or next friend who is authorized to act on behalf of another child, who has been the victim of other abuse by the same perpetrator, for the purpose of recovering damages or other remedies authorized by law in a civil cause of action against the perpetrator or other person or persons who may be responsible for the actions of the perpetrator against such other child; provided, however, that:
      1. The name and identity of such other child shall be revealed only to the attorney or next friend of such other child, to the parties and to their respective counsel in the civil cause of action in which such damages or other remedies are sought, and to the trial judge who presides over the action;
      2. An appropriate protective order must be entered prior to such disclosure; and
      3. Before any attempt is made to introduce into evidence in the civil cause of action either the records or information obtained from the records, written consent must be obtained from:
        1. Each parent or guardian having sole or joint custody of such other child, if the child has not yet attained the age of majority; or
        2. The former child, if such child has now attained the age of majority; and
    8. Members of the Tennessee claims commission, its staff and employees of the division of claims and risk management for the purpose of determining if:
      1. A claim filed with the commission based on facts contained in the record constitutes a compensable criminal offense under the Criminal Injuries Compensation Act, compiled in title 29, chapter 13;
      2. The offense alleged occurred; and
      3. The claimant's injuries were the result of the offense.
  4. The department may release to professional persons such information as is necessary for the diagnosis and treatment of the child or the person perpetrating the sexual abuse.
  5. The department may confirm whether a child sexual abuse investigation has been commenced, but may not divulge, except as permitted under this part, any details about the case, including, but not limited to, the name of the reporter, the alleged victim, or the alleged perpetrator.
  6. The department shall adopt such rules as may be necessary to carry out the following purposes:
    1. The establishment of administrative and due process procedures for the disclosure of the contents of its files and the results of its investigations for the purpose of protecting children from child sexual abuse; and
    2. For other purposes directly connected with the administration of this chapter, including, but not limited to, cooperation with schools, child care agencies, residential and institutional child care providers, child protection agencies, individuals providing care or protection for the child, medical and mental health personnel providing care for the child and the child's family and the perpetrator of any form of child abuse or neglect, law enforcement agencies, the judicial and correctional systems, and for cooperation with scientific and governmental research on child abuse and neglect.
  7. The name of any person reporting child sexual abuse shall in no case be released to any person other than employees of the department or other child protection team members responsible for child protective services, the abuse registry, or the appropriate district attorney general upon subpoena of the Tennessee bureau of investigation without the written consent of the person reporting. This shall not prohibit the subpoenaing of a person reporting child sexual abuse when deemed necessary by the district attorney general or the department to protect a child who is the subject of a report; provided, that the fact that such person made the report is not disclosed. Any person who reports a case of child sexual abuse may, at the time the person makes the report, request that the department notify such person that a child protective investigation occurred as a result of the report. The department shall mail such a notice to the reporter within ten (10) days of the completion of the child protective investigation.
  8. For purposes directly connected with the administration of this part and part 4 of this chapter, the department may disclose any relevant information to the court, administrative board or hearing officer, the parties, or their legal representatives in any proceeding that may be brought in any court, or before any administrative board or hearing officer, for the purpose of protecting a child or children from child abuse or neglect or child sexual abuse. In the event of any disagreement between the department and any other parties as to what information should be disclosed, the court, administrative board or hearing officer may enter an order allowing access to any information that it finds necessary for the proper disposition of the case. The court, administrative board or hearing officer may order any information disclosed in such proceeding to be placed and kept under seal and not to be open to public inspection to the extent it finds it necessary to protect the child. This provision shall not be construed to allow any person to gain access to any identifying information about a child who is not the subject of the proceeding.

Acts 1985, ch. 478, § 13; 1987, ch. 145, §§ 12-14, 16, 17, 24; 1988, ch. 953, § 10; 1998, ch. 1049, § 5; 1999, ch. 522, §§ 1, 2; 2000, ch. 981, §§ 51, 74; 2001, ch. 401, § 3; 2007, ch. 476, § 1; 2008, ch. 1146, § 2; 2017, ch. 271, § 1.

Compiler's Notes. Acts 2001, ch. 401, § 4 provided that the act, which added subdivisions (c)(6) and (7), shall apply to any investigation or any civil cause of action pending or filed on or after June 19, 2001.

Acts 2007, ch. 476, § 2 provided that the act, which added subdivision (c)(8), shall apply to claims for compensation filed on or after January 1, 2006.

Amendments. The 2017 amendment substituted “division of claims and risk management” for “division of claims administration” in the introductory language of (c)(8).

Effective Dates. Acts 2017, ch. 271, § 3. May 4, 2017.

Cross-References. Anonymity and confidentiality of child sexual abuse reporters, § 37-1-409.

Confidentiality of public records, § 10-7-504.

Medical examiner autopsy reports not subject to confidentiality requirements, § 37-1-605.

Penalty for unlawful disclosure of confidential information, § 37-1-615.

Attorney General Opinions. DCS authority to reverse child protection team determination of sexual abuse.  OAG 10-101, 2010 Tenn. AG LEXIS 103 (10/1/10).

Confidentiality of records and testimony regarding child sexual abuse investigations.  OAG 11-21, 2011 Tenn. AG LEXIS 23 (3/11/11).

Confidentiality of department of children's services complaints. OAG 13-93, 2013 Tenn. AG LEXIS 108 (11/27/13).

NOTES TO DECISIONS

1. Disclosure of Information.

The provisions for disclosure contained in T.C.A. § 37-1-612(h) apply to the department of human services (now children's services), and those entities acting at its behest, to assist in the detection, prevention and treatment of child sexual abuse; thus, in a child custody dispute, the trial court had authority to allow access to tapes of statements taken from the parties' daughter by police department for the department in connection with a sexual abuse investigation, subject to the court's in camera review of the materials sought to determine what information was necessary for proper disposition of the case. Munke v. Munke, 882 S.W.2d 803, 1994 Tenn. App. LEXIS 279 (Tenn. Ct. App. 1994).

In an action under 42 U.S.C. § 1983 against DHS, DCS and several individuals, balancing of the need for confidentiality, as evidenced by this section, against the need for accurate fact finding led the court to amend the magistrate's protective order so as to allow disclosure of child abuse records by DHS and DCS to the parties and counsel in the action. Farley v. Farley, 952 F. Supp. 1232, 1997 U.S. Dist. LEXIS 1691 (M.D. Tenn. 1997).

Those accused of child sexual abuse are not among the exceptions to this section and are not entitled to access to a child victim's records from the department of human services. State v. Gibson, 973 S.W.2d 231, 1997 Tenn. Crim. App. LEXIS 586 (Tenn. Crim. App. 1997).

Based on case law interpreting “law enforcement” in the context of FOIA cases along with the absence of an explicit limitation in Tenn. Code Ann. § 37-1-612(c)(1) to law enforcement officers involved solely with criminal proceedings, and the acknowledged role of the United States in the enforcement of Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq., the United States qualified for the law enforcement exception of Tenn. Code Ann. § 37-1-612(c)(1), and the court denied the motion to quash the subpoena. Lopez v. Metropolitan Gov't of Nashville and Davidson County, 594 F. Supp. 2d 862, 2009 U.S. Dist. LEXIS 2958 (M.D. Tenn. Jan. 15, 2009).

Because all of the electronically stored information data from the Tennessee Department of Mental Health and Developmental Disabilities'  and the Department of Children's Services'  incident reporting data and another database contained highly relevant information on defendants'  violation of federal law and plaintiffs'  federal constitutional rights and because an appropriate protective order for discovery and trial could avoid disclosures of the identities of the children, doctors and other protected persons, under Fed. R. Evid. 501, the state law privileges under T.C.A. §§ 37-1-409(a)(2), 37-1-615(b), 37-5-107, 37-1-612, 37-2-408, 36-1-125, 36-1-126, 36-1-138 did not bar discovery. John B. v. Goetz, 879 F. Supp. 2d 787, 2010 U.S. Dist. LEXIS 8821 (M.D. Tenn. Jan. 28, 2010).

2. Testimony.

Mother was prejduiced where an employee of the Department of Children's Services improperly divulged details of the investigation, which was confidential and inadmissible under the mandates of T.C.A. § 37-1-409 and the assertion that the mother's alleged coaching of the child was “child abuse” as contemplated in T.C.A. § 37-1-612(h), was only supported by the speculative remarks of the witness that she had a “concern” that there was a “possibility” that the child had been coached. Strickland v. Strickland, — S.W.3d —, 2012 Tenn. App. LEXIS 899 (Tenn. Ct. App. Dec. 21, 2012).

Trial court did not err in a termination of parental rights proceeding by permitting a case worker to testify as to the conditions observed in the home because, under the circumstances of the case, the Tennessee Department of Children's Services could provide otherwise confidential information to the court for the purpose of protecting the child from future neglect of the child by the parent. In re Kandace D., — S.W.3d —, 2018 Tenn. App. LEXIS 4 (Tenn. Ct. App. Jan. 8, 2018).

37-1-613. Immunity from civil or criminal liability.

Any person making a report of child sexual abuse shall be afforded the same immunity and shall have the same remedies as provided by § 37-1-410 for other persons reporting harm to a child. Any other person, official or institution participating in good faith in any act authorized or required by this part shall be immune from any civil or criminal liability that might otherwise result by reason of such action.

Acts 1985, ch. 478, § 14.

Cross-References. Immunity from liability for reporting child abuse, § 37-1-410.

Law Reviews.

Medical Malpractice Cases Not to File (Lewis L. Laska), 20 Mem. St. U.L. Rev. 27 (1989).

37-1-614. Evidentiary privileges inapplicable in child sexual abuse cases.

The privileged quality of communication between husband and wife and between any professional person and the professional person's patient or client, and any other privileged communication, except that between attorney and client, as such communication relates both to the competency of the witness and to the exclusion of confidential communications, shall not apply to any situation involving known or suspected child sexual abuse and shall not constitute grounds for failure to report as required by this part, failure to cooperate with the department in its activities pursuant to this part, or failure to give evidence in any judicial proceeding relating to child sexual abuse.

Acts 1985, ch. 478, § 15.

Cross-References. Evidentiary privileges inapplicable in child abuse cases, § 37-1-411.

Privileged communication between husband and wife, § 24-1-201.

Privileged communications, title 24, ch. 1, part 2.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 501 of the Tennessee Rules of Evidence.

Textbooks. Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), Rule 501; §§ 501.7 — 501.9, 501.11, 501.13, 501.14, 501.19.

Law Reviews.

Murder and Miscarriage: Miscarriage of Justice?, (Donald F. Paine), 30 No. 4 Tenn. B.J. (1994).

Attorney General Opinions. Communications between an employee of a county sheriff's department and a volunteer clergy member appointed by the sheriff to provide spirtual consultation are confidential and privileged, provided the communications are made to the clergy member confidentially in a professional capacity, according to the usual course of the clergy's practice or discipline, as established by the rules or customs of the clergy's religious organization or denomination when the employee is seeking spiritual advice or counseling; however, this privilege does not apply to any communication involving known or suspected child sexual abuse, OAG 01-009 (1/25/01).

NOTES TO DECISIONS

1. Constitutionality.

Abrogation of the counselor privilege in child sexual abuse cases does not contravene due process under either the federal or state constitutions. State v. Smith, 933 S.W.2d 450, 1996 Tenn. LEXIS 836 (Tenn. 1996).

2. Incriminating Statements.

In a prosecution for aggravated sexual assault, even though defendant was not advised that his statements to a counselor were not privileged, admission of the statements did not violate due process since they were made in a noncustodial setting and there was no evidence of interference by a state agent. State v. Smith, 933 S.W.2d 450, 1996 Tenn. LEXIS 836 (Tenn. 1996).

3. Clergy-Penitent Privilege.

Trial court properly refused to exclude clergymen's testimony about defendant's confessions to them about having sex with minor victim because, under T.C.A. § 37-1-614, clergymen-penitent privilege did not apply to instances of child sexual abuse. State v. Workman, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 909 (Tenn. Crim. App. Dec. 13, 2011), review denied and ordered not published, — S.W.3d —, 2012 Tenn. LEXIS 569 (Tenn. Aug. 16, 2012).

37-1-615. Violations — Penalties.

    1. Any person required to report known or suspected child sexual abuse who knowingly fails to do so, or who knowingly prevents another person from doing so, commits an offense.
      1. A violation of subdivision (a)(1) is a Class A misdemeanor.
      2. A second or subsequent violation of subdivision (a)(1) is a Class E felony.
    3. Any person required to report known or suspected child sexual abuse who intentionally fails to do so, or who intentionally prevents another person from doing so, commits a Class E felony.
  2. Any person who knowingly and willfully makes public or discloses any confidential information contained in the abuse registry or in the records of any child sexual abuse case, except as provided in this part, commits a Class A misdemeanor.

Acts 1985, ch. 478, § 16; 1989, ch. 591, § 111; 2019, ch. 499, § 4.

Amendments. The 2019 amendment rewrote (a) which read, “(a) Any person required to report known or suspected child sexual abuse who knowingly and willfully fails to do so, or who knowingly and willfully prevents another person from doing so, commits a Class A misdemeanor.”

Effective Dates. Acts 2019, ch. 499, § 10. July 1, 2019.

Cross-References. Limitation of actions in prosecutions for sexual offenses committed against children, § 40-2-101.

Penalty for Class A misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

Penalty for false reporting of child sexual abuse, § 37-1-413.

Termination of parental rights, § 37-1-147.

NOTES TO DECISIONS

1. Disclosure of Information.

Because all of the electronically stored information data from the Tennessee Department of Mental Health and Developmental Disabilities'  and the Department of Children's Services'  incident reporting data and another database contained highly relevant information on defendants'  violation of federal law and plaintiffs'  federal constitutional rights and because an appropriate protective order for discovery and trial could avoid disclosures of the identities of the children, doctors and other protected persons, under Fed. R. Evid. 501, the state law privileges under T.C.A. §§ 37-1-409(a)(2), 37-1-615(b), 37-5-107, 37-1-612, 37-2-408, 36-1-125, 36-1-126, 36-1-138 did not bar discovery. John B. v. Goetz, 879 F. Supp. 2d 787, 2010 U.S. Dist. LEXIS 8821 (M.D. Tenn. Jan. 28, 2010).

2. Elements.

Offense of failing to report suspected child sexual abuse requires that a person have reasonable cause to suspect child sexual abuse, which may justify a person's own investigation prior to deciding whether to report; just as a decision not to report can harm a child, a decision to report can have devastating effects on the falsely-accused. State v. Honeycutt, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. Sept. 29, 2016).

3. Judicial Diversion.

Trial court erred by denying judicial diversion for the offense of failing to report suspected child sexual abuse; defendant had reported abuse previously, she had cared for all three of the children in the children's group home, she investigated the incident and honestly believed one child did not sexually abuse the others, and nothing indicated that she failed to report the allegations in order to protect the one child or the home. State v. Honeycutt, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. Sept. 29, 2016).

37-1-616. Rules and regulations.

The department may promulgate necessary rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, in furtherance of this part.

Acts 1985, ch. 478, § 17.

Part 7
Tennessee Teen Court Program of 2000

37-1-701. Short title.

This part shall be known and may be cited as the “Tennessee Teen Court Program of 2000.”

Acts 2000, ch. 792, § 1.

37-1-702. Authority to establish teen court — Procedure for participation — Determining factors for participation — Authority of teen court.

  1. Any juvenile court judge is authorized to establish a teen court program pursuant to this part. In a jurisdiction in which there are multiple juvenile court judges, each judge may establish a teen court program. In any jurisdiction in which a teen court program is established, a teen charged with an offense specified under this part may receive a deferred judgment, a condition of which is successful completion of the teen court program. As a part of such program, the teen shall receive a disposition recommended by a five-member teen court and confirmed by the juvenile court judge. The teen court shall be held at a place to be determined by the local juvenile court judge.
  2. The procedure for the court to determine participation in the teen court is as follows:
    1. Pursuant to local, written procedures adopted by the juvenile court, participation in the teen court program may be initiated by an officer of the court under the informal adjustment or pretrial diversion process of § 37-1-110;
      1. After the court places a child on judicial diversion or adjudicates a child delinquent or unruly pursuant to § 37-1-129, the court may direct that the disposition determination will be made by the teen court;
      2. When a juvenile court determines that a case is appropriate to be handled by the teen court, the teen shall be informed by the court of the procedures for teen court disposition and shall be given an opportunity to enter a waiver of rights to participate in a teen court disposition. The court shall inform the teen that if the teen enters a waiver, including a waiver of any right for an attorney to be present during the dispositional stage, juvenile court proceedings shall be suspended for a period of six (6) months or such other time authorized by the local, written procedures of the juvenile court and a teen court may be empanelled to hear evidence on disposition; such teen court shall deliberate, and shall make a recommendation to the judge for disposition of the case, which may be confirmed by the juvenile court without further proceedings. If the teen elects to not enter a waiver, the judge shall proceed with the case as provided by law without referral to the teen court.
  3. In choosing cases to be referred to the teen court for disposition, the juvenile court shall determine that:
    1. The offense or attempted offense underlying the juvenile petition was one (1) of the following:
      1. Assault, § 39-13-101;
      2. Burglary, § 39-14-402;
      3. Theft of property, § 39-14-103;
      4. Vandalism, § 39-14-408;
      5. Forgery, § 39-14-114;
      6. Cruelty to animals, § 39-14-202;
      7. Unauthorized use of vehicle, § 39-14-106;
      8. [Deleted by 2016 amendment.]
      9. Disorderly conduct, § 39-17-305;
      10. Harassment, § 39-17-308;
      11. Criminal trespass, § 39-14-405;
      12. Traffic offense, § 37-1-146;
      13. Runaway, § 37-1-102(b)(32)(D);
      14. Truancy, § 37-1-102(b)(32)(A);
      15. Violation of curfew, § 39-17-1702;
      16. Unruly, § 37-1-102(b)(32);
      17. Violation of any of the following sections of the Tennessee Drug Control Act, compiled in title 39, chapter 17, part 4:
        1. § 39-17-418(a) or (b), relative to simple possession or casual exchange of a controlled substance;
        2. § 39-17-422(a) or (b), relative to smelling or inhaling fumes of any glue, paint, gasoline, aerosol, chlorofluorocarbon gas or other substance containing a solvent having the property of releasing toxic vapors or fumes, or possessing any glue containing a solvent having the property of releasing toxic vapors or fumes for the purpose of smelling or inhaling fumes or vapors;
        3. § 39-17-426, relative to possession of gentiana lutea, also known as jimsonweed, on the premises or grounds of any school; or
        4. § 39-17-454, relative to simple possession or casual exchange of a controlled substance analogue;
      18. Any criminal offense, status offense, violation, infraction or other prohibited conduct involving the possession, use, sale or consumption of any alcoholic beverage, wine or beer; or
      19. A second or subsequent violation, within a one (1) year period, of § 39-17-1505, regarding possession, purchase or acceptance of tobacco products, or offering false or fraudulent proof of age for the purpose of purchasing or receiving any tobacco product;
    2. The teen will benefit more from participation in the teen court and any disposition that may be recommended than from any other disposition that may be imposed;
    3. The teen, in the presence of at least one (1) of the teen's parents or guardian, has executed an informed waiver of rights, including any right to have an attorney present at the dispositional stage; and
    4. The particular case does not have any special circumstances, such as suspected mental illness or developmental disability of the teen, or special needs of the victim of the offense, that make the case inappropriate for referral to the teen court.
    1. A teen court has the authority to conduct proceedings and to receive evidence and hear testimony related to the dispositional stage. The teen court shall consist of five (5) teen members chosen by the juvenile court as set out in § 37-1-704. The teen members shall choose a presiding officer who shall conduct the proceeding under the supervision of the juvenile court judge. After hearing all evidence and testimony, the teen court shall retire to deliberate and a written decision shall be written by the presiding officer.
    2. The written decision shall be transmitted to the juvenile court judge as a recommendation, together with all papers relating to the case. The written recommendation will specify a proposed disposition together with reasons therefor.
    3. Upon receipt of the recommendation, the judge shall review it, along with all papers relating to the case. The judge may accept, modify or reject the recommendation. If the judge accepts the recommendation as presented or modified, the judge shall confirm it by order. If the judge rejects the recommendation, the judge shall permit any additional hearing as may be necessary and shall enter an order as necessary.
    4. The juvenile court shall dismiss the petition or charges at the conclusion of the deferral period if the court determines that the teen has successfully completed the teen court program. If the teen fails to successfully complete the prescribed program, or if a new delinquent or unruly petition is filed against the teen during the deferral period, the petition under which the teen court disposition was ordered may be reinstated and the case may proceed as if the teen court disposition had never been entered.

Acts 2000, ch. 792, § 1; imp. am. Acts 2000, ch. 947, § 6; Acts 2001, ch. 341, §§ 1-9; 2012, ch. 848, § 9; 2016, ch. 600, §§ 13-16.

Compiler's Notes. Former subdivisions (e)(1) and (e)(2) of this section were redesignated in 2001 as § 37-1-703(a) and (b).

Former subsection (f) of this section was redesignated in 2001 as § 37-1-704 (a) and (b).

Former subsections (g) through (j) of this section were redesignated in 2001 as § 37-1-705(a)-(d).

Section 39-17-1505, referred to in (c)(1)(S), was amended in 2015 and now includes a prohibition against purchasing or receiving vapor products.

Amendments. The 2016 amendment, in (b)(1), substituted “informal adjustment or pretrial diversion process of § 37-1-110” for “informal adjustment process of § 37-1-110” at the end, and deleted the former second sentence which read: “Successful completion of a teen court program may be a condition of pretrial diversion under Rule 23 of the Tennessee Rules of Juvenile Procedure;”; rewrote (b)(2)(A) which read, “(2)(A) After the court makes a determination, in the presence of at least one (1) of the teen's parents or legal guardian, that the teen is a child subject to the court's jurisdiction and is delinquent under § 37-1-131 or unruly under § 37-1-132, the court may direct that the disposition determination will be made by the teen court;”; inserted “or attempted offense” in the introductory language of (c)(1); and deleted (c)(1)(H) which read, “(H) Criminal attempt, § 39-12-101;”.

Effective Dates. Acts 2016, ch. 600, § 17. July 1, 2016.

37-1-703. Authority of teen court.

  1. The teen court has the authority, in a case referred by the juvenile court, to recommend disposition of the case as permitted by this part. The teen court shall have no authority to recommend transfer of temporary legal custody to any person or entity or to require placement or treatment in any specific program. If the teen court determines that such transfer of temporary legal custody or placement is the only appropriate remedy, the case shall be referred back to the juvenile court for further proceedings. The teen court may recommend:
    1. Restitution, as defined in § 37-1-102, and subject to the provisions of § 37-1-131(b);
    2. Performance of community service work, subject to the requirements of § 37-1-131(a)(7);
    3. Limitations upon driving privileges; provided, that any disposition governed by § 55-10-701 shall include an order of denial of driving privileges;
    4. Participation as a teen court member;
    5. Attendance at court-approved education workshops on subjects such as substance abuse, safe driving, or victim awareness, or any of these things;
    6. Curfew limitations;
    7. School attendance; and
    8. Essay writing or similar research or school projects.
  2. Any dispositional recommendation shall comply with the requirements of this title, unless contrary to the express provisions of this part. Dispositional alternatives shall be chosen from a list approved by the juvenile court or shall be similar in kind to those set forth in subsection (a)(1).

Acts 2000, ch. 792, § 1; imp. am. Acts 2000, ch. 947, § 6; Acts 2001, ch. 341, § 7.

37-1-704. Empaneling teen court members.

  1. Any juvenile court judge who establishes a teen court shall choose, at the beginning of the school year, a panel of twelve (12) or more teenagers to serve as teen court members. Each teen court for a specific case shall consist of five (5) members chosen from the panel of twelve (12). Such teens shall be chosen from the local public and private high schools or middle schools. They shall be selected by the juvenile court judge in consultation with the local principal or principals. The judge shall attempt to choose teens who are not otherwise active in extracurricular activities.
  2. Youth participating in teen court programs may not receive any compensation for their service; provided, however, that youth participating in teen court may receive unsolicited tokens or awards of appreciation, or bona fide awards in recognition of public service in the form of a plaque, trophy, desk item, tee-shirt, beverage mug, plastic cup, wall memento and similar items so long as any such item is not in a form that can be readily converted to cash. In the event a youth participating in teen court attends a conference, training, retreat or similar event as a part of the youth's participation in teen court, the youth may be reimbursed for such travel expenses in conformity with comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter. The juvenile court shall certify the name, address, and school attended of each teen court member to the secretary of state who shall issue a certificate of participation for each to the juvenile court judge.

Acts 2000, ch. 792, § 1; imp. am. Acts 2000, ch. 947, § 6; Acts 2001, ch. 341, § 8; 2002, ch. 539, § 1.

37-1-705. Legislative intent — Location of teen court proceedings — Immunity of participants — Confidentiality.

  1. It is the legislative intent that teen court proceedings shall be, to the extent possible, conducted by teens with limited adult participation. The Tennessee Rules of Juvenile Procedure shall not apply. The juvenile court judge shall have the authority to appoint teens to serve as prosecuting and defense attorneys. It is further the legislative intent that the juvenile court shall have the flexibility to establish procedures, not inconsistent with this part, to assure fairness and equity and to protect the rights of all parties.
  2. Every juvenile court judge, whether or not such judge establishes a teen court, may hold juvenile court proceedings at a public high school or middle school in the county of the court's jurisdiction for at least one (1) day per year. Such court proceeding shall be publicized in cooperation with the local school authorities in a manner to encourage teen observation and, where appropriate, participation.
  3. Each participant in teen court proceedings has the same immunity provided by law for judicial proceedings.
  4. All records used in, or otherwise related to, teen court proceedings shall be confidential to the full extent provided by current law, except as necessary to permit functioning of the teen court. Nothing contained in this section shall, in any manner, alter the confidentiality of records or proceedings under current juvenile court law.

Acts 2000, ch. 792, § 1; imp. am. Acts 2000, ch. 947, § 6; Acts 2001, ch. 341, § 9.

Cross-References. Confidentiality of public records, § 10-7-504.

37-1-706. Construction of part.

  1. Nothing in this part shall be deemed to impair the authority of juvenile courts to adopt different or alternative procedures for the establishment of or the operation of an existing teen court program within their respective jurisdictions. Any such teen court program shall meet due process standards including, but not limited to, those pertaining to informed and voluntary participation in the program and any necessary waiver of rights.
  2. Upon adoption of local, written procedures, a juvenile court may delegate responsibility for operation of a teen court program to a person licensed to practice law in this state.
  3. Any reference to “juvenile court” or “juvenile court judge” in this part shall be interpreted to include a magistrate under § 37-1-107.

Acts 2001, ch. 341, § 10; 2009, ch. 235, §  1.

Compiler's Notes. Acts 2009, ch. 235, § 1 directed the code commission to revise appropriate references from “child support referees” and “juvenile referees” to “child support magistrates” and “juvenile magistrates” in the code as supplements are published and volumes are replaced.

Part 8
Permanent Guardianship

37-1-801. Power of the juvenile courts to appoint a permanent guardian.

The juvenile courts of Tennessee are empowered to appoint an individual a permanent guardian; provided, that the individual qualifies under the provisions of this part. The juvenile court may establish a permanent guardianship at a permanency planning hearing or at any other hearing in which a permanent legal disposition of the child can be made, including a child protection proceeding or a delinquency proceeding.

Acts 2005, ch. 389, § 1.

NOTES TO DECISIONS

1. Jurisdiction.

Court of appeals lacked jurisdiction over a father's appeal of an order awarding permanent guardianship of his child to foster parents because the order was properly appealed to trial court, which retained exclusive subject matter jurisdiction over the child; the Tennessee Department of Children's Services properly filed its motion in the trial court since it essentially sought to modify the trial court's initial custody decision. In re Brian G., — S.W.3d —, 2018 Tenn. App. LEXIS 507 (Tenn. Ct. App. Aug. 30, 2018).

2. Findings of Fact.

Even if the trial court, which denied a petition to terminate parental rights, held the authority to designate the children's stepfather as their permanent guardian, the trial court did not issue the requisite findings in support of its order of guardianship. In re Kira D., — S.W.3d —, 2018 Tenn. App. LEXIS 358 (Tenn. Ct. App. June 26, 2018).

37-1-802. Who may be appointed permanent guardian — Criteria for children and permanent guardian — Best interests determination.

  1. The court may consider any adult, including a relative, foster parent, or another adult with a significant relationship with the child as a permanent guardian. If the child is in the department's custody, the court shall seek the department's opinion on both the proposed permanent guardianship and the proposed permanent guardian. An agency or institution may not be a permanent guardian.
  2. The court may issue a permanent guardianship order only if the court finds that:
    1. The child has been previously adjudicated dependent and neglected, unruly or delinquent;
    2. The child has been living with the proposed permanent guardian for at least six (6) months;
    3. The permanent guardianship is in the child's best interests;
    4. Reunification of the parent and child is not in the child's best interests; and
    5. The proposed permanent guardian:
      1. Is emotionally, mentally, physically and financially suitable to become the permanent guardian;
      2. Is suitable and able to provide a safe and permanent home for the child;
      3. Has expressly committed to remain the permanent guardian for the duration of the child's minority;
      4. Has expressly demonstrated a clear understanding of the financial implications of becoming a permanent guardian, including an understanding of any potential resulting loss of state or federal benefits or other assistance; and
      5. Will comply with all terms of any court order to provide the child's parent with visitation, contact or information.
  3. In determining whether it is in the child's best interests that a permanent guardian be designated, in addition to any other evidence the court finds relevant, the court shall consider each of the following factors:
    1. The child's need for continuity of care and caregivers, and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages;
    2. The physical, mental, and emotional health of all individuals involved to the degree that each affects the welfare of the child, the decisive consideration being the physical, mental, and emotional needs of the child; and
    3. The quality of the interaction and interrelationship of the child with the child's parent, siblings, relatives, and caregivers, including the proposed permanent guardian.
  4. Appointment of a permanent guardian under this part is not limited to children in the custody of the department.
  5. If the child is twelve (12) years of age or older, the court shall consider the reasonable preference of the child. The court may hear the preference of a younger child. The preferences of older children should normally be given greater weight than those of younger children.
  6. The parent may voluntarily consent to the permanent guardianship, and shall demonstrate an understanding of the implications and obligations of such consent prior to the court entering an order establishing a permanent guardianship in accordance with the provisions of this part.

Acts 2005, ch. 389, § 1.

Cross-References. Child custody and visitation, title 36, ch. 6, part 1.

NOTES TO DECISIONS

1. Jurisdiction.

Court of appeals lacked jurisdiction over a father's appeal of an order awarding permanent guardianship of his child to foster parents because the order was properly appealed to trial court, which retained exclusive subject matter jurisdiction over the child; the Tennessee Department of Children's Services properly filed its motion in the trial court since it essentially sought to modify the trial court's initial custody decision. In re Brian G., — S.W.3d —, 2018 Tenn. App. LEXIS 507 (Tenn. Ct. App. Aug. 30, 2018).

37-1-803. Permanent guardianship not a termination of parent child relationship — Visitation, contact and sharing of information.

  1. Entry of a permanent guardianship order does not terminate the parent and child relationship, including:
    1. The right of the child to inherit from the child's parents;
    2. The parents' right to visit or contact the child, as defined by the court;
    3. The parents' right to consent to the child's adoption; and
    4. The parents' responsibility to provide financial, medical, and other support for the child.
  2. The permanent guardianship order shall specify the frequency and nature of visitation or contact or the sharing of information with parents and the child. The court shall issue an order regarding visitation, contact and the sharing of information based on the best interests of the child. The order may restrict or prohibit visitation, contact and the sharing of information. The order may incorporate an agreement reached among the parties.
    1. Upon a showing by affidavit of immediate harm to the child, the court may temporarily stay, for a maximum of thirty (30) days, the order of visitation or contact, on an ex parte basis, until a hearing can be held. A modification of an order of visitation or contact shall be based upon a finding, by a preponderance of evidence, that there has been a substantial change in the material circumstances, and that the proposed modification is in the best interest of the child.
    2. Nothing in this part shall prevent removal of the child by the department from the permanent guardian, based upon allegations of abuse or neglect, pursuant to §§ 37-1-113 and 37-1-128.

Acts 2005, ch. 389, § 1; 2006, ch. 802, § 1.

NOTES TO DECISIONS

1. Parent-child Relationship.

Divestment of custody of a mother's child from the Department of Children's Services to a maternal aunt, who was the child's legal custodian, did not constitute de facto termination of the mother's parental rights because the mother remained the child's mother and retained the right to visit the child and to petition the trial court to return custody to her; the transfer of legal custody or the creation of a permanent guardianship does not end the parent-child relationship, T.C.A. §§ 37-1-140(a), 37-1-803(a). In re Gina A., — S.W.3d —, 2012 Tenn. App. LEXIS 256 (Tenn. Ct. App. Apr. 19, 2012).

37-1-804. Custody — Rights and responsibilities of permanent guardian — Liability.

  1. The permanent guardian shall maintain physical custody of the child and shall have the following rights and responsibilities concerning the child:
    1. To protect, nurture, discipline, and educate the child;
    2. To provide food, clothing, shelter, and education as required by law, and necessary health care, including medical, dental and mental health, for the child;
    3. To consent to health care, without liability by reason of the consent for injury to the child resulting from the negligence or acts of third persons, unless a parent would have been liable in the circumstances;
    4. To authorize a release of health care and educational information;
    5. To authorize a release of information when consent of a parent is required by law, regulation, or policy;
    6. To consent to social and school activities of the child;
    7. To consent to military enlistment or marriage;
    8. To obtain representation for the child in legal actions;
    9. To determine the nature and extent of the child's contact with other persons;
    10. To make decisions regarding travel; and
    11. To manage the child's income and assets.
  2. The permanent guardian is not liable to third persons by reason of the relationship for acts of the child.

Acts 2005, ch. 389, § 1.

37-1-805. Jurisdiction of court.

The court shall retain jurisdiction to enforce, modify, or terminate a permanent guardianship order until the child reaches eighteen (18) years of age, or the age of nineteen (19) for children adjudicated delinquent.

Acts 2005, ch. 389, § 1.

37-1-806. Modification or termination.

  1. A modification or termination of the permanent guardianship may be requested by the permanent guardian, by the child if the child is sixteen (16) years of age or older, the parent, or by the state. A modification or termination may also be ordered by the juvenile court on its own initiative.
  2. Where the permanent guardianship is terminated by a juvenile court order, the court shall make further provisions for the permanent guardianship or custody of the child, based upon the best interests of the child.
  3. An order for modification or termination of the permanent guardianship shall be based on a finding, by a preponderance of the evidence, that there has been a substantial change in material circumstances, or a determination by the court that one (1) or more findings required by § 37-1-802(b) no longer can be supported by the evidence. In determining whether there has been a substantial change in circumstances, the court may consider whether the child's parent is currently able and willing to care for the child, or that the permanent guardian is unable to continue to care for the child.
  4. Prior to issuing an order modifying or terminating the order of permanent guardianship, the court shall also find that the proposed modification or termination is in the best interests of the child. In determining whether it is in the child's best interest that the permanent guardianship be modified or terminated, the court shall consider, along with other evidence determined to be relevant, the following factors:
    1. The child's need for continuity of care and caregivers, and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages;
    2. The physical, mental, and emotional health of all individuals involved, to the degree that each affects the welfare of the child, the decisive consideration being the physical, mental, and emotional needs of the child; and
    3. The quality of the interaction and interrelationship of the child with the child's parent, siblings, relatives, and caregivers, including the proposed permanent guardian.
  5. Prior to modifying or terminating the permanent guardianship order to return the child to the parent, the court must consider whether there has been resolution of the factors in the home that resulted in the adjudication of the child as dependent and neglected, unruly, or delinquent. Where there has been involvement of the family with the department, consideration may include the parent's history of participation in working toward completion of the permanency plan.
  6. In the event that it is necessary to appoint a successor permanent guardian, appropriate parties may be considered by the court, with the parent having no greater priority than a third party. The court may also consider, where appropriate, return of custody to the parent.
  7. If a child is in partial or permanent guardianship of the department pursuant to title 36, that guardianship may be transferred to a permanent guardian pursuant to this section with the consent of the guardian.

Acts 2005, ch. 389, § 1; 2007, ch. 372, §§ 5, 6.

37-1-807. Monetary support of the child — How child claimed for tax purposes.

  1. Nothing under this part shall preclude the permanent guardian from receiving money paid for the child's support to the child's parent under the terms of any statutory benefit or insurance system or any private contract, settlement, agreement, court order, devise, trust, conservatorship, or custodianship, and money or property of the child.
  2. In the event the income and assets of the parent qualify the child for government benefits, the benefits may be conferred upon the child with the payment to be made to the permanent guardian. The provision of necessities by the permanent guardian shall not disqualify the child for any benefit or entitlement.
  3. The court may order and decree that the parent or other legally obligated person shall pay, in such manner as the court may direct, a reasonable sum that will cover, in whole or in part, the support and medical treatment of the child after the permanent guardianship order is entered. If the parent or other legally obligated person willfully fails or refuses to pay such sum, the court may proceed against that person for contempt, or may file the order, which shall have the effect of a civil judgment.
  4. If applicable, in the order the court shall provide how the child should be claimed as a dependent for the federal income tax purposes.

Acts 2005, ch. 389, § 1.

Part 9
Tennessee Zero to Three Court Initiative [Effective until January 1, 2025.]

37-1-901. Short title. [Effective until January 1, 2025.]

This part shall be known and may be cited as the “Tennessee Zero to Three Court Initiative.”

Acts 2017, ch. 366, § 1.

Compiler's Notes. Acts 2017, ch. 366, § 2 provided that the act, which enacted this part, shall cease to be effective January 1, 2022. However, this language was deleted by Acts 2019, ch. 383, § 10, effective May 10, 2019.

Effective Dates. Acts 2017, ch. 366, § 2. January 1, 2018.

Cross-References. Repealer, § 37-1-910.

37-1-902. Legislative intent — Goals of zero to three court programs. [Effective until January 1, 2025.]

  1. The general assembly recognizes that a critical need exists in this state for child and family programs to reduce the incidence of child abuse, neglect, and endangerment, minimize the effects of childhood trauma on small children, and provide stability to parents and children within the state. It is the intent of the general assembly by this part to create an initiative to facilitate the implementation of new and the continuation of existing zero to three court programs.
  2. The goals of the zero to three court programs created under this part include the following:
    1. To reduce time to permanency of children thirty-six (36) months of age or younger by surrounding at-risk families with support services;
    2. To reduce incidences of repeat maltreatment among children thirty-six (36) months of age or younger;
    3. To reduce the long-term and short-term effects of traumatic experiences occurring when a child is thirty-six (36) months of age or younger on a child's brain development;
    4. To promote public safety through these reductions;
    5. To increase the personal, familial, and societal accountability of families; and
    6. To promote effective interaction and the use of resources among both public and private state and local child and family service agencies, state and local mental health agencies, and community agencies. It is the intent of the general assembly that in appropriate circumstances vetted, trained, and approved safe baby court volunteers be utilized to the fullest extent possible.
  3. As used in this part, “zero to three court program” and “safe baby court” means any court program created within this state that seeks to accomplish the goals stated in subsection (b) and that is established by a judge with jurisdiction over juvenile court matters. Except as provided in § 37-1-906, a safe baby court has the same powers as the court that created it.

Acts 2017, ch. 366, § 1; 2019, ch. 383, §§ 1, 2.

Compiler's Notes. Acts 2017, ch. 366, § 2 provided that the act, which enacted this part, shall cease to be effective January 1, 2022. However, this language was deleted by Acts 2019, ch. 383, § 10, effective May 10, 2019.

Amendments. The 2019 amendment added the second sentence to (b)(6); and in (c) added “and ‘safe baby court’” at the beginning of the first sentence, deleted “zero to three” preceding “court program”, substituted “this” for “the” preceding “state” in the middle of the first sentence, and substituted “Except as provided in § 37-1-906, a safe baby court has” for “A zero to three court program shall have” at the beginning of the second sentence.

Effective Dates. Acts 2017, ch. 366, § 2. January 1, 2018.

Acts 2019, ch. 383, § 12. May 10, 2019.

Cross-References. Repealer, § 37-1-910.

37-1-903. Establishment of zero to three court programs and safe baby court programs — Location — Administration. [Effective until January 1, 2025.]

    1. On January 1, 2018, there are established five (5) zero to three court programs throughout this state. These courts shall be in addition to any zero to three court programs already established in the state.
    2. On January 1, 2020, there are established five (5) safe baby courts throughout this state. These courts are in addition to other zero to three court programs and safe baby courts established in this state prior to May 10, 2019. The establishment of additional safe baby courts is authorized as funding permits.
    1. The administrative office of the courts, in consultation with the department of children's services, the department of mental health and substance abuse services, and the council of juvenile and family court judges, shall determine the location of each program.
    2. The department of children's services, in consultation with the administrative office of the courts, the department of mental health and substance abuse services, and the council of juvenile and family court judges shall establish at least one (1) program within each of the three (3) grand divisions and shall seek to serve both rural and urban populations.
    3. The administrative office of the courts, the council of juvenile and family court judges, the department of children's services, and the department of mental health and substance abuse services are authorized to collaborate for the purpose of developing a strategy for safe baby court programs to expand services into adjacent counties where the judges of the juvenile courts of each county agree to share resources and the department of children's services has the staffing and resource capacity to provide coverage of safe baby courts in the adjacent counties.
  3. The department of children's services, in consultation with the administrative office of the courts, council of juvenile and family court judges, and the department of mental health and substance abuse services, shall administer the zero to three court programs by:
    1. Defining, developing, and gathering outcome measures for zero to three court programs relating to the goals stated in § 37-1-902;
    2. Collecting and compiling safe baby court program data, including annual reports from each zero to three court program and safe baby court. The department of children's services shall create and disseminate an annual report to the director of the administrative office of the courts, the commissioner of the department of mental health and substance abuse services, the council of juvenile and family court judges, and the chairs of the judiciary committees of the house of representatives and the senate. The annual report must summarize the results of the programs' operations during the previous calendar year, including data on outcomes achieved in safe baby courts compared to the outcomes achieved by other courts exercising similar jurisdiction, any cost savings associated with the achievement of the goals stated in § 37-1-902, and program feedback from safe baby court judges. Each zero to three court program and safe baby court established on or before January 1, 2018, shall submit program data and an annual report as described in this subdivision (c)(2) to the department of children's services, the department of mental health and substance abuse services, the administrative office of the courts, and the council of juvenile and family court judges by February 1 of each year. Each safe baby court established on January 1, 2020, shall submit program data and an annual report as described in this subdivision (c)(2) to the department of children's services, the department of mental health and substance abuse services, the administrative office of the courts, and the council of juvenile and family court judges by February 1, 2021, and each following February 1;
    3. Sponsoring and coordinating state zero to three court training for the juvenile court judges and staff who will administer the programs; and
    4. Developing standards of operation, including procedures and protocols, for zero to three court programs prior to the creation, establishment, and commencement of the programs on January 1, 2018.

Acts 2017, ch. 366, § 1; 2019, ch. 345, § 37; 2019, ch. 383, §§ 3-5.

Compiler's Notes. Acts 2017, ch. 366, § 2 provided that the act, which enacted this part, shall cease to be effective January 1, 2022. However, this language was deleted by Acts 2019, ch. 383, § 10, effective May 10, 2019.

Amendments. The 2019 amendment by ch. 345 substituted “judiciary” for “civil justice” preceding “committee of the house” in (c)(2).

The 2019 amendment by ch. 383 added (a)(2); rewrote (b), which read: “The department of children’s services, in consultation with the administrative office of the courts and the council of juvenile and family court judges, shall determine the location of each program. The department of children's services shall establish at least one (1) program within each of the three (3) grand divisions and shall seek to serve both rural and urban populations.”; and rewrote (c)(2), which read: “Collecting, reporting, and disseminating zero to three court program data, including an annual report to be submitted by February 1, 2019, and each following February 1, to the civil justice committee of the house of representatives and the judiciary committee of the senate. The annual report shall summarize the results of the programs' operation during the previous calendar year, including data on outcomes achieved in zero to three courts compared to the outcomes achieved by other courts exercising similar jurisdiction, and any cost savings associated with the achievement of the goals stated in § 37-1-902;”.

Effective Dates. Acts 2017, ch. 366, § 2. January 1, 2018.

Acts 2019, ch. 345, § 148. May 10, 2019.

Acts 2019, ch. 383, § 12. May 10, 2019.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Repealer, § 37-1-910.

37-1-904. No right to participate in zero to three court program established. [Effective until January 1, 2025.]

Nothing contained in this part shall confer a right or an expectation of a right of participation in a zero to three court program to a person within the juvenile court system.

Acts 2017, ch. 366, § 1.

Compiler's Notes. Acts 2017, ch. 366, § 2 provided that the act, which enacted this part, shall cease to be effective January 1, 2022. However, this language was deleted by Acts 2019, ch. 383, § 10, effective May 10, 2019.

Effective Dates. Acts 2017, ch. 366, § 2. January 1, 2018.

Cross-References. Repealer, § 37-1-910.

37-1-905. No limitation on ability to create and maintain zero to three court program. [Effective until January 1, 2025.]

Nothing in this part shall be construed to limit the ability of any jurisdiction to create and maintain a zero to three court program that strives to accomplish the goals set forth in § 37-1-902.

Acts 2017, ch. 366, § 1.

Compiler's Notes. Acts 2017, ch. 366, § 2 provided that the act, which enacted this part, shall cease to be effective January 1, 2022. However, this language was deleted by Acts 2019, ch. 383, § 10, effective May 10, 2019.

Effective Dates. Acts 2017, ch. 366, § 2. January 1, 2018.

Cross-References. Repealer, § 37-1-910.

37-1-906. Referral of juvenile court matter to safe baby court program. [Effective until January 1, 2025.]

A juvenile court matter that meets the safe baby court program criteria may be referred to a safe baby court program at any time during the pendency of the proceeding. If a matter is transferred to a safe baby court program, any permanency plan already in place must be scheduled for a review hearing by the court within thirty (30) days of the transfer to safe baby court.

Acts 2019, ch. 383, § 6.

Effective Dates. Acts 2019, ch. 383, § 12. May 10, 2019.

Cross-References. Repealer, § 37-1-910.

37-1-907. Application for grants not precluded. [Effective until January 1, 2025.]

This part does not preclude the ability of a safe baby court to apply for and receive matching monetary grants in addition to funds allotted to safe baby court programs from the department of children's services, the department of mental health and substance abuse services, and the administrative office of the courts.

Acts 2019, ch. 383, § 7.

Effective Dates. Acts 2019, ch. 383, § 12. May 10, 2019.

Cross-References. Repealer, § 37-1-910.

37-1-908. Termination of participation in safe baby court program. [Effective until January 1, 2025.]

A party's participation in a safe baby court program may be terminated at the discretion of the court if the party fails to comply with the program requirements.

Acts 2019, ch. 383, § 8.

Effective Dates. Acts 2019, ch. 383, § 12. May 10, 2019.

Cross-References. Repealer, § 37-1-910.

37-1-909. Safe baby court advisory committee. [Effective until January 1, 2025.]

To assist in the development of rules and regulations and to ensure that the views of the safe baby court community are appropriately communicated to the commissioner of children's services, the director of the administrative office of the courts, and the commissioner of mental health and substance abuse services, there is created a safe baby court advisory committee. The committee members shall be named by the director of the administrative office of the courts, the commissioner of children's services, and the commissioner of mental health and substance abuse services. The commissioner of children's services will chair the committee. The committee shall strive to develop non-regulatory strategies to address issues related to the operation of safe baby courts and to facilitate necessary changes. The members of the committee serve as volunteers and shall not be paid or reimbursed for time served as committee members.

Acts 2019, ch. 383, § 9.

Effective Dates. Acts 2019, ch. 383, § 12. May 10, 2019.

Cross-References. Repealer, § 37-1-910.

37-1-910. Repealer. [Effective until January 1, 2025.]

This part is deleted on January 1, 2025, and is no longer effective on or after such date.

Acts 2019, ch. 383, § 11.

Effective Dates. Acts 2019, ch. 383, § 12. May 10, 2019.

Cross-References. Repealer, § 37-1-910.

Chapter 2
Placement of Juveniles

Part 1
Tennessee Preparatory School [Repealed]

37-2-101 — 37-2-114. [Repealed.]

Compiler's Notes. Former part 1, §§ 37-2-101 — 37-2-114, (Acts 1917, ch. 126, §§ 1, 2; Shan., § 4433a; Code 1932, §§ 4663, 4664; Acts 1953, ch. 247, §§ 1-10, 12, 13 (Williams, §§ 4662.1-4662.7, 4662.9, 4662.10, 4662.12, 4662.13); 1967, ch. 33, §§ 1, 2; 1967, ch. 35, § 1; 1972, ch. 469, § 3; 1973, ch. 308, § 1; 1974, ch. 536, § 1; 1981, ch. 251, §§ 1-4; 1982, ch. 621, § 1; T.C.A. (orig. ed.), §§ 37-301 — 37-308, 37-310 — 37-315), concerning the Tennessee Preparatory School, was repealed by Acts 1996, ch. 1079, § 109, effective May 21, 1996.

Part 2
County Department of Children's Services Act of 1979

37-2-201. Short title.

This part shall be known and may be cited as the “County Department of Children's Services Act of 1979.”

Acts 1979, ch. 143, § 1; T.C.A., § 37-401.

37-2-202. Authority to establish department.

The various counties are hereby authorized to establish and operate a department of children's services to take custody and guardianship of the person of any child adjudicated dependent and neglected, unruly or delinquent by a juvenile court and placed in the custody of such department.

Acts 1979, ch. 143, § 2; T.C.A., § 37-402.

37-2-203. Appointment of director and other personnel.

The county mayor may, with the approval of the county legislative body, appoint a director and such other personnel as may be deemed necessary to provide efficient management of homes and institutions owned or operated by the county, and to assure that children in custody of such department receive the proper care and services. Each such director shall serve at the will and pleasure of the appointing authority.

Acts 1979, ch. 143, § 3; T.C.A., § 37-403; Acts 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

37-2-204. Authority to establish and operate homes.

Counties and municipalities within this state are authorized and empowered to establish, erect, operate and maintain homes for the care and treatment of dependent and neglected, unruly and delinquent children, and to purchase services from any agency, public or private, that is authorized by law to receive or provide care or services for children.

Acts 1979, ch. 143, § 4; T.C.A., § 37-404.

37-2-205. Commitment of dependent and neglected, delinquent or unruly children — Contracts for per diem allowance — Records — Minimum qualifications and standards.

  1. In addition to the dispositional alternatives provided by §§ 37-1-130 — 37-1-132, concerning dependent and neglected, delinquent or unruly children, the juvenile court judge of any county within the provisions of this part is hereby authorized and empowered to commit a child to the custody of such county department of children's services. Upon such commitment by the juvenile court judge, guardianship of the person of such child shall immediately transfer to the director of the county department.
  2. When any child is committed to a county department, the state, from available budgetary funds of any state department through which federal or other funds may be provided by law for the purchase of child care, may contract with the county department to pay a per diem allowance for each child so committed for the period of time each such child is in custody of the county department. The per diem allowance shall be determined by negotiation and contract between the county and state department through which such funds are available.
  3. The director of the county department shall keep or cause to be kept all records and reports required to be kept by a comparable state agency. Such records shall include the quarterly review of each child's treatment, rehabilitation and progress, and the procedures for such review prescribed by the director. Failure of the director to keep or maintain any such records and reports required to be kept by law shall relieve the state from its obligation to pay the county department the per diem allowance for any child upon whom inadequate records have been kept.
  4. The county department shall ensure that services provided to children in its care and facilities provided for that purpose shall meet all minimum qualifications and standards established by contract with the contracting department, but in no event shall such qualifications or standards be less stringent than those mandated by applicable state or federal law or regulation for the children in the care of the department. Failure to meet such qualifications and standards shall entitle the contracting department to withhold funds payable to the county pursuant to the contract. In all cases, the contracting state department shall have the authority to conduct such monitoring and inspection as may be necessary to enforce this provision.
  5. The department of children's services is authorized to enter into an agreement to pay a per diem allowance to a county for each delinquent child placed in a local facility for delinquent children operated under the direction of the court or other local public authority. As a condition of such payment, the agreement may require that the county pay to the department of children's services a per diem allowance in the same amount for each child committed from the county to the department of children's services. The per diem allowance shall be as agreed upon, but not less than seventy-five percent (75%) of the current actual cost of maintaining a child in a state correctional institution.
      1. In order to enhance communication between the department of children's services and juvenile court judges across the state, the department shall provide to the juvenile court judge(s) for each county a report which includes:
        1. The number of commitments to state custody for dependent and neglected children, unruly children, and delinquent children for the previous twelve-month period by county; and
        2. The statewide average commitment rate per thousand youth based on the latest county population data as provided by the department of health.
      2. The report shall be provided to judges on a semiannual basis and shall also be made available on the department's web site.
    2. The department may initiate a collaborative planning process at the time a county's commitment rate is believed to be likely to exceed two hundred percent (200%) of the statewide average commitment rate. Upon request of the court, the department shall partner with the court to develop and implement strategies to address any factors contributing to higher commitment rates in such county.
    3. On or before January 31 of each year, the department of children's services shall provide to the judiciary committee of the senate and the committee of the house of representatives having oversight over children and families a report of county commitment data for the previous fiscal year and a description of actions taken as part of the collaborative planning process. The report shall be published as part of the department's annual report required by § 37-5-105(4).

Acts 1979, ch. 143, § 5; 1983, ch. 239, § 1; T.C.A., § 37-405; Acts 1989, ch. 278, § 46; 1996, ch. 1079, § 110; 2009, ch. 531, § 30; 2010, ch. 662, § 1; 2011, ch. 410, § 3(g); 2013, ch. 236, § 21; 2015, ch. 178, § 1; 2019, ch. 345, § 38.

Compiler's Notes.

For the preamble to the act concerning the operation and funding of state government and to fund the state budget for the fiscal years beginning on July 1, 2008, and July 1, 2009, please refer to Acts 2009, ch. 531.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2015 amendment, in (f)(3), substituted “January 31” for “February 1” at the beginning of the first sentence; substituted “fiscal” for “calendar” preceding “year” at the end of the first sentence and added the second sentence.

The 2019 amendment substituted “the committee of the house of representatives having oversight over children and families” for “the civil justice committee of the house of representatives” in (f)(3).

Effective Dates. Acts 2015, ch. 178, § 5. April 16, 2015.

Acts 2019, ch. 345, § 148. May 10, 2019.

37-2-206. Modification of court order.

The director of a county department of children's services, or the director's designee, or any interested party, may petition the committing court to modify an order awarding custody of a child to the county department on the ground that changed circumstances so require in the best interest of the child.

Acts 1979, ch. 143, § 6; T.C.A., § 37-406.

37-2-207. Use of facilities of another county.

Any county legislative body within the provisions of this part is hereby authorized to enter into an agreement with any other county for the use of the facility in its department of children's services. The county having such a department shall be entitled to reimbursement from the state in the same manner for any juvenile committed from such contracting county. Guardianship of all such juveniles committed from another county under this section shall immediately transfer to the director of the department of children's services to which the juvenile is committed.

Acts 1979, ch. 143, § 7; T.C.A., § 37-407.

37-2-208. Authority to appropriate funds.

The county legislative body is hereby authorized to appropriate funds for the operation of the county department of children's services.

Acts 1979, ch. 143, § 8; T.C.A., § 37-408.

Part 3
Subsidized Receiving Homes

37-2-301. Authority to provide.

Counties, through their county legislative bodies, are authorized and empowered to set up subsidized receiving homes for the care of dependent, neglected or abandoned children, or children without proper parental care or guardianship, whenever an order is made by proper resolution duly adopted by a majority of the members constituting the legislative body and placed on the minutes of the legislative body.

Acts 1949, ch. 222, § 1; C. Supp. 1950, § 4746.1 (Williams, § 4765.119); T.C.A. (orig. ed.), § 37-601.

Cross-References. Family violence shelters and child abuse prevention services, title 71, ch. 6, part 2.

Collateral References.

Liability of parent for support of child institutionalized by juvenile court. 59 A.L.R.3d 636.

37-2-302. Appropriations and tax levy for subsidizing homes.

County legislative bodies are authorized and empowered to appropriate from funds on hand not otherwise appropriated, such sums as the legislative body may deem necessary to subsidize such homes and to furnish board and care for children committed to such homes as provided in § 37-2-314; or the legislative bodies may levy a tax on property to meet such appropriations. These sums shall be paid by warrant drawn on the county treasury when proper invoice or bill has been audited and approved by the county mayor or the county mayor's designated agent.

Acts 1949, ch. 222, § 2; C. Supp. 1950, § 4746.2 (Williams, § 4765.120); T.C.A. (orig. ed.), § 37-602; Acts 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

37-2-303. State's contribution to cost of subsidizing homes.

The state of Tennessee, through the department of human services, shall set up a grant in aid fund in the support of every licensed receiving home in the amount of fifty percent (50%) of the cost of subsidizing the home and fifty percent (50%) of the boarding care and special needs of any child placed in the home as provided in § 37-2-314.

Acts 1949, ch. 222, § 3; C. Supp. 1950, § 4746.3 (Williams, § 4765.121); T.C.A. (orig. ed.), § 37-603.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

37-2-304. Rules and regulations of department of human services.

The department of human services is empowered and directed to promulgate and enforce such rules and regulations for the conduct of all such receiving homes as shall be necessary to effect the purpose of this part and other laws of the state relating to children and safeguard the well being of all children kept therein.

Acts 1949, ch. 222, § 13; C. Supp. 1950, § 4746.13 (Williams, § 4765.131); impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 37-604.

37-2-305. Inspection and license by department of human services required.

No home in any county shall be approved as a county receiving home until it has been inspected and licensed by the department of human services, and such license shall not be issued for a period longer than one (1) year.

Acts 1949, ch. 222, § 6; C. Supp. 1950, § 4746.6 (Williams, § 4765.124); impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 37-605.

37-2-306. Licensed home requirements — Approval by health and fire prevention departments.

No such license shall be issued unless the premises are in a fit sanitary condition, and the home is equipped and staffed to provide properly for the physical, social, moral, mental, educational and religious needs of all children kept therein. The application for such license shall have been approved by the department of health and the fire prevention division of the department of commerce and insurance.

Acts 1949, ch. 222, § 7; C. Supp. 1950, § 4746.7 (Williams, § 4765.125); impl. am. Acts 1971, ch. 137, § 1; T.C.A. (orig. ed.), § 37-606.

37-2-307. Contents of license — Limitation on number of children.

The license shall state the name of the licensee, the particular premises in which the business may be carried on, and the number of children, not to exceed eight (8), that may be properly boarded or cared for therein at any one time.

Acts 1949, ch. 222, § 8; C. Supp. 1950, § 4746.8 (Williams, § 4765.126); T.C.A. (orig. ed.), § 37-607.

37-2-308. Record of license kept by department of human services and county mayor.

A record of the license so issued shall be kept by the department of human services and by the county mayor of the county in which the home is located.

Acts 1949, ch. 222, § 9; C. Supp. 1950, § 4746.9 (Williams, § 4765.127); impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 37-608; Acts 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

37-2-309. License must be maintained on premises.

Such license shall be kept and maintained upon the premises at all times and exhibited upon request of any member of the general public or representative of the state, county or municipal government.

Acts 1949, ch. 222, § 12; C. Supp. 1950, § 4746.12 (Williams, § 4765.130); T.C.A. (orig. ed.), § 37-609.

37-2-310. Revocation of license.

Any license issued under this part may be revoked by the department of human services acting through the commissioner. The department shall notify the licensee thirty (30) days prior to revoking any license stating the reasons for revocation. A copy of the notice shall be sent to the county mayor of the county in which the home is located. Thirty (30) days after the issuance of the notice the department, by its agent, shall visit the home and, if the reasons set out in the notice for revoking the license have been corrected, the license shall not be revoked; but if the reasons set out in the notice have not been corrected, the license may be revoked by the department acting through the commissioner after an opportunity for a fair hearing before the commissioner or the commissioner's duly designated representative, the juvenile judge and the county attorney.

Acts 1949, ch. 222, § 15; C. Supp. 1950, § 4746.15 (Williams, § 4765.133); impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 37-610; Acts 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

37-2-311. License necessary to receive child or subsidy therefor.

No person shall receive a child for care in any such home or receive any payment for subsidy or for board or special needs of any child unless it has an unrevoked license issued by the department of human services within twelve (12) months preceding the payment of such subsidy or the placement of such child.

Acts 1949, ch. 222, § 10; C. Supp. 1950, § 4746.10 (Williams, § 4765.128); impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 37-611.

37-2-312. Contract with licensed receiving homes — Terms.

The county mayor and the department of human services, through its designated agent, shall enter into a written contract with each licensed receiving home, the contract to state the amount of subsidy to be paid for each bed, the number of beds to be available at all times, and the monthly, weekly and daily amount to be paid for the board of each child placed in the home, and such special needs and the amounts of each that may be provided for each child placed in the home.

Acts 1949, ch. 222, § 4; C. Supp. 1950, § 4746.4 (Williams, § 4765.122); impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 37-612; Acts 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

37-2-313. Quarterly reports made by county to department of human services.

Each county maintaining a subsidized receiving home shall submit to the department of human services by the tenth of each month or the first of each quarter, that is, January, April, July, and October, respectively, an itemized statement of the cost of subsidizing each licensed receiving home, and an itemized statement of the boarding care and special needs provided each child placed in the home during the preceding month or quarter. Within thirty (30) days after receipt of the statement, the department shall reimburse the county in the amount of fifty percent (50%) of the statement, so long as the cost of the subsidy, boarding care and special needs of any one (1) child does not exceed the amount specified in the contract entered into by the county, the department and the receiving home.

Acts 1949, ch. 222, § 5; C. Supp. 1950, § 4746.5 (Williams, § 4765.123); impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 37-613.

37-2-314. Commitment of children to homes.

Any dependent, neglected or abandoned child or any child without proper parental care or guardianship shall be received in the home by commitment of the juvenile judge wherever the juvenile judge's jurisdiction permits, upon a judgment or decree entered in the court showing that the child is dependent, neglected or abandoned or without proper parental care or guardianship, or is likely to become a public charge.

Acts 1949, ch. 222, § 16; C. Supp. 1950, § 4746.16 (Williams, § 4765.134); T.C.A. (orig. ed.), § 37-614.

37-2-315. Period of commitment.

The period of commitment to the home shall be for such time as may be fixed by the juvenile judge, in the order of commitment, pending social study and planning for the best interest of each child committed, but of not longer than the majority of the child.

Acts 1949, ch. 222, § 17; C. Supp. 1950, § 4746.17 (Williams, § 4765.135); T.C.A. (orig. ed.), § 37-615.

37-2-316. Case record kept on each child.

The county office of the department of human services shall prepare a case record on each child committed under the provisions of this part and shall furnish the juvenile judge with a summary of the record, who shall preserve the record in a well-bound book.

Acts 1949, ch. 222, § 18; C. Supp. 1950, § 4746.18 (Williams, § 4765.136); impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 37-616.

37-2-317. Investigation by department of human services.

The department of human services, by its agents, has the power to enter, visit and investigate any licensed receiving home at any and all reasonable times without prior notice of its intentions so to do.

Acts 1949, ch. 222, § 14; C. Supp. 1950, § 4746.14 (Williams, § 4765.132); impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 37-617.

37-2-318. Exceeding number of children authorized prohibited — Keeping children in place not designated in license prohibited.

No greater number of children shall be kept at any one time on the licensed premises than is authorized by the license, and no child shall be kept in a building or place not designated in the license.

Acts 1949, ch. 222, § 11; C. Supp. 1950, § 4746.11 (Williams, § 4765.129); T.C.A. (orig. ed.), § 37-618.

Cross-References. Limitation on number of children in each home, § 37-2-307.

37-2-319. Violation of part — False statements or reports — Penalty.

Any person who violates this part or the regulations promulgated by the department of human services by direction of this part or who willfully makes any false statements or reports to the department or the county mayor, or both, of any county with reference to any matter embraced by this part commits a Class A misdemeanor.

Acts 1949, ch. 222, § 19; C. Supp. 1950, § 4746.19 (Williams, § 4765.137); impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 37-619; Acts 1989, ch. 591, § 111; 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Part 4
Foster Care

37-2-401. Legislative intent — Construction of part.

  1. The primary purpose of this part is to protect children from unnecessary separation from parents who will give them good homes and loving care, to protect them from needless prolonged placement in foster care and the uncertainty it provides, and to provide them a reasonable assurance that, if an early return to the care of their parents is not possible, they will be placed in a permanent home at an early date.
  2. The secondary purpose of this part is to provide a mechanism to monitor the care of children in foster care to ensure that everything reasonably possible is being done to achieve a permanent plan for the child.
  3. When a parent by such parent's actions or failure to act fails to fulfill such parent's responsibilities as a parent, the court shall consider such conduct in determining whether to terminate parental rights, regardless of whether the parent intended such parent's conduct to constitute a relinquishment or forfeiture of such parent's parental rights. When the interests of a child and those of an adult are in conflict, such conflict is to be resolved in favor of a child, and to these ends this part shall be liberally construed.

Acts 1976, ch. 731, § 1; 1982, ch. 811, § 1; 1983, ch. 438, §§ 1-6; T.C.A., § 37-1501(a).

Rule Reference. This part is referred to in the Advisory Commission Comments under Rule 501 of the Tennessee Rules of Evidence.

This part is referred to in Rule 32 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Coppock on Tennessee Adoption Law, (1998-99 ed., Coppock).

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), Rule 501.

NOTES TO DECISIONS

1. Severe Child Abuse.

Evidence was sufficient to support the trial court's finding that father had committed severe child abuse against a sibling by half-blood to his natural child where the evidence demonstrated that at the time the department of human services (now children's services) representatives went to the home, they found sibling with second-degree burns over 15 percent of her body and he knew of her condition, had the opportunity, ability and an available medical facility to properly obtain medical attention for the child, yet he failed to do so. Department of Human Servs. v. Hauck, 872 S.W.2d 916, 1993 Tenn. App. LEXIS 700 (Tenn. Ct. App. 1993), appeal denied, 1994 Tenn. LEXIS 77 (Tenn. Feb. 28, 1994).

37-2-402. Part definitions.

As used in this part, unless the context otherwise requires:

    1. “Abandonment” for purposes of terminating the parental or guardian rights of a parent or a guardian of a child to that child in order to make that child available for adoption, has the same meaning as defined in § 36-1-102;
    2. For purposes of this subdivision (1), “token support” means that the support, under the circumstances of the individual case, is insignificant given the parent's means;
    3. For purposes of this subdivision (1), “token visitation” means that the visitation, under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child;
    4. For purposes of this subdivision (1), “willfully failed to support” or “willfully failed to make reasonable payments toward such child's support” means that, for a period of four (4) consecutive months, no monetary support was paid or that the amount of support paid is token support;
    5. For purposes of this subdivision (1), “willfully failed to visit” means the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation;
    6. Abandonment may not be repented of by resuming visitation or support subsequent to the filing of any petition seeking to terminate parental or guardianship rights or seeking the adoption of a child; and
    7. “Abandonment” and “abandonment of infant” do not have any other definition except that which is set forth herein, it being the intent of the general assembly to establish the only grounds for abandonment by statutory definition. Specifically, it shall not be required that a parent be shown to have evinced a settled purpose to forego all parental rights and responsibilities in order for a determination of abandonment to be made. Decisions of any court to the contrary are hereby legislatively overruled;
  2. “Abandonment of an infant” means, for purposes of terminating parental or guardian rights, “abandonment” of a child under one (1) year of age;
  3. “Agency” means a child care agency, as defined in title 71, chapter 3, part 5, or in chapter 5, part 5 of this title, regardless of whether such agency is licensed or approved, and includes the department of children's services;
  4. “Board” means an advisory review board appointed by a juvenile court judge, juvenile court judges, or the department of children's services as provided in this part;
  5. “Court” means the juvenile court having jurisdiction over the person of the child, or, if no juvenile court has jurisdiction over the child, then the juvenile court in the county in which the child resides;
  6. “Date of foster care placement” means the original date on which the child is physically placed in foster care;
  7. “Judge” means a juvenile judge or the judge having jurisdiction over the person of the child;
  8. “Parent” means the natural parent or legal guardian, except in cases when guardianship is held by an agency pursuant to a determination of abandonment or surrender of parental rights;
  9. “Plan” or “permanency plan” means a written plan for a child placed in foster care with the department of children's services or in the care of an agency as defined in subdivision (3) and as provided in § 37-2-403; and
  10. “Report” means a written report by an advisory review board as provided in § 37-2-406 or by the department of children's services or by an agency having custody of a child as provided in § 37-2-404.

Acts 1976, ch. 731, § 1; 1982, ch. 811, § 1; 1983, ch. 438, §§ 1-6; T.C.A., § 37-1501(b); Acts 1996, ch. 1079, §§ 73, 112; 1997, ch. 253, § 1; 1998, ch. 1097, §§ 13, 14; 2000, ch. 981, §§ 51, 57; 2001, ch. 388, § 5; 2009, ch. 411, § 9; 2010, ch. 842, § 3; 2010, ch. 887, § 1; 2020, ch. 525, § 12.

Compiler's Notes. Acts 2009, ch. 411, § 12 provided that the act, which amended §§ 36-1-102, 36-1-108, 37-1-102, 37-2-402 and added new § 37-1-183, shall apply to conduct covered by the provisions of the act that occurs on or after July 1, 2009. The eighteen (18) month time period set out in § 37-1-102(b)(12)(J) shall not commence until July 1, 2009.

Amendments. The 2020 amendment rewrote the definition of “abandonment” which read: “‘Abandonment’ means, for purposes of terminating the parental or guardian rights of a parent or parents or a guardian or guardians of a child to that child in order to make that child available for adoption, that: “(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent or parents or a guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, that the parent or parents or a guardian or guardians either have willfully failed to visit or have willfully failed to support or make reasonable payments toward the support of the child;“(ii) The child has been removed from the home of the parent or parents or a guardian or guardians as the result of a petition filed in the juvenile court in which the child was found to be a dependent and neglected child, as defined in § 37-1-102, and the child was placed in the custody of the department or a licensed child-placing agency, that the juvenile court found, or the court where the termination of parental rights petition is filed found, that the department or a licensed child-placing agency made reasonable efforts to prevent removal of the child or that the circumstances of the child's situation prevented reasonable efforts from being made prior to the child's removal; and for a period of four (4) months following the removal, the department or agency has made reasonable efforts to assist the parent or parents or a guardian or guardians to establish a suitable home for the child, but that the parent or parents or a guardian or guardians have made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the child to such a degree that it appears unlikely that they will be able to provide a suitable home for the child at an early date. The efforts of the department or agency to assist a parent or guardian in establishing a suitable home for the child may be found to be reasonable if such efforts exceed the efforts of the parent or guardian toward the same goal, when the parent or guardian is aware that the child is in the custody of the department;“(iii) A biological or legal father has either willfully failed to visit or willfully failed to make reasonable payments toward the support of the child's mother during the four (4) months immediately preceding the birth of the child; provided, that in no instance shall a final order terminating the parental rights of a parent as determined pursuant to this subdivision (1)(A)(iii) be entered until at least thirty (30) days have elapsed since the date of the child's birth;“(iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child; or“(v) The child, as a newborn infant aged seventy-two (72) hours or less, was voluntarily left at a facility by such infant's mother pursuant to § 68-11-255, and, for a period of thirty (30) days after the date of voluntary delivery, the mother failed to visit or seek contact with the infant; and, for a period of thirty (30) days after notice was given under § 36-1-142(e), and no less than ninety (90) days cumulatively, the mother failed to seek contact with the infant through the department or to revoke her voluntary delivery of the infant;”.

Effective Dates. Acts 2020, ch. 525, § 13. March 6, 2020.

Cross-References. Foster parent as “state employee” for purposes of defense counsel commission statute, § 8-42-101.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, V. Children (Neil P. Cohen), 45 Tenn. L. Rev. 451 (1978).

Storied Anna Mae He Decision Clarifies Law But Leaves Unanswered Questions (Christina A. Zawisza), 38 U. Mem. L. Rev. 637 (2008).

NOTES TO DECISIONS

1. Permanency Plan.

In a termination of parental rights proceeding, the mother failed to comply with her responsibilities under the permanency plan requiring her to complete an alcohol and drug assessment, maintain appropriate, drug-free housing, participate in a parenting assessment and attend parenting classes, and maintain financial stability by cooperating with public assistance programs and acquiring and maintaining employment for a minimum of six months. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 2006 Tenn. App. LEXIS 156 (Tenn. Ct. App. 2006), appeal denied, In re A. B., — S.W.3d —, 2006 Tenn. LEXIS 543 (Tenn. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 537 (Tenn. 2006).

It was error to terminate a mother's parental rights due to substantial noncompliance with a permanency plan because the record did not contain a document that met the definition of a permanency plan, as an order containing conditions the mother had to satisfy for the children to be returned did not meet this definition, nor did the record otherwise contain a document meeting this requirement. In re A.C.S., — S.W.3d —, 2015 Tenn. App. LEXIS 767 (Tenn. Ct. App. Sept. 23, 2015).

2. Failure to Comply.

In a termination of parental rights proceeding, the trial court found that the mother failed to comply with her responsibilities under the permanency plan where the mother failed to provide pay stubs to verify her claim that she was employed, stopped attending therapeutic visits, continued to use drugs, and lived in a motel room paid for with the proceeds from drug sales. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 2006 Tenn. App. LEXIS 156 (Tenn. Ct. App. 2006), appeal denied, In re A. B., — S.W.3d —, 2006 Tenn. LEXIS 543 (Tenn. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 537 (Tenn. 2006).

37-2-403. Contents of permanency plan — Statement of responsibilities — Collection of information on biological parents.

      1. Within thirty (30) days of the date of foster care placement, an agency shall prepare a plan for each child in its foster care. Such plan shall include a goal for each child of:
        1. Return of the child to parent;
        2. Permanent placement of the child with a fit and willing relative or relatives of the child;
        3. Adoption, giving appropriate consideration to § 36-1-115(g) when applicable;
        4. Permanent guardianship; or
        5. A planned permanent living arrangement.
      2. Such plans are subject to modification and shall be reevaluated and updated at least annually, except when a long-term agreement has been made in accordance with this part.
      1. The permanency plan for any child in foster care shall include a statement of responsibilities between the parents, the agency and the caseworker of such agency. Such statements shall include the responsibilities of each party in specific terms and shall be reasonably related to the achievement of the goal specified in subdivision (a)(1). The statement shall include the definitions of “abandonment” and “abandonment of an infant” contained in § 36-1-102 and the criteria and procedures for termination of parental rights. Each party shall sign the statement and be given a copy of it. The court must review the proposed plan, make any necessary modifications and ratify or approve the plan within sixty (60) days of the foster care placement. The department of children's services shall, by rules promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 2, determine the required elements or contents of the permanency plan.
        1. The parents or legal guardians of the child shall receive notice to appear at the court review of the permanency plan and the court shall explain on the record the law relating to abandonment contained in § 36-1-102, and shall explain that the consequences of failure to visit or support the child will be termination of the parents' or guardians' rights to the child, and the court will further explain that the parents or guardians may seek an attorney to represent the parents or guardians in any termination proceeding. If the parents or legal guardians are not at the hearing to review the permanency plan, the court shall explain to the parents or guardians at any subsequent hearing regarding the child held thereafter, that the consequences of failure to visit or support the child will be termination of the parents' or guardians' rights to the child and that they may seek an attorney to represent the parents or guardians in a termination proceeding.
        2. If the parents or guardians of the child cannot be given notice to appear at the court review of the permanency plan, or if they refuse or fail to appear at the court review of the permanency plan, or cannot be found to provide notice for the court review of the permanency plan, any agency that holds custody of the child in foster care or in any other type of care and that seeks to terminate parental or guardian rights based upon abandonment of that child under § 36-1-102, shall not be precluded from proceeding with the termination based upon the grounds of abandonment, if the agency demonstrates at the time of the termination proceeding:
          1. That the court record shows, or the petitioning party presents to the court a copy of the permanency plan that shows that the defendant parents or legal guardians, subsequent to the court review in subdivision (a)(2)(B)(i), has signed the portion of the permanency plan that describes the criteria for establishing abandonment under § 36-1-102, or that the court record shows that, at a subsequent hearing regarding the child, the court made the statements to the parents or legal guardians required by subdivision (a)(2)(B)(i);
          2. By an affidavit, that the child's permanency plan containing language that describes the criteria for establishing abandonment under § 36-1-102 was presented by the agency party to the parents or guardians at any time prior to filing the termination petition, or that there was an attempt at any time to present the plan that describes the criteria for establishing abandonment under § 36-1-102 to the parents or guardians at any time by the agency party, and that such attempt was refused by the parents or guardians; and
          3. That, if the court record does not contain a signed copy of the permanency plan, or if the petitioning agency cannot present evidence of a permanency plan showing evidence of such notice having been given or an affidavit showing that the plan was given or that the plan was attempted to be given to the parents or guardians by the agency and was refused by the parents or guardians, and, in this circumstance, if there is no other court record of the explanation by the court of the consequences of abandonment and the right to seek an attorney at any time, then the petitioning agency shall file with the court an affidavit in the termination proceeding that describes in detail the party's diligent efforts to bring such notice required by subdivision (a)(2)(B)(i) to such parent or guardian at any time prior to filing the agency's filing of the termination petition.
      3. Substantial noncompliance by the parent with the statement of responsibilities provides grounds for the termination of parental rights, notwithstanding other statutory provisions for termination of parental rights, and notwithstanding the failure of the parent to sign or to agree to such statement if the court finds the parent was informed of its contents, and that the requirements of the statement are reasonable and are related to remedying the conditions that necessitate foster care placement. The permanency plan shall not require the parent to obtain employment if such parent has sufficient resources from other means to care for the child, and shall not require the parent to provide the child with the child's own bedroom unless specific safety or medical reasons exist that would make bedroom placement of the child with another child unsafe.
    3. At any hearing in which a court orders a child to be placed in foster care, the judge shall determine whether a permanency plan has been prepared and whether the statement of responsibilities has been agreed upon by the parties. If a statement has been agreed upon by the parties, the court shall review it and approve it if the court finds it to be in the best interest of the child. If a plan had not been prepared or parties have not agreed to a statement of responsibilities, the court may continue the hearing for such time, not to exceed thirty (30) days, as may be necessary to give the parties an opportunity to attempt to agree on a suitable plan, which may then be approved by the court without a further hearing if the court finds the plan to be in the best interest of the child, but no longer than sixty (60) days after the foster care placement, except as provided in § 37-1-166.
      1. If the parties are unable to agree on a statement of responsibilities during this period of time, the court shall hold a further informal hearing to decide on a statement of responsibilities. At such hearing, all relevant evidence, including oral and written reports, may be received by the court and relied upon to the extent of its probative value. The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making the reports.
      2. In determining the terms of the statement, the court shall, insofar as possible, in accordance with the best interest of the child, seek to:
        1. Return the child to the parent;
        2. Permanently place the child with a fit and willing relative or relatives of the child;
        3. Pursue adoptive placement;
        4. Pursue permanent guardianship; or
        5. Provide a planned permanent living arrangement for the child.
      3. The court shall take such action as may be necessary to develop and approve a plan that it finds to be in the best interest of the child. The plan shall be approved within sixty (60) days of the foster care placement, except as provided in § 37-1-166.
    5. In cases involving child abuse or child neglect, with such child being placed in foster care, the statement of responsibilities shall stipulate that the abusing or neglecting parent shall receive appropriate rehabilitative assistance through mental health consultation if so ordered by the court.
    6. The plan for a child who remains in foster care for one (1) year may be modified to a long-term agreement between a foster parent and the agency charged with the caring and custody of the child. Such agreements with foster parents shall include:
      1. Appropriate arrangements for the child; and
      2. Procedures for the termination of the agreement by either party when in the best interests of the child. When the department of children's services is a party to the agreement, such agreement must include provisions permitting variation in monetary allowances from fiscal year to fiscal year depending upon appropriations by the general assembly.
    1. In lieu of the provisions of subsection (a), in the event a child is in foster care as a result of a surrender or termination of parental rights, the agency having guardianship of the child shall prepare and submit to the foster care advisory review board or court in the county in which the child is in foster care a plan for each such child.
    2. Such plan shall include a goal for each child of:
      1. Permanent placement of the child with a fit and willing relative or relatives of the child;
      2. Adoption, giving appropriate consideration to § 36-1-115(g) when applicable;
      3. Permanent guardianship; or
      4. A planned permanent living arrangement.
    3. Specific reasons must be included in the plan for any goal other than placement of the child with a relative of the child or adoption. Such plan shall also include a statement of specific responsibilities of the agency and the caseworker of such agency designed to achieve the stated goal.
  3. The statement of responsibilities on a permanency plan that is ordered by the court shall empower the state agency to select any specific residential or treatment placement or programs for the child according to the determination made by that state agency, its employees, agents or contractors.
  4. Whenever a child is removed from such child's home and placed in the department's custody, the department shall seek to place the child with a fit and willing relative if such placement provides for the safety and is in the best interest of the child. Notwithstanding any provision of this section or any other law to the contrary, whenever return of a child to such child's parent is determined not to be in the best interest of the child, then such relative with whom the child has been placed shall be given priority for permanent placement or adoption of the child prior to pursuing adoptive placement of such child with a non-relative.
  5. In addition to completing the permanency plan, within thirty (30) days of the date of foster care placement, the placement agency shall collect as much information as possible in order to complete a medical and social history on the child and the child's biological family on the form promulgated by the department pursuant to § 36-1-111(k).
  6. Within twelve (12) months of a child entering state custody, the department shall review the child's case to determine, in the department's discretion, if reunification with family is feasible, and if not, whether to pursue termination of parental rights.

Acts 1976, ch. 731, § 2; 1978, ch. 804, §§ 1, 2; 1979, ch. 272, § 1; 1982, ch. 811, § 2; 1983, ch. 438, §§ 7-12; T.C.A., § 37-1502; Acts 1988, ch. 560, §§ 1-6; 1995, ch. 532, § 15; 1996, ch. 1054, §§ 102, 125; 1996, ch. 1079, §§ 73, 111, 113; 1998, ch. 1097, §§ 15-17, 30; 2002, ch. 629, §§ 1-4; 2007, ch. 372, §§ 7-9; 2010, ch. 842, § 4; 2010, ch. 881, § 1; 2013, ch. 354, § 2; 2019, ch. 510, § 3.

Amendments. The 2019 amendment added (f).

Effective Dates. Acts 2019, ch. 510, § 7. June 3, 2019.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, V. Children (Neil P. Cohen), 45 Tenn. L. Rev. 451 (1978).

Storied Anna Mae He Decision Clarifies Law But Leaves Unanswered Questions (Christina A. Zawisza), 38 U. Mem. L. Rev. 637 (2008).

NOTES TO DECISIONS

1. Noncompliance with Section.

The department of human services' (now children's services) failure to comply with this section did not preclude a finding, under the parental rights termination statute, that the department made reasonable efforts to rehabilitate the family unit. Tennessee Dep't of Human Services v. Riley, 689 S.W.2d 164, 1984 Tenn. App. LEXIS 3446 (Tenn. Ct. App. 1984).

In an action involving the termination of a mother's parental rights, though the juvenile court failed to timely ratify the permanency plans developed by the department of children's services for the mother, the permanency plans were not nullities, because the mother never argued that she was unaware of the conditions placed on her or that she thought that the plans had lapsed. In re A.W., 114 S.W.3d 541, 2003 Tenn. App. LEXIS 114 (Tenn. Ct. App. 2003).

Termination of the father's parental rights to his son under the ground of substantial non-compliance with a permanency plan was improper because he was never informed of the contents of the permanency plans and he could not have complied with requirements of which he was unaware. In re Aiden W., — S.W.3d —, 2014 Tenn. App. LEXIS 240 (Tenn. Ct. App. Apr. 28, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 582 (Tenn. July 14, 2014).

Trial court failed to ratify the plan within sixty days because it ratified the plan ten months after the child entered Department of Children's Services (DCS) custody; DCS and trial courts have a statutory duty to prepare and ratify permanency plans in a timely fashion, but failure to follow the prescribed time line is not grounds for nullifying the permanency plan because the requirements are directory and not mandatory. In re K.S., — S.W.3d —, 2019 Tenn. App. LEXIS 376 (Tenn. Ct. App. Aug. 2, 2019).

2. Noncompliance with Permanency Plan.

In a termination of parental rights proceeding, the trial court found that the mother failed to comply with her responsibilities under the permanency plan requiring her to complete an alcohol and drug assessment; maintain appropriate, drug-free housing; participate in a parenting assessment and attend parenting classes; and maintain financial stability by cooperating with public assistance programs and acquiring and maintaining employment for a minimum of six months. The mother failed to provide pay stubs to verify her claim that she was employed; stopped attending therapeutic visits; continued to use drugs; and lived in a motel room paid for with the proceeds from drug sales. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 2006 Tenn. App. LEXIS 156 (Tenn. Ct. App. 2006), appeal denied, In re A. B., — S.W.3d —, 2006 Tenn. LEXIS 543 (Tenn. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 537 (Tenn. 2006).

Where children were at risk due to illegal drug use and domestic abuse in the home, permanency plan which required father to undergo alcohol, drug, and parenting assessments, as well as random drug screens, was reasonable under T.C.A. § 37-2-403(a)(2)(C) because the terms were designed to remedy these problems; trial court did not err by terminating father's parental rights on the ground of noncompliance with the permanency plan. In re L.M.W., 275 S.W.3d 843, 2008 Tenn. App. LEXIS 512 (Tenn. Ct. App. Sept. 3, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 768 (Tenn. Oct. 6, 2008).

Termination of a father's parental rights was appropriate pursuant to T.C.A. § 36-1-113(g)(2) as the father failed to substantially comply with the permanency plan requirements, in that he did not attend parenting classes, submit to random drug screens, follow the recommendations from the mental health assessment, remedy the conditions that led to the child's removal, and search for alternative employment or an alternative caregiver after the one he suggested was rejected. While the father attempted to comply with some of the requirements in the permanency plan, the finding that the father's was in substantial noncompliance with the permanency plan was supported by clear and convincing evidence. In re Ronald L. D., — S.W.3d —, 2012 Tenn. App. LEXIS 49 (Tenn. Ct. App. Jan. 25, 2012).

While a mother attempted to comply with some of the requirements enumerated in permanency plans, T.C.A. § 37-2-403, a trial court's finding that the mother was in substantial noncompliance with the permanency plans was supported by clear and convincing evidence because the mother simply failed to comply with the most important aspects of the permanency plans, namely to remain drug free and put herself in a position where she could adequately care for the children; thus, a statutory ground existed for termination of the mother's parental rights, T.C.A. § 36-1-113(g)(2). In re Zachary G., — S.W.3d —, 2012 Tenn. App. LEXIS 141 (Tenn. Ct. App. Mar. 2, 2012).

Clear and convincing evidence supported a finding, under T.C.A. § 36-1-113(g)(2), that a mother was in substantial noncompliance with the reasonable requirements of a permanency plan because the mother: (1) refused to complete an alcohol and drug treatment program, believing the mother had no drug or alcohol problem; (2) continued a relationship with an abusive man who tested positive for drugs; and (3) tested positive for drugs. In re Jacob R.R., — S.W.3d —, 2012 Tenn. App. LEXIS 326 (Tenn. Ct. App. May 21, 2012).

It was inappropriate to terminate parental rights based on the ground of substantial noncompliance with a family services plan where the Department of Children's Services (DCS) did not take the child into State protective custody, did not obtain court approval of any permanency plan, did not include in the permanency plan notification to the child's parent of the criteria for termination and the consequences of failing to comply with the DCS plan, and did not undertake to provide reasonable efforts to assist the parent. Kaleb N. F. v. Christy Shantae C., — S.W.3d —, 2013 Tenn. App. LEXIS 178 (Tenn. Ct. App. Mar. 12, 2013).

Termination of a mother's parental rights under T.C.A. § 36-1-113 was proper as the evidence showed that the mother did not satisfy any of the requirements of three permanency plans, which required her to be able to support her children, to provide them with a stable home, to address her problems with alcohol, and to have a legal means of income. In re Justin K., — S.W.3d —, 2013 Tenn. App. LEXIS 213 (Tenn. Ct. App. Mar. 27, 2013).

Parent was in substantial noncompliance with a permanency plan as the parent tested positive for banned substances eight times after the parent's child came into Tennessee Department of Children's Services custody and the parent made herself unavailable for testing for weeks at a time, thereby avoiding the possible discovery of additional drug abuse. In re Skylar B. D., — S.W.3d —, 2013 Tenn. App. LEXIS 498 (Tenn. Ct. App. July 30, 2013).

Trial court made the necessary findings in regard to the first permanency plan because it stated that the requirements in the permanency plans were all reasonably related to remedying the conditions that necessitated foster care; the trial court made its finding in conjunction with its conclusion that the mother had not substantially complied with the provisions of the permanency plans and, therefore, her parental rights would be terminated In re J.C.B., — S.W.3d —, 2014 Tenn. App. LEXIS 746 (Tenn. Ct. App. Nov. 17, 2014).

Trial court properly found that the parents' responsibilities under the permanency plans were reasonably related to remedying the conditions that necessitate foster care, and therefore substantial noncompliance with the permanency plans could serve as a basis for terminating parental rights. In re Bonnie L., — S.W.3d —, 2015 Tenn. App. LEXIS 477 (Tenn. Ct. App. June 12, 2015).

Despite the parents' cooperation with some aspects of their plans, they failed to complete several requirements, including the mother refraining from drinking alcohol and the father showing the ability manage his anger appropriately; as they failed to substantially comply with the requirements of the permanency plans, the trial court properly concluded that substantial noncompliance with the permanency plans was an appropriate ground for terminating their parental rights. In re Bonnie L., — S.W.3d —, 2015 Tenn. App. LEXIS 477 (Tenn. Ct. App. June 12, 2015).

Trial court properly found that the parents' responsibilities under the permanency plans were reasonably related to remedying the conditions that necessitate foster care, and therefore substantial noncompliance with the permanency plans could serve as a basis for terminating parental rights. In re Bonnie L., — S.W.3d —, 2015 Tenn. App. LEXIS 477 (Tenn. Ct. App. June 12, 2015).

Despite the parents' cooperation with some aspects of their plans, they failed to complete several requirements, including the mother refraining from drinking alcohol and the father showing the ability manage his anger appropriately; as they failed to substantially comply with the requirements of the permanency plans, the trial court properly concluded that substantial noncompliance with the permanency plans was an appropriate ground for terminating their parental rights. In re Bonnie L., — S.W.3d —, 2015 Tenn. App. LEXIS 477 (Tenn. Ct. App. June 12, 2015).

Clear and convincing evidence showed a father's substantial noncompliance with permanency plans because the plans'  reasonable requirements related to the reasons for the child's removal from the father's custody, who did not follow recommendations from a parenting assessment and inconsistently visited the child and participated in required treatment. In re Daymien T., 506 S.W.3d 461, 2016 Tenn. App. LEXIS 540 (Tenn. Ct. App. July 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 752 (Tenn. Oct. 21, 2016).

In a termination of parental rights case, the Tennessee Department of Children's Services proved that the mother had not substantial complied with the permanency plan, even though the requirements of the permanency plan were reasonable and related to remedying the conditions that caused the child to be removed from her mother's custody, because the mother failed to obtain and maintain suitable housing, to seek employment, and to be able to provide a safe drug free environment for their children. In re Kendra P., — S.W.3d —, 2016 Tenn. App. LEXIS 544 (Tenn. Ct. App. July 28, 2016).

Juvenile court properly found that a mother and father failed to comply with the reasonable responsibilities contained in the permanency plan because they did not obtain suitable housing or manage to consistently pass drug screens; the requirements of the permanency plan were reasonably related to reducing the risk of harm to the children so that the children could be safely returned to the parents'  care. In re Jason S., — S.W.3d —, 2016 Tenn. App. LEXIS 715 (Tenn. Ct. App. Sept. 23, 2016).

Terminating a father's parental rights for substantial permanency plan noncompliance did not err because (1) reunification efforts were not required, (2) the father did not comply with the plan's reasonable requirements to submit a transportation plan or prove legal, verifiable, income, and (3) the father did not otherwise comply with the plan. In re Jose L., — S.W.3d —, 2016 Tenn. App. LEXIS 814 (Tenn. Ct. App. Oct. 31, 2016).

Trial court did not err in terminating parental rights because the parents failed to substantially comply with the reasonable requirements of the permanency plans; the trial court properly concluded that the parents had neglected to complete the reasonable requirements most closely related to the reason for their children's removal, substance abuse. In re Angel M., — S.W.3d —, 2017 Tenn. App. LEXIS 519 (Tenn. Ct. App. July 31, 2017).

Clear and convincing evidence supported the trial court's finding that parents did not substantially comply with the permanency plan because the parents never maintained suitable housing or maintained consistent visitation; both parents had unresolved criminal charges, they never completed parenting classes after being terminated for nonattendance, and they also failed to follow the recommendations of their mental health and alcohol and drug assessments. In re Billy T.W., — S.W.3d —, 2017 Tenn. App. LEXIS 641 (Tenn. Ct. App. Sept. 27, 2017).

Termination of the father's parental rights was proper based on substantial noncompliance with the permanency plans because the requirements of the plans were reasonably related to the conditions that necessitated removal of the children as the children were removed from the home due to the mother and the father's drug use, drug paraphernalia present in the home, and environmental neglect; the father did not provide or maintain suitable housing for children or refrain from illegal activity as evidenced from his incarceration at the time of the trial; and, despite the drug use that led to the children's removal, the father failed to participate in an A&D assessment, and failed to successfully complete a substance abuse program. In re Aaralyn O., — S.W.3d —, 2018 Tenn. App. LEXIS 14 (Tenn. Ct. App. Jan. 18, 2018).

Clear and convincing evidence supported termination on the ground of substantial noncompliance with the permanency plan requirements because the mother admitted that other than completing a drug-treatment program and obtaining a mental health evaluation, she made no effort to comply with her permanency plan responsibilities; the evidence was clear and convincing that the requirements of the permanency plan was reasonable and related to remedying the conditions that necessitated foster care. In re Keilyn O., — S.W.3d —, 2018 Tenn. App. LEXIS 362 (Tenn. Ct. App. June 28, 2018).

Termination of the father's parental rights was proper based on abandonment by an incarcerated parent by wanton disregard, abandonment by failure to provide a suitable home, and substantial noncompliance with the reasonable requirements of the permanency plan because the father raped the mother while the children were present in the home, he threatened the mother and the children with physical harm, and the children were aware of his behaviors; it did not appear that the father could provide the children with a safe home, free of domestic violence, and sexually deviant behavior; and the requirement that he address the psychological and emotional abuse issues was of paramount importance, but he did nothing toward that goal. In re R.S., — S.W.3d —, 2018 Tenn. App. LEXIS 427 (Tenn. Ct. App. July 24, 2018).

There was clear and convincing evidence to support terminating the parental rights of both parents on the ground of substantial noncompliance with the permanency plan because the plan was reasonable and related to the substance abuse and legal issues that necessitated foster care. The mother did not continue the mother's outpatient therapy, while the father repeatedly violated the father's probation requirements, and neither parent made any progress in demonstrating appropriate parenting despite instruction or paid any child support. In re Julian J., — S.W.3d —, 2019 Tenn. App. LEXIS 99 (Tenn. Ct. App. Feb. 26, 2019).

Clear and convincing evidence supported terminating parents'  parental rights due to substantial noncompliance with a permanency plan because (1) the permanency plan's requirements were reasonably related to the reasons for the parents'  children's removal, (2) other than the mother signing releases for providers and having money for child support deducted from her monthly Social Security benefits, the parents did nothing to comply with the plan, and, (3) after directing the Department of Children's Services (DCS) to only communicate with the parents through counsel, the parents did not maintain contact with counsel, preventing DCS from making reasonable efforts to assist the parents. In re Nicholas C., — S.W.3d —, 2019 Tenn. App. LEXIS 348 (Tenn. Ct. App. July 15, 2019).

Trial court properly determined that clear and convincing evidence supported termination of the mother's parental rights on the ground of substantial noncompliance with the permanency plan because the mother continued to test positive for illegal drugs throughout the pendency of the case; the mother's visitation with the child became progressively sporadic in the months leading to the filing of the termination petition, and the mother failed to pay any child support. In re K.S., — S.W.3d —, 2019 Tenn. App. LEXIS 376 (Tenn. Ct. App. Aug. 2, 2019).

2.5. Plans Met Statutory Requirements.

Requirements and goals identified in the permanency plans were reasonable and related to remedying the conditions that necessitated the removal of the child from the mother's care and the child's foster care placement, and thus the plans satisfied the requisite criteria. In re Aaliyah R., — S.W.3d —, 2014 Tenn. App. LEXIS 343 (Tenn. Ct. App. June 17, 2014).

Despite the initial permanency plan's shortcomings, the mother could not escape the conditions placed on her; she was aware of the conditions placed on her from the earliest stages of the case, she never objected, and she was represented by counsel. In re Destiny S., — S.W.3d —, 2016 Tenn. App. LEXIS 559 (Tenn. Ct. App. Aug. 4, 2016).

Permanency plans required the father to, in part, complete an alcohol and drug assessment and a mental health assessment and follow recommendations, maintain legal income and safe and stable housing, complete random drug screens, and participate in family counseling; these requirements were reasonable and related to the conditions warranting the placement of the child in custody of the department. In re Kaycee M., — S.W.3d —, 2018 Tenn. App. LEXIS 585 (Tenn. Ct. App. Oct. 3, 2018).

3. Termination of Parental Rights.

Termination of the father's parental rights was proper, in part because the failure to place the child with a relative was not a basis to defeat termination. T.C.A. § 37-2-403 only required the Department of Children's Services to consider relatives when it was in the child's best interest. In re Arteria H., 326 S.W.3d 167, 2010 Tenn. App. LEXIS 486 (Tenn. Ct. App. July 27, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 949 (Tenn. Oct. 14, 2010).

Although a mother claimed she was not provided proper notice that her willful failure to pay child support could result in the termination of her parental rights, the mother was given notice in the order granting permanent guardianship of the children to the grandparents; the Department of Children's Services was relieved from the case once permanent guardianship was granted. In re Dylan H., — S.W.3d —, 2011 Tenn. App. LEXIS 670 (Tenn. Ct. App. Dec. 16, 2011).

Department of Children Services did not err in not placing a mother's child with the child's maternal grandmother instead of terminating the mother's parental rights as the grandmother was not a suitable placement in light of the deplorable conditions found in her home when the child was initially removed and her failure to take steps to protect the child, who was in her custody, when she became ill. The preference in T.C.A. § 37-2-403 for relative placement applied only during the period immediately following removal from the home, and once that period had ended the agency was no longer required to give preference to a relative placement. In re Joseph L., — S.W.3d —, 2012 Tenn. App. LEXIS 427 (Tenn. Ct. App. June 25, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 640 (Tenn. Sept. 14, 2012).

Tennessee Department of Children's Services complied with the notice requirements of T.C.A. § 37-2-403 in a termination of parental rights matter, as neither the mother nor the father articulated any objection or reservation to proceeding with the hearing on termination of their parental rights based on lack of compliance with § 37-2-403, and the parents were present at a meeting where the permanency plan was developed. In re Ashley E., — S.W.3d —, 2012 Tenn. App. LEXIS 492 (Tenn. Ct. App. July 24, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 711 (Tenn. Sept. 20, 2012).

Termination of the father's parental rights was proper because he was not incarcerated or incapacitated, but he did not ever visit the children after they entered foster care; he failed to substantially comply with the permanency plan, despite reasonable efforts by the Tennessee Department of Children's Services; the conditions which led to the necessity for foster care persisted; and termination was in the best interest of the children as the father had shown little or no interest in the welfare of the children and had provided no support for the benefit of the children, the children were placed together and were known to have a strong bond with their resource family, and the children's foster parents wished to adopt them. In re Hannah W., — S.W.3d —, 2014 Tenn. App. LEXIS 190 (Tenn. Ct. App. Apr. 3, 2014), appeal dismissed, — S.W.3d —, 2014 Tenn. LEXIS 571 (Tenn. July 9, 2014).

Mother acknowledged receiving and signing a notice informing her that her parental rights could be terminated for failure to visit, as the statute required. In re Terry S.C., — S.W.3d —, 2014 Tenn. App. LEXIS 467 (Tenn. Ct. App. July 31, 2014).

Permanency plans were not lengthy or hard to follow, but the father's attempts to comply were sporadic at best; he failed to provide current proof that his home was safe for the children, and the finding that he was in substantial noncompliance with the permanency plans was supported by clear and convincing evidence, such that a statutory ground existed for termination of the father's parental rights. In re Agustine R., — S.W.3d —, 2015 Tenn. App. LEXIS 120 (Tenn. Ct. App. Mar. 17, 2015).

Trial court found that the requirements under the mother's permanency plan were reasonable and related to remedying the underlying conditions that necessitated the need for the child's foster care, and the evidence showed that the mother understood the plan requirements and the consequences for failure to comply, yet she was not able to acquire and exhibit the skills to take care of the child; thus, the mother was in substantial non-compliance with plan requirements and the termination of her rights was affirmed. In re Eve C., — S.W.3d —, 2015 Tenn. App. LEXIS 279 (Tenn. Ct. App. Apr. 29, 2015).

Ground of abandonment by failing to comply with the permanency plan was not met by clear and convincing evidence where the father attended a parenting class while in Nebraska and provided proof of completion, he testified that he had taken part in several mental health and drug assessments, he obtained a job in prison and had endeavored to pay child support, and although he admitted to being arrested after the creation of the plan he testified that those charges were not pursued. In re Abbigail C., — S.W.3d —, 2015 Tenn. App. LEXIS 856 (Tenn. Ct. App. Oct. 21, 2015).

Tennessee Department of Children's Services and the trial court provided the father with adequate notice under this section where it was undisputed that he participated in the development of the first permanency plan attached to which was a “Criteria & Procedures for Termination of Parental Rights” form that he signed, and at no time did the father object based on alleged lack of compliance with the notice requirement. In re Benjamin A., — S.W.3d —, 2016 Tenn. App. LEXIS 187 (Tenn. Ct. App. Mar. 14, 2016).

Tasks as outlined in the permanency plans were exceptionally difficult to be discerned, and due to the department's failure to limit the parent's responsibilities to concrete obligations that at least had the possibility of being accomplished by them, the order finding sufficient proof for termination for substantial noncompliance with a permanency plan was vacated. In re Navada N., 498 S.W.3d 579, 2016 Tenn. App. LEXIS 367 (Tenn. Ct. App. May 23, 2016).

Many of the permanency plan requirements reasonable and related to remedying the conditions that led to the mother's children's removal, including requiring compliance with and passing of random drug screen, refraining from criminal activity, and maintaining appropriate housing; although the mother was credited for her efforts while incarcerated, there was clear evidence that she failed to comply with the reasonable responsibilities contained in the permanency plan, including refraining from criminal activity, obtaining housing an exhibiting appropriate parenting skills. In re Aiden R., — S.W.3d —, 2016 Tenn. App. LEXIS 420 (Tenn. Ct. App. June 23, 2016).

Although the trial court found grounds to terminate the mother's parental rights based on abandonment and substantial non-compliance with a permanency plan, termination of the mother's parental rights to her 17-year-old child was improper as the Tennessee Department of Children's Services failed to prove by clear and convincing evidence that it was in the child's best interest to terminate her mother's parental rights because the child was 17 years old, was not a candidate for adoption, and intended to maintain a relationship with the mother when she turned 18; and termination of the mother's parental rights would accomplish nothing other than setting the child adrift with no adoptive family. In re Kendra P., — S.W.3d —, 2016 Tenn. App. LEXIS 544 (Tenn. Ct. App. July 28, 2016).

Evidence supported the finding of substantial noncompliance with the mother's permanency plan, making termination proper; the plan requirements were reasonable and appropriate, as the children were placed in foster care due to the mother's lack of suitable housing and substance abuse, and given the degree of noncompliance and the weight assigned to the requirements, the mother's noncompliance was substantial, as a majority of the requirements she failed to complete were aimed at addressing her substance abuse issues. In re Destiny S., — S.W.3d —, 2016 Tenn. App. LEXIS 559 (Tenn. Ct. App. Aug. 4, 2016).

Evidence was sufficient to support the trial court's termination of the father's parental rights based on substantial non-compliance with permanency plans because it showed that he failed to follow the recommendations from the assessments, failed to establish a suitable home, and was incarcerated at the time of trial. In re Travis H., — S.W.3d —, 2017 Tenn. App. LEXIS 290 (Tenn. Ct. App. May 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 468 (Tenn. July 31, 2017).

Father admitted that he was told that his rights could be terminated if he did not visit in four months, and thus he received sufficient notice under T.C.A. § 37-2-403. In re Miracle M., — S.W.3d —, 2017 Tenn. App. LEXIS 593 (Tenn. Ct. App. Aug. 30, 2017), appeal dismissed, — S.W.3d —, 2017 Tenn. LEXIS 845 (Tenn. Nov. 30, 2017).

Mother failed to substantially comply with the permanency plan, which supported termination; the responsibilities established in the permanency plan were reasonable and related to the conditions that led to the removal of the children, yet the mother moved from unsuitable home to unsuitable home, never attained safe housing for the children, and she continued to have employment struggles. In re B.L., — S.W.3d —, 2017 Tenn. App. LEXIS 846 (Tenn. Ct. App. Aug. 1, 2017).

Father was afforded sufficient notice of the statutory definition and consequences of abandonment because he was presented with a copy of the criteria, given ample time to read the contents of the form, and provided an explanation of the form, it was undisputed that he never followed up with the case manager or informed her he did not understand the document, and he signed the form but did not inform the Tennessee Department of Children's Services or the trial court that he did not understand the document until after the termination petition was filed. In re Catherine J., — S.W.3d —, 2018 Tenn. App. LEXIS 54 (Tenn. Ct. App. Jan. 30, 2018).

Purpose of requiring the criteria and procedures for termination of parental rights to be included with permanency plans is to make sure the parent or guardian is aware of the grounds and procedures for terminating parental or guardianship rights and of what he must do to avoid having his rights terminated; this purpose was achieved in this case when the trial court explained the contents of the document to the father as well as when he signed statements affirming that he had received a copy and an explanation of the document. In re Gabriel B., — S.W.3d —, 2018 Tenn. App. LEXIS 413 (Tenn. Ct. App. July 23, 2018).

T.C.A. § 37-2-403(a)(2)(A) does not indicate that a permanency plan becomes invalid if the department neglects to attach to it the criteria and procedures for termination of parental rights. In re Gabriel B., — S.W.3d —, 2018 Tenn. App. LEXIS 413 (Tenn. Ct. App. July 23, 2018).

There was clear and convincing evidence to establish that the father failed to substantially comply with the requirements of the permanency plan; he admittedly failed to comply with most of the plan's requirements, and while the department did attempt to assist him, the father failed to avail himself of the proffered assistance. In re Charles T., — S.W.3d —, 2018 Tenn. App. LEXIS 501 (Tenn. Ct. App. Aug. 28, 2018).

Father failed to substantially comply with the requirements of the permanency plan; although he completed several assessments and participated in sessions, he simply failed to address the most important aspects of the plan that would have resulted in his ability to care for the child, namely to resolve his legal issues and adequately address his drug abuse. In re Kaycee M., — S.W.3d —, 2018 Tenn. App. LEXIS 585 (Tenn. Ct. App. Oct. 3, 2018).

Mother failed to substantially comply with the requirements of the permanency plan, which were reasonably related to remedying the conditions that warranted foster care for the children; although the mother did complete an alcohol and drug assessment, she failed to follow any of the recommendations, nor did she obtain appropriate housing, pay child support, or maintain visitation. In re Gabriella H., — S.W.3d —, 2019 Tenn. App. LEXIS 12 (Tenn. Ct. App. Jan. 8, 2019).

Permanency plan requirements were reasonable and related to remedying the conditions that prevent reunification of the family, and the evidence showed that the mother failed to substantially comply with the plan requirements; she waited six months to start working on her responsibilities and made very little progress until August 2018, but she quickly relapsed, thus triggering the requirement to obtain another alcohol and drug assessment. She never completed a second assessment, withdrew from the drug treatment program, and remained homeless. In re Josiah T., — S.W.3d —, 2019 Tenn. App. LEXIS 482 (Tenn. Ct. App. Oct. 2, 2019).

4. Failure to Comply With Notice Provisions.

Since a mother failed to raise either at trial or prior to her appeal her argument that the notice requirements of T.C.A. § 37-2-403 had not been followed, she could not raise the issue on appeal. Moreover, these notice provisions only came into play when a parent's termination was based on abandonment, and the court affirmed the trial court's termination of the mother's parental rights on a ground other than abandonment. In re Justin K., — S.W.3d —, 2013 Tenn. App. LEXIS 213 (Tenn. Ct. App. Mar. 27, 2013).

Termination of the father's parental rights to his son under the ground of abandonment was improper because the Department of Children's Services (DCS) failed to prove that the statutory notice requirements were met regarding its efforts to notify the father. The DCS was required to file an affidavit describing its “diligent efforts” to provide the father with the statutory notice prior to the filing of its termination petition and the record contained no such affidavit. In re Aiden W., — S.W.3d —, 2014 Tenn. App. LEXIS 240 (Tenn. Ct. App. Apr. 28, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 582 (Tenn. July 14, 2014).

Trial court did not commit reversible error in accepting trial testimony by a case manager for the Tennessee Department of Children's Services, regarding the manager's diligent efforts to provide the required notice to a parent, in lieu of an affidavit to the same effect, because the court's reliance on the case manager's testimony was a harmless deviation from the statutory requirements that did not amount to reversible error. In re K.N.B., — S.W.3d —, 2014 Tenn. App. LEXIS 614 (Tenn. Ct. App. Sept. 30, 2014).

Collateral References.

Construction and application by state courts of the Federal Adoption and Safe Families Act and its implementing state statutes. 10 A.L.R.6th 173.

37-2-404. Progress report to court or review board — Review of permanency plan.

  1. In addition to the plan required in § 37-2-403, the department or agency shall submit to the appropriate court or foster care review board a report for each child in its foster care on progress made in achieving the goals set out in the plan. Such reports shall be prepared by the department or agency having custody of the child within ninety (90) days of the date of foster care placement and no less frequently than every six (6) months thereafter for so long as the child remains in foster care. At the time the progress report is provided to the court or foster care review board, the department or agency shall also provide a copy of the report to the child's parent(s) whose rights have not been terminated or surrendered, the parent's attorney, the guardian ad litem and/or attorney for the child, and the child who is a party to the proceeding.
  2. Within ninety (90) days of the date of foster care placement and no less often than every six (6) months thereafter for so long as the child remains in foster care, the court or foster care review board shall review the plan for each child in foster care. Notice of this review and the right to attend and participate in the review shall be provided to the child's parent(s) whose rights have not been terminated or surrendered, the parent's attorney, the guardian ad litem and/or attorney for the child, foster parents, prospective adoptive parent, relative providing care for the child and the child who is a party to the proceeding. The department and the court shall develop adequate procedures to provide notice of the review to the aforementioned persons. The court or board shall review the safety, permanency and wellbeing of the child by assessing the necessity and appropriateness of continued foster care placement, the appropriateness of services for the child, the compliance of all parties to the statement of responsibilities, the extent of progress in alleviating or mitigating the causes necessitating placement in foster care and in achieving the goals contained in the permanency plan, and project a likely date on which the goal of the plan will be achieved.

Acts 1976, ch. 731, § 3; 1978, ch. 804, § 3; 1979, ch. 272, § 2; 1982, ch. 811, § 3; 1983, ch. 438, § 13; T.C.A., § 37-1503; Acts 1988, ch. 560, §§ 7, 8; 1996, ch. 1079, § 111; 1998, ch. 1097, § 18; 2010, ch. 842, § 5.

NOTES TO DECISIONS

1. Noncompliance with Section.

The department of human services' (now children's services') failure to comply with this section did not preclude a finding, under the parental rights termination statute, that the department made reasonable efforts to rehabilitate the family unit. Tennessee Dep't of Human Services v. Riley, 689 S.W.2d 164, 1984 Tenn. App. LEXIS 3446 (Tenn. Ct. App. 1984).

37-2-405. Adoption of guidelines.

The department of children's services may, by regulation, adopt and prepare additional guidelines for the plans required of agencies; however, no such guidelines shall apply to a licensed child care agency if not applicable to the department. All plans established for the child shall contain at least the following:

  1. The purpose for which the child has been placed in foster care;
  2. The estimated length of time in which the purpose of foster care will be accomplished;
  3. The description of services that are to be provided in order for the purpose of foster care to be accomplished, including those services to be provided to the family; and
  4. The person within the department or agency who is directly responsible for assuring that the plan is implemented.

Acts 1976, ch. 731, § 3; 1979, ch. 272, § 3; 1983, ch. 438, § 19; T.C.A., § 37-1504; Acts 1988, ch. 979, § 4; 1996, ch. 1079, § 73; 2000, ch. 981, § 51; 2010, ch. 842, § 6.

Code Commission Notes.

Article II, § 24 of the Constitution of Tennessee provides, in part, that: “Any law requiring the expenditure of state funds shall be null and void unless, during the session in which the act receives final passage, an appropriation is made for the estimated first year's funding.”

The Tennessee code commission has been advised by the commissioner of finance and administration that the necessary first year's funding was not appropriated during the 1991 regular session for the public act that would have amended this section.

The code commission was directed by Acts 1991, ch. 509, § 54 to not codify acts that did not receive first year's funding. Accordingly, Acts 1991, ch. 246, § 3, which would have amended this section, has not been codified. If ch. 246, § 3 had been codified, the amendment of (b) by that act would have read as follows: “(b) The Tennessee commission on children and youth shall develop and provide such training to juvenile court judges, youth services officers, review board members, and departmental staff as may be necessary to provide such persons with adequate knowledge to perform their duties under this part.”

Cross-References. Commission on children and youth, title 37, ch. 3, part 1.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, V. Children (Neil P. Cohen), 45 Tenn. L. Rev. 451 (1978).

37-2-406. Foster care review boards — Request by judges for recommendations in making appointments — Composition — Option for judges to review cases.

    1. One (1) or more foster care review boards are hereby established in each county or in a region comprised of contiguous counties, the members being appointed by the judge or judges having juvenile court jurisdiction in such county or region by their mutual agreement. The judge or judges may appoint more than one (1) board and divide the workload in an equitable manner.
    2. The judge or judges may request recommendations from the administrative office of the courts or the department of children's services in making appointments to the foster care review board. Each board may include a nurse, a doctor, a lawyer, a member of a human resource agency, such as the departments of health or human services, a member of a local education agency, a staff member of a local mental health agency, a youth who was formerly in foster care and shall include a mother or father with a minor child and a person under the age of thirty (30). The members appointed to the board shall serve for two (2) years and shall serve without any form of compensation or reimbursement of expenses. The youth services officer or other designated officer of the court shall serve as a facilitator to each county or regional board. In counties with a population of less than one hundred thousand (100,000), the board shall consist of five (5) members. In counties with a population of more than one hundred thousand (100,000), and in regions, each board shall consist of seven (7) members. A quorum must exist to conduct the review.
    3. In lieu of the provisions of subdivisions (a)(1) and (2), the judge having juvenile court jurisdiction in any county may elect to personally review each case and, therefore, not appoint a foster care review board or to personally review certain cases instead of assigning them to the board for review even though a board is appointed. In the event the judge elects not to appoint a board, the judge shall specify by written order of the court duly entered on the record the guidelines and procedures the judge will use to ensure that the judge conducts the reviews required by this part for every child in foster care under the jurisdiction of the judge's court within ninety (90) days of the child's date of foster care and no less frequently than every six (6) months thereafter until such time as the child is no longer in foster care. A copy of this order shall be furnished to the county director of the department and to the commission on children and youth. The court may elect at any time to rescind this order and appoint a board pursuant to subdivisions (a)(1) and (2).
    4. All board members shall be required to participate in the training related to the performance of their duties.
    5. Nothing in this section shall preclude the court from reviewing a case, in lieu of the foster care review board, on either a motion by any party or on the court's own motion.
  2. It is the responsibility of the foster care review board or court to conduct the reviews specified in subsection (a). The board and the department shall develop adequate procedures to ensure that the case of each child in foster care is reviewed no less frequently than ninety (90) days after placement in foster care and every six (6) months thereafter; provided, that whenever a judicial hearing that addresses the issues specified in § 37-2-404 is held within six (6) months of a review, the next review may be held within six (6) months of the judicial hearing instead of within six (6) months of the previous review, except for the first hearing held within ninety (90) days of the foster care placement.
    1. The foster care review board shall submit a report to the judge on each child reviewed. Such report shall be submitted to the judge within ten (10) calendar days following the review conducted by the board. Such reports are advisory and shall contain the board's findings and recommendations pursuant to the provisions of § 37-2-404(b). The report shall include the date of the next review. A copy of the report shall be provided to the department or agency and to the child's parent(s) whose rights have not been terminated or surrendered, the parent's attorney, the guardian ad litem and/or attorney for the child, and the child who is a party to the proceeding.
    2. The foster care review board may also make a direct referral to the judge or magistrate with such findings and recommendations under the following circumstances and timeframes:
      1. Where conditions persist that constitute a deterrent to reaching the permanency goals in a given case and such conditions indirectly and chronically compromise the health, safety or welfare of the child, such direct referral case shall be heard by the judge or magistrate within thirty (30) calendar days; or
      2. Where issues in a particular case constitute a risk of harm and directly compromise the health, safety or welfare of the child, such direct referral case shall be heard by the judge or magistrate within seventy-two (72) hours, excluding non-judicial days.

Acts 1976, ch. 731, § 4; 1979, ch. 103, § 1; 1979, ch. 272, § 4; 1982, ch. 811, § 4; 1983, ch. 438, §§ 14-16; T.C.A., § 37-1505; Acts 1984, ch. 789, § 4; 1988, ch. 560, §§ 9, 10; 1996, ch. 1079, §§ 73, 111; 1999, ch. 164, § 1; 2009, ch. 235, §  1; 2010, ch. 842, §§ 7-10.

Code Commission Notes.

Article II, § 24 of the Constitution of Tennessee provides, in part, that: “Any law requiring the expenditure of state funds shall be null and void unless, during the session in which the act receives final passage, an appropriation is made for the estimated first year's funding.”

The Tennessee code commission has been advised by the commissioner of finance and administration that the necessary first year's funding was not appropriated during the 1991 regular session for the public act that would have amended this section.

The code commission was directed by Acts 1991, ch. 509, § 54 to not codify acts that did not receive first year's funding. Accordingly, Acts 1991, ch. 246, §§ 1 and 4, which would have amended this section, have not been codified. If ch. 246, §§ 1 and 4 had been codified, the amendments of this section by that act, rewriting (c)(1) and adding (d), would have read as follows: “(c)(1) The board shall submit a report to the judge on each child in foster care. Such report shall be submitted to the judge within thirty (30) days following the review conducted by the board and shall contain the board's findings and recommendations regarding the efforts and progress made by the department or agency to carry out the foster care plan, together with any other recommendations it chooses to make regarding the child. The findings and recommendations shall include the date of the next review. A copy of such findings and recommendations shall be sent to the department or agency and to the parent(s). Such assessments and reports are advisory. If the department or agency does not follow the board's recommendations, the department or agency shall timely inform the board of the reasons for not following the recommendations.

“(d) On or before October 1, each review board on foster care shall file an annual report which contains the following information for the preceding fiscal year:

“(1) The number of cases reviewed by the board;

“(2) The total number of children involved in such cases;

“(3) The number of cases in which the board recommended each of the following:

“(A) Return of the child to the child's home;

“(B) Termination of parental rights; and

“(C) Continuation of the child's foster care placement;

“(4) The total number of children for whom the board recommended each of the following:

“(A) Return of the child to the child's home;

“(B) Termination of parental rights; and

“(C) Continuation of the child's foster care placement;

“(5) The number of children who were actually returned home;

“(6) The number of children who were actually placed for adoption;

“(7) The number of children who were freed for adoption by termination of parental rights; and

“(8) The number of children who continued in foster care.

“Each board shall file its annual report with the commissioner of human services, the executive director of the commission on children and youth, and the executive director of the general assembly's select committee on children and youth.”

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Commission on children and youth, title 37, ch. 3, part 1.

Youth services officer, § 37-1-106.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77 (Neil P. Cohen), 45 Tenn. L. Rev. 451, 493 (1978).

NOTES TO DECISIONS

1. Noncompliance with Section.

The department of human services' failure to comply with this section did not preclude a finding, under the parental rights termination statute, that the department made reasonable efforts to rehabilitate the family unit. Tennessee Dep't of Human Services v. Riley, 689 S.W.2d 164, 1984 Tenn. App. LEXIS 3446 (Tenn. Ct. App. 1984).

37-2-407. Department of children's services — Duties.

The department of children's services shall prepare suggestions for review procedures that may be used by each advisory review board. Such suggested procedures may provide a basis for uniform review procedure throughout this state.

Acts 1976, ch. 731, § 5; T.C.A., § 37-1506; Acts 1996, ch. 1079, § 73.

37-2-408. Confidentiality of plans and records.

  1. All records, reports, permanency plans, reviews and reports of the foster care review boards or any material prepared in connection with the planning, placement or care of a child in the care or custody of the department of children's services or in foster care with any agency or person pursuant to this part, shall be confidential and shall not be a public record and shall be disclosed only for the purposes directly related to the administration of this part, or as permitted pursuant to the provisions of § 37-1-409 or § 37-1-612, or as otherwise determined by the department of children's services to be reasonably necessary or reasonably required and as directly related to the provision of any services needed by the child.
  2. A violation of this section is a Class B misdemeanor.

Acts 1976, ch. 731, § 6; T.C.A., § 37-1507; Acts 1996, ch. 1079, § 114.

Cross-References. Confidentiality of personal information and records, § 37-2-411.

Confidentiality of public records, § 10-7-504.

Penalty for Class B misdemeanor, § 40-35-111.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, V. Children (Neil P. Cohen), 45 Tenn. L. Rev. 451 (1978).

NOTES TO DECISIONS

1. Disclosure of Information.

Because all of the electronically stored information data from the Tennessee Department of Mental Health and Developmental Disabilities'  and the Department of Children's Services'  incident reporting data and another database contained highly relevant information on defendants'  violation of federal law and plaintiffs'  federal constitutional rights and because an appropriate protective order for discovery and trial could avoid disclosures of the identities of the children, doctors and other protected persons, under Fed. R. Evid. 501, the state law privileges under T.C.A. §§ 37-1-409(a)(2), 37-1-615(b), 37-5-107, 37-1-612, 37-2-408, 36-1-125, 36-1-126, 36-1-138 did not bar discovery. John B. v. Goetz, 879 F. Supp. 2d 787, 2010 U.S. Dist. LEXIS 8821 (M.D. Tenn. Jan. 28, 2010).

37-2-409. Permanency hearings.

    1. In addition to the other requirements of this part, the judge or magistrate shall hold a hearing within twelve (12) months of the date of foster care placement for each child in foster care. As long as a child remains in foster care, subsequent permanency hearings conducted pursuant to subsection (b) shall be held no less frequently than every twelve (12) months from the date of the previous permanency hearing for each child, or as otherwise required by federal regulations and notwithstanding subdivision (b)(4).
    2. The child shall be present for the permanency hearing. The court shall confer with the child, who is able to communicate, in an age appropriate manner regarding the child's views on the provisions of the permanency plan developed for the child. For all children, absent or present, evidence shall be presented as to the child's progress and needed services. The only exceptions to the child's mandatory attendance shall be a child who is under a doctor's care preventing the child from attending, is placed outside the state or is on documented runaway status. In such event, the court shall require the guardian ad litem, case manager for the department or other case manager of the child to attest that the child participated in the development of the permanency plan or has been counseled on the provisions of the permanency plan, if age appropriate. In the child's absence, evidence shall be presented as to the child's progress and needed services. To the extent practicable, the court shall schedule such hearings at times intended to be minimally disruptive to daily activities of the child.
    1. In an effort to achieve early permanency, the purpose of these permanency hearings shall be to review the permanency plan and goals for the child. The hearings and plan shall address which goals continue to be appropriate for the child in order to achieve permanent placement and shall include a timeline for achieving each goal. Possible goals include:
      1. Return of the child to parent;
      2. Permanent placement with a fit and willing relative or relatives;
      3. Adoption, giving appropriate consideration to § 36-1-115(g) when applicable;
      4. Permanent guardianship; or
      5. Planned permanent living arrangement.
    2. Placement in another planned permanent living arrangement shall only be appropriate in cases where the state agency has documented a compelling reason for determining that the other goals would not be in the best interests of the child because of the child's special needs or circumstances.
    3. The purpose of these permanency hearings shall also be to determine the extent of compliance of all parties with the terms of the permanency plan, and the extent of progress in achieving the goals of the plan.
    4. In the case of a child who has reached sixteen (16) years of age, the court shall review and ratify an independent living plan for the child. At the hearing for a child who has reached seventeen (17) years of age, the court shall ensure, and the record shall reflect, that the child has notice of and understands the child's opportunity to receive, if eligible, all available voluntary post-custody services from the department by having the department present evidence regarding services that are available to the child beginning at eighteen (18) years of age. Three (3) months prior to the planned release of a child at seventeen (17) years of age or older, a permanency hearing shall be held for the purposes of reviewing the child's transition plan to independent living.
    5. At this hearing, all evidence that would be admissible at a permanency hearing pursuant to § 37-1-129 shall be admissible. In the event the court finds that any party has not complied with the terms of the permanency plan for the child, it may, consistent with §§ 37-1-129(c) and 37-2-403(c), issue such orders as may be appropriate to enforce compliance. Parental rights may not be terminated, except in accordance with a petition filed for that purpose and filed pursuant to title 36, chapter 1, part 1 or this part.
  3. If a hearing is held concerning a child in the juvenile court, or any other court, on a custody petition, petition to terminate parental rights, or for any other reason that addresses the issues in subsection (b), this hearing shall satisfy the requirement for a hearing for that child. If a hearing is not otherwise scheduled, the court shall automatically schedule a hearing for each child in foster care in a timely fashion to ensure that the hearing is held within the time provided in subsection (a).
  4. This section shall not be construed to prevent a judge from holding hearings more frequently if the judge deems it necessary.

Acts 1976, ch. 731, § 8; 1982, ch. 811, § 5; 1983, ch. 438, § 17; T.C.A., § 37-1508; Acts 1988, ch. 560, § 11; 1996, ch. 1054, § 103; 1996, ch. 1079, § 115; 1998, ch. 1097, §§ 19-21; 2000, ch. 805, § 1; 2002, ch. 629, § 5; 2007, ch. 372, § 10; 2008, ch. 1046, § 1; 2009, ch. 235, §  1; 2010, ch. 842, § 11; 2012, ch. 1016, § 3.

Compiler's Notes. Acts 2009, ch. 235, § 1 directed the code commission to revise appropriate references from “child support referees” and “juvenile referees” to “child support magistrates” and “juvenile magistrates” in the code as supplements are published and volumes are replaced.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, V. Children (Neil P. Cohen), 45 Tenn. L. Rev. 451 (1978).

37-2-410. Rehearing — Modification of order.

Any interested person, at any time while the child is under the jurisdiction of the court, may file a petition, in writing and under oath, for a rehearing upon all matters coming within this part, and upon rehearing, the court may, consistent with §§  37-1-129(c) and 37-2-403(d), modify or set aside any order so reviewed.

Acts 1976, ch. 731, § 9; T.C.A., § 37-1509; Acts 1996, ch. 1079, § 116.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, V. Children (Neil P. Cohen), 45 Tenn. L. Rev. 451 (1978).

37-2-411. Annual report on foster care — Confidentiality of report — Injunction and action for damages.

  1. Each year the department of children's services shall prepare and issue a report on foster care in Tennessee. The report shall include an analysis, evaluation or estimate, as appropriate, of the following, on a statewide basis:
    1. The number of children in foster care;
    2. The amount of funds expended by federal, state and local governments for maintenance payments to foster parents, group homes and institutes;
    3. The amount of funds expended by federal, state and local governments on services to foster children and their natural parents or guardians;
    4. The types of services being offered to parents and their children in order to keep the family together;
    5. The number of foster children eligible for adoption, the number of such children adopted, and the number of foster children determined not to be adoptable and the reasons therefor;
    6. The number of foster children placed in a planned permanent living arrangement or guardianship;
    7. The size of caseloads of probation officers and social workers, the effect such caseloads have on the services offered to parents or their children, and the effectiveness of such services;
    8. The movement of foster children within the program from placement to placement;
    9. The foster care-related qualifications, education, and in-service training of social workers and probation officers who handle such cases; and
    10. Any other matters relating to foster children that the department deems appropriate to be included in the report. The report shall be published as part of the department's annual report required by § 37-5-105(4).
  2. All personal information and records obtained by the department pursuant to this section shall be confidential and may not be disclosed in this report in a way that could identify any individual, adult or child, in foster care or receiving assistance from the department or other child care agency.
  3. Any person may bring an action against an individual who has willingly and knowingly released confidential information or records concerning such person in violation of this section, for the greater of the following amounts:
    1. Five hundred dollars ($500); or
    2. Three (3) times the amount of actual damages, if any, sustained by the plaintiff.
  4. Any person may bring an action to enjoin the release of confidential information or records in violation of this part, and may in the same action seek damages as provided in this section. It is not a prerequisite to an action under this section that the plaintiff suffer or be threatened with actual damages.

Acts 1979, ch. 272, § 5; T.C.A., § 37-1511; Acts 1996, ch. 1079, § 73; 2000, ch. 981, § 51; 2002, ch. 629, § 6; 2015, ch. 178, §§ 2, 3.

Amendments. The 2015 amendment deleted “and the shifting responsibility for such children within the county probation department or children's services department” from the end of (a)(8); substituted “the” for “such” at the end of the first sentence of (a)(10) and rewrote the second sentence of (a)(10) which read, “The report shall be submitted to the governor and general assembly no later than January of each year.”

Effective Dates. Acts 2015, ch. 178, § 5. April 16, 2015.

Cross-References. Confidentiality of plans and records, § 37-2-408.

Confidentiality of public records, § 10-7-504.

37-2-412. Smoke detectors required in foster care dwellings.

  1. As used in this section, unless the context otherwise requires, “approved smoke detector” means a device that senses visible or invisible particles of combustion and has been investigated and listed in accordance with standards prescribed by:
    1. A nationally recognized and approved independent testing agency laboratory, such as Underwriters' Laboratories' Standard for Single and Multiple Station Smoke Detectors (UL 217); or
    2. An agency authorized to make independent inspections by the state fire marshal.
  2. No person, agency, institution or home, whether public or private, shall:
    1. Provide foster care services within any dwelling unless an approved smoke detector is installed and maintained within such dwelling by the person, agency, institution or home. When activated, the detector shall initiate an alarm that is audible in the sleeping rooms of the dwelling; or
    2. Tamper with or remove any smoke detector required by this section, or a component thereof.
  3. All smoke detectors required by this section:
    1. Shall be installed in accordance with the manufacturer's directions, unless they conflict with applicable law; and
    2. May be wired directly (hardwired) to the building's power supply, powered by a self-monitored battery, or operated with a plug-in outlet fitted with a plug restrainer device, provided the outlet is not controlled by any switch other than the main power supply.
  4. Compliance with this section shall not relieve any person, agency, institution or home from the requirements of any other applicable law, ordinance, rule or regulation. Nothing in this section shall be construed to be in derogation of § 68-120-111.
    1. The department of children's services shall enforce this section only for its own foster homes or for agencies that it licenses pursuant to chapter 5, part 5 of this title, and it shall periodically undertake appropriate activities to encourage and ensure compliance.
    2. Any violations noted by the department as a result of its inspections of child care agencies pursuant to § 37-5-513 shall be processed in the manner prescribed in that section.
    3. The provisions of this section as it applies to persons, agencies, institutions or homes licensed by any other departments of this state to provide foster care for children shall be enforced by those departments. Those departments shall periodically undertake appropriate activities to encourage and ensure compliance.

Acts 1990, ch. 619, § 1; 1996, ch. 1079, § 73; 2000, ch. 981, §§ 51, 58.

Cross-References. Smoke alarms, family rental units, § 68-102-151.

Smoke alarms, residential buildings, § 68-120-112.

37-2-413. Department rulemaking to comply with federal regulations.

  1. The department of children's services is authorized to adopt mandatory rules binding on the courts and agencies subject to this part to implement the provisions of any changes in federal law relative to compliance with any foster care review processes set forth in federal law.
  2. Notwithstanding any other law to the contrary, the department shall have authority to implement any rules that may be required pursuant to subsection (a) by emergency rules to be effective immediately upon approval by the attorney general and reporter and filing with the office of the secretary of state; provided, that any permanent rules must follow the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 2.

Acts 1996, ch. 1079, § 117; 2009, ch. 566, §  12.

Compiler's Notes. Acts 1996, ch. 1079, § 184 provided:

“Any provision of this act, or the application thereof, which is inconsistent with federal law, rule or regulation shall be deemed to be construed as being consistent with federal law, rule or regulation.”

Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all reference to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes replaced.

37-2-414. Kinship Foster Care Program.

  1. As used in this section, unless the context otherwise requires:
    1. “Department” means the department of children's services; and
    2. “Foster parent” means any person with whom a child in the care, custody or guardianship of the department is placed for temporary or long-term care, but shall not include any persons with whom a child is placed for the purpose of adoption.
    1. There is established a “Kinship Foster Care Program” in the department.
    2. When a child has been removed from such child's home and is in the care, custody or guardianship of the department, the department shall attempt to place the child with a relative for kinship foster care. If the relative is approved by the department to provide foster care services, in accordance with rules and regulations adopted by the department regarding foster care services, and a placement with the relative is made, the relative may receive payment for the full foster care rate for the care of the child and any other benefits that might be available to foster parents, whether in money or in services.
    3. The department shall establish, in accordance with the provisions of this section, eligibility standards for becoming a kinship foster parent.
      1. Relatives within the first, second or third degree to the parent or stepparent of a child who may be related through blood, marriage or adoption may be eligible for approval as a kinship foster parent.
      2. The kinship foster parent shall be twenty-one (21) years of age or older, except that if the spouse or partner of the relative is twenty-one (21) years of age or older and living in the home, and the relative is between eighteen (18) and twenty-one (21) years of age, the department may waive the age requirement.
        1. A person may become a kinship foster parent only upon the completion of an investigation to ascertain if there is a state or federal record of criminal history for the prospective kinship foster parent or any other adult residing in the prospective parent's home;
        2. A prospective kinship foster parent shall supply fingerprint samples and submit to a criminal history records check to be conducted by the Tennessee bureau of investigation and the federal bureau of investigation;
        3. The Tennessee bureau of investigation shall conduct the investigation and shall make the results of the investigation available to the department in accordance with this section. The department shall maintain the confidentiality of the investigation results and shall use the results only for purposes of determining a person's eligibility to become a kinship foster parent; and
        4. It is unlawful, except for the purpose of determining a person's eligibility for kinship foster care, for any person to disclose information obtained under this subdivision (b)(3)(C). Any person violating this section commits a Class A misdemeanor.
      4. The department shall determine whether the person is able to care effectively for the foster child by:
        1. Reviewing personal and professional references;
        2. Observing during a home visit of the kinship foster parent with household members; and
        3. Interviewing the kinship foster parent.
      1. The department and the kinship foster parent shall develop a case plan for the foster care of the child. The plan shall be periodically reviewed and updated. If the plan includes the use of an approved child care center, group child care home or family child care home, the department shall pay for child care arrangements, according to established rates.
      2. The kinship foster parent shall cooperate with any activities specified in the case plan for the foster child, such as counseling, therapy or court sessions, or visits with the foster child's parents or other family members.
    5. The commissioner of children's services shall adopt rules and regulations necessary to carry out this section pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  3. The department of children's services and the commission on aging and disability shall collaboratively design and implement a full range of educational, counseling, referral, and other services designed to encourage and support elderly foster parents and disabled relative caregivers who participate in the relative caregiver program. The collective goal of such services shall be maximization of family stability and success within the relative caregiver program.

Acts 1997, ch. 170, §§ 2, 3; 2000, ch. 981, § 59; 2003, ch. 44, § 1; 2005, ch. 196, § 1; 2011, ch. 410, § 3(h).

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Cross-References. Confidentiality of public records, § 10-7-504.

Penalty for Class A misdemeanor, § 40-35-111.

Law Reviews.

A Theory of Relativity: Kinship Foster Care May be the Key to Stopping the Pendulum of Terminations vs. Reunification, 51 Vand. L. Rev. 1427 (1998).

37-2-415. Foster parents' rights.

  1. To the extent not otherwise prohibited by state or federal statute, the department shall, through promulgation of rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, implement each of the following tenets. With respect to the placement of any foster child with a foster parent that is contracted directly with the department of children's services, or through an agency that contracts with the department to place children in foster care, pursuant to this part:
    1. The department shall treat the foster parent or parents with dignity, respect, trust and consideration as a primary provider of foster care and a member of the professional team caring for foster children;
    2. The department shall provide the foster parent or parents with a clear explanation and understanding of the role of the department and the role of the members of the child's birth family in a child's foster care;
    3. The foster parent or parents shall be permitted to continue their own family values and routines;
    4. The foster parent or parents shall be provided training and support for the purpose of improving skills in providing daily care and meeting the special needs of the child in foster care;
    5. Prior to the placement of a child in foster care, the department shall inform the foster parent or parents of issues relative to the child that may jeopardize the health and safety of the foster family or alter the manner in which foster care should be administered. The department shall fully disclose any information regarding past or pending charges of delinquency as a juvenile, criminal charges, if charged as an adult, and previous hospitalizations, whether due to mental or physical issues;
    6. The department shall provide a means by which the foster parent or parents can contact the department twenty-four (24) hours a day, seven (7) days a week for the purpose of receiving departmental assistance;
    7. The department shall provide the foster parent or parents timely, adequate financial reimbursement for the quality and knowledgeable care of a child in foster care, as specified in the plan; provided, that the amount of such financial reimbursement shall, each year, be subject to and restricted by the level of funding specifically allocated for such purpose by the general appropriations act;
      1. The department shall provide clear, written explanation of the plan concerning the placement of a child in the foster parent's home. For emergency placements where time does not allow prior preparation of such explanation, the department shall provide such explanation as it becomes available. This explanation shall include, but is not limited to, all information regarding the child's contact with such child's birth family and cultural heritage, if so outlined;
      2. During an emergency situation when a child must be placed in home-care due to the absence of parents or custodians, the department of children's services may request that a criminal justice agency perform a federal name-based criminal history record check of each adult residing in the home. The results of such check shall be provided to the department, which shall provide a complete set of each adult resident's fingerprints to the Tennessee bureau of investigation within ten (10) calendar days from the date the name search was conducted. The Tennessee bureau of investigation shall either positively identify the fingerprint subject or forward the fingerprints to the federal bureau of investigation within fifteen (15) calendar days from the date the name search was conducted. The child shall be removed from the home immediately if any adult resident fails to provide fingerprints or written permission to perform a federal criminal history check when requested;
      3. When placement of a child in a home is denied as a result of a name-based criminal history record check of a resident and the resident contests that denial, each such resident shall, within five (5) business days, submit to the Tennessee bureau of investigation a complete set of such resident's fingerprints to the Tennessee criminal history record repository for submission to the federal bureau of investigation;
      4. The Tennessee bureau of investigation may charge a reasonable fee, not to exceed seventy dollars ($70.00), for processing a fingerprint-based criminal history record check pursuant to this subdivision (a)(8);
      5. As used in this section, “emergency situation” refers to those limited instances when the department of children's services is placing a child in the home of private individuals, including neighbors, friends, or relatives, as a result of a sudden unavailability of the child's primary caregiver;
    9. Prior to placement, the department shall allow the foster parent or parents to review written information concerning the child and allow the foster parent or parents to assist in determining if such child would be a proper placement for the prospective foster family. For emergency placements where time does not allow prior review of such information, the department shall provide information as it becomes available;
    10. The department shall permit the foster parent or parents to refuse placement within their home, or to request, upon reasonable notice to the department, the removal of a child from their home for good reason, without threat of reprisal, unless otherwise stipulated by contract or policy;
    11. The department shall inform the foster parent or parents of scheduled meetings and staffing, concerning the foster child, and the foster parent or parents shall be permitted to actively participate in the case planning and decision-making process regarding the child in foster care. This may include individual service planning meetings, foster care reviews, and individual educational planning meetings;
    12. The department shall inform a foster parent or parents of decisions made by the courts or the child care agency concerning the child;
    13. The department shall solicit the input of a foster parent or parents concerning the plan of services for the child; this input shall be considered in the department's ongoing development of the plan;
    14. The department shall permit, through written consent, the ability of the foster parent or parents to communicate with professionals who work with the foster child, including any therapists, physicians and teachers who work directly with the child;
    15. The department shall provide all information regarding the child and the child's family background and health history, in a timely manner to the foster parent or parents. The foster parent or parents shall receive additional or necessary information, that is relevant to the care of the child, on an ongoing basis; provided, that confidential information received by the foster parents shall be maintained as such by the foster parents, except as necessary to promote or protect the health and welfare of the child;
    16. The department shall provide timely, written notification of changes in the case plan or termination of the placement and the reasons for the changes or termination of placement to the foster parent or parents, except in the instances of immediate response for child protective services;
    17. The department shall notify the foster parent or parents, in a complete manner, of all court hearings. This notification may include, but is not limited to, notice of the date and time of the court hearing, the name of the judge or hearing officer hearing the case, the location of the hearing, and the court docket number of the case. Such notification shall be made upon the department's receipt of this information, or at the same time that notification is issued to birth parents. The foster parent or parents shall be permitted to attend such hearings at the discretion of the court;
    18. The department shall provide, upon request by the foster parent or parents, information regarding the child's progress after a child leaves foster care. Information provided pursuant to this subsection (a) shall only be provided from information already in possession of the department at the time of the request;
    19. The department shall provide the foster parent or parents the training for obtaining support and information concerning a better understanding of the rights and responsibilities of the foster parent or parents;
    20. The department shall consider the foster parent or parents as the possible first choice permanent parents for the child, who after being in the foster parent's home for twelve (12) months, becomes free for adoption or a planned permanent living arrangement;
    21. The department shall consider the former foster family as a placement option when a foster child who was formerly placed with the foster parent or parents is to be re-entered into foster care;
    22. The department shall permit the foster parent or parents a period of respite, free from placement of foster children in the family's home with follow-up contacts by the agency occurring a minimum of every two (2) months. The foster parent or parents shall provide reasonable notice, to be determined in the promulgation of rules, to the department for respite;
    23. Child abuse/neglect investigations involving the foster parent or parents shall be investigated pursuant to the department's child protective services policy and procedures. A child protective services case manager from another area shall be assigned investigative responsibility. Removal of a foster child shall be conducted pursuant to Tennessee Code Annotated and departmental policy and procedures. The department, after consultation with statewide foster parent associations, shall promulgate rules pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to govern the operation of a foster parent advocacy program. At a minimum, the rules shall provide that an advocate shall be educated in the procedures relevant to departmental investigations of alleged abuse and neglect, and once trained, the advocate shall be permitted to be present at all portions of investigations where the accused foster parent or parents are present, and that all communication received by such advocates therein shall be strictly confidential. Nothing contained in this subdivision (a)(23) shall be construed to abrogate the provisions of chapter 1 of this title, regarding procedures for investigations of child abuse and neglect and child sexual abuse by the department of children's services and law enforcement agencies;
    24. Upon request, the department shall provide the foster parent or parents copies of all information relative to their family and services contained in the personal foster home record; and
    25. The department shall advise the foster parent or parents of mediation efforts through publication in departmental policy manuals and the Foster Parent Handbook. The foster parent or parents may file for mediation efforts in response to any violations of the preceding tenets.
  2. In promulgation of rules pursuant to subsection (a), the department shall provide forty-five (45) days written notification of public hearings, held pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to the president of the Tennessee Foster Care Association and the president's designee.
    1. At the time of placement of a child in a foster home, and no later than at the time the foster care placement contract is signed, the foster parent shall be informed, in writing, through a succinct checklist form, of all information that is available to the department regarding the child's:
      1. Pending petitions, or adjudications of delinquency when the conduct constituting the delinquent act, if committed by an adult, would constitute first degree murder, second degree murder, rape, aggravated rape, rape of a child, aggravated robbery, especially aggravated robbery, kidnapping, aggravated kidnapping or especially aggravated kidnapping;
      2. Behavioral issues that may affect the care and supervision of the child;
      3. History of physical or sexual abuse;
      4. Special medical or psychological needs of the child; and
      5. Current infectious diseases.
    2. All information shall remain confidential and not subject to disclosure to any person by the foster parent.
        1. If a foster parent believes that the department, an employee of the department, an agency under contract with the department or an employee of an agency under contract with the department, has failed to follow the tenets listed in subsection (a), and that the failure has harmed or could harm a child who is or was in the custody of the department or that the failure has inhibited the foster parent's ability to meet the needs of a child as written in the permanency plan, then the foster parent may inform the child's case manager, who shall make every attempt to resolve the dispute.
        2. If the foster parent believes that the dispute has not been adequately resolved by the case manager, the foster parent may contact the case manager's supervisor. The foster parent is encouraged to make such contact in writing and to forward any written communication between the foster parent and the department's employees to the employees' regional administrator and to the commissioner or the commissioner's designee within the department's central office. The department's central office shall maintain a record of any such communication that is received.
      2. If the foster parent believes that the dispute has not been adequately resolved by the case manager's supervisor or supervisors, the foster parent may contact the regional administrator or the regional administrator's designee. This review shall include an in-person interview.
      3. If the foster parent believes that the dispute has not been adequately resolved by the regional administrator or the regional administrator's designee, the foster parent may request, in writing via certified mail, that the department's central office review the actions of the department or the department's employee.
      4. If a review is requested pursuant to subdivision (d)(1)(B), the department shall conduct the review and respond in writing to the foster parent no later than thirty (30) days from the postmarked date of the foster parent's written mailed request. The review shall include, but not be limited to, a review of any previous communication mailed in by the foster parent and an in-person interview with the foster parent.
    2. The department shall transmit to the Tennessee commission on children and youth copies of the written request made pursuant to subdivision (d)(1)(B) no later than ten (10) days from the date the request was received. The department shall also transmit copies of the written response made pursuant to subdivision (d)(1)(C). The copies shall be transmitted no later than ten (10) days from the date the response was sent pursuant to subdivision (d)(1)(C).
    3. If the foster parent believes that the dispute has not been adequately resolved by the department's central office, the foster parent may request in writing via certified mail that the Tennessee commission on children and youth review the actions of the department. The department shall fully comply with the commission in the review, including providing any records requested.
    4. This subsection (d) shall not be construed to limit any rights otherwise granted to foster parents by law.
  5. The department shall train all employees of the department who come in contact with foster parents regarding this section and § 37-2-416. All current employees shall receive such training no later than February 1, 2010, and new employees shall be trained within thirty (30) days from the date of their employment.

Acts 1997, ch. 549, §§ 2, 3; 1999, ch. 493, §§ 1, 2; 1999, ch. 508, §§ 4, 10, 11; 2000, ch. 981, § 51; 2002, ch. 629, § 7; 2004, ch. 877, § 1; 2005, ch. 265, § 6; 2008, ch. 796, § 1; 2009, ch. 270, § 1; 2011, ch. 410, § 3(i); 2015, ch. 199, § 3.

Code Commission Notes.

Acts 1999, ch. 493, § 1 and ch. 508, § 10 purported to add an identical subsection (c) to this section, but for the presence of subdivision (c)(1)(E) in the version included in ch. 493, § 1. The code commission determined that legislative intent dictated that the version included in Acts 1999, ch. 493, § 1 be enacted.

Compiler's Notes. Acts 1997, ch. 549, § 1 provided that this section may be cited as the “Foster Parent Rights Act.”

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2015 amendment rewrote (a)(23) which read, “Child abuse/neglect investigations involving the foster parent or parents shall be investigated pursuant to the department's child protective services policy and procedures. A child protective services case manager from another area shall be assigned investigative responsibility. Removal of a foster child will be conducted pursuant to Tennessee Code Annotated and departmental policy and procedures. The department shall permit an individual selected by the membership of the Tennessee Foster Care Association to be educated concerning the procedures relevant to investigations of alleged abuse and neglect by the department and the rights of the accused foster parent or parents. Upon receiving such training, such individual shall be permitted to serve as advocate for the accused foster parent or parents. Such advocate shall be permitted to be present at all portions of investigations where the accused foster parent or parents are present, and all communication received by such advocate therein shall be strictly confidential. Nothing contained within this subdivision (a)(23) shall be construed to abrogate the provisions of chapter 1 of this title, regarding procedures for investigations of child abuse and neglect and child sexual abuse by the department of children's services and law enforcement agencies;”

Effective Dates. Acts 2015, ch. 199, § 4. July 1, 2015.

Cross-References. Confidentiality of public records, § 10-7-504.

37-2-416. Notice of hearing to foster parent, adoptive parent or relative providing care.

  1. The department shall notify the foster parents, if any, or any prospective adoptive parent or relative providing care for the child in state custody with notice of any review or hearing to be held with respect to the child. The foster parents, if any, of such a child and any prospective adoptive parent or relative providing care for the child shall be provided with notice of the right to be heard in any review or hearing to be held with respect to the child, except that this section shall not be construed to require that any foster parent, prospective adoptive parent, or relative providing care for the child be made a party to such a review or hearing solely on the basis of such notice and right to be heard.
  2. At each hearing, the court shall determine whether the department has complied with this section.

Acts 1998, ch. 1097, § 22; 2007, ch. 372, § 11; 2008, ch. 906, § 3.

37-2-417. Tennessee's Transitioning Youth Empowerment Act of 2010.

  1. This section may be known and cited as “Tennessee's Transitioning Youth Empowerment Act of 2010.”
  2. The department of children's services is authorized to develop a program to provide services to youth who are transitioning to adulthood from state custody. Services may be provided on a voluntary basis to any person who is at least eighteen (18) years of age but less than twenty-one (21) years of age, who was in the custody of the department at the time of the person's eighteenth birthday and who is:
    1. Completing secondary education or a program leading to an equivalent credential;
    2. Enrolled in an institution which provides postsecondary or career and technical education;
    3. Participating in a program or activity designed to promote or remove barriers to employment;
    4. Employed for at least eighty (80) hours per month; or
    5. Incapable of doing any of the activities described in subdivisions (b)(1)-(4) due to a medical condition, including a developmental or intellectual condition, which incapability is supported by regularly updated information in the permanency plan of the person. In such a case the person shall be in compliance with a course of treatment as recommended by the department.
  3. Services may also be made available to any person who meets the requirements of subsection (b) but refused such services at the time of the person's eighteenth birthday if at any time the person seeks to regain services prior to the person's twenty-first birthday.
  4. The advisory committee established in § 37-2-601 shall serve as an advisory committee for programs and services established by this section.
  5. The commissioner of children's services shall establish policies and procedures in order to create and implement this program.
  6. The department is authorized to seek federal funding or to participate in federal programs developed for this purpose.

Acts 2010, ch. 1065, §§ 1-3; 2012, ch. 653, § 1; 2015, ch. 55, § 1.

Compiler's Notes. Acts 2010, ch. 1065, § 5 provided that the act, which enacted this section, shall be repealed June 30, 2012.  Acts 2012, ch. 653, § 1 repealed Acts 2010, ch. 1065, § 5, effective April 4, 2012.

Amendments. The 2015 amendment substituted “career and technical” for “vocational” preceding “education” in (b)(2).

Effective Dates. Acts 2015, ch. 55, § 20. April 6, 2015.

37-2-418. Reasonable and prudent parent standard — Definitions — Application — Liability.

  1. As used in this section:
    1. “Age- or developmentally-appropriate” means:
      1. Activities or items that are generally accepted as suitable for children of the same chronological age or level of maturity or that are determined to be developmentally appropriate for a child based on the development of cognitive, emotional, physical, and behavioral capacities that are typical for an age or age group; and
      2. In the case of a specific child, activities or items that are suitable for the child based on the developmental stages attained by the child with respect to the cognitive, emotional, physical, and behavioral capacities of the child;
    2. “Caregiver” means the child's foster parent, whether the child is in a family foster home or a therapeutic foster home, or the designated official at a child-placing agency; and
    3. “Reasonable and prudent parent standard” means the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interest of a child while also encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child in foster care under the responsibility of the department to participate in age- or developmentally-appropriate extracurricular, enrichment, cultural, and social activities.
  2. Every child-placing agency that makes the determinations in subsection (c) shall designate an on-site official who is authorized to apply the reasonable and prudent parent standard and assist a caregiver in application of the reasonable and prudent parent standard.
  3. A caregiver shall use the reasonable and prudent parent standard when determining whether to allow a child in foster care to participate in extracurricular, enrichment, cultural, and social activities.
  4. The caregiver and the child-placing agency, if applicable, shall not be liable for injuries to the child that occur as a result of acting in accordance with the reasonable and prudent parent standard. Any caregiver or child-placing agency acting in good faith in compliance with the reasonable and prudent parent standard shall be immune from civil liability arising from such action.
  5. The immunity provided in subsection (d) shall not apply if the injuries to the child were caused by gross negligence, willful or wanton conduct, or intentional wrongdoing. Any liability under this subsection (e) that may be attributable to the department or any of its employees shall be strictly adjudicated before the claims commission pursuant to title 9, chapter 8, part 3, as applicable.

Acts 2016, ch. 679, § 1.

Effective Dates. Acts 2016, ch. 679, § 2. March 29, 2016.

Part 5
Tennessee Runaway Act

37-2-501. Short title.

This part shall be known and may be cited as the “Tennessee Runaway Act.”

Acts 1976, ch. 683, § 1; T.C.A., § 37-1601.

Code Commission Notes.

Acts 2009, ch. 415, § 1 purported to enact a new title 37, chapter 2, part 5; however, since the Tennessee Code already contains a title 37, chapter 2, part 5, the code commission added Acts 2009, ch. 415, § 1 as title 37, chapter 2, part 6.

Cross-References. Family violence shelters and child abuse prevention services, title 71, ch. 6, part 2.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489 (1978).

37-2-502. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Department” means the department of children's services;
  2. “Runaway” means any person under eighteen (18) years of age who is away from the home or residence of such person's parents or guardians without such parents' or guardians' consent. “Runaway” does not include persons under eighteen (18) years of age who lawfully reside with a close relative or those attending educational institutions, or those placed by court order, on a contractual agreement with a parent or guardian;
  3. “Runaway house” means any house or institution giving sanctuary or housing to any person under eighteen (18) years of age, who is away from the home or residence of such person's parents or guardians without such parents' or guardians' consent; and
  4. “Sanctuary” means a house, institution or other organization providing housing or accommodations to runaways as set forth in this part.

Acts 1976, ch. 683, § 2; T.C.A., § 37-1602; Acts 1996, ch. 1079, § 73.

Code Commission Notes.

Acts 2009, ch. 415, § 1 purported to enact a new title 37, chapter 2, part 5; however, since the Tennessee Code already contains a title 37, chapter 2, part 5, the code commission added Acts 2009, ch. 415, § 1 as title 37, chapter 2, part 6.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489 (1978).

37-2-503. Registration requirement for runaway houses.

All houses, institutions or other organizations giving sanctuary to runaway youths shall be registered with the department. No such house or institution shall provide sanctuary to such persons unless it is registered in accordance with this part.

Acts 1976, ch. 683, § 3; T.C.A., § 37-1603.

Code Commission Notes.

Acts 2009, ch. 415, § 1 purported to enact a new title 37, chapter 2, part 5; however, since the Tennessee Code already contains a title 37, chapter 2, part 5, the code commission added Acts 2009, ch. 415, § 1 as title 37, chapter 2, part 6.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489 (1978).

37-2-504. Minimum standards for runaway houses — Establishment.

The department shall establish minimum standards for runaway houses and shall not issue registration to any runaway house that does not comply with this part or does not meet or exceed the minimum standards established by the department. This part applies to all runaway houses without regard to their title or designation or additional services rendered.

Acts 1976, ch. 683, § 4; T.C.A., § 37-1604.

Code Commission Notes.

Acts 2009, ch. 415, § 1 purported to enact a new title 37, chapter 2, part 5; however, since the Tennessee Code already contains a title 37, chapter 2, part 5, the code commission added Acts 2009, ch. 415, § 1 as title 37, chapter 2, part 6.

37-2-505. Minimum standards — Contents.

The standards established by the department shall include, but not be limited to, the following:

  1. Separate quarters for males and females;
  2. Supervision of both sexes;
  3. Complete and accurate records of all runaways housed;
  4. Minimum health and safety requirements as established by the department;
  5. A program for prevention or treatment for the use of drugs and permitting use of medication by runaways only upon the advice of a physician;
  6. An examination for communicable diseases; and
  7. Structured programs for all residents of the facility.

Acts 1976, ch. 683, § 5; T.C.A., § 37-1605.

Code Commission Notes.

Acts 2009, ch. 415, § 1 purported to enact a new title 37, chapter 2, part 5; however, since the Tennessee Code already contains a title 37, chapter 2, part 5, the code commission added Acts 2009, ch. 415, § 1 as title 37, chapter 2, part 6.

37-2-506. Shelter for runaways.

  1. Any runaway seeking sanctuary may be given shelter for seventy-two (72) hours; provided, that:
    1. The runaway is not known to have committed, nor is under investigation for the commission of, a delinquent or criminal act;
    2. A good faith attempt is made to notify the juvenile court with jurisdiction in the county in which the runaway house is located, or the runaway's parent or guardian, of the runaway's location within one (1) hour of the runaway's arrival; and
    3. No runaway admitted to a runaway house shall be removed during the seventy-two (72) hours of sanctuary other than by order of the juvenile court in the jurisdiction.
  2. Any juvenile judge in this or another state may release a runaway from a runaway house in another jurisdiction by contacting the juvenile judge having jurisdiction over the receiving runaway house.

Acts 1976, ch. 683, § 6; T.C.A., § 37-1606.

Code Commission Notes.

Acts 2009, ch. 415, § 1 purported to enact a new title 37, chapter 2, part 5; however, since the Tennessee Code already contains a title 37, chapter 2, part 5, the code commission added Acts 2009, ch. 415, § 1 as title 37, chapter 2, part 6.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489 (1978).

37-2-507. Violations — Penalties.

The owner, operator or agent of any house or facility that operates without registering or otherwise willfully violates this part commits a Class C misdemeanor. If, in the discretion of the trial court, a second or subsequent offense indicates continued or regular noncompliance with this part, the facility may be enjoined from future operations as a runaway house.

Acts 1976, ch. 683, § 7; T.C.A., § 37-1607; Acts 1989, ch. 591, § 113.

Code Commission Notes.

Acts 2009, ch. 415, § 1 purported to enact a new title 37, chapter 2, part 5; however, since the Tennessee Code already contains a title 37, chapter 2, part 5, the code commission added Acts 2009, ch. 415, § 1 as title 37, chapter 2, part 6.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489 (1978).

Part 6
Extension of Foster Care

37-2-601. Establishment of extension of foster care services advisory council.

    1. The executive director of the Tennessee commission on children and youth shall establish a non-funded, voluntary, extension of foster care services advisory council, which shall be responsible for:
      1. Identifying strategies to assess and track effectiveness of extension of foster care services and the operation of resources centers authorized by this part; and
      2. Identifying the following:
        1. Strategies for maintaining accurate numbers of children served by extension of foster care services;
        2. The number of services provided by the department of children's services;
        3. The number of children who accept these services;
        4. Reasons why children do not accept these services; and
        5. The number of children who continue their education and the number who do not.
    2. The advisory council shall report no later than October 31 of each year to the Tennessee commission on children and youth, the committee of the house of representatives having oversight over children and families, the health committee of the house of representatives, and the health and welfare committee of the senate, making recommendations for the continuing operation of the system of extension of foster care services and supports.
  2. The department of children's services and other state agencies that provide services or supports to youth transitioning out of state custody shall participate fully in the council and shall respond to the recommendations put forth by the council as appropriate.

Acts 2009, ch. 415, § 1; 2011, ch. 410, § 3(j); 2013, ch. 236, § 78; 2014, ch. 508, § 1; 2019, ch. 345, § 39.

Code Commission Notes.

Acts 2009, ch. 415, § 1 purported to enact a new title 37, chapter 2, part 5; however, since the Tennessee Code already contains a title 37, chapter 2, part 5, the code commission added Acts 2009, ch. 415, 1 as title 37, chapter 2, part 6.

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2014 amendment substituted “extension of foster care services” for “post-custody services” throughout (a).

The 2019 amendment substituted “the committee of the house of representatives having oversight over children and families, the health committee of the house of representatives, and the health and welfare committee of the senate” for “the civil justice committee and health committee of the house of representatives and the health and welfare committee of the senate” in (a)(2).

Effective Dates. Acts 2014, ch. 508, § 3. March 6, 2014.

Acts 2019, ch. 345, § 148. May 10, 2019.

37-2-602. Determination of whether youth applicants for assistance were formerly in state custody — Identification by state agencies on agency forms — Sharing of information.

  1. All state agencies that administer cash or in-kind assistance, or both, to youth eighteen (18) to twenty-four (24) years of age within the course of normal business shall make reasonable efforts to determine if an applicant for assistance has ever been in the custody of the state. If the applicant has been in state custody, the state agency shall share information with the applicant regarding possible services to be provided by the department of children's services, other state agencies and community partners.
  2. State agencies shall modify agency forms to identify youth who have been in state custody as the agencies' forms are otherwise revised and updated.
  3. The department of children services may share services information for former foster youth and youth transitioning from state custody through already established models such as, but not limited to, web sites, emails, verbal notifications or other printed material.

Acts 2009, ch. 415, § 1.

Code Commission Notes.

Acts 2009, ch. 415, § 1 purported to enact a new title 37, chapter 2, part 5; however, since the Tennessee Code already contains a title 37, chapter 2, part 5, the code commission added Acts 2009, ch. 415, 1 as title 37, chapter 2, part 6.

37-2-603. Establishment of resource centers to provide or facilitate assistance.

  1. The private, nonprofit community is urged to establish a network to provide information, assistance, services and supports to persons from sixteen (16) to twenty-four (24) years of age who were in foster care on the person's eighteenth birthday and persons from sixteen (16) to twenty-four (24) years of age who have been in foster care at any time after the person's fourteenth birthday.
  2. The resource centers shall provide or facilitate the assistance necessary to:
    1. Deal with the challenges and barriers associated with the transition into adulthood and early adult years;
    2. Support post-secondary education, vocational training and job skills development for such person;
    3. Find and retain employment, housing, transportation, parenting and family support, health care and mental health care; and
    4. Navigate systems and procedures that impact the person's education, employment, health and mental welfare and basic needs.
  3. These services shall be available at any time until the person reaches twenty-four (24) years of age regardless of whether the youth elects to remain in a voluntary extension of foster care arrangement with the department or the youth chooses to terminate any relationship with the state.
  4. The resource centers shall be supported in part by the department in the community where the centers are located, subject to the availability of funds specifically appropriated for this purpose. The department is authorized and encouraged to share staff with the resource centers, as well as provide financial support.

Acts 2009, ch. 415, § 1; 2014, ch. 508, § 2.

Code Commission Notes.

Acts 2009, ch. 415, § 1 purported to enact a new title 37, chapter 2, part 5; however, since the Tennessee Code already contains a title 37, chapter 2, part 5, the code commission added Acts 2009, ch. 415, 1 as title 37, chapter 2, part 6.

Amendments. The 2014 amendment substituted “voluntary extension of foster care arrangement” for “voluntary post-custody arrangement” in the middle of (c).

Effective Dates. Acts 2014, ch. 508, § 3. March 6, 2014.

37-2-604. Preparing foster children for independent living.

In preparing a foster child for independent living prior to the child reaching eighteen (18) years of age, the department shall provide information on the resource centers established pursuant to this part to all children over sixteen (16) years of age in foster care. The information shall include the address of the nearest resource center and services available from the center. Each child shall be encouraged to maintain periodic contact with resource center personnel and to provide current and accurate residence and contact information to the resource center. Ninety (90) days before a child leaves state custody the department of children's services shall notify the child of all information, services, web sites and assistance available for post-custody.

Acts 2009, ch. 415, § 1.

Code Commission Notes.

Acts 2009, ch. 415, § 1 purported to enact a new title 37, chapter 2, part 5; however, since the Tennessee Code already contains a title 37, chapter 2, part 5, the code commission added Acts 2009, ch. 415, 1 as title 37, chapter 2, part 6.

37-2-605. Construction of part.

Nothing in this part shall be construed to require a person to have maintained continuous contact with the resource centers or the department in order to be eligible to receive services from the resource centers or the department.

Acts 2009, ch. 415, § 1.

Code Commission Notes.

Acts 2009, ch. 415, § 1 purported to enact a new title 37, chapter 2, part 5; however, since the Tennessee Code already contains a title 37, chapter 2, part 5, the code commission added Acts 2009, ch. 415, 1 as title 37, chapter 2, part 6.

Chapter 3
Administration of Children and Youth Services

Part 1
Tennessee Commission on Children and Youth Act of 1988

37-3-101. Short title.

This part shall be known and may be cited as the “Tennessee Commission on Children and Youth Act of 1988.”

Acts 1988, ch. 979, § 2.

Compiler's Notes. Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

For creation of cabinet council on services to children and youth, see Executive Order No. 19 (June 10, 1988).

Cross-References. Select committee on children and youth, title 3, ch. 15, part 2.

Supplement and account for juvenile court services improvement, § 37-1-162.

Teenage pregnancy, title 37, ch. 3, part 5.

Termination of and transfer of staff, etc., of children's service commission, see § 37-3-109.

37-3-102. Creation — Appointments — Meetings — Reimbursement.

  1. There is created a permanent commission to be known as the commission on children and youth. The commission shall serve as an informational resource and advocacy agency for the efficient and effective planning, enhancement and coordination of state, regional and local policies, programs and services to promote and protect the health, well-being and development of all children and youth in Tennessee.
  2. The commission shall consist of twenty-one (21) members, to be appointed by the governor on the basis of broadly based and demonstrated leadership, interest, knowledge and activities concerning the problems and needs of children and youth. At least one (1) member of the commission shall be appointed from each of the state's nine (9) development districts. Membership shall include residents of urban as well as rural areas of the state. In making each appointment to the commission, the governor shall remain cognizant of, and shall give due consideration to, any applicable federal criteria that may be imposed pursuant to the provisions of the Juvenile Justice and Delinquency Prevention Act of 1974, compiled in 42 U.S.C. § 5601 et seq., as amended, and shall also remain cognizant of, and give due consideration to, the intent of this part that the commission shall act to promote and protect the health, well-being and development of all children and youth in Tennessee. In making appointments to the commission, the governor shall strive to ensure that at least one (1) person serving on the commission is sixty (60) years of age or older and that at least one (1) person serving on the commission is a member of a racial minority.
  3. Each regular appointment to the commission shall be for a term of three (3) years, and every appointee shall serve until a successor has been appointed and has qualified. No member of the commission may be appointed to serve more than three (3) consecutive three-year terms. Any vacancy occurring on the commission shall be filled by appointment only for the remainder of the unexpired term. Following any member's three (3) successive absences from commission meetings, the chair may request the governor to declare a vacancy and to fill the unexpired term.
  4. The commission shall maintain a permanent office in Nashville and shall meet at least four (4) times each year to transact business and perform its duties. The commission may meet at such other times and places as it deems necessary.
  5. The governor shall appoint one (1) member of the commission to serve as chair for a term of three (3) years.
  6. The commission may establish such subcommittees and ad hoc committees, and may convene such interdisciplinary advisory groups, as it may deem necessary to efficiently and effectively perform its duties and responsibilities.
  7. Members of the commission shall receive no compensation for their services, but shall be reimbursed for travel and other expenses actually incurred in the performance of their official duties. Such reimbursement shall be paid in accordance with the provisions of the comprehensive out-of-state travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 1988, ch. 979, § 2; 1988, ch. 1013, § 12; 2015, ch. 422, § 1.

Compiler's Notes. The commission on children and youth, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

Acts 2020, ch. 657, § 3 provided that the commission on children and youth shall appear before the senate government operations committee no later than April 30, 2021, to update the committee on the commission's progress in addressing the findings set forth in the June 2019 performance audit report issued by the comptroller of the treasury and any other matters related to the commission's function.

For creation of the Tennessee juvenile justice commission, and the involvement of the former children's services commission personnel therein, see Executive Order No. 56 (October 26, 1983).

For creation of cabinet council on services to children and youth, see Executive Order No. 19 (June 10, 1988).

Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

Amendments. The 2015 amendment deleted the first sentence of (c) which read, “Initial appointments to the commission shall be as follows: seven (7) members shall each be appointed to a term of one (1) year, seven (7) members shall each be appointed to a term of two (2) years, and seven (7) members shall each be appointed to a term of three (3) years.” and substituted “Each” for “Thereafter, each” at the beginning of the second sentence of (c).

Effective Dates. Acts 2015, ch. 422, § 3. May 8, 2015.

Cross-References. Membership in child sexual abuse task force, § 37-1-603.

37-3-103. Powers and duties.

    1. The commission shall perform each of the following duties:
      1. Make recommendations concerning establishment of priorities and needed improvements with respect to programs and services for children and youth;
      2. On or before September 1 of each year, make recommendations for the state budget for the following fiscal year regarding services for children and youth and submit the recommendations to the governor, the finance, ways and means committee of the senate, the finance, ways and means committee of the house of representatives, the legislative office of budget analysis, and the affected state departments;
      3. Implement the provisions of the Juvenile Justice and Delinquency Prevention Act of 1974, compiled in 42 U.S.C. § 5601 et seq., and distribute, consistent with the purpose of the commission as set forth by § 37-3-102(a), such funds as the general assembly shall direct;
      4. Advocate and coordinate the efficient and effective development and enhancement of state, local and regional programs and services for children and youth;
      5. Publish annually, on or before December 31, a comprehensive report on the status of children and youth in Tennessee; and distribute the report to the governor, to each member of the general assembly and to each of the state's depository libraries; and
      6. Promulgate, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, such rules as may be necessary to perform the duties prescribed by this part.
    2. If a new, separate or reorganized department, office or agency is established to administer the duties of youth services in the department of correction, the duties in this subsection (a) and the duties and authority provided by §§ 37-1-161 and 37-1-162, and any funds allocated to the commission on children and youth for distribution, may be transferred by executive order of the governor to such new, separate or reorganized entity.
  2. To the extent that adequate resources are available, the commission is authorized to perform any one (1) or more of the following activities:
    1. Identify and analyze specific problems concerning programs and services for children and youth;
    2. [Deleted by 2015 amendment]
    3. Review licensing or certification standards and program policies, promulgated by entities of state government, that affect children and youth; and make recommendations concerning such standards and policies to the governor, to the entity promulgating any such standard or policy and to each member of the general assembly; and
    4. Monitor foster care review boards; report on the impact of foster care review on children and youth in foster care; and make recommendations for improvement of the state's foster care system to the governor and each member of the general assembly.

Acts 1988, ch. 979, § 2; 1999, ch. 230, § 3; 2010, ch. 1030, § 12; 2015, ch. 259, § 3; 2016, ch. 797, § 4.

Code Commission Notes.

Article II, § 24 of the Constitution of Tennessee provides, in part, that: “Any law requiring the expenditure of state funds shall be null and void unless, during the session in which the act receives final passage, and appropriation is made for the estimated first year's funding.”

The Tennessee code commission has been advised by the commissioner of finance and administration that the necessary first year's funding was not appropriated during the 1991 regular session for the public act that would have amended this section.

The code commission was directed by Acts 1991, ch. 509, § 54 to not codify acts that did not receive first year's funding. Accordingly, Acts 1991, ch. 246, § 2, which would have amended this section, has not been codified. If chapter 246, § 2 had been codified, the amendment to this section by that act would have added a new subdivision in (a)(1), which would have read as follows: “Develop and implement a statewide program of training and other technical support to periodically assist advisory review boards on foster care, created pursuant to § 37-2-406, in the efficient and effective performance of duties and responsibilities assigned to such boards.”

Compiler's Notes. For creation of advisory group to the commission on children and youth, see Executive Order No. 29 (September 26, 1989).

Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

Amendments. The 2015 amendment deleted (b)(2), which read, “Prepare and distribute impact statements analyzing the potential effect of proposals under consideration by the general assembly that relate to the health, well being and development of children and youth;”.

The 2016 amendment rewrote (a)(1)(B) which read: “(B) Review and analyze the proposed budget, as contained within the general appropriations act, for each entity of state government that utilizes state or federal funds to administer or provide programs and services for children and youth; prepare and distribute an impact statement for the proposed budget of each such entity; and make recommendations to the governor, the finance, ways and means committee of the senate, the finance, ways and means committee of the house of representatives and the legislative office of budget analysis;”.

Effective Dates. Acts 2015, ch. 259, § 4. April 24, 2015.

Acts 2016, ch. 797, § 19. April 14, 2016.

Cross-References. Mentally ill or intellectually disabled minors in youth development center, § 33-3-401.

Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

37-3-104. Executive director.

The commission shall be administered by an executive director who is appointed by and serves at the pleasure of the members of the commission. The executive director shall be a full-time employee of the commission and shall be responsible for the administration of commission policies, rules, and guidelines and the proper management and operation of the commission's programs and activities. The executive director shall be an individual who is professionally trained in one (1) or more fields involving services to children and youth, who has a working knowledge of programs for children and youth, and who has previous employment experience in managing and delivering services to children and youth.

Acts 1988, ch. 979, § 2; 2012, ch. 986, § 17; 2015, ch. 422, § 2.

Compiler's Notes. Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

Acts 2012, ch. 986, § 48 provided that all rules, regulations, orders, and decisions heretofore issued or promulgated by any of the boards or commissions, which the act terminates or merges into another board or commission, shall remain in full force and effect. In the case of the boards or commissions that are merged with another board or commission by the act, all final rules, regulations, orders, and decisions together with any matters that are pending on October 1, 2012, shall hereafter be administered, enforced, modified, or rescinded in accordance with the law applicable to the continuing board or commission.

Amendments. The 2015 amendment rewrote the current first sentence by combining and revising the former first and second sentences which read, “The commission shall be administered by an executive director. The governor shall appoint the executive director, who shall serve at the pleasure of the governor.” and deleted the last sentence which read, “The executive director's compensation shall be fixed by the governor.”

Effective Dates. Acts 2015, ch. 422, § 3. May 8, 2015.

37-3-105. Personnel — Travel reimbursement.

  1. The executive director, subject to the approval of the commission and the commissioner of finance and administration, shall employ other personnel as may be necessary for the performance of the duties as prescribed by this part.
  2. All reimbursement for travel of commission staff shall be in accordance with the provisions of the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 1988, ch. 979, § 2.

Compiler's Notes. Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

37-3-106. Regional councils.

  1. There shall be a regional council on children and youth organized by the commission in each of the nine (9) development districts of the state. The regional councils shall perform each of the following duties:
    1. Provide for mutual exchange of information and networking among service providers, advocates and elected officials;
    2. Educate council members, officials, others involved in services for children and youth, and the general public concerning the needs and problems of children and youth in the region and the state;
    3. Coordinate regional and local efforts between public and private service providers to enhance services for children and youth;
    4. Advocate for legislation, policies and programs at the local and regional level to promote and protect the health, well being and development of children and youth;
    5. Collect, compile and distribute data; and
    6. Make recommendations on the needs and problems of children and youth.
  2. The regional councils on children and youth shall be the ongoing communication links between the commission and the various regional and local areas of the state. The councils shall perform information-gathering and problem solving tasks concerning services for children and youth. Each council shall report to the commission, at least annually, its recommendations for improvements in services for children and youth.
  3. The commission shall establish guidelines for the composition and operation of the regional councils. The commission shall provide at least one (1) locally based staff person for each regional council to assist the council in performing the duties assigned by this part. Such staff person shall coordinate, advise and consult with the council, shall provide technical assistance to the council and community organizations serving children and youth, and shall act as liaison to the commission.

Acts 1988, ch. 979, § 2.

Compiler's Notes. Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

37-3-107. References to predecessors — Prior contracts, rules, etc.

References to the commission on children and youth, the office of child development, the children's services commission, and the juvenile justice commission appearing elsewhere in Tennessee Code Annotated are deemed to be references to the commission on children and youth. All contracts and leases entered into by the children's services commission and by the juvenile justice commission shall continue in full force and effect as to all essential provisions in accordance with the terms and conditions of the contract in existence on July 1, 1988, unless and until such contracts or leases expire or are duly amended or modified by the parties thereto. All rules, orders, and decisions promulgated or issued by the children's services commission or the juvenile justice commission prior to, and in effect on July 1, 1988, shall remain in force and effect and shall be administered and enforced by the commission on children and youth until duly amended, repealed, expired, modified or superseded.

Acts 1988, ch. 979, § 2.

Compiler's Notes. Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

37-3-108. [Repealed.]

Compiler's Notes. Former § 37-3-108 (Acts 1988, ch. 874, §§ 1, 3, 4; 1988, ch. 979, § 2; 1988, ch. 1005, § 6; 1988, ch. 1011, § 1; 1988, ch. 1012, § 1; 1988, ch. 1021, § 1; 1989, ch. 278, § 43; 1996, ch. 1079, § 183), concerning the interdepartmental coordination council, was repealed by Acts 1999, ch. 230, § 4, effective July 1, 1999.

Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

37-3-109. Transfer of functions.

  1. The provisions of § 4-29-114 shall not apply to this part.
  2. All staff, staff positions, offices, equipment, supplies, property, funds and other resources of the children's services commission and the juvenile justice commission shall be transferred to the commission on children and youth.
  3. The commission on children and youth shall be subject to the provisions of § 4-29-118(a).

Acts 1988, ch. 979, § 3.

Compiler's Notes. Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

37-3-110. Definitions for §§ 37-3-110 — 37-3-115.

As used in this section and in §§ 37-3-111 — 37-3-115, unless the context otherwise requires:

  1. “Child-centered” means a system in which the needs of the child are at its core and that integrates services and programs offered by various departments of state government, units of local government and public and private agencies to support and serve the child;
  2. “Commission” means the commission on children and youth;
  3. “Council” means the council on children's mental health care;
  4. “Culturally competent” means a system that has the ability to deliver and ensure access to services in a manner that effectively responds to the values and practices present in the various cultures of children;
  5. “Demonstration sites” means certain geographic areas throughout the state where children's mental health care is in keeping with the principles set out in § 37-3-112(b);
  6. “Family” means:
    1. The members of a household living, on a full-time or a part-time basis, in one (1) house, condominium, apartment or other dwelling;
    2. People related by blood or ancestry, marriage, or adoption;
    3. Any person who is held out to the public as being a family member of a child;
    4. Foster parents and foster children;
    5. Stepparents and stepchildren; and
    6. Any other group that the council determines by policy or rule to constitute a family for purposes of this part;
  7. “Family-driven” means a system in which the needs of the family are at its core and that integrates services and programs offered by various departments of state government, units of local government and public and private agencies to support and serve the family;
  8. “Linguistically competent” means a system that has the ability to deliver and ensure access to services in a manner that effectively responds to the languages present in the various cultures of children;
  9. “Mental health care” means all services and programs offered by various departments of state government, units of local government and public and private agencies that support and serve the mental health needs of children and their families; and
  10. “Mental health needs” means any significant behavioral problem or emotional disorder, whether the problem or disorder is biologically-based or due to environmental factors, including, but not limited to, any psychiatric disorder, alcohol or substance abuse, depression or suicide, hyperactivity or attention-deficit disorder.

Acts 2008, ch. 1062, § 1.

Compiler's Notes. For the Preamble to the act regarding to the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

37-3-111. Council on children's mental health care — Members — Meetings.

  1. There shall be a council on children's mental health care organized by the commission that shall design a plan for a statewide system of mental health care for children.
  2. The council shall be co-chaired by the executive director of the commission on children and youth and the commissioner of mental health and substances abuse services, or either of their designees.
  3. Members of the council shall include, but not be limited to:
    1. The commissioners of children's services, finance and administration, health, human services, education, mental health and substance abuse services, and intellectual and developmental disabilities, or their designees;
    2. The director of the bureau of TennCare or the director's designee;
    3. Two (2) persons from the department of mental health and substance abuse services who are selected by the commissioner of mental health and substance abuse services; provided, that one (1) person is familiar with children and youth services and one (1) person is familiar with alcohol and drug abuse services;
    4. The chair of the commission on children and youth or the chair's designee;
    5. One (1) member of the governor's personal staff appointed by the governor;
    6. One (1) legislator appointed by the speaker of the senate and one (1) legislator appointed by the speaker of the house of representatives; and
    7. One (1) representative from the comptroller of the treasury.
  4. Other members of the council shall be selected by the co-chairs and shall include:
    1. Four (4) parents of children who have received mental health services from a state agency or other provider and are chosen from nominations received from representatives of statewide organizations that advocate for or serve children's mental health needs, that provide for representation from each of the three (3) grand divisions of the state and from both urban and rural areas;
    2. Two (2) persons who are under twenty-four (24) years of age and who are receiving or have received mental health services from a state agency or other provider and are chosen from nominations received from representatives of statewide organizations that advocate for or serve children's mental health needs;
    3. Three (3) representatives of the community services agencies, or their successor organizations, as established pursuant to § 37-5-304;
    4. Two (2) representatives of a statewide organization that advocates for children's mental health needs;
    5. Two (2) representatives of providers of children's mental health services; and
    6. Three (3) judges chosen by the Tennessee council of juvenile and family court judges that provide for representation from each of the three (3) grand divisions of the state and both urban and rural areas.
  5. Following three (3) consecutive absences, the co-chairs may declare a vacancy and request that a new member be appointed pursuant to this section who meets the criteria of the replaced member.
  6. The members of the council shall receive no salary. Only members of the council selected pursuant to subdivisions (d)(1) and (2) shall be reimbursed necessary travel and per diem expenses as prescribed in the comprehensive travel regulations by the commissioner of finance and administration for employees of this state; provided, that all other members who are employed by the state or who are holding elected office will be compensated and reimbursed in keeping with the performance of their official roles or capacities.
  7. As well as serving as a voting member on the council, the executive director of the commission or the executive director's designee shall also serve as the chief administrative officer of the council. The executive director shall have the authority to conduct ordinary and necessary business in the name of the council in accordance with this section or as determined by the council.
  8. The council shall meet as necessary to transact business; provided, that meetings shall be held at least quarterly and the meetings shall be open to organizations, agencies, and individuals who work in the area of children's mental health, including, but not limited to, mental health services, educational services, substance abuse services, recreational services, social services, health services, vocational services, operational services and nontraditional services, to seek opportunities to collaborate and improve the statewide system of children's mental health care. The council's quarterly meetings shall pay particular attention to interagency collaboration, funding, accountability, information management, and service array.
  9. All meetings held by the council are subject to the open meeting provisions of title 8, chapter 44.

Acts 2008, ch. 1062, § 1; 2010, ch. 1100, §§ 55–57; 2012, ch. 575, §§ 1, 2.

Compiler's Notes. The council on children's mental health care, created by this section, terminates June 30, 2022. See §§ 4-29-104, 4-29-243.

For the Preamble to the act regarding to the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

37-3-112. Plan for a statewide system of care — Principles of care — Resource map and cost analysis.

  1. The council shall develop a plan for a statewide system of care where children's mental health care is child-centered, family-driven, and culturally and linguistically competent and that provides a coordinated system of care for children's mental health needs in this state.
  2. The plan developed pursuant to subsection (a) shall provide for a service delivery system operated in a manner that provides the following principles of care:
    1. Children with mental health needs should have access to a comprehensive array of services that address the child's physical, emotional, social and educational needs;
    2. Children with mental health needs should receive individualized services in accordance with the unique needs and potentials of each child and guided by an individualized service plan;
    3. Children with mental health needs should receive services within the least restrictive, most normative environment that is therapeutically appropriate;
    4. The families of children with mental health needs should be full participants in all aspects of the planning and delivery of services;
    5. Children with mental health needs should receive services that are integrated, with linkages between child-serving agencies and programs and mechanisms for planning, developing and coordinating the services;
    6. Children with mental health needs should be provided with case management or similar mechanisms to ensure that multiple services are delivered in a coordinated, integrated and therapeutic manner and that each child can move through the system of services in accordance with their changing needs;
    7. Early identification and intervention for children with mental health needs should be promoted by the system of care in order to enhance the likelihood of positive outcomes;
    8. Children with mental health needs whose needs continue beyond adolescence should be ensured smooth transitions to the adult service system as each child reaches adulthood;
    9. The rights of children with mental health needs should be protected; and
    10. Children with mental health needs have access to services without regard to race, religion, national origin, sex, physical disability or other characteristics. Services should be sensitive and responsive to cultural differences and special needs.
  3. The plan shall include a core set of services and supports that appropriately and effectively addresses the mental health needs of children and families.
  4. The council, to guide and support the plan, shall also develop a financial resource map and cost analysis of all federal and state funded programs that support and serve children's mental health needs in this state. The council shall assure the financial resource map and cost analysis are updated annually so as to maintain a current cost analysis of the funds used to support children's mental health care needs in the state from conception through the age of majority or so long as the child receives services provided by these funding streams. The resource map and cost analysis shall include, but not be limited to:
    1. An inventory of all federal and state funding sources that support children's mental health needs in this state;
    2. A description of the manner in which the funds are being used within the agencies or organizations, the performance measures in place to assess the use of the funding and the intended outcomes of the programs and services;
    3. Government mandates for the use of such funds, if any; and
    4. An inventory of the funds for which the state may be eligible, but is currently not receiving or using, and the reasons why the funds are not being used.

Acts 2008, ch. 1062, § 1.

Compiler's Notes. For the Preamble to the act regarding to the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

Acts 2008, ch. 1197, § 1 purported to enact a new § 37-3-112; however, since Acts 2008, ch. 1062, § 1 added § 37-3-112, the section enacted by ch. 1197 was added as § 37-3-116.

Cross-References. Mental health services for children, title 33, ch. 8.

Special education, title 49, ch. 10.

37-3-113. Duties of council.

In addition to other duties imposed by law, the council shall also perform the following duties:

  1. Facilitate interagency coordination and collaboration in the planning, funding, delivery and evaluation of a statewide system of mental health care for children;
  2. Define accountability standards among all agencies and organizations that provide services and support relative to the mental health needs of children and their families;
  3. Encourage the matching of federal funds required by federal grants for children's mental health initiatives;
  4. Serve as an advocate within government and in the community for children's mental health care in this state;
  5. Stimulate more effective use of existing resources and services for children, and develop programs, opportunities and services that are not otherwise provided for children, with the aim of developing a comprehensive and coordinated system for the delivery of mental health services to children in the state;
  6. Assist the department of mental health and substance abuse services in the development of interagency agreements on services and supports for children; and
  7. Determine, in consultation with appropriate research experts, which programs that are currently being used to serve or support children's mental health needs in the state are evidence-based, as defined by § 37-5-121, research-based, as defined by § 37-5-121 and theory-based, as defined by § 37-5-121. The council shall provide such findings in its annual report submitted in accordance with § 37-1-115, including an explanation of the support for those findings.

Acts 2008, ch. 1062, § 1; 2010, ch. 1100, § 58; 2012, ch. 575, § 1.

Compiler's Notes. For the Preamble to the act regarding to the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

Cross References: Mental health services for children, title 33, ch. 8.

37-3-114. Additional duties of council.

The council may perform each of the following duties:

  1. Promulgate bylaws to provide for the election of council officers, establishment of committees, meetings, and other matters relating to council functions;
  2. Request and receive the cooperation of other state departments and agencies in carrying out the policies and objectives of this part;
  3. Enter into such contracts and make such grants within the limits of appropriated funds as are necessary or appropriate under this section, and in a manner consistent with state or federal law;
  4. Advise the governor and the heads of state departments and agencies regarding policies, programs, services, allocation of funds and children's mental health needs in this state and make recommendations for legislative action to the governor and to the general assembly;
  5. Hold hearings, conduct research and other appropriate activities to determine the mental health needs of children in the state, including particularly, but not limited to, their needs for health and social services, and to determine the existing services and facilities, private and public, available to meet those needs; and
  6. Review data, reports and outcomes of local, state and national system of care implementation, as well as other relevant data or research.

Acts 2008, ch. 1062, § 1.

Compiler's Notes. For the Preamble to the act regarding to the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

37-3-115. Report, plan and budget.

    1. No later than February 1, 2009, the council shall submit a report regarding the status of the development of a plan for a statewide system of care for children's mental health. The report shall include, but not be limited to:
      1. The timeline for development of the overall plan;
      2. Barriers to implementation of such a plan, if any;
      3. A list of all programs currently in place to serve and support children's mental health needs and whether those programs are evidence-based, research-based or theory-based;
      4. The status of interagency cooperation relative to a system of children's mental health care throughout the state; and
      5. A financial resource map of all current federal and state funded programs that support or serve children with mental health needs in the state.
    2. The report shall also include cost analysis information produced in accordance with § 37-3-112(d) and shall provide recommendations for improving efficiency in the use of existing state and federal funds by increasing coordination of children's mental health care with other child-focused service delivery systems.
  2. No later than July 1, 2010, the council shall submit a plan prepared in accordance with § 37-3-112 and a budget for implementing the plan. The plan shall provide for demonstration sites in at least three (3) areas of the state, with at least one (1) area to be in each grand division. If the plan submitted by July 1, 2010, is approved and funded by the legislature no later than July 1, 2012, the council shall submit a plan and budget for extending the demonstration sites to a total of no less than ten (10) areas of the state selected by the council. If the plan submitted by July 1, 2012, is approved and funded by the legislature, no later than July 1, 2013, the council shall submit a plan that will accomplish implementation of the system of children's mental health care statewide. The council shall create and submit with each plan current financial resource maps and cost analysis, and the information shall be required to accompany any recommendations the council makes regarding the continued development of a statewide system of children's mental health care.
  3. The plan, budget and report required by subsections (a) and (b) shall be submitted to the governor, the judiciary, education, and health and welfare committees of the senate and the judiciary, education, and health committees of the house of representatives.

Acts 2008, ch. 1062, § 1; 2011, ch. 410, § 3(k); 2013, ch. 236, § 79; 2019, ch. 345, § 40.

Compiler's Notes. For the Preamble to the act regarding to the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment substituted “and the judiciary, education, and health committees of the house of representatives” for “and the civil justice, education and health committees of the house of representatives” in (c).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

37-3-116. Resource mapping of funding sources — Report.

  1. The commission shall design and oversee a resource mapping of all federal and state funding sources and funding streams that support the health, safety, permanence, growth, development and education of children in this state from conception through the age of majority or so long as they may remain in the custody of the state. The resource mapping shall include, but not be limited to:
    1. An inventory of all federal and state funding sources that support children in this state;
    2. An inventory of all state, federal or government subsidized services and programs offered to children in this state, set out by program, target population, geographical region, agency or any other grouping that would assist the general assembly in determining whether there are overlapping programs that lead to duplication within the state, gaps in service delivery and any administrative inefficiencies generally;
    3. A description of the manner in which the funds are being used within the agencies or organizations, the performance measures in place to assess the use of such funding and the intended outcomes of the programs and services;
    4. Government mandates for the use of the funds, if any; and
    5. An inventory of the funds for which the state may be eligible, but is currently not receiving or using, and the reasons why the funds are not being used.
  2. The commission shall update the report each year and shall subsequently assure that the resource map is periodically and timely updated, so as to maintain a current resource map of the funds used to support children in the state.
  3. The comptroller of the treasury and each department of state government or agency in this state shall provide assistance upon request to the commission in effectuating the purpose of this section.
  4. On or before February 15, 2009, a preliminary report shall be provided by the commission; and on or before April 15, 2010, and each successive year thereafter, the commission shall provide a full report to the judiciary, education, and health and welfare committees of the senate, the education and health committees of the house of representatives, and the committee of the house of representatives having oversight over children and families. The full report shall include, but not be limited to, the resource map and any recommendations, including proposed legislation, for improving the efficiency and effectiveness of programs offered to children in this state.

Acts 2008, ch. 1197, § 1; 2009, ch. 344, § 1; 2011, ch. 410, § 3(l ); 2013, ch. 236, § 79; 2019, ch. 345, § 41.

Compiler's Notes. Acts 2008, ch. 1197, § 1 purported to add this section as § 37-3-112; however, since Acts 2008, ch. 1062, § 1 added § 37-3-112, the section added by ch. 1197 was placed in this location.

For the Preamble to the act regarding resource mapping of funds used to support children, please refer to Acts 2008, ch. 1197.

Former part 1, §§ 37-3-101 — 37-3-110 (Acts 1980, ch. 865, §§ 1, 3-9, 13; 1985, ch. 478, § 34; T.C.A., §§ 37-7-101 — 37-7-109), concerning the children's services commission, was repealed by Acts 1988, ch. 979, § 2.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment substituted “, the education and health committees of the house of representatives, and the committee of the house of representatives having oversight over children and families” for “and the civil justice, education and health committees of the house of representatives” in (d).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Part 2
Division of Juvenile Probation [Repealed]

37-3-201 — 37-3-209. [Repealed.]

Compiler's Notes. Former part 2, §§ 37-3-201 — 37-3-209 (Acts 1957, ch. 278, §§ 1-3; 1965, ch. 347, § 1; 1975, ch. 326, §§ 4, 5; 1980, ch. 865, § 11; T.C.A., §§ 37-901 — 37-903, 37-905 — 37-909; Acts 1989, ch. 278, §§ 13, 75), concerning the division of juvenile probation, was repealed by Acts 1996, ch. 1079, § 118, effective May 21, 1996.

Part 3
Commissioner of Youth Development [Repealed]

37-3-301 — 37-3-303. [Repealed.]

Compiler's Notes. Former § 37-3-301 (Acts 1963, ch. 208, § 1; T.C.A., § 37-1101), concerning assistant commissioner for youth services, was repealed by Acts 1989, ch. 278, § 14, effective July 1, 1989. Former §§ 37-3-302 and 37-3-303 (Acts 1963, ch. 208, §§ 2, 3; 1975, ch. 326, §§ 6, 7; 1977, ch. 59, § 1; T.C.A., §§ 37-1102, 37-1103; Acts 1989, ch. 278, §§ 14, 15), concerning medical service consent and placement of children for rehabilitation, were repealed by Acts 1996, ch. 1079, § 119, effective May 21, 1996.

Part 4
Youth Investment Act of 1970

37-3-401. Short title.

This part shall be known and may be cited as the “Youth Investment Act of 1970.”

Acts 1970, ch. 602, § 1; T.C.A., § 37-1301.

37-3-402. Office of community contact — Creation — Director — Personnel.

There is created within the department of education, in the division of vocational rehabilitation, an office of community contact, which shall be headed by a director, appointed by the commissioner of education, to serve at the pleasure of the commissioner and at a salary to be fixed by the commissioner. The commissioner shall employ such stenographic assistants as are necessary to carry out the provisions of this part, and shall fix stenographers' salaries.

Acts 1970, ch. 602, § 2; T.C.A., § 37-1302.

Cross-References. Commissioner of education, § 4-3-802.

Vocational rehabilitation, title 49, ch. 11, parts 6-8.

37-3-403. Duties of office.

The office of community contact shall establish programs to provide guidance, training and rehabilitation for juveniles committed to correctional institutions who have been released from such institutions or who are under the care or custody of the juvenile court. The office shall carry out such programs enlisting the use of volunteer citizens, who shall receive no compensation for their services. The director is authorized to recruit and train such volunteer citizens and to administer the programs authorized by this part.

Acts 1970, ch. 602, § 3; T.C.A., § 37-1303.

37-3-404. Duties of director.

  1. It is the duty of the director to:
    1. Solicit volunteer citizens from throughout the state, using the aid of civic and church groups, at the director's discretion;
    2. Work with the administrators of correctional institutions within the state and with state and local juvenile authorities;
    3. Evaluate prospective volunteer citizens and establish screening procedures to make the final determination of which volunteers will be used in the contact program;
    4. Coordinate and control the contact program and conduct training sessions for the volunteer citizens; and
    5. Formulate rules, regulations and procedures for the implementation of this part.
  2. The director may appoint volunteer citizens as the director thinks advisable to aid in these programs.

Acts 1970, ch. 602, § 4; T.C.A., § 37-1304.

37-3-405. Volunteers' duties.

It is the duty of the director to recruit volunteers who will:

  1. Write the juvenile to whom the volunteer is assigned approximately one (1) time per week during the period the juvenile remains within a correctional institution;
  2. Personally contact the juvenile approximately one (1) time per week after the juvenile's release from the correctional institution and until the juvenile reaches twenty-one (21) years of age; and
  3. Prepare periodic reports as required, which shall be submitted to the director, evaluating the progress of the juvenile to whom the volunteer is assigned.

Acts 1970, ch. 602, § 5; T.C.A., § 37-1305.

37-3-406. Application for funds — Authorization.

The director is authorized to make application for and to receive federal funds and funds from any public or private source.

Acts 1970, ch. 602, § 6; T.C.A., § 37-1306.

Part 5
Teenage Pregnancy

37-3-501. Informational clearinghouse — Toll-free telephone service for inquiries — Promotional activities — Annual report.

  1. There shall be created, within the Nashville office of the department of health, the Tennessee informational clearinghouse on teenage pregnancy.
  2. The department shall obtain and operate a toll-free telephone line for the express purpose of receiving and encouraging inquiries for informational services. The department shall assist callers by providing informational services needed to plan programs and presentations, to organize teen pregnancy prevention activities, to organize parenting education and assistance programs for teen parents, and to undertake other activities and programs to address problems associated with teenage pregnancy.
  3. The department shall regularly undertake appropriate activities to inform and remind the citizens of this state of the services provided by the clearinghouse and of the availability of the toll-free telephone line. Such promotional activities shall regularly include, but not necessarily be limited to, press releases, posters, speeches, and public service announcements on radio and television. The department shall undertake special activities to improve public awareness of the clearinghouse within those counties and areas of the state in which teenage pregnancy rates are highest.
  4. In preparing for and responding to requests for information collected and maintained within the clearinghouse, the department shall provide a level of service that is at least comparable to the level of service so provided by the children's services commission prior to July 1, 1988.
  5. [Deleted by 2015 amendment]

Acts 1987, ch. 441, § 1; 1988, ch. 1005, §§ 1, 7, 8; 1988, ch. 1011, § 5; 1988, ch. 1012, § 4; 1988, ch. 1021, § 3; 2011, ch. 410, § 3(m); 2013, ch. 236, § 21; 2015, ch. 212, § 1.

Compiler's Notes. The Teen Pregnancy Information Clearinghouse serves as a central source of information on teen pregnancy statistics, resource materials, and services. Also available is information on teen pregnancy programs in the state and upcoming conferences and workshops. The toll-free telephone number, within Tennessee only, is 877-461-8277.

Acts 1988, ch. 1005, § 7 provided that all information collected and maintained within the Tennessee informational clearinghouse by the children's services commission prior to July 1, 1988, shall be transferred to the Tennessee informational clearinghouse within the department of health and environment (now department of health).

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2015 amendment deleted (e) which read, “The department of health and each department of state government that administers services to children and families shall jointly report at least once annually, on or before December 31, to the judiciary committee of the senate and the civil justice committee of the house of representatives concerning administration of the Tennessee informational clearinghouse on teenage pregnancy.”

Effective Dates. Acts 2015, ch. 212, § 3. April 20, 2015.

Cross-References. Project RAP, title 71, ch. 3, part 7.

Tennessee resource mothers program, title 68, ch. 1, part 14.

Collateral References.

Propriety of prophylactic availability programs. 52 A.L.R.5th 477.

37-3-502. Information on programs and services — Bibliography of resources.

  1. The department shall collect and maintain, within the clearinghouse, current information on publicly and privately supported programs and services within the state that address problems associated with teenage pregnancy. Each such program or service shall be engaged in one (1) or more of the following activities: family life education; prevention of teenage pregnancy; counseling services for teenagers who are, or who may think they are, pregnant; prenatal care for teenage mothers; parenting skills education for teenagers; job training and placement for teenage parents; and educational or other support services for teenage parents. For each such program or service, the clearinghouse shall maintain the following information: a description of the program or service, the principal address of such program or service, general eligibility criteria for participation therein, funding sources, the name and telephone of a knowledgeable contact person, and such other information as would be useful to a person or organization in deciding whether to utilize or emulate the program or service.
  2. The department shall also collect and maintain, within the clearinghouse, a current bibliography of books, abstracts, articles, films and other informational resources on the problems associated with teenage pregnancy and methods and techniques for effectively addressing such problems. In selecting items to be included within such bibliography, the commission shall strive to include only such items as are academically reliable and as are likely to prove beneficial to a person or organization wishing to address one (1) or more of the problems associated with teenage pregnancy.

Acts 1987, ch. 441, § 1; 1988, ch. 1005, § 2.

Cross-References. Coordination of services, § 68-1-1405.

Model programs for adolescents at risk, § 37-5-125.

37-3-503. Statistical and other research information — State reports.

  1. The department shall also collect and maintain, within the clearinghouse, statistical and other research information concerning teenage pregnancy, and related problems, in the state as a whole and in its cities, counties and regions.
  2. Furthermore, copies of all Tennessee state government reports concerning teenage pregnancy and related problems shall be available, at cost, through the clearinghouse.

Acts 1987, ch. 441, § 1; 1988, ch. 1005, § 3.

37-3-504. Information concerning conferences, workshops, hearings, meetings.

The department shall also collect and maintain, within the clearinghouse, pertinent information on pending conferences, workshops, public hearings and other meetings concerning teenage pregnancy and related problems.

Acts 1987, ch. 441, § 1; 1988, ch. 1005, § 4.

37-3-505. [Obsolete.]

Code Commission Notes.

Former § 37-3-505 (Acts 1987, ch. 441, § 1; 1998, ch. 1005, § 5), concerning assistance in gathering information and furnishing speakers, was deleted as obsolete by the code commission in 2005.

37-3-506. Similar programs or services operating within state.

To the extent that, during the course of implementing this part, it comes to the attention of the commission that two (2) or more significantly similar programs or services are being operated within the state, the commission shall ensure that the persons or organizations administering such programs and services are so informed.

Acts 1987, ch. 441, § 1.

37-3-507. Purpose of informational clearinghouse.

  1. The Tennessee informational clearinghouse on teenage pregnancy is created strictly for the purpose of providing the people of this state with an accurate, accessible, and centralized repository of information concerning teenage pregnancy and related problems as well as available programs and services.
  2. Nothing contained within this part shall be construed as authorizing or requiring the commission or the clearinghouse to certify or otherwise attest to the quality of any program or service for which it maintains information.
  3. The clearinghouse shall not provide, and shall not be used for, counseling services.

Acts 1987, ch. 441, § 1.

37-3-508 — 37-3-520. [Reserved.]

  1. The executive director of the commission on children and youth, and the commissioners of education, labor and workforce development, health, and children's services shall jointly develop and administer a plan to ensure that every teen parent, participating in the assistance programs or services of the departments, receives appropriate information concerning the potential benefits to be realized from delaying a second or subsequent pregnancy and to further ensure that such teen parent receives appropriate referral information if assistance is desired in postponing a second or subsequent pregnancy.
  2. To the maximum extent reasonably possible, such informational services shall be provided by existing personnel and within existing resources.
  3. The plan shall target, at a minimum:
    1. Teen parents receiving homebound instruction pursuant to § 49-10-1101;
    2. Teen parents receiving aid to families with dependent children pursuant to title 71, chapter 3, part 1;
    3. Teen parents receiving medical assistance for themselves or their children pursuant to title 71, chapter 5, parts 1 and 2;
    4. Teen parents receiving food stamp assistance pursuant to title 71, chapter 5, part 3; and
    5. Teen parents receiving federally funded training and assistance administered through the Tennessee department of labor and workforce development.
  4. The plan shall target other teens who are participating in the assistance programs or services of the departments and who are highly at risk of becoming first time teen parents. The plan may also target other teens who are highly at risk of becoming first time teen parents.

Acts 1987, ch. 442, § 1; 1988, ch. 960, §§ 1, 2; 1988, ch. 961, § 1; 1996, ch. 1079, § 73; 1999, ch. 520, § 37.

Cross-References. Program of support and assistance for family life education, § 49-1-205.

Part 6
Safe Families and Family Preservation Act

37-3-601. Short title — Funding.

  1. This part shall be known and may be cited as the “Safe Families and Family Preservation Act.”
  2. The family support services and time-limited family reunification services authorized pursuant to this part shall be subject to the funds appropriated to the department by the Tennessee general assembly.

Acts 1991, ch. 185, § 1; 1998, ch. 1097, § 23.

37-3-602. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Family preservation services” mean short-term, highly intensive, services designed to protect, treat, and support a family, with a child at imminent risk of placement, by enabling the family to remain intact and care for the child at home;
  2. “Family support services” means community-based services to promote the safety and well-being of children and families designed to increase the strength and stability of families, including adoptive, foster, and extended families, to increase parents' confidence and competence in their parenting abilities, to afford children a safe, stable and supportive family environment, and otherwise to enhance child development;
  3. “Imminent risk of placement” means circumstances or behavior likely to produce, within a relatively short period of time, a reasonably strong probability that the child will be placed in state custody as a result of being adjudicated dependent and neglected, delinquent and unruly, or in need of mental health services under § 37-1-175; and
  4. “Time-limited family reunification services” means the services and activities described below that are provided to a child that is removed from the child's home and placed in a foster family home or a child care institution and to the parents or primary caregiver of such a child, in order to facilitate the reunification of the child safely and appropriately within a timely fashion, but only during the fifteen-month period that begins on the date that the child, pursuant to § 37-2-402, is considered to have entered foster care. The services and activities described in this subdivision (4) are the following individual, group and family counseling services:
    1. Inpatient, residential, or outpatient substance abuse treatment services;
    2. Mental health services;
    3. Assistance to address domestic violence;
    4. Services designed to provide temporary child care and therapeutic services for families, including crisis nurseries; and
    5. Transportation to or from any of the services and activities described in this subdivision (4).

Acts 1991, ch. 185, § 2; 1996, ch. 1079, § 120; 1998, ch. 1097, § 24; 2000, ch. 947, § 8G.

37-3-603. Program to provide family preservation services.

  1. The department of children's services shall develop, coordinate and implement a program to provide family services to each family with a child at imminent risk of placement; provided, that delivery of family preservation services shall be limited to those families and situations in which the services may be reasonably expected to avoid out-of-home placement of the child and to also afford effective protection of the child, the family, and the community.
  2. The department shall develop, coordinate and implement a program to provide time-limited family reunification services to each family with a child in foster care; provided, that delivery of time-limited family reunification services shall be limited to those foster children or parents or primary caregiver and shall be limited to the fifteen-month period that begins on the date that the child, pursuant to § 37-2-402, is considered to have entered foster care.

Acts 1991, ch. 185, § 3; 1996, ch. 1079, § 73; 1998, ch. 1097, § 25.

37-3-604. [Repealed.]

Acts 1991, ch. 185, § 4; 1998, ch. 1097, § 26; 2011, ch. 410, § 3(n); 2013, ch. 236, § 25; repealed by Acts 2015, ch. 212, § 2, effective April 20, 2015.

Compiler's Notes. Former § 37-3-604 concerned evaluation of family preservation services; joint report; contents.

37-3-605. Statute implementation.

Beginning with fiscal year 1994-1995, the departments of children's services, mental health and substance abuse services, and intellectual and developmental disabilities shall jointly implement the program of family preservation services at a level sufficient to meet the need for such services across the state. Effective July 1, 1998, the department of children's services shall have sole responsibility for implementing this part.

Acts 1994, ch. 974, § 4; 1996, ch. 1079, § 73; 1998, ch. 1097, § 27; Acts 2000, ch. 947, § 6; 2010, ch. 1100, § 59; 2012, ch. 575, § 1.

Compiler's Notes. For assignment of implementation of the provisions of Acts 1994, ch. 974 to the office of children's services administration in the department of finance and administration, see Executive Order No. 58 (June 29, 1994).

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Part 7
Early Childhood Development Act of 1994

37-3-701. Short title.

This part shall be known and may be cited as the “Early Childhood Development Act of 1994.”

Acts 1994, ch. 974, § 1.

Compiler's Notes. For assignment of implementation of the provisions of Acts 1994, ch. 974 to the office of children's services administration in the department of finance and administration, see Executive Order No. 58 (June 29, 1994).

37-3-702. Legislative findings.

  1. The general assembly finds that success in early childhood requires each child to have:
    1. A healthy start through access to adequate prenatal and well-child care;
    2. A well-functioning family that is prepared to assume the responsibilities of parenthood and childbearing;
    3. Early learning experiences that promote child development and foster love of learning; and
    4. Schools that are prepared to educate and nurture every child and ready to offer appropriate support to children and their families.
  2. Therefore, to ensure the success of every child, the general assembly finds that the state of Tennessee and its communities must jointly build a comprehensive system of services to support families and to promote the healthy development of young children.

Acts 1994, ch. 974, § 2.

Compiler's Notes. For assignment of implementation of the provisions of Acts 1994, ch. 974 to the office of children's services administration in the department of finance and administration, see Executive Order No. 58 (June 29, 1994).

Cross-References. Preschools, title 49, ch. 6, part 1.

37-3-703. Healthy start pilot project established — Objectives — Evaluation — Required disclosures.

  1. The state of Tennessee shall develop, coordinate, and implement a healthy start pilot project within ten (10) or more counties of the state. The healthy start pilot project shall be based upon the nationally recognized model, shall focus on home visitation and counseling services, and shall improve family functioning and eliminate abuse and neglect of infants and young children within families identified as high risk. Healthy start services for participating families shall extend at least through a child's first three (3) years of life. However, family participation shall be voluntary; and, if a family refuses healthy start services, then such refusal shall not be admissible in evidence for any subsequent cause of action.
  2. Healthy start pilot projects shall ensure that:
    1. Families are educated about child health and child development;
    2. Families receive services to meet child health and development needs;
    3. Families receive services as identified and prioritized by the family and the project; and
    4. Services focus on empowering the family and strengthening life-coping and parenting skills.
  3. Specific objectives for healthy start pilot projects shall include that:
    1. Family stress is reduced and family functioning is improved;
    2. All of the children receive immunizations by two (2) years of age;
    3. All of the children receive developmental screening and follow-up services;
    4. All of the children are free from abuse and neglect; and
    5. Mothers are enrolled in prenatal care by the end of the first trimester of any subsequent pregnancy.
  4. The state of Tennessee shall conduct ongoing evaluations of the healthy start pilot project and shall file a joint report, on or before December 31 of each year, with the governor and the chairs of the health and welfare committee of the senate and health committee of the house of representatives. All state agencies that provide services to children shall make available nonidentifying information about healthy start participants for the purpose of conducting the evaluation. The report shall include the following information for the preceding fiscal year:
    1. The number of families receiving services through the pilot project;
    2. The number of children at risk of abuse and neglect prior to initiative of service to families participating in the pilot project;
    3. Among those children identified in subdivision (2), the number of children who have been the subjects of abuse and neglect reports;
    4. The average cost of services provided under the pilot project;
    5. The estimated cost of out-of-home placement, through foster care, group homes or other facilities, that reasonably would have otherwise been expended on behalf of children who successfully remain united with their families as a direct result of the project, based on average lengths of stay and average costs of such out-of-home placements;
    6. The number of children who remain unified with their families and free from abuse and neglect for one (1), two (2), three (3), and four (4) years, respectively, while receiving project services; and
    7. An overall statement of the achievements and progress of the pilot project during the preceding fiscal year, along with recommendations for improvement or expansion.
    1. When offering healthy start services to a family, the state or its contractor shall provide that family with a written statement and oral explanation. Both the statement and explanation shall describe the following information:
      1. The purpose of the healthy start project;
      2. Project services that may be offered;
      3. The voluntary nature of participation and the family's right to decline services at any time;
      4. The project records to be maintained with respect to participating families; and
      5. The family's right to review project records pertaining to that family.
    2. After providing the oral explanation, the state or its contractor shall, on the written statement, obtain signed consent from the parents or caretakers of a child. The parents or caretakers shall receive a copy of the signed statement and a copy will be maintained in the family's record.
    3. Each participating family shall have the right to review project records pertaining to that family. The state or its contractor shall make such record available for review during regular office hours.

Acts 1994, ch. 974, § 3; 1995, ch. 538, § 1; 2011, ch. 410, § 3(o); 2013, ch. 236, § 52.

Compiler's Notes. For assignment of implementation of the provisions of Acts 1994, ch. 974 to the office of children's services administration in the department of finance and administration, see Executive Order No. 58 (June 29, 1994).

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Part 8
Tennessee Second Look Commission

37-3-801. Short title.

This part shall be known and may be cited as the “Tennessee Second Look Commission.”

Acts 2010, ch. 1060, § 1.

37-3-802. Part definitions.

For purposes of this part, unless the context otherwise requires:

  1. “Appropriate sampling” means cases of a second or subsequent incident of severe child abuse selected by the commission from all profiled cases submitted by the department of children's services;
  2. “Child abuse” has the same meaning as abuse defined in § 37-1-102;
  3. “Commission” means the Tennessee second look commission;
  4. “Investigatory meetings” means commission meetings where information made confidential pursuant to state or federal law is examined by the commission or information is being discussed that is relevant to a pending criminal action;
  5. “Profiled cases” means cases of a second or subsequent incident of severe child abuse provided by the department of children's services to the commission;
  6. “Second or subsequent incident of severe child abuse” means an indicated incident of severe child abuse to a victim who had a prior indicated incident of child abuse or severe child abuse, as determined by the department of children's services; and
  7. “Severe child abuse” has the same meaning as the term is defined in § 37-1-102.

Acts 2010, ch. 1060, § 1.

37-3-803. Creation — Findings and recommendations — Duties — Reports.

  1. There is created the Tennessee second look commission. The commission shall review an appropriate sampling of cases involving a second or subsequent incident of severe child abuse in order to provide recommendations and findings to the general assembly regarding whether or not severe child abuse cases are handled in a manner that provides adequate protection to the children of this state.
  2. The commission's findings and recommendations shall address all stages of investigating and attempting to remedy severe child abuse, including but not limited to:
    1. The reporting, investigating and referring of alleged severe child abuse cases by state agencies and others;
    2. The risk of severe child abuse victims being returned to the custody of the child's abuser or placed by the state in an environment where the child is at risk of being abused a second or subsequent time;
    3. The procedures used by juvenile courts and courts exercising jurisdiction over criminal and civil child abuse, neglect and endangerment cases;
    4. The laws, rules, or guidelines used to determine whether or not an alleged perpetrator of severe child abuse is to be prosecuted;
    5. The causes of severe child abuse in Tennessee and any preventative measures that would reduce the number of severe child abuse cases in this state;
    6. The manner in which severe child abuse data is collected and used by multiple agencies within the state; and
    7. The representation provided to severe child abuse victims, including but not limited to, representation provided by attorneys, guardians and advocates.
  3. The commission may:
    1. Promulgate bylaws to provide for the election of commission officers, establishment of committees, meetings, and other matters relating to commission functions;
    2. Request and receive the cooperation of other state departments and agencies in carrying out the duties of this part; and
    3. Hold hearings, hear testimony, and conduct research and other appropriate activities.
    1. The commission shall provide a report to the general assembly on the commission's progress in fulfilling its duties set out in this section no later than January 1, 2011.
    2. The commission shall provide a report detailing the commission's findings and recommendations from a review of the appropriate sampling no later than January 1, 2012, and annually thereafter, to the general assembly. Such report shall be submitted to the governor, the judiciary and health and welfare committees of the senate and the judiciary committee of the house of representatives.

Acts 2010, ch. 1060, § 1; 2011, ch. 410, § 3(p); 2013, ch. 236, § 80; 2019, ch. 345, § 42.

Compiler's Notes. The second look commission, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment substituted “judiciary” for “civil justice” following “senate and the” in (d)(2).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

37-3-804. Membership.

  1. Members of the commission shall be as follows:
    1. The director of the Tennessee bureau of investigation or the director's designee;
    2. The executive director of the commission on children and youth or the director's designee;
    3. The executive director of Tennessee's chapter of children's advocacy centers or the director's designee;
    4. The commissioner of children's services or the commissioner's designee;
    5. The director of the administrative office of the courts or the director's designee;
    6. Two (2) members of the house of representatives to be appointed by the speaker of the house of representatives;
    7. Two (2) senators to be appointed by the speaker of the senate;
    8. Two (2) law enforcement officers appointed by the governor with experience investigating severe child abuse cases: one (1) such officer shall be from a county with a population of more than two hundred fifty thousand (250,000), according to the 2000 federal census or any subsequent federal census, and one (1) such officer shall be from a county with a population of less than two hundred fifty thousand (250,000), according to the 2000 federal census or any subsequent federal census;
    9. A district public defender appointed by the district public defenders conference;
    10. A district attorney general appointed by the district attorneys general conference;
    11. A physician with experience conducting exams used to determine whether or not severe child abuse has occurred, appointed by the commission's co-chairs;
    12. An attorney with recognized expertise representing children in child abuse and neglect proceedings, appointed by the commission's co-chairs; and
    13. Two (2) individuals with experience as advocates for children from the nonprofit sector, appointed by the commission's co-chairs.
      1. Members of the commission set out in subdivisions (a)(1)-(5) shall serve on the commission as long as they hold the positions designated in subdivisions (a)(1)-(5).
        1. Except as otherwise provided for in subdivision (b)(2), members of the commission appointed pursuant to subdivisions (a)(6)-(13) shall serve four-year terms.
        2. Notwithstanding any other provision of this section to the contrary, following three (3) successive absences by a member appointed pursuant to subdivisions (a)(6)-(13) from commission meetings, the co-chairs may declare a vacancy and request that a new member be appointed pursuant to this section who meets the criteria of the replaced member.
    2. The initial members' terms shall be staggered as follows:
      1. Members of the commission appointed pursuant to subdivisions (a)(6) and (7) shall serve initial terms of two (2) years;
      2. Members of the commission appointed pursuant to subdivisions (a)(8)-(10) shall serve initial terms of three (3) years; and
      3. Members of the commission appointed pursuant to subdivisions (a)(11)-(13) shall serve initial terms of four (4) years.
    3. Except as provided in subdivision (b)(4), no commission member shall serve more than two (2) terms, including any partial term.
      1. Initial appointments shall be made no later than September 1, 2010; all subsequent appointments shall be made no later than February 1 of the year in which an appointment is due to be made. The initial members' terms of office shall commence upon appointment; however, for purposes of calculating the initial terms of the members' offices, the initial appointments shall be deemed to have been made on February 1, 2011.
      2. If a vacancy occurs, it shall be filled by the appointing authority in the same manner as the original appointment and shall be for the unexpired term only.
      3. If a subsequent appointment is not made by the date provided in this subdivision (b)(4), the incumbent member shall serve until the member's successor is appointed.
  3. The speakers of the respective houses each shall appoint a co-chair from the members named to the commission.

Acts 2010, ch. 1060, § 1; 2011, ch. 410, § 3(q).

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

37-3-805. Administration — Responsibilities.

  1. The commission shall be administratively attached to the Tennessee commission on children and youth, but for all purposes other than administration, shall be an independent commission.
  2. The Tennessee commission on children and youth shall be responsible for:
    1. Scheduling and staffing the commission's meetings;
    2. Notifying witnesses of the date upon which they are requested to appear;
    3. Taking minutes at the commission's meetings;
    4. Compensating members and witnesses for travel expenses when appropriate;
    5. Reviewing department of children's services files and case summaries regarding the appropriate sampling of cases upon which the commission expects to hear testimony;
    6. Providing the commission members with any relevant information; and
    7. Assisting the commission in drafting reports.

Acts 2010, ch. 1060, § 1.

37-3-806. Table of profiled cases — Review of cases — Sampling.

  1. The department of children's services shall, no later than October 1, 2010, provide the commission with a table, detailing profiled cases from the previous fiscal year; thereafter, the department shall provide such table no later than October 1, 2011, and by October 1 annually thereafter, for the previous year. The tables shall include, but not be limited to, the county, type of abuse and age of the child.
  2. The commission shall review the table of profiled cases provided pursuant to subsection (a). The commission shall submit a list of the cases to the department after such review, setting out specific cases from the table that the commission selects to review.
  3. The department shall provide each commission member with a thorough written summary of the procedural history of each of the cases selected for review by the commission, including but not limited to, identifying persons whom the commission may wish to testify to provide additional information.
  4. After reviewing the information referenced in subsection (c), the commission shall select the appropriate sampling from the information provided by the department; provided that an appropriate sampling shall be no more than ten percent (10%) of the total number of cases profiled.
  5. The commission shall review the appropriate sampling on a schedule determined by the commission; provided that the commission shall submit its final report containing its recommendations and findings concerning the appropriate sampling each year to the general assembly as provided in § 37-3-803(d).

Acts 2010, ch. 1060, § 1.

37-3-807. Voting — Reimbursement of expenses.

  1. All members of the commission shall be voting members.
  2. The members of the commission shall receive no salary; provided that members of the commission shall be reimbursed for actual expenses incurred in accordance with the state's comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
  3. The commission may provide reimbursement for actual expenses incurred in accordance with the state's comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter to witnesses that have been called to testify before the commission.

Acts 2010, ch. 1060, § 1.

37-3-808. Meetings.

The commission shall meet as necessary to transact business; provided, that meetings shall be held at least quarterly, and the first meeting shall be no later than November 1, 2010. The commission shall meet at such time and place as determined by the co-chairs of the commission announced at least one (1) month in advance of meetings with notice to each member. Written minutes shall be kept of all meetings. At all meetings, ten (10) members shall constitute a quorum for the transaction of business.

Acts 2010, ch. 1060, § 1.

37-3-809. Requests by the commission.

The child advocacy center directors or their designees, the department of children's services, the district attorney general of each judicial district, the district public defender of each judicial district, the administrative office of the courts, any law enforcement agency, any juvenile court officer or investigator, any representative of the mental health disciplines involved in investigations conducted by child protective teams, and any other state agency shall, upon request by the commission:

  1. Submit to the commission, in accordance with the procedures and deadlines established by the commission, information and data concerning a second or subsequent incident of severe abuse;
  2. Cause the person most knowledgeable with the case being examined to testify regarding any cases concerning a second or subsequent incident of severe abuse; and
  3. Make recommendations and identify where gaps and deficiencies may exist in the various systems involved in protecting children from severe child abuse.

Acts 2010, ch. 1060, § 1.

37-3-810. Confidentiality — Public meetings.

  1. Notwithstanding any law to the contrary, the commission may access information made confidential pursuant to chapter 1 of this title.
    1. Except as provided in subsection (c), investigatory meetings of the commission shall not be subject to title 8, chapter 44, part 1 and shall be closed to the public. Any minutes or other information made confidential pursuant to state or federal law and generated during an investigatory meeting shall be sealed from public inspection; provided that the commission shall comply with subsection (c).
    2. Each statutory member of the commission and each person otherwise attending an investigatory meeting shall sign a statement prepared by the commission indicating and affirming an understanding of and adherence to the confidentiality requirements, including the possible civil or criminal consequences of any violation or breach of such requirements.
  3. Notwithstanding subsection (b), the commission shall conduct meetings that are open to the public to periodically make available, in a general manner that does not reveal information made confidential pursuant to state or federal law, the aggregate findings of its reviews and its recommendations.
  4. All information made confidential pursuant to state or federal law acquired by the commission in the exercise of its duties:
    1. Remains confidential after being acquired by the commission;
    2. Is not subject to discovery or introduction into evidence in any criminal or civil proceedings; and
    3. May only be disclosed as necessary to carry out the purposes of this part.
  5. Subsection (d) shall not prohibit a person from testifying in a civil or criminal action about matters within such person's knowledge that was obtained independently from any commission meeting.

Acts 2010, ch. 1060, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

37-3-811. Hiring of staff and consultants.

To the extent that funds are available, the commission may hire additional staff or consultants to assist the commission in completing its duties.

Acts 2010, ch. 1060, § 1.

37-3-812. Immunity from civil and criminal liability.

Any person acting in good faith in compliance with this part shall be immune from civil and criminal liability arising from such action.

Acts 2010, ch. 1060, § 1.

37-3-813. Investigations or reviews authorized by other laws.

Nothing in this part shall preclude any investigations or reviews to the extent authorized by other laws.

Acts 2010, ch. 1060, § 1.

37-3-814. Sharing of information regarding criminal violations with officials charged with investigating criminal matters.

If, during the course of the commission's duties under this part, the commission becomes aware of any violations of the criminal laws of this state by any person or agency, the co-chairs of the commission shall share such information with appropriate officials charged with investigating criminal matters.

Acts 2010, ch. 1060, § 1.

37-3-815. Conflicts of interest.

The commission shall adopt and implement a policy related to conflicts of interest, to ensure that all members avoid any situation that creates an actual or perceived conflict of interest related to the work of the commission.

Acts 2010, ch. 1060, § 1.

37-3-521. Informational services regarding second or subsequent pregnancies — Targeting potential at-risk first time teen parents.

Chapter 4
Interstate Compacts

Part 1
Interstate Compact for Juveniles

37-4-101. Interstate Compact for Juveniles.

The governor is hereby authorized and directed to execute a contract on behalf of this state with any state or states legally joining therein in the form substantially as follows:

THE INTERSTATE COMPACT FOR JUVENILES

Article I. Purpose.

The compacting states to this Interstate Compact recognize that each state is responsible for the proper supervision or return of juveniles, delinquents and status offenders who are on probation or parole and who have absconded, escaped or run away from supervision and control and in so doing have endangered their own safety and the safety of others. The compacting states also recognize that each state is responsible for the safe return of juveniles who have run away from home and in doing so have left their state of residence. The compacting states also recognize that congress, by enacting the Crime Control Act, codified in 4 U.S.C. § 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime. It is the purpose of this compact, through means of joint and cooperative action among the compacting states to:

Ensure that the adjudicated juveniles and status offenders subject to this compact are provided adequate supervision and services in the receiving state as ordered by the adjudicating judge or parole authority in the sending state;

Ensure that the public safety interests of the citizens, including the victims of juvenile offenders, in both the sending and receiving states are adequately protected;

Return juveniles who have run away, absconded or escaped from supervision or control or have been accused of an offense to the state requesting their return;

Make contracts for the cooperative institutionalization in public facilities in member states for delinquent youth needing special services;

Provide for the effective tracking and supervision of juveniles;

Equitably allocate the costs, benefits and obligations of the compacting states;

Establish procedures to manage the movement between states of juvenile offenders released to the community under the jurisdiction of courts, juvenile departments, or any other criminal or juvenile justice agency which has jurisdiction over juvenile offenders;

Ensure immediate notice to jurisdictions where defined offenders are authorized to travel or to relocate across state lines;

Establish procedures to resolve pending charges (detainers) against juvenile offenders prior to transfer or release to the community under the terms of this compact;

Establish a system of uniform data collection on information pertaining to juveniles subject to this compact that allows access by authorized juvenile justice and criminal justice officials, and regular reporting of compact activities to heads of state executive, judicial, and legislative branches and juvenile and criminal justice administrators;

Monitor compliance with rules governing interstate movement of juveniles and initiate interventions to address and correct noncompliance;

Coordinate training and education regarding the regulation of interstate movement of juveniles for officials involved in such activity; and

Coordinate the implementation and operation of the compact with the Interstate Compact on the Placement of Children, compiled in part 2 of this chapter, the Interstate Compact for Supervision of Adult Offenders, compiled in title 40, chapter 28, part 4, and other compacts affecting juveniles particularly in those cases where concurrent or overlapping supervision issues arise.

It is the policy of the compacting states that the activities conducted by the interstate commission created herein are the formation of public policies and therefore are public business. Furthermore, the compacting states shall cooperate and observe their individual and collective duties and responsibilities for the prompt return and acceptance of juveniles subject to the provisions of this compact. The provisions of this compact shall be reasonably and liberally construed to accomplish the purposes and policies of the compact.

Article II. Definitions.

As used in this compact, unless the context clearly requires a different construction:

A.  “By-laws” means those bylaws established by the interstate commission for its governance, or for directing or controlling its actions or conduct;

B.  “Commissioner” means the voting representative of each compacting state appointed pursuant to Article III of this compact;

C.  “Compact administrator” means the individual in each compacting state appointed pursuant to the terms of this compact, responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the interstate commission and policies adopted by the state council under this compact;

D.  “Compacting state” means any state which has enacted the enabling legislation for this compact;

E.  “Court” means any court having jurisdiction over delinquent, neglected, or dependent children;

F.  “Deputy compact administrator” means the individual, if any, in each compacting state appointed to act on behalf of a compact administrator pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the interstate commission and policies adopted by the state council under this compact;

G.  “Interstate commission” means the interstate commission for juveniles created by Article III of this compact;

H.  “Juvenile” means any person defined as a juvenile in any member state or by the rules of the interstate commission, including:

  1. Accused delinquent — a person charged with an offense that, if committed by an adult, would be a criminal offense;
  2. Adjudicated delinquent — a person found to have committed an offense that, if committed by an adult, would be a criminal offense;
  3. Accused status offender — a person charged with an offense that would not be a criminal offense if committed by an adult;
  4. Adjudicated status offender — a person found to have committed an offense that would not be a criminal offense if committed by an adult; and
  5. Non-offender — a person in need of supervision who has not been accused or adjudicated a status offender or delinquent;

    I.  “Non-compacting state” means any state which has not enacted the enabling legislation for this compact;

    J.  “Probation or parole” means any kind of supervision or conditional release of juveniles authorized under the laws of the compacting states;

    K.  “Rule” means a written statement by the interstate commission promulgated pursuant to Article VI of this compact that is of general applicability, implements, interprets or prescribes a policy or provision of the compact, or an organizational, procedural, or practice requirement of the commission, and has the force and effect of statutory law in a compacting state, and includes the amendment, repeal, or suspension of an existing rule; and

    L.  “State” means a state of the United States, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands.

Article III. Interstate Commission for Juveniles.

A.  The compacting states hereby create the Interstate Commission for Juveniles. The commission shall be a body corporate and joint agency of the compacting states. The commission shall have all the responsibilities, powers and duties set forth herein, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.

B.  The interstate commission shall consist of commissioners appointed by the appropriate appointing authority in each state pursuant to the rules and requirements of each compacting state and in consultation with the state council for interstate juvenile supervision created hereunder. The commissioner shall be the compact administrator, deputy compact administrator or designee from that state who shall serve on the interstate commission in such capacity under or pursuant to the applicable law of the compacting state.

C.  In addition to the commissioners who are the voting representatives of each state, the interstate commission shall include individuals who are not commissioners, but who are members of interested organizations. Such non-commissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general, Interstate Compact for Supervision of Adult Offenders, compiled in title 40, chapter 28, part 4, Interstate Compact on the Placement of Children, compiled in part 2 of this chapter, juvenile justice and juvenile corrections officials, and crime victims. All non-commissioner members of the interstate commission shall be ex-officio (non-voting) members. The interstate commission may provide in its bylaws for such additional ex-officio (non-voting) members, including members of other national organizations, in such numbers as shall be determined by the commission.

D.  Each compacting state represented at any meeting of the commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the interstate commission.

E.  The commission shall meet at least once each calendar year. The chair may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.

F.  The interstate commission shall establish an executive committee, which shall include commission officers, members, and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the interstate commission during periods when the interstate commission is not in session, with the exception of rulemaking and/or amendment to the compact. The executive committee shall oversee the day-to-day activities of the administration of the compact managed by an executive director and interstate commission staff; administer enforcement and compliance with the provisions of the compact, its bylaws and rules, and perform such other duties as directed by the interstate commission or set forth in the bylaws.

G.  Each member of the interstate commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the interstate commission. A member shall vote in person and shall not delegate a vote to another compacting state. However, a commissioner, in consultation with the state council, shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the compacting state at a specified meeting. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication.

H.  The interstate commission's bylaws shall establish conditions and procedures under which the interstate commission shall make its information and official records available to the public for inspection or copying. The interstate commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.

I.  Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The interstate commission and any of its committees may close a meeting to the public where it determines by two-thirds (2/3) vote that an open meeting would be likely to:

1.  Relate solely to the interstate commission's internal personnel practices and procedures;

2.  Disclose matters specifically exempted from disclosure by statute;

3.  Disclose trade secrets or commercial or financial information which is privileged or confidential;

4.  Involve accusing any person of a crime, or formally censuring any person;

5.  Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

6.  Disclose investigative records compiled for law enforcement purposes;

7.  Disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf of or for the use of, the interstate commission with respect to a regulated person or entity for the purpose of regulation or supervision of such person or entity;

8.  Disclose information, the premature disclosure of which would significantly endanger the stability of a regulated person or entity; or

9.  Specifically relate to the interstate commission's issuance of a subpoena, or its participation in a civil action or other legal proceeding.

J.  For every meeting closed pursuant to this provision, the interstate commission's legal counsel shall publicly certify that, in the legal counsel's opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The interstate commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefore, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.

K.  The interstate commission shall collect standardized data concerning the interstate movement of juveniles as directed through its rules which shall specify the data to be collected, the means of collection and data exchange and reporting requirements. Such methods of data collection, exchange and reporting shall insofar as is reasonably possible conform to up-to-date technology and coordinate its information functions with the appropriate repository of records.

Article IV. Powers and Duties of the Interstate Commission.

The commission shall have the following powers and duties:

1.  To provide for dispute resolution among compacting states;

2.  To promulgate rules to effect the purposes and obligations as enumerated in this compact, which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact;

3.  To oversee, supervise and coordinate the interstate movement of juveniles subject to the terms of this compact and any bylaws adopted and rules promulgated by the interstate commission;

4.  To enforce compliance with the compact provisions, the rules promulgated by the interstate commission, and the bylaws, using all necessary and proper means, including, but not limited to, the use of judicial process;

5.  To establish and maintain offices which shall be located within one or more of the compacting states;

6.  To purchase and maintain insurance and bonds;

7.  To borrow, accept, hire or contract for services of personnel;

8.  To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by Article III which shall have the power to act on behalf of the interstate commission in carrying out its powers and duties hereunder;

9.  To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties and determine their qualifications; and to establish the interstate commission's personnel policies and programs relating to, inter alia, conflicts of interest, rates of compensation, and qualifications of personnel;

10.  To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of it;

11.  To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal, or mixed;

12.  To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal or mixed;

13.  To establish a budget and make expenditures and levy dues as provided in Article VIII of this compact;

14.  To sue and be sued;

15.  To adopt a seal and bylaws governing the management and operation of the interstate commission;

16.  To perform such functions as may be necessary or appropriate to achieve the purposes of this compact;

17.  To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the interstate commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the interstate commission;

18.  To coordinate education, training and public awareness regarding the interstate movement of juveniles for officials involved in such activity;

19.  To establish uniform standards of the reporting, collecting and exchanging of data; and

20.  The interstate commission shall maintain its corporate books and records in accordance with the bylaws.

Article V. Organization and Operation of the Interstate Commission.

Section A.  Bylaws.

1.  The interstate commission shall, by a majority of the members present and voting, within twelve (12) months after the first interstate commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to:

a.  Establishing the fiscal year of the interstate commission;

b.  Establishing an executive committee and such other committees as may be necessary;

c.  Provide for the establishment of committees governing any general or specific delegation of any authority or function of the interstate commission;

d.  Providing reasonable procedures for calling and conducting meetings of the interstate commission, and ensuring reasonable notice of each such meeting;

e.  Establishing the titles and responsibilities of the officers of the interstate commission;

f.  Providing a mechanism for concluding the operations of the interstate commission and the return of any surplus funds that may exist upon the termination of the compact after the payment and/or reserving of all of its debts and obligations;

g.  Providing start-up rules for initial administration of the compact; and

h.  Establishing standards and procedures for compliance and technical assistance in carrying out the compact.

Section B.  Officers and Staff.

The commission shall have the following powers and duties:

1.  The interstate commission shall, by a majority of the members, elect annually from among its members a chair and a vice-chair, each of whom shall have such authority and duties as may be specified in the bylaws. The chair or, in the chair's absence or disability, the vice-chair shall preside at all meetings of the interstate commission. The officers so elected shall serve without compensation or remuneration from the interstate commission; provided, that, subject to the availability of budgeted funds, the officers shall be reimbursed for any ordinary and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the interstate commission.

2.  The interstate commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the interstate commission may deem appropriate. The executive director shall serve as secretary to the interstate commission, but shall not be a member and shall hire and supervise such other staff as may be authorized by the interstate commission.

Section C.  Qualified Immunity, Defense and Indemnification.

1.  The commission's executive director and employees shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to any actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities; provided, that any such person shall not be protected from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.

2.  The liability of any commissioner, or the employee or agent of a commissioner, acting within the scope of such person's employment or duties for acts, errors, or omissions occurring within such person's state may not exceed the limits of liability set forth under the Constitution and laws of that state for state officials, employees, and agents. Nothing in this subsection shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.

3.  The interstate commission shall defend the executive director or the employees or representatives of the interstate commission and, subject to the approval of the attorney general of the state represented by any commissioner of a compacting state, shall defend such commissioner or the commissioner's representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities; provided, that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.

4.  The interstate commission shall indemnify and hold the commissioner of a compacting state, or the commissioner's representatives or employees, or the interstate commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities; provided, that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.

Article VI. Rulemaking Functions of the Interstate Commission.

A.  The interstate commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the compact.

B.  Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the Model State Administrative Procedures Act, 1981 Act, Uniform Laws Annotated, Vol. 15, p.1 (2000), or such other administrative procedures act, as the interstate commission deems appropriate consistent with due process requirements under the United States Constitution as now or hereafter interpreted by the United States supreme court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the commission.

C.  When promulgating a rule, the interstate commission shall, at a minimum:

1.  Publish the proposed rule's entire text stating the reason(s) for that proposed rule;

2.  Allow and invite any and all persons to submit written data, facts, opinions and arguments, which information shall be added to the record, and be made publicly available;

3.  Provide an opportunity for an informal hearing if petitioned by ten (10) or more persons; and

4.  Promulgate a final rule and its effective date, if appropriate, based on input from state or local officials, or interested parties.

D.  Allow, not later than sixty (60) days after a rule is promulgated, any interested person to file a petition in the United States district court for the District of Columbia or in the federal district court where the interstate commission's principal office is located for judicial review of such rule. If the court finds that the interstate commission's action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside. For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the Model State Administrative Procedures Act.

E.  If a majority of the legislatures of the compacting states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause that such rule shall have no further force and effect in any compacting state.

F.  The existing rules governing the operation of the Interstate Compact on Juveniles superseded by this act shall be null and void twelve (12) months after the first meeting of the interstate commission created hereunder.

G.  Upon determination by the interstate commission that a state of emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption; provided, that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, but no later than ninety (90) days after the effective date of the emergency rule.

Article VII. Oversight, Enforcement and Dispute Resolution by the Interstate Commission.

Section A.  Oversight.

1.  The interstate commission shall oversee the administration and operations of the interstate movement of juveniles subject to this compact in the compacting states and shall monitor such activities being administered in non-compacting states which may significantly affect compacting states.

2.  The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder shall be received by all the judges, public officers, commissions, and departments of the state government as evidence of the authorized statute and administrative rules. All courts shall take judicial notice of the compact and the rules. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the interstate commission, it shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes.

Section B.  Dispute Resolution.

1.  The compacting states shall report to the interstate commission on all issues and activities necessary for the administration of the compact as well as issues and activities pertaining to compliance with the provisions of the compact and its bylaws and rules.

2.  The interstate commission shall attempt, upon the request of a compacting state, to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and between compacting and non-compacting states. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.

3.  The interstate commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact using any or all means set forth in Article XI of this compact.

Article VIII. Finance.

A.  The interstate commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization and ongoing activities.

B.  The interstate commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the interstate commission and its staff which must be in a total amount sufficient to cover the interstate commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the interstate commission, taking into consideration the population of each compacting state and the volume of interstate movement of juveniles in each compacting state and shall promulgate a rule binding upon all compacting states which governs said assessment.

C.  The interstate commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the interstate commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.

D.  The interstate commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the interstate commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the interstate commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the interstate commission.

Article IX. The State Council.

Each member state shall create a state council for interstate juvenile supervision. While each state may determine the membership of its own state council, its membership must include at least one representative from the legislative, judicial, and executive branches of government, victims groups, and the compact administrator, deputy compact administrator or designee. Each compacting state retains the right to determine the qualifications of the compact administrator or deputy compact administrator. Each state council will advise and may exercise oversight and advocacy concerning that state's participation in interstate commission activities and other duties as may be determined by that state, including, but not limited to, development of policy concerning operations and procedures of the compact within that state.

Article X. Compacting States, Effective Date and Amendment.

A.  Any state, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands as defined in Article II of this compact is eligible to become a compacting state.

B.  The compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five (35) of the states. The initial effective date shall be the later of July 1, 2004, or upon enactment into law by the thirty-fifth jurisdiction. Thereafter it shall become effective and binding as to any other compacting state upon enactment of the compact into law by that state. The governors of non-member states or their designees shall be invited to participate in the activities of the interstate commission on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.

C.  The interstate commission may propose amendments to the compact for enactment by the compacting states. No amendment shall become effective and binding upon the interstate commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.

Article XI. Withdrawal, Default, Termination and Judicial Enforcement.

Section A.  Withdrawal.

1.  Once effective, the compact shall continue in force and remain binding upon each and every compacting state; provided, that a compacting state may withdraw from the compact by specifically repealing the statute which enacted the compact into law.

2.  The effective date of withdrawal is the effective date of the repeal.

3.  The withdrawing state shall immediately notify the chair of the interstate commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The interstate commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty (60) days of its receipt thereof.

4.  The withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.

5.  Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the interstate commission.

Section B.  Technical Assistance, Fines, Suspension, Termination and Default.

1.  If the interstate commission determines that any compacting state has at any time defaulted in the performance of any of its obligations or responsibilities under this compact, or the bylaws or duly promulgated rules, the interstate commission may impose any or all of the following penalties:

a.  Remedial training and technical assistance as directed by the interstate commission;

b.  Alternative dispute resolution;

c.  Fines, fees, and costs in such amounts as are deemed to be reasonable as fixed by the interstate commission; and

d.  Suspension or termination of membership in the compact, which shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted and the interstate commission has therefore determined that the offending state is in default. Immediate notice of suspension shall be given by the interstate commission to the governor, the chief justice or the chief judicial officer of the state, the majority and minority leaders of the defaulting state's legislature, and the state council. The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, the bylaws, or duly promulgated rules and any other grounds designated in commission bylaws and rules. The interstate commission shall immediately notify the defaulting state in writing of the penalty imposed by the interstate commission and of the default pending a cure of the default. The commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the commission, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges and benefits conferred by this compact shall be terminated from the effective date of termination.

2.  Within sixty (60) days of the effective date of termination of a defaulting state, the commission shall notify the governor, the chief justice or chief judicial officer, the majority and minority leaders of the defaulting state's legislature, and the state council of such termination.

3.  The defaulting state is responsible for all assessments, obligations and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination.

4.  The interstate commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the interstate commission and the defaulting state.

5.  Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the interstate commission pursuant to the rules.

Section C.  Judicial Enforcement.

The interstate commission may, by majority vote of the members, initiate legal action in the United States district court for the District of Columbia or, at the discretion of the interstate commission, in the federal district where the interstate commission has its offices, to enforce compliance with the provisions of the compact, its duly promulgated rules and bylaws, against any compacting state in default. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.

Section D.  Dissolution of Compact.

1.  The compact dissolves effective upon the date of the withdrawal or default of the compacting state, which reduces membership in the compact to one (1) compacting state.

2.  Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the interstate commission shall be concluded and any surplus funds shall be distributed in accordance with the bylaws.

Article XII. Severability and Construction.

A.  The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.

B.  The provisions of this compact shall be liberally construed to effectuate its purposes.

Article XIII. Binding Effect of Compact and Other Laws.

Section A.  Other Laws.

1.  Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.

2.  All compacting states' laws other than state constitutions and other interstate compacts conflicting with this compact are superseded to the extent of the conflict.

Section B.  Binding Effect of the Compact.

1.  All lawful actions of the interstate commission, including all rules and bylaws promulgated by the interstate commission, are binding upon the compacting states.

2.  All agreements between the interstate commission and the compacting states are binding in accordance with their terms.

3.  Upon the request of a party to a conflict over meaning or interpretation of interstate commission actions, and upon a majority vote of the compacting states, the interstate commission may issue advisory opinions regarding such meaning or interpretation.

4.  In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers or jurisdiction sought to be conferred by such provision upon the interstate commission shall be ineffective and such obligations, duties, powers or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers or jurisdiction are delegated by law in effect at the time this compact becomes effective.

Acts 2008, ch. 1199, § 2.

Compiler's Notes. Acts 2008, ch. 1199, § 1 provided that the Interstate Compact for Juveniles shall be enacted into law and entered into on behalf of this state with all other states joining in the compact at its legal formation.

Acts 2008, ch. 1199, § 3 provided that the act, which repealed the former Interstate Juvenile Compact and enacted in its place the Interstate Compact for Juveniles, shall take effect the later of July 1, 2008, or upon enactment by no fewer than thirty-five (35) states. On August 26, 2008, the Interstate Compact for Juveniles was enacted in thirty-five (35) states.

Former part 1, §§ 37-4-101 — 37-4-106 (Acts 1955, ch. 260, § 1; T.C.A., § 37-801; Acts 1997, ch. 540, § 1; 2003, ch. 282, § 1), concerning the Interstate Juvenile Compact, was repealed by Acts 2008, ch. 1199 § 2, effective August 26, 2008. See this section for the Interstate Compact for Juveniles.

The Interstate Compact for Juveniles, created by this section, terminates June 30, 2026. See §§ 4-29-112, 4-29-247.

Part 2
Interstate Compact on the Placement of Children

37-4-201. Text of compact.

The Interstate Compact on the Placement of Children is hereby enacted into law and entered into with all other jurisdictions legally joining therein in form substantially as follows:

Article I. Purpose and Policy.

It is the purpose and policy of the party states to cooperate with each other in the interstate placement of children to the end that:

  1. Each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.
  2. The appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child.
  3. The proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made.
  4. Appropriate jurisdictional arrangements for the care of children will be promoted.

Article II. Definitions.

As used in this compact:

  1. “Child” means a person who, by reason of minority, is legally subject to parental, guardianship or similar control;
  2. “Placement” means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution but does not include any institution caring for the mentally ill, mentally defective or epileptic or any institution primarily educational in character, and any hospital or other medical facility;
  3. “Receiving state” means the state to which a child is sent, brought, or caused to be sent or brought, whether by public authorities or private persons or agencies, and whether for placement with state or local public authorities or for placement with private agencies or persons; and
  4. “Sending agency” means a party state, officer or employee thereof; a subdivision of a party state, or officer or employee thereof; a court of a party state; a person, corporation, association, charitable agency or other entity which sends, brings, or causes to be sent or brought any child to another party state.

Article III. Conditions for Placement.

  1. No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.
  2. Prior to sending, bringing or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state. The notice shall contain:
    1. The name, date and place of birth of the child.
    2. The identity and address or addresses of the parents or legal guardian.
    3. The name and address of the person, agency or institution to or with which the sending agency proposes to send, bring, or place the child.
    4. A full statement of the reasons for such proposed action and evidence of the authority pursuant to which the placement is proposed to be made.
  3. Any public officer or agency in a receiving state which is in receipt of a notice pursuant to paragraph (b) of this article may request of the sending agency, or any other appropriate officer or agency of or in the sending agency's state, and shall be entitled to receive therefrom, such supporting or additional information as it may deem necessary under the circumstances to carry out the purpose and policy of this compact.
  4. The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.

Article IV. Penalty for Illegal Placement.

The sending, bringing, or causing to be sent or brought into any receiving state of a child in violation of the terms of this compact constitutes a violation of the laws respecting the placement of children of both the state in which the sending agency is located or from which it sends or brings the child and of the receiving state. Such violation may be punished or subjected to penalty in either jurisdiction in accordance with its laws. In addition to liability for any such punishment or penalty, any such violation constitutes full and sufficient grounds for the suspension or revocation of any license, permit, or other legal authorization held by the sending agency which empowers or allows it to place, or care for children.

Article V. Retention of Jurisdiction.

  1. The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child which it would have had if the child had remained in the sending agency's state, until the child is adopted, reaches majority, becomes self-supporting or is discharged with the concurrence of the appropriate authority in the receiving state. Such jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law. The sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement. Nothing contained herein shall defeat a claim of jurisdiction by a receiving state sufficient to deal with an act of delinquency or crime committed therein.
  2. When the sending agency is a public agency, it may enter into an agreement with an authorized public or private agency in the receiving state providing for the performance of one (1) or more services in respect of such case by the latter as agency for the sending agency.
  3. Nothing in this compact shall be construed to prevent a private charitable agency authorized to place children in the receiving state from performing services or acting as agent in that state for a private charitable agency of the sending state; nor to prevent the agency in the receiving state from discharging financial responsibility for the support and maintenance of a child who has been placed on behalf of the sending agency without relieving the responsibility set forth in paragraph (a) of this article.

Article VI. Institutional Care of Delinquent Children.

A child adjudicated delinquent may be placed in an institution in another party jurisdiction pursuant to this compact but no such placement shall be made unless the child is given a court hearing on notice to the parent or guardian with opportunity to be heard, prior to such child being sent to such other party jurisdiction for institutional care and the court finds that:

  1. Equivalent facilities for the child are not available in the sending agency's jurisdiction; and
  2. Institutional care in the other jurisdiction is in the best interest of the child and will not produce undue hardship.

Article VII. Compact Administrator.

The executive head of each jurisdiction party to this compact shall designate an officer who shall be general coordinator of activities under this compact in his jurisdiction and who, acting jointly with like officers of other party jurisdictions, shall have power to promulgate rules and regulations to carry out more effectively the terms and provisions of this compact.

Article VIII. Limitations.

This compact shall not apply to:

  1. The sending or bringing of a child into a receiving state by the child's parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or the child's guardian and leaving the child with any such relative or non-agency guardian in the receiving state.
  2. Any placement, sending or bringing of a child into a receiving state pursuant to any other interstate compact to which both the state from which the child is sent or brought and the receiving state are party, or to any other agreement between the states which has the force of law.

Article IX. Enactment and Withdrawal.

This compact shall be open to joinder by any state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and, with the consent of congress, the Government of Canada or any province thereof. It shall become effective with respect to any such jurisdiction when such jurisdiction has enacted the same into law. Withdrawal from this compact shall be by the enactment of a statute repealing the same, but shall not take effect until two (2) years after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the governor of each other party jurisdiction. Withdrawal of a party state shall not affect the rights, duties and obligations under this compact of any sending agency therein with respect to a placement made prior to the effective date of withdrawal.

Article X. Construction and Severability.

The provisions of this compact shall be liberally construed to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstances is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state party thereto, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

Acts 1974, ch. 477, § 1; 1977, ch. 131, § 1; T.C.A., § 37-1401.

Compiler's Notes. The Interstate Compact on the Placement of Children, created by this section, terminates June 30, 2022. See §§ 4-29-112, 4-29-243.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 1 of the Tennessee Rules of Juvenile Procedure.

Law Reviews.

Adoption and Custody: Current Trends in Tennessee Family Law: A Roadmap Through Tennessee's New Adoption Statute, 27 U. Mem. L. Rev. 885 (1997).

The Tennessee Court System — Juvenile Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 447 (1978).

NOTES TO DECISIONS

1. Applicability.

Trial court did not err in finding that the Interstate Compact for the Placement of Children (ICPC) was applicable and in declining to rule on the custody petition until the second ICPC study was completed where it simply sought assistance pursuant to the ICPC to obtain the necessary information to render an informed decision on the custody petition. In re Brian M, — S.W.3d —, 2015 Tenn. App. LEXIS 4 (Tenn. Ct. App. Jan. 6, 2015), appeal denied, In re Brian M., — S.W.3d —, 2015 Tenn. LEXIS 281 (Tenn. Mar. 26, 2015).

Trial court erred in concluding that a great uncle's home in California was a suitable placement for a child adjudicated dependent and neglected because the Interstate Compact on the Placement of Children applied, no exemptions to the Compact applied, California withdrew approval for the child's placement in the great uncle's home, the child's blood ties to a potential placement family did not override all other possible dangers to the child's welfare, and even if the Compact did not apply, the trial court erred in concluding that the home was a suitable placement for the child. In re Isaiah R., 480 S.W.3d 535, 2015 Tenn. App. LEXIS 639 (Tenn. Ct. App. Aug. 7, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1011 (Tenn. Dec. 11, 2015).

37-4-202. Compact terms defined.

  1. As used in paragraph (a) of Article V of the Interstate Compact on the Placement of Children, “appropriate authority in the receiving state,” with reference to this state, means the department of children's services.
  2. “Appropriate public authorities,” as used in Article III of the Interstate Compact on the Placement of Children, means, with reference to this state, the department of children's services shall receive and act with reference to notices required by Article III.
  3. As used in Article VII of the Interstate Compact on the Placement of Children, “executive head” means the governor.

Acts 1974, ch. 477, §§ 3, 4, 8; impl. am. Acts 1975, ch. 219, § 1; T.C.A., §§ 37-1402 — 37-1404; Acts 1996, ch. 1079, § 73.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 1 of the Tennessee Rules of Juvenile Procedure.

37-4-203. Compact administrator.

The commissioner of children's services shall act as compact administrator in accordance with the terms of Article VII.

Acts 1974, ch. 477, § 8; impl. am. Acts 1975, ch. 219, § 2; T.C.A., § 37-1405; Acts 1996, ch. 1079, § 73.

37-4-204. Determination of financial responsibility.

Financial responsibility for any child placed pursuant to the Interstate Compact on the Placement of Children shall be determined in accordance with Article V thereof in the first instance. However, in the event of partial or complete default of performance thereunder, the provisions of any laws of the state of Tennessee fixing responsibility for the support of children also may be invoked.

Acts 1974, ch. 477, § 2; T.C.A., § 37-1406.

Collateral References.

Liability of parent for support of child institutionalized by juvenile court. 59 A.L.R.3d 636.

37-4-205. Authorization of agreements with foreign states.

The officers and agencies of this state and its subdivisions having authority to place children are empowered to enter into agreements with appropriate officers or agencies of or in other party states pursuant to paragraph (b) of Article V of the Interstate Compact on the Placement of Children. Any such agreement which contains a financial commitment or imposes a financial obligation on this state or subdivision or agency thereof shall not be binding unless it has the approval in writing of the commissioner of children's services in the case of the state and of the chief local fiscal officer in the case of a subdivision of the state.

Acts 1974, ch. 477, § 5; impl. am. Acts 1975, ch. 219, § 2; T.C.A., § 37-1407; Acts 1996, ch. 1079, § 73.

37-4-206. Chapter 5, part 4 not applicable to this part.

Chapter 5, part 4 of this title shall not apply to placements made pursuant to the Interstate Compact on the Placement of Children.

Acts 1974, ch. 477, § 6; T.C.A., § 37-1408.

37-4-207. Jurisdiction of courts.

Any court having jurisdiction to place delinquent children may place such a child in an institution of or in another state pursuant to Article VI of the Interstate Compact on the Placement of Children and shall retain jurisdiction as provided in Article V.

Acts 1974, ch. 477, § 7; T.C.A., § 37-1409.

Chapter 5
Department of Children's Services

Part 1
General Provisions

37-5-101. Creation of department — Division of juvenile justice — Deputy commissioner of juvenile justice — Powers and duties — Funding.

  1. There is hereby created the department of children's services.
    1. Within the department, there is created a division of juvenile justice to serve children who are adjudicated delinquent.
    2. The deputy commissioner of juvenile justice shall be appointed to lead the division of juvenile justice and shall serve at the pleasure of the commissioner. The commissioner shall appoint a person qualified by training and experience in the area of juvenile justice to perform the duties of deputy commissioner of juvenile justice. The appointee must be a graduate of an accredited college or university and be experienced in the field of juvenile justice.
    3. It is the duty and responsibility of the division of juvenile justice to serve children who are adjudicated delinquent. The deputy commissioner shall have the powers and duties that the commissioner shall prescribe, in order to effectively administer, develop and oversee all state programs and services for delinquent children, their families and their communities.
    4. The commissioner shall earmark a sum sufficient to be used exclusively for the division of juvenile justice. This budget shall include all appropriations for residential and nonresidential services provided for the prevention of delinquency and the rehabilitation, treatment and training of delinquent youth.

Acts 1996, ch. 1079, § 2; 2006, ch. 818, § 1.

Compiler's Notes. The department of children's services, created by this section and § 4-3-101, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

For additional provisions relating to the termination of the department of children's services, see the Compiler's Notes under § 4-3-101.

Acts 1996, ch. 1079, § 184 provided:

“Any provision of this act, or the application thereof, which is inconsistent with federal law, rule or regulation shall be deemed to be construed as being consistent with federal law, rule or regulation.”

Cross-References. Creation of the department of children's services, 4-3-101.

37-5-102. Purpose.

  1. Through the department of children's services, the state of Tennessee, in cooperation with juvenile courts, local communities, schools and families will strive to provide timely, appropriate and cost-effective services for children in state custody and at risk of entering state custody so that these children can reach their full potential as productive, competent and healthy adults. The department is created to provide services to those children who are unruly, delinquent, dependent and neglected, and their respective families, as well as for children who are at imminent risk and in need of services to prevent entry into state custody, who are in state custody pending family reunification or other permanent placement, or as otherwise may be required for such children and their families pursuant to state law. In all cases, the services shall be to further the best interest of the child, and when appropriate, to preserve the relationship between the child and the family. Whenever possible, the services shall be provided in the community where the child lives and in a setting that is the least restrictive and, yet, the most beneficial to the child. For the children it serves, the department shall strive to:
    1. Protect children from abuse, mistreatment or neglect;
    2. Provide prevention, early intervention, rehabilitative and educational services;
    3. Pursue appropriate and effective behavioral and mental health treatment;
    4. Ensure that health care needs, both preventive and practical, are met; and
    5. Keep children safe.
  2. The department will work to preserve the safety and protect the standards in Tennessee communities through efforts to combat delinquency and other social ills concerning young people. The department shall work to continuously improve the management and coordination of services for the children and families of Tennessee identified in this section by ensuring thorough evaluations and assessments, appropriate and effective service delivery, timely permanency planning and supportive supervision and monitoring of the progress of children discharged from state custody.

Acts 1996, ch. 1079, § 3; 2008, ch. 1044, § 1; 2012, ch. 831, § 1, 2; 2015, ch. 242, § 1.

Amendments. The 2015 amendment deleted “the focus of” following “In all cases” near the beginning of the third sentence of (a).

Effective Dates. Acts 2015, ch. 242, § 2. April 24, 2015.

37-5-103. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Abuse” exists when a person under eighteen (18) years of age is suffering from, has sustained or may be in immediate danger of suffering from or sustaining a wound, injury, disability or physical or mental condition caused by brutality, neglect or other actions or inactions of a parent, relative, guardian or caretaker;
  2. “Adjudication of delinquency” means that a juvenile court has found beyond a reasonable doubt that a child has committed a delinquent act, as defined in § 37-1-102, that is an act designated a crime under the law, including local ordinances of this state, or of another state if the act occurred in that state, or under federal law, and the crime does not fall under § 37-1-102(b)(32)(C) and the crime is not a traffic offense as defined in the traffic code of the state other than failing to stop when involved in an accident pursuant to § 55-10-101, driving while under the influence of an intoxicant or drug, vehicular homicide or any other traffic offense classified as a felony;
  3. “Adult” means, as defined in § 37-1-102, any person eighteen (18) years of age or older;
    1. “Child” means:
      1. A person under eighteen (18) years of age; or
      2. A person under nineteen (19) years of age for the limited purpose of:
  1. Remaining under the continuing jurisdiction of the juvenile court to enforce a non-custodial order of disposition entered prior to the person's eighteenth birthday;
  2. Remaining under the jurisdiction of the juvenile court for the purpose of being committed, or completing commitment including completion of home placement supervision, to the department with such commitment based on an adjudication of delinquency for an offense that occurred prior to the person's eighteenth birthday; or
  3. Remaining under the jurisdiction of the juvenile court for resolution of delinquent offense(s) committed prior to a person's eighteenth birthday but considered by the juvenile court after a person's eighteenth birthday with the court having the option of retaining jurisdiction for adjudication and disposition or transferring the person to criminal court under § 37-1-134;

In no event shall a person eighteen (18) years of age or older be committed to or remain in the custody of the department of children's services by virtue of being adjudicated dependent and neglected, unruly, or in need of services pursuant to § 37-1-175, except as provided in §  37-5-106(a)(20);

This subdivision (4) shall in no way be construed as limiting the court's jurisdiction to transfer a person to criminal court under § 37-1-134;

A person eighteen (18) years of age is legally an adult for all other purposes including, but not limited to, enforcement of the court's orders under this subdivision (4) through its contempt power under § 37-1-158;

No exception shall be made for a child who may be emancipated by marriage or otherwise;

(A)  “Child sexual abuse” means, as defined in § 37-1-602, the commission of any act involving the unlawful sexual abuse, molestation, fondling or carnal knowledge of a child under thirteen (13) years of age that, prior to November 1, 1989, constituted the criminal offense of:

Aggravated rape under § 39-2-603 [repealed];

Rape under § 39-2-604 [repealed];

Aggravated sexual battery under § 39-2-606 [repealed];

Sexual battery under § 39-2-607 [repealed];

Assault with intent to commit rape or attempt to commit rape or sexual battery under § 39-2-608 [repealed];

Crimes against nature under § 39-2-612 [repealed];

Incest under § 39-4-306 [repealed];

Begetting child on wife's sister under § 39-4-307 [repealed];

Use of minor for obscene purposes under § 39-6-1137 [repealed]; or

Promotion of performance including sexual conduct by minor under § 39-6-1138 [repealed];

“Child sexual abuse” also means the commission of any act involving the unlawful sexual abuse, molestation, fondling or carnal knowledge of a child under the age of thirteen (13) that on or after November 1, 1989, constituted the criminal offense of:

Aggravated rape under § 39-13-502;

Rape under § 39-13-503;

Aggravated sexual battery under § 39-13-504;

Sexual battery under § 39-13-505;

Rape of a child under § 39-13-522;

Criminal attempt as provided in § 39-12-101 for any of the offenses listed above;

Incest under § 39-15-302;

Sexual exploitation of a minor under § 39-17-1003;

Aggravated sexual exploitation of a minor under § 39-17-1004; or

Especially aggravated sexual exploitation of a minor under § 39-17-1005;

“Child sexual abuse” also means one (1) or more of the following acts:

Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen;

Any contact between the genitals or anal opening of one person and the mouth or tongue of another person;

Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that it shall not include acts intended for a valid medical purpose;

The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs and buttocks, or the clothing covering them, of either the child or the perpetrator, except that it shall not include:

Acts that may reasonably be construed to be normal caretaker responsibilities, interactions with, or affection for a child; or

Acts intended for a valid medical purpose;

The intentional exposure of the perpetrator's genitals in the presence of a child, or any other sexual act intentionally perpetrated in the presence of a child, if such exposure or sexual act is for the purpose of sexual arousal or gratification, aggression, degradation or other similar purpose; or

The sexual exploitation of a child, which includes allowing, encouraging or forcing a child to:

Solicit for or engage in prostitution; or

Engage in an act prohibited by § 39-17-1003;

For the purposes of the reporting, investigation and treatment provisions of §§ 37-1-603 — 37-1-615, “child sexual abuse” also means the commission of any act specified in subdivisions (5)(A)-(C) against a child thirteen (13) years of age through seventeen (17) years of age if such act is committed against the child by a parent, guardian, relative, person residing in the child's home or other person responsible for the care and custody of the child;

“Commissioner” means the commissioner of children's services;

“Department” means the department of children's services;

“Dependent and neglected” means, as defined in § 37-1-102, a child:

Who is without a parent, guardian or legal custodian;

Whose parent, guardian or person with whom the child lives, by reason of cruelty, mental incapacity, immorality or depravity, is unfit to properly care for such child;

Who is under unlawful or improper care, supervision, custody or restraint by any person, corporation, agency, association, institution, society or other organization or who is unlawfully kept out of school;

Whose parent, guardian or custodian neglects or refuses to provide necessary medical, surgical, institutional or hospital care for such child;

Who, because of lack of proper supervision, is found in any place the existence of which is in violation of law;

Who is in such condition of want or suffering or is under such improper guardianship or control as to injure or endanger the morals or health of such child or others;

Who is suffering from abuse or neglect;

Who has been in the care and control of an agency or person who is not related to such child by blood or marriage for a continuous period of eighteen (18) months or longer in the absence of a court order and such person or agency has not initiated judicial proceedings seeking either legal custody or adoption of the child; or

Who is or has been allowed, encouraged or permitted to engage in prostitution or obscene or pornographic photographing, filming, posing or similar activity and whose parent, guardian or other custodian neglects or refuses to protect such child from further such activity;

“Guardian” means, for purposes of adoptions and terminations of parental rights, the meanings set forth in § 36-1-102 and, for all other purposes, the meaning set forth in § 34-1-101;

“Imminent risk” means circumstances or behavior likely to produce, within a relatively short period of time, a reasonably strong probability that the child will be placed in state custody;

“Juvenile” means a person under eighteen (18) years of age. No exception shall be made for a child who may be emancipated by marriage or otherwise;

“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);

“Order of referral” means a juvenile court order entered prior to a child being adjudicated unruly or dependent and neglected, or prior to the disposition of a child who has been adjudicated delinquent, unruly or dependent and neglected, that directs that the department make an assessment of the child and report the findings and recommendations to the court;

“Report of harm” means a report regarding child abuse filed under § 37-1-403 or a report regarding child sexual abuse filed under § 37-1-605;

“Unruly” means, as defined in § 37-1-102, a child in need of treatment and rehabilitation who:

Habitually and without justification is truant from school while subject to compulsory school attendance under § 49-6-3007;

Habitually is disobedient of the reasonable and lawful commands of the child's parent or parents, guardian or other legal custodian to the degree that such child's health and safety are endangered;

Commits an offense that is applicable only to a child; or

Is away from the home, residence or any other residential placement of the child's parent or parents, guardian or other legal custodian without their consent. Such child shall be known and defined as a “runaway;”

“Youth development center” means a hardware secure facility that houses children who have been adjudicated delinquent and who meet the criteria as established by the department for placement at such facility.

Acts 1996, ch. 1079, § 4; 2000, ch. 947, § 8G; 2005, ch. 265, § 7.

Compiler's Notes. Subdivision (5)(D), as originally enacted by Acts 1996, ch. 1079, § 4, contained a reference to “subdivisions (a)(2)(A)-(C)”; however, that act contained no (a)(2)(A)-(C). The reference has been changed to “(5)(A)-(C)” as a possible interpretation of legislative intent.

The definition in subdivision (b)(23) shall be effective July 1, 1996, before which date the definition of “unruly” shall be the definition found in former § 37-1-102(b)(21), which read: “ ‘Unruly child’ means a child who:  (A)  While subject to compulsory school attendance is habitually and without justification truant from school; (B)  Is habitually disobedient of the reasonable and lawful commands of the child's parent, guardian or other custodian, and is ungovernable; (C)  Has committed an offense applicable only to a child; or (D)  Is away from the home or residence of his parents or guardians without their consent. Such child shall be known and defined as a ‘runaway’; if any of the foregoing is in need of treatment or rehabilitation.”

37-5-104. Commissioner of children's services — Qualifications.

  1. The governor shall appoint a person qualified by training and experience in the area of children's services to perform the duties of the commissioner of children's services. The appointee must be a graduate of an accredited college or university.
  2. The commissioner shall hold office at the pleasure of the governor, and the commissioner's compensation shall be fixed by the governor and paid from the appropriation available to the department pursuant to § 8-23-101(c).
  3. The commissioner shall have the necessary offices, equipment and supplies to carry out the duties of the office.

Acts 1996, ch. 1079, § 5.

37-5-105. Powers and duties of commissioner.

The commissioner, or the commissioner's designee, has the following powers and duties in addition to such other powers and duties as may be specifically provided by law in this title or as otherwise provided by law:

  1. Select and recommend to the appropriate state officials the employment or transfer of all personnel required for the operation of the department, except, however, the transfer of any employees pursuant to this chapter or the initial organization of the new department pursuant to this chapter shall not result in any impairment, interruption or diminution of employee rights, privileges, salary, benefits, leave accumulation or employment; and further, such transfer of employees pursuant to this chapter or initial organization of the new department pursuant to this chapter shall not result in a contract employee supervising a preferred service employee or conducting a job performance evaluation for a preferred service employee;
  2. Recommend to the appropriate state officials the salaries and compensation of all officers and employees of the department;
  3. Make and adopt rules, regulations and policies for the government, management and supervision of state children's service agencies or facilities, and children's services; prescribe the powers and duties of the officers and employees thereof; and provide for the care of children served by the department; provided, however, that such rules shall be consistent with and subject to licensing approval authority of any other state agency that has responsibility for licensing or approval of any portion of program services or facilities provided by the department;
    1. Publish, in accordance with the rules, regulations, policies and procedures of the state publication committee, an annual report on the operation of the department and the services and programs under its supervision by January 31 and furnish the report to the governor, members of the general assembly, other persons and relevant entities that may request the report such as the Tennessee council of juvenile and family court judges and the Tennessee commission on children and youth, and others as the governor may consider appropriate;
    2. Such annual report shall contain information regarding foster care services, including definitions, racial composition, and statutory or regulatory authority where appropriate as to the following:
      1. Placement Information.  Total number of children in foster care by region and segmented by:
  1. Level of placement (I-IV);
  2. Placement type (department of children's services foster home, continuum contracts, pre-adoptive or adoptive, diagnostic shelter, emergency shelter, medical or surgical hospital, miscellaneous, specialized residential school, trial home visit);
  3. Average length of custody; and
  4. Number of department of children's services foster care placements currently available;
  5. Range of social services caseload;

Social Services Caseload Information.  Total social services case managers by region and segmented by:

Case manager slots;

Actual filled slots;

Average salary;

Average social services caseload; and

Legal Support by Region.  Total number of attorneys and paralegal staff:

Number of attorney slots;

Number of attorney filled slots;

Number of paralegal slots; and

Number of paralegal filled slots;

Direct the placement of children in appropriate state programs or facilities, or contract programs or facilities, in conformity with constitutional, statutory or regulatory requirements;

Assume general responsibility for the proper and efficient operation of the department, its services and programs. The commissioner may establish such divisions and units within the department as necessary for its efficient operation;

Promulgate necessary rules and regulations to govern administrative searches and inspections of employees of the department, juveniles in the custody of the department and visitors to facilities of the department. Such rules shall provide guidelines and standards for the manner in which the searches authorized by this subdivision (7) shall be conducted;

Promulgate rules and regulations concerning drug testing that are not inconsistent with the provisions of § 41-1-121;

(A)  Conduct investigations as deemed necessary to the performance of the commissioner's duties, and to that end, the commissioner shall have the same power as a judge of the court of general sessions to administer oaths and to enforce the attendance and testimony of witnesses and the production of books and papers;

The commissioner shall keep a record of such investigations, stating the time, place, nature or subject, witnesses summoned and examined, and the commissioner's conclusions;

In matters involving the conduct of an office, a stenographic report of the evidence may be taken and a copy thereof with all documents introduced kept on file at the office of the department;

The fees of witnesses for attendance and travel shall be the same as in the circuit court, but no officer or employee of the institution under investigation shall be entitled thereto;

Any judge of the circuit or chancery court, either in term time or in vacation, upon application of the commissioner, may compel the attendance of witnesses, the production of books or papers and the giving of testimony before the commissioner, by a judgment for contempt or otherwise, in the same manner as in the cases before a circuit or chancery court;

(A)  The commissioner shall have the authority to conduct or cause to be conducted any administrative hearings relating to any factual determinations that the department is authorized or required to make pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, or pursuant to any other hearing procedures required by law or that may be necessary to provide due process procedures for individuals affected by the programs administered by the department;

The commissioner, or any officer or employee of the department upon written authorization from the commissioner, has the power to administer oath and affirmations, take depositions, issue subpoenas and require the production of documents and any books and records that may be necessary in the conduct of such hearings;

Perform all duties and exercise all authority set forth in part 3 of this chapter, regarding community services agencies;

(A)  Establish a children's services advisory council having fifteen (15) members appointed by the commissioner to act in an advisory capacity on any matter within the jurisdiction of the department. Appointees to the council shall include, but not be limited to, representatives of local law enforcement, mental health professionals, local education agencies, juvenile court officials, social workers, health care providers, consumers of services such as parents, foster parents or family members of children who are or have been recipients of services from the department, child advocates, persons having specialized knowledge or experience and public and private agencies that provide services to children. The members of the council shall be appointed with a conscious intention of reflecting a diverse mixture with respect to race and gender. Each community services agency region shall be represented by at least one (1) individual on the council;

The term of a member of the children's services advisory council shall be three (3) years with the terms staggered so as to replace no more than one third (1/3) of the members each year. Members of the council may be reappointed after their terms expire. Members of the council shall continue in office until the expiration of the terms for which they were respectively appointed and until such time as their successors are appointed. Vacancies occurring on the council by reasons of death or resignation shall be filled in the same manner as a regular appointment for the remainder of the unexpired term;

Members shall be reimbursed for their actual expenses for attending meetings of the council. All reimbursement for travel expenses shall be in accordance with the provisions of the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter;

The duties of the council shall be to advise the commissioner regarding issues pertaining to the purpose of the department and its work when requested by the commissioner. Annually, the council shall elect one (1) of its members to serve as chair of the council and one (1) member to serve as secretary. Minutes of each meeting shall be kept and sent to the commissioner. Any officer may be elected to consecutive terms;

Establish, from time to time, committees composed of representatives from the public or private sectors, or both, for such purposes and durations as may be deemed appropriate or required by the commissioner. Members of such committees shall be reimbursed for their actual expenses for attending meetings of their respective committees. All reimbursement for travel expenses shall be in accordance with the provisions of the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter;

(A)  Establish and administer, jointly with the state treasurer, a scholarship program for the sole purpose of providing financial assistance to foster children wishing to pursue opportunities in higher education;

The scholarship program established and administered pursuant to subdivision (14)(A) shall be funded from state appropriations and from such individual and corporate grants, donations and contributions as the commissioner shall solicit and receive specifically for such purpose;

In consultation with the child sexual abuse task force established by § 37-1-603(b)(1), the child advocacy centers, the Tennessee council of juvenile and family court judges, the Tennessee commission on children and youth, the Tennessee supreme court administrative office of the court, the district attorneys general conference and the juvenile and criminal court clerks, develop a plan and recommendations regarding requirements for extensive, detailed information regarding all reports of child maltreatment and the criminal, civil or administrative disposition of all allegations, by type, of child maltreatment and, by type, of disposition, including data regarding the victims and the perpetrators, to be collected by the department and submit the plan and recommendations to the judiciary committee of the senate and the committee of the house of representatives having oversight over children and families. Any child-specific information shall be confidential, except as otherwise provided by statute;

Promote collaboration and accountability among local, public, and private programs to improve the lives of children and families, including continuing accreditation with the Council on Accreditation for Children and Family Services, Inc. or its equivalent, to develop strategies consistent with best practice standards for delivery of services. If the department fails to maintain accreditation, a report shall be provided to the general assembly outlining the reasons the department is no longer accredited; and

(A)  Report to the governor, the chief clerk of the senate, and the chief clerk of the house of representatives on probation and juvenile justice evidence-based treatment services by January 31 of each year for the previous fiscal year;

Such report shall contain the following:

Probation information:

The number of children served by state probation;

The number of children served by county probation as reported to the department in § 37-1-506(b);

The average daily cost per child served by state probation;

Custodial information:

The total number of children in juvenile justice placements;

The number of children placed in youth development centers;

The number of children placed in community placements;

The average daily cost per child placed in a community placement; and

The average daily cost per child placed in a youth development center;

Recidivism and system penetration information:

The number of children receiving probation services who entered state custody;

The recidivism rate for children receiving state probation services;

The recidivism rate for children receiving county probation services;

The recidivism rate for children not receiving probation services; and

The recidivism rate for children receiving any probation services; and

Evidence-based services information:

The number of children receiving evidence-based treatment services;

The percentage of treatment services that are evidence-based;

The number of children receiving prevention services;

The number of children receiving evidence-based prevention services; and

A list of juvenile courts receiving prevention grants or other prevention funding from the department, the amount of funding received, and the percentage of funding being used for evidence-based prevention services.

Acts 1996, ch. 1079, § 6; 1999, ch. 508, § 5; 1999, ch. 521, §§ 1-3; 2001, ch. 401, § 2; 2006, ch. 890, § 4; 2010, ch. 1044, § 1; 2011, ch. 410, § 3(r); 2012, ch. 800, § 49; 2013, ch. 236, § 82; 2016, ch. 1005, § 1; 2019, ch. 345, § 43.

Compiler's Notes. Acts 1999, ch. 508, § 12 provided that the department of children's services shall report at least once every sixty (60) days, or as often as requested, to the Special Joint Task Force to study foster care; the general welfare, health and human resources committee of the senate; the health and human resources committee of the house of representatives; the children and family affairs committee of the house of representatives; and the select joint committee on children and youth. Such periodic reports shall describe the current implementation status of the various provisions of this act.

Acts 2001, ch. 401, § 4, provided that the amendment to this section by the act, which amended subdivision (4)(A), shall apply to any investigation or any civil cause of action pending or filed on or after June 19, 2001.

Acts 2006, ch. 890, § 1 provided that the provisions of the act, which added subdivision (15), may be collectively known as the “Child Protection Act of 2006.”

For the Preamble to the act concerning the Tennessee department of children's services accreditation from the Council on Accreditation for Children and Family Services, Inc., please refer to Acts 2010, ch. 1044.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Acts 2012, ch. 800, § 1 provided that the act, which amended subsection (1), shall be known and cited as the “Tennessee Excellence, Accountability, and Management (T.E.A.M.) Act of 2012.”

Amendments. The 2016 amendment added (17).

The 2019 amendment substituted “the committee of the house of representatives having oversight over children and families” for “the civil justice committee of the house of representatives” in (15).

Effective Dates. Act 2016, ch. 1005, § 3. July  1, 2016.

Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Confidentiality of public records, § 10-7-504.

Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

37-5-106. Powers of the department.

  1. The department has the following powers:
    1. Administer, develop or oversee programs, or any of these things including, but not limited to, state children's services agencies, except those operated by the department of mental health and substance abuse services or the department of intellectual and developmental disabilities, assessment services, probation services, aftercare supervision services, child protective services and other services as required by law or as otherwise reasonably necessary for unruly, delinquent, dependent and neglected children, and their respective families, as well as children who are at imminent risk and in need of services to prevent entry into state custody, who are in state custody pending family reunification or other permanent placement, or as otherwise may be required for such children and their families pursuant to state law; provided, however, that such administration shall be consistent with and subject to licensing or approval authority of any other state agency that has responsibility for licensing or approval of any portion of program services or facilities provided by the department. Nothing herein shall preclude the service of at risk children by the department of mental health and substance abuse services who are classified as seriously emotionally disturbed and for whom that department has primary responsibility;
    2. Provide services as required by law to children committed to its custody pursuant to this title or title 33, 34 or 39, or provide services to children who are in need of services as required or permitted by law under the Interstate Compact for Juveniles in chapter 4, part 1 of this title, the Interstate Compact on the Placement of Children in chapter 4, part 2 of this title, or who are committed to the department by any order of the courts as a result of a divorce or adoption or guardianship proceeding;
      1. License or approve and supervise child care agencies, as defined in part 5 of this chapter, that are placed within the department's jurisdiction pursuant to law;
      2. License or approve and supervise all facilities that were previously operated by the department of youth development;
      3. License or approve and supervise any entity that provides services consistent with this chapter and the exceptions set forth therein;
    4. For the purposes of treatment, reunification and rehabilitation, allow delinquent children committed to the department's custody to make home visits to the natural parent(s), relatives or legal guardian. Such visits must be approved by the committing juvenile court, unless such court declines to exercise decision making in regard to home passes, in which case the commissioner has authority to grant passes without any further court approval or action;
    5. Receive and administer state funds appropriated for children being served by the department of children's services;
    6. Seek, apply for, receive and administer federal funds as well as any other grants or funds that can be used for children being served by the department of children's services;
    7. Administer the contractual obligations and functions and the funding arrangements for the department;
    8. Enter into contracts with the departments of human services, mental health and substance abuse services, intellectual and developmental disabilities, education and health, with agencies of such departments, or any other department or agency of state government, with private individuals and corporations, and with associations, organizations or any other entities, governmental or otherwise, for services that the department of children's services may deem necessary to carry out the purposes of this title. Such services may include, but are not limited to, health, psychological, social, education, transportation, program evaluation, placement, detention, prevention, assessment and case management;
    9. Develop and maintain a system for the purpose of handling, coordinating, processing and disseminating the information generated by the department's activities and services;
    10. Provide appropriate training, either through the department or by contract, to individuals within the department and may provide training to those entities delivering services for the department of children's services. All child protective services workers must be trained in their legal duties to protect the constitutional and statutory rights of children and families from the initial time of contact, during the investigation, and through the treatment;
    11. Provide for all adoption services responsibilities as it may be required to perform pursuant to title 36, chapter 1, part 1, and for the operation of the putative father registry pursuant to § 36-2-318;
    12. Administer the Title IV-E Foster Care and Adoption Assistance Program established pursuant to the Social Security Act in 42 U.S.C. § 670 et seq., or any successor entitlements;
    13. Establish rules and regulations concerning the provision of financial assistance to persons who adopt a child who has special needs, is difficult to place because of a disability or other serious impediments to adoption;
    14. Administer the Interstate Compact on Adoption and Medical Assistance pursuant to title 36, chapter 1, part 2;
      1. Establish, notwithstanding any law to the contrary, rules and regulations for charging fees for the department's preparation and presentation, for any purpose, of social reports of homes or the parent or parents or other persons, when ordered by the courts unless:
        1. The order is based upon a finding that the child or children who are the subjects of the order are victims of abuse or neglect;
        2. The order is based upon a finding that the child or children who are the subjects of the order have been alleged in the proceedings to be victims of abuse or neglect; or
        3. The department has received a report of harm pursuant to § 37-1-403 or § 37-1-605, concerning the child or children who are the subjects of the order. The department may, for purposes of this section, disclose such fact to the court;
      2. Provide by rule or regulation that the parent or parents of the child or children or any person or persons legally responsible for the child or children or any other party to the case, as the court may determine, shall be assessed the costs of the social report. The costs shall not exceed the department's cost to provide the service;
      3. Provide by rule for waiver of costs for any person or persons who are indigent, as determined by the department;
      4. Costs of such reports shall be reported by the department to the court and such costs shall be assessed by the court as court costs, as determined by the court, against the parent or parents or other parties or person legally responsible for the child or children and such costs shall be enforced accordingly by the court;
      5. Such costs shall be paid by the court clerk to the department, and the funds received by the department shall be deposited to the state treasury pursuant to § 9-4-301;
    16. Establish by policy, rule or regulation appropriate and necessary guidelines for consent to health care treatment for children in state custody or who are being served by the department;
    17. The department may acquire, hold or alienate property or leaseholds necessary or desirable for the performance of any of its functions that are vested in it by law;
      1. The department is specifically authorized to establish any programs for the use of volunteers who may be able to provide assistance to the department in any of the services that are vested in it by law or that it may provide as a necessary part of such services. To the extent funds are available, and if necessary and desirable, the department may reimburse such volunteers for actual travel or other reasonable expenses for their services. All reimbursement for travel expenses shall be in accordance with the provisions of the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter. Meals may be furnished without charge at department facilities if the scheduled volunteer assignment extends over an established meal period. The department may use any funds available, including federal, state or local funds or private donations, that it has for any expenses associated with these programs;
      2. Any volunteers who are registered by the department with the board of claims shall be accorded the same protections, legal representation authorization and immunities as state employees pursuant to title 8, chapter 42, and § 9-8-307 for civil or criminal actions brought against them within the scope and course of their activities in such volunteer programs; provided, however, that they shall not be covered by workers' compensation pursuant to § 9-8-307; and
      3. Volunteers may use state vehicles when their assignments so require, subject to the approval of the department and in compliance with any policies or rules or regulations that may be promulgated by the department;
    19. Administer and fully implement the multi-level response system for children and families, compiled in part 6 of this chapter, including making such contracts as may be necessary to carry out the evaluations called for in that part;
    20. Review the status of any person who has reached eighteen (18) years of age who was in the legal custody of the department and whose last commitment was based on an adjudication of dependent and neglected, unruly or in need of services pursuant to § 37-1-175, to determine if the person should receive services from the department in order to complete high school or other educational training or for the purpose of receiving other services. The department may provide services to the person who chooses to receive services from the department on a voluntary basis, subject to funding availability, budgetary constraints and compliance with department policy;
    21. Review the status of any person who has reached nineteen (19) years of age who was in the legal custody of the department and whose last commitment was based on an adjudication of delinquency to determine if the person should receive services from the department in order to complete high school or other educational training or for the purpose of receiving other services. The department may continue to provide services to the person who chooses to receive services from the department on a voluntary basis, subject to funding availability, budgetary constraints and compliance with department policy; and
      1. Create a safety reporting system where the department's employees may report information regarding the safety of those served by the department and the safety of the department's employees;
      2. The identity of any individual who reports to or participates in the reporting system shall:
        1. Be sealed from inspection by the public or any other entity or individual who is otherwise provided access to the department's confidential records under this title;
        2. Not be subject to discovery or introduction into evidence in any civil proceeding; and
        3. Be disclosed only as necessary to carry out the purposes of the reporting system;
      3. Any criminal act reported into the reporting system shall be disclosed by the department to the appropriate law enforcement agency or district attorney.
  2. The attorney general and reporter shall, upon request, advise the department on matters of law.

Acts 1996, ch. 1079, § 7; 2000, ch. 947, § 6; 2000, ch. 981, §§ 51, 60; 2003, ch. 355, § 24; 2004, ch. 740, § 1; 2005, ch. 391, § 12; 2008, ch. 906, § 4; 2010, ch. 1100, §§ 60, 61; 2011, ch. 47, § 29; 2012, ch. 575, § 1; 2015, ch. 21, § 1.

Compiler's Notes. Acts 2003, ch. 355, § 66 provided that no expenditure of public funds pursuant to the act shall be made in violation of the provisions of Title VI of the Civil Rights Act of 1964, as codified in 42 U.S.C. § 2000d.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

For the Preamble to the act concerning legislative intent for creation of a system for reporting safety-related information, see Acts 2015, ch. 21.

Amendments. The 2015 amendment added (a)(22).

Effective Dates. Acts 2015, ch. 21, § 2. March 27, 2015.

Cross-References. Confidentiality of public records, § 10-7-504.

Attorney General Opinions. Role of DCS in the selection of an attorney under adoption assistance program. OAG 14-57, 2014 Tenn. AG Lexis 58 (5/20/14)

37-5-107. Confidentiality of records.

  1. All applications, certificates, records, reports and all legal documents, petitions and records made or information received pursuant to this title that directly or indirectly identify a child or family receiving services from the department or that identify the person who made a report of harm pursuant to § 37-1-403 or § 37-1-605 shall be kept confidential and shall not be disclosed, except as provided by this section and §§ 37-1-131, 37-1-409, 37-1-612 and 49-6-3051.
  2. The department may use or release information in the following circumstances:
    1. The department may utilize any information it has or may acquire to provide services to the child; and
    2. The department may release records to a person or entity that may be providing system or program evaluation.
  3. The department shall release information in the following circumstances:
    1. Upon request, the department shall release records to any child abuse review teams or child fatality review teams that are created or authorized by state law to review the activities of the department or to evaluate or investigate the cause of injury to or death of a child;
    2. Records to any law enforcement agency, grand jury or court upon presentation of an appropriate court order;
    3. Upon written request, records to any federal, state or local government entity or agent of such entity that has a need for the information in order to carry out its responsibilities under law to protect children from abuse and neglect in compliance with 42 U.S.C. § 5106a(b)(2)(B)(ix);
      1. To provide for the public disclosure of information about any case that results in a child fatality or near fatality in compliance with 42 U.S.C. § 5106a(b)(2)(B)(x). For purposes of this subdivision (c)(4)(A), “near fatality” means a child had a serious or critical medical condition resulting from child abuse or child sexual abuse, as reported by a physician who has examined the child subsequent to the abuse;
      2. When the department investigates a child fatality for abuse or neglect, the department shall release the following information, to the extent known, within five (5) business days of the fatality:
        1. The child's age;
        2. The child's gender; and
        3. Whether the department has had history with the child.
      3. Following the closure of an investigation for a child abuse or neglect fatality, the department shall release the final disposition of the case, whether the case meets criteria for a child death review and the full case file. The case file may be redacted to comply with the confidentiality requirements of this section.
      4. Following the department's final classification of a child abuse or neglect near fatality, the department shall release the full case file. The case file may be redacted to comply with the confidentiality requirements of this section.
    5. Records to any person or entity that provides system or program evaluation at the request of the department;
    6. To the commission on children and youth any and all records requested by the commission that the commission believes necessary to perform its duties and responsibilities pursuant to § 37-3-103, particularly for the purpose of evaluating the delivery of services to children and their families served by the department; and
    7. Upon written request, records to any person who is the subject of a report made to the department, or to the person's parent or legal guardian if the person is a minor and the parent or legal guardian is not the alleged perpetrator of or in any way responsible for the child abuse, child neglect or child sexual abuse against the child whose records are being requested. A person provided access to records pursuant to this subdivision (c)(7) shall maintain the confidentiality of the records except to the extent necessary for proper supervision, care or treatment of the subject of the report.
  4. Pursuant to subdivision (c)(3), the department shall disclose records and information to any member of the general assembly to enable the member to determine whether the laws of this state are being complied with to protect children from abuse and neglect and whether the laws of this state need to be changed to enhance such protection; provided, that the procedures set out in subdivisions (d)(1)-(3) and any other procedures required by law are followed.
    1. If a member of the general assembly receives a written inquiry regarding whether the laws of this state that protect children from abuse and neglect are being complied with or whether the laws of this state need to be changed to enhance protection of children, the member of the general assembly may submit a written request to the department, requesting review of the records and information relating to the inquiry. The member's request shall state the name of the child whose case file is to be reviewed and any other information that will assist the department in locating the information.
    2. The member shall sign a form, before reviewing the records and information, that outlines the state and federal laws regarding confidentiality and the penalties for unauthorized release of the information. All records and information being reviewed by any member shall remain in the department's possession.
    3. After reviewing the records and information, if the member requests additional information, the department shall discuss the circumstances related to the records and information being disclosed.
    1. Any person or entity, including the commission on children and youth, that is provided access to records under this section shall be required to maintain the records in accordance with state and federal laws and regulations regarding confidentiality.
    2. It is an offense for any person who has received or has been provided access to confidential information pursuant to this section to knowingly disclose or knowingly cause to be disclosed the information to any person or entity not otherwise provided access to the records by law.
    3. A violation of this subsection (e) is a Class B misdemeanor.
  6. Upon placement of a child in the custody of the department of children's services, all state, county and local agencies shall, notwithstanding any state laws or regulations to the contrary, grant access to any and all records in their possession that relate to the child for use by the department of children's services to determine a child's condition, needs, treatment or any other area of management; provided, however, that release of health care information must be consistent with the laws and policies of the departments of health, mental health and substance abuse services, and intellectual and developmental disabilities. The department of children's services shall comply with federal statutes and regulations concerning confidentiality of records. Any records that are confidential by law upon the enactment of this legislation shall be maintained as confidential by the department of children's services.
  7. Except as otherwise provided pursuant to 20 U.S.C. § 1232g(b)(1), prior to the release of student records, the local education agency must give written notice to the student and parent as required by 20 U.S.C. § 1232g(b)(1), and must provide the parent with a copy of all records released.
  8. Release of drug and alcohol records must comply with federal and state laws and regulations regarding the release of these records.
  9. Except as provided for in subsection (c)(2), nothing in this section shall ever be construed to permit or require the department to release or disclose the identification of the person making a report of harm in accordance with § 37-1-403.
  10. The department, in consultation with the commission on children and youth, shall adopt rules and regulations that may be necessary to establish administrative and due process procedures for the disclosure of records and other information pursuant to this section.

Acts 1996, ch. 1079, § 8; imp. am. Acts 2000, ch. 947, § 6; 2008, ch. 1146, § 1; 2009, ch. 86, §§ 1, 2; 2009, ch. 358, § 4; 2010, ch. 1100, § 62; 2012, ch. 575, § 1; 2014, ch. 771, § 1.

Compiler's Notes. Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Amendments. The 2014 amendment added (c)(4)(B)–(D).

Effective Dates. Acts 2014, ch. 771, § 2. July 1, 2014.

Cross-References. Confidentiality of public records, § 10-7-504.

Penalty for Class B misdemeanor, § 40-35-111.

Attorney General Opinions. Records of the department of children's services do not lose their character as agency records simply because they have been included in the record of a trial court proceeding and, therefore, such records remain confidential, OAG 00-128 (8/10/00).

Confidentiality of department of children's services complaints. OAG 13-93, 2013 Tenn. AG LEXIS 108 (11/27/13).

NOTES TO DECISIONS

1. Disclosure of Information.

Because all of the electronically stored information data from the Tennessee Department of Mental Health and Developmental Disabilities'  and the Department of Children's Services'  incident reporting data and another database contained highly relevant information on defendants'  violation of federal law and plaintiffs'  federal constitutional rights and because an appropriate protective order for discovery and trial could avoid disclosures of the identities of the children, doctors and other protected persons, under Fed. R. Evid. 501, the state law privileges under T.C.A. §§ 37-1-409(a)(2), 37-1-615(b), 37-5-107, 37-1-612, 37-2-408, 36-1-125, 36-1-126, 36-1-138 did not bar discovery. John B. v. Goetz, 879 F. Supp. 2d 787, 2010 U.S. Dist. LEXIS 8821 (M.D. Tenn. Jan. 28, 2010).

Trial court did not err in a termination of parental rights proceeding by permitting a case worker to testify as to the conditions observed in the home because, under the circumstances of the case, the Tennessee Department of Children's Services could provide otherwise confidential information to the court for the purpose of protecting the child from future neglect of the child by the parent. In re Kandace D., — S.W.3d —, 2018 Tenn. App. LEXIS 4 (Tenn. Ct. App. Jan. 8, 2018).

37-5-108. Conflict of interest.

The department has the power and authority to establish by policy, rule or regulation provisions for prohibition of any conflict of interest that may occur within the department of children's services that may affect the constitutional rights of a child being served by the department of children's services. The department shall exercise this power and authority consistent with the provisions regarding conflicts of interest under title 12, chapter 4, part 1.

Acts 1996, ch. 1079, § 9.

37-5-109. Licensing.

The responsibility for licensing children's programs, agencies, group homes, institutions or any other entity serving children that requires a license by law in Tennessee is as follows:

  1. The department of children's services shall license or approve and supervise child abuse agencies, child caring institutions, child placing agencies, detention centers, family boarding or foster care homes, group care homes, maternity homes and temporary holding resources. Not later than January 1, 1999, the department shall develop and implement standards to ensure that children in foster care placements in public or private agencies are provided quality services that protect the safety and health of the children. Exceptions to the department's licensing responsibilities concerning the aforementioned categories are contained in § 37-5-503;
  2. The department of human services shall license or approve and supervise child care centers, family child care homes and group child care homes. Exceptions to the department's licensing responsibilities concerning the aforementioned categories are contained in § 71-3-503;
  3. The department of mental health and substance abuse services shall license or approve and supervise any institution, treatment resource, group residence, boarding home, sheltered workshop, activity center, rehabilitation center, hospital, community mental health center, counseling center, clinic, halfway house or other entity, by these or other names, providing mental health, intellectual disability or developmental disability services, respectively, or as required by title 33, chapter 2, part 4. Exceptions to the licensing responsibilities of the department of mental health and substance abuse services concerning the aforementioned categories are contained in § 33-2-403;
  4. Any programs or portions of programs, or any place, home, facility, institution or other entity that is otherwise subject to licensure or approval by any other agency as required by law, shall continue to be licensed or approved by that agency unless notified to the contrary by the department of children's services; and
  5. Subject to the exemptions set out in § 37-5-503, and pursuant to promulgated rules and regulations, the department will license or approve or supervise any entity that provides residential services to children and is not otherwise subject to licensure, approval, certification or supervision by any other agency as required by state law.

Acts 1996, ch. 1079, § 10; 1998, ch. 1097, § 28; 2000, ch. 947, §§ 6, 8I, 8L, 8M; 2000, ch. 981, § 61; imp. am. Acts 2000, ch. 947, § 6; 2010, ch. 1100, § 63; 2012, ch. 575, § 1.

Compiler's Notes. Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

37-5-110. Contracts/Leases.

  1. Contracts or leases entered into prior to May 21, 1996, with respect to any program or function transferred to the department of children's services with any entity, corporation, agency, enterprise or person, shall continue in full force and effect as to all essential provisions in accordance with the terms and conditions of the contracts in existence on May 21, 1996, to the same extent as if such contracts had originally been entered into by and between such entity, corporation, agency, enterprise or person and the department of children's services, unless and until such contracts or leases are amended or modified by the parties thereto or until the expiration of such contract.
  2. This chapter shall not be implemented in any manner that violates the prohibition against impairment of contract obligations as contained in article I, § 20 of the Constitution of Tennessee.

Acts 1996, ch. 1079, § 11.

37-5-111. Funds.

The department, through its commissioner, shall have the authority to receive, administer, allocate, disburse and supervise any grants and funds from whatever sources, including, but not limited to, the federal, state, county and municipal governments on a state, regional, county or any other basis, with respect to any programs or responsibilities outlined in this chapter or assigned to the department by law, regulation or order. Exercise of this authority shall not be inconsistent with laws or regulations governing the appropriation and disbursement of funds as administered by the department of finance and administration.

Acts 1996, ch. 1079, § 12.

37-5-112. Rules.

All current rules, regulations, orders, decisions and policies heretofore issued or promulgated by any departments of state government whose functions have been transferred under this chapter shall remain in full force and effect and shall hereafter be administered and enforced by the department. To this end, the department of children's services, through its commissioner, shall have the authority, consistent with the statutes and regulations pertaining to the programs and functions transferred herein, to modify or rescind orders, rules and regulations, decisions or policies heretofore issued and to adopt, issue or promulgate new orders, rules and regulations, decisions or policies as may be necessary for the administration of the programs or functions herein transferred. The application of rules and regulations and the policies of the department shall be uniform and consistent throughout the state.

Acts 1996, ch. 1079, § 13; 2009, ch. 87, § 1.

Code Commission Notes.

Former subsection (b), concerning the implementation of rulemaking authority through promulgation of public necessity (now emergency) rules, was deleted as obsolete by the code commission in 2001.

37-5-113. Accreditation.

The department shall have its youth development centers accredited by a regionally or nationally recognized accreditation body such as the American Correctional Association, the Council on Accreditation or other accreditation agency.

Acts 1996, ch. 1079, § 14.

37-5-114. Transfer from department of youth development.

  1. Any juvenile program that was administered by the department of youth development prior to May 21, 1996, shall be transferred to, and administered by, the department of children's services on and after May 21, 1996.
  2. All staff, staff positions, offices, equipment, supplies, property, funds and other resources of any juvenile program under the department of youth development shall be transferred to the department of children's services.
    1. References to the department of youth development or the division of juvenile probation relative to programs for juveniles appearing elsewhere in this code shall be deemed to be references to the department of children's services.
      1. The code commission is directed to change references to the existing titles of officials, offices, agencies and entities, whenever they appear in this code, to conform to the titles of officials, offices, agencies and entities created by this chapter.
      2. The code commission is authorized to make grammatical changes in the provisions of this code to effectuate such changes.
    1. All contracts and leases entered into by the department of youth development relative to programs for juveniles shall continue in full force and effect as to all provisions in accordance with the terms and conditions of such contracts or leases in existence on May 21, 1996, unless and until such contracts or leases expire or are duly amended or modified by the parties thereto.
    2. All rules, policies, orders and decisions related to juvenile services promulgated or issued by the department of youth development prior to, and in effect on May 21, 1996, shall remain in force and effect and shall be administered and enforced by the department of children's services until duly amended, repealed, expired, modified or superseded.

Acts 1996, ch. 1079, § 15.

37-5-115. Review.

The department shall be reviewed pursuant to the requirements set out in the Tennessee Governmental Entity Review Law, compiled in title 4, chapter 29. Further, the department shall respond to requests for information from any other legislative committees including, but not limited to, the fiscal review committee, the health and welfare committee of the senate, the health committee of the house of representatives, and the government operations committees of the senate and house of representatives, to ensure that thorough review and oversight of the department is accomplished.

Acts 1996, ch. 1079, § 183; 2013, ch. 236, § 53.

37-5-116. Non-discrimination.

No person shall, on the grounds of race, color, national origin, sex, age or ability to pay, be excluded from participation, be denied the benefits of or be otherwise subjected to discrimination under any program or activity operated by the department of children's services. This shall include, but not be limited to, contracts for services, employment or services to consumers.

Acts 1996, ch. 1079, § 183.

37-5-117. Youth service officers — Qualifications.

After July 1, 1989, any person employed as a youth service officer by the department of children's services shall:

  1. Be at least eighteen (18) years of age;
  2. Be a citizen of the United States;
  3. Have such person's fingerprints on file with the Tennessee bureau of investigation for criminal identification;
  4. Have passed a physical examination by a licensed physician;
  5. Have a good moral character as determined by investigation; and
  6. Have been certified by a Tennessee licensed health care provider qualified in the psychiatric or psychological field as being free from any impairment, as set forth in the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association at the time of the examination, that would, in the professional judgment of the examiner, affect the applicant's ability to perform an essential function of the job, with or without a reasonable accommodation.

Acts 1989, ch. 278, § 48; T.C.A., § 4-3-2609; Acts 1996, ch. 1079, § 21; 2013, ch. 137, § 2.

37-5-118. Oath requirement.

  1. All persons employed to control and manage juvenile programs for the state shall, before entering upon the discharge of their duties, take and subscribe the following oath: “I do solemnly swear (or affirm) that I will fully, faithfully, impartially, and diligently perform all the duties required of me as  in the department of children's services, that I will execute the laws and regulations prescribed for the government of the department, so far as concerns my office; that I will accept no bribe, or other compensation during my continuance in office, other than such compensation as is allowed by law; and that I will, on no occasion, ill treat or abuse any juvenile in the care of the department.”
  2. This oath shall be filed in the office of the secretary of state, and its violation by any of such officers or employees shall be perjury, punishable as in other cases of perjury.

Acts 1989, ch. 278, § 12; T.C.A., § 4-3-2610; Acts 1996, ch. 1079, § 21.

Cross-References. Perjury, title 39, ch. 16, part 7.

37-5-119. Youth development centers — Special school district — Administration — Teachers.

  1. The youth development centers and any other facilities deemed appropriate by the commissioner shall be a special school district, which shall be given the same funding consideration for federal funds that school districts within the state are given.
  2. The schools within such youth development centers and any other facilities deemed appropriate by the commissioner shall be under the control of the commissioner who shall serve as the board of education and director of schools for such district.
    1. The schools shall meet the requirements of the law for public schools and rules and regulations of the state board of education.
    2. The commissioner of education may grant waivers for such provisions of the laws and regulations with which the schools cannot comply because of the function of the youth development centers and any other facilities deemed appropriate by the commissioner on an annual basis and in response to the commissioner's of children's services written request and justification. Such exceptions shall be in writing.
    1. Each teacher in the special school district shall receive annual compensation at a rate of one tenth (1/10) times twelve (12) of the annual compensation in effect in the county in which the respective youth development center and any other facilities deemed appropriate by the commissioner are located or one tenth (1/10) times twelve (12) of the average of the annual compensation of all the counties that are contiguous with the county in which the respective youth development centers and any other facilities deemed appropriate by the commissioner are located, whichever is greater, solely out of the state appropriations made to the respective youth development centers and any other facilities deemed appropriate by the commissioner.
    2. This provision shall not act to reduce the compensation currently paid any teacher in the special school district.
    3. To the extent such resources are available, federal funding resources shall be utilized to meet increased costs resulting from implementation of this subsection (d).
    4. Longevity shall not be paid to teachers in the special school district under the provisions of both §§ 8-23-206 and 49-5-402.
  5. The commissioner of children's services shall develop and implement a plan whereby there shall be sufficient substitute teachers available for temporary service as needed for each school composing the special school district.
    1. Nothing in the language of this section shall be construed as prohibiting any local school district from issuing a diploma to a resident of a youth development center and any other facilities deemed appropriate by the commissioner, upon certification of the principal of a youth center school.
    2. School records of any juvenile in the correctional programs who is issued a diploma by a local school district shall be maintained by such local school district; provided, that all references to the juvenile's commitment to and treatment by the department of children's services are expunged.
  7. The special school district of youth development centers and any other facilities deemed appropriate by the commissioner under the department shall have the powers, privileges and authority exercised or capable of exercise by any other school district.
  8. The effect of this section shall not be to provide state funds to the special school district of youth development centers and any other facilities deemed appropriate by the commissioner under the department of children's services through the basic education program (BEP).

Acts 1989, ch. 278, § 9; T.C.A., § 4-3-2620; Acts 1996, ch. 1079, § 23.

37-5-120. Library region — Creation.

There is created a library region to be composed of the youth development centers under the control of the department.

Acts 1989, ch. 278, § 10; T.C.A., § 4-3-2625; Acts 1996, ch. 1079, § 25.

37-5-121. Pilot programs — Evidence-based programs for the prevention, treatment or care of delinquent juveniles.

  1. As used in this section, unless the context otherwise requires:
    1. “Evidence-based” means policies, procedures, programs, and practices demonstrated by scientific research to reliably produce reductions in recidivism or has been rated as effective by a standardized program evaluation tool;
    2. “Pilot program” means a temporary research-based or theory-based program or project that is eligible for funding from any source to determine whether or not evidence supports its continuation beyond the fixed evaluation period. A pilot program shall provide for and include:
      1. Development of a program manual or protocol that specifies the nature, quality, and amount of service that constitutes the program; and
      2. Scientific research using methods that meet high scientific standards for evaluating the effects of such programs must demonstrate on at least an annual basis whether or not the program improves client outcomes central to the purpose of the program;
    3. “Research-based” means a program or practice that has some research demonstrating effectiveness, but that does not yet meet the standard of evidence-based; and
    4. “Theory-based” means a program or practice that has general support among treatment providers and experts, based on experience or professional literature, may have anecdotal or case-study support, and has potential for becoming a research-based program or practice.
  2. The department of children's services, and any other state agency that administers funds related to the prevention, treatment or care of delinquent juveniles, shall not expend state funds on any juvenile justice program or program related to the prevention, treatment or care of delinquent juveniles, including any service model or delivery system in any form or by any name, unless the program is evidence-based. The department shall continue the ongoing research and evaluation of sound, theory-based and research-based programs with the goal of identifying and expanding the number and type of available evidence-based programs, and to that end the department may engage in and fund pilot programs as defined in this section.
  3. Implementation of programs shall be accompanied by monitoring and quality control procedures designed to ensure that they are delivered as prescribed in the applicable program manual or protocol and that corrective action shall be taken when those standards are not met.
  4. The department shall include in any contract with a provider of services related to prevention, treatment or care of delinquent juveniles a provision affirming that the provider shall provide only evidence-based services, except for services that are being provided pursuant to a pilot program as defined in this section, and that the services shall be accompanied by monitoring and quality control procedures that ensure that they are delivered according to the applicable standards. The department may use performance requirements or incentives in determining the amounts payable in contracts or grants.
  5. In order to prevent undue disturbance to existing department programs, the department shall ensure that twenty-five percent (25%) of the funds expended for delinquent juveniles meet the requirements of this section during fiscal year 2009-2010, that fifty percent (50%) of such funds meet the requirements of this section during fiscal year 2010-2011, that seventy-five percent (75%) of such funds meet the requirements of this section during fiscal year 2011-2012, and that one hundred percent (100%) of such funds meet the requirements of this section during fiscal year 2012-2013 and each fiscal year thereafter.
  6. The commissioner is authorized to promulgate rules and regulations to effectuate the purposes of this section. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2007, ch. 585, §§ 1-3; 2011, ch. 410, § 3(s); 2018, ch. 1052, § 53.

Compiler's Notes. Former § 37-5-121 (Acts 1996, ch. 1079, § 183), concerning the Tennessee Preparatory School, was repealed by Acts 2003, ch. 355, § 25, effective June 16, 2003.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Acts 2018, ch. 1052, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Juvenile Justice Reform Act of 2018.”

Acts 2018, ch. 1052, § 55 provided that it is the intent of the general assembly that improvements to the juvenile justice system and expansion of community-based resources for justice-involved children be prioritized, including, but not limited to, evidence-based programs, informal adjustment, diversion, home placement supervision, statewide data collection, early intervention programs and services for children and families, and mental health services, especially in any county underserved with such programs and services.

Amendments. The 2018 amendment rewrote (a)(1) which read:“(1) ‘Evidence-based’ means a program or practice that meets the following requirements:“(A) The program or practice is governed by a program manual or protocol that specifies the nature, quality, and amount of service that constitutes the program; and“(B) Scientific research using methods that meet high scientific standards for evaluating the effects of such programs must have demonstrated with two (2) or more separate client samples that the program improves client outcomes central to the purpose of the program;”.

Effective Dates. Acts 2018, ch. 1052, § 58. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

37-5-122. Post-adoption services and searches — Fees and charges.

  1. The commissioner is authorized to promulgate rules and regulations establishing procedures, fees and charges for any service rendered relative to post-adoption search services and records handling services that are at any time required or permitted by law to be provided by the department.
  2. The commissioner is empowered to promulgate rules and regulations to reduce or eliminate fees or charges for services, identified under the provisions of this section, based upon recipients' condition or ability to pay. The amount of any fee or charge established by the commissioner under the provisions of this section shall not exceed the cost of providing the service.
  3. Any fees or charges received by the department under this section shall be deposited with the state treasurer in accordance with § 9-4-301.

Acts 1992, ch. 901, § 1; 1995, ch. 532, § 17; T.C.A., § 71-1-124; Acts 1996, ch. 1079, § 156.

37-5-123. Notification of release of juvenile offender.

    1. The department of children's services shall provide or contract with a private entity to provide to members of the public who have made a notification request, notification of the release of a juvenile adjudicated to have committed a delinquent act that would constitute a felony if committed by an adult from a facility operated by or under contract with the department to home placement as defined in § 37-1-102 [See compiler's note]. The chief administrator, or a person designated by the chief administrator, of a facility operated under contract with the department shall make available to the department, or any private entity under contract with the department, the information necessary to implement this section in a timely manner. The department, or the private entity under contract with the department, shall be responsible for retrieving the information and notifying the requester in accordance with regulations promulgated by the department.
    2. The department may refuse the notification request of a person if, on a case by case basis, it finds that notification of release is not in the best interests of the juvenile being released and that such notification may result in harm to the juvenile.
  2. The department shall promulgate rules in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement the provisions of this section.
  3. Notwithstanding §§ 37-1-145, 37-1-155 or 37-5-107 to the contrary, this section shall require the release of information relating to juveniles who have been adjudicated to have committed a delinquent act that would constitute a felony if committed by an adult. The release of information shall be limited to the extent necessary to comply with the provisions of this section.

Acts 1998, ch. 968, § 2.

Compiler's Notes. Acts 1998, ch. 968, § 3 provided full implementation of the notification program established by this act and full public access to such information shall take place by July 1, 1999.

The definition of “home placement”, as referenced in the first sentence of subdivision (a)(1), was deleted from section 37-1-102 by Acts 2011, ch. 486, § 1 effective July 1, 2011.

37-5-124. Disclosure of the death or near fatality of persons in the custody of the department of children's services.

  1. The commissioner of children's services shall provide a report of the fatality or near fatality of:
    1. Any child in the custody of the department;
    2. Any child who is the subject of an ongoing investigation by child protective services or has been the subject of an investigation by child protective services within the forty-five (45) days immediately preceding the child's fatality or near fatality; or
    3. Any child whose fatality or near fatality resulted in an investigation of the safety and well-being of another child in the home;

      within ten (10) business days of the fatality or near fatality of such child to the members of the senate and house of representatives representing the child and to the committee of the house of representatives having oversight over children and families. The district attorney for the judicial district in which the child was located must also receive a copy of the report provided to the legislators and may communicate with the legislators representing the child about the report and its contents or about any other otherwise confidential information that the legislators may have acquired pursuant to § 37-5-107(d).

  2. The legislators representing the child shall be determined by the home address of the child. If the child was not a resident of Tennessee prior to being placed in the custody of the department, the legislators representing the child shall be determined by the address of the residence or facility in which the child was located at the time of the child's fatality or near fatality.
  3. For the purposes of this section, “near fatality” shall have the same meaning as in § 37-5-107.

Acts 2005, ch. 168, § 2; 2010, ch. 1031, § 1; 2011, ch. 410, § 3(t); 2019, ch. 345, § 44; 2019, ch. 472, § 1.

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment by ch. 345 added “and to the committee of the house of representatives having oversight over children and families” at the end of (a)(3).

The 2019 amendment by ch. 472 added the last sentence in (a)(3).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Acts 2019, ch. 472, § 2. May 24, 2019.

Cross-References. Disclosure of the death of persons in the custody of the department of correction, § 4-3-611.

37-5-125. Model programs for adolescents at risk.

  1. Through contract with nonprofit corporations, community organizations, volunteer groups, churches, schools and family resource centers, the department of children's services is authorized to establish in each grand division two (2) model after school or summer programs, or both, for young adolescents at risk of placement in the custody of the state. An entity may contract with the department to operate more than one (1) program. Each such model program shall serve not more than twenty-five (25) adolescents and shall strive to improve self-esteem, motivation, responsibility, achievement and goal setting through a variety of activities including, but not necessarily limited to, counseling, tutoring, mentoring, field trips, cultural enrichment experiences, team sports and team projects and problem solving. State funding for each such model program shall not exceed eight thousand two hundred fifty dollars ($8,250) per program.
  2. The department shall promulgate policies and guidelines defining:
    1. The phrase “young adolescents at risk of placement in the custody of the state;” and
    2. The minimum requirements and components for programs established and funded pursuant to subsection (a).
  3. On or before January 15 of each year, the department shall evaluate the success of such programs and shall report findings and recommendations to the judiciary committee of the senate and the committee of the house of representatives having oversight over children and families.

Acts 1993, ch. 246, § 1; 1994, ch. 793, § 1; 1994, ch. 917, § 1; 1996, ch. 1079, § 16; T.C.A. § 4-3-2626; Acts 2011, ch. 410, § 3(u); 2013, ch. 236, § 21; 2019, ch. 345, § 45.

Code Commission Notes.

Former § 4-3-2626, concerning model programs for adolescents at risk, was transferred without change to this section in 2005 by authority of the Tennessee code commission.

This section was amended twice in 1994, first by ch. 793, effective April 15, 1994, then by ch. 917, effective July 1, 1994, neither act referring to the other. The amendments conflict in (a), which is set out to reflect the amendment by ch. 917. The amendment by ch. 793 would have substituted “thirty-five (35) adolescents” for “twenty-five adolescents.”

Compiler's Notes. Acts 1996, ch. 1079, § 184 provided:

“Any provision of this act, or the application thereof, which is inconsistent with federal law, rule or regulation shall be deemed to be construed as being consistent with federal law, rule or regulation.”

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment substituted “the committee of the house of representatives having oversight over children and families” for “the civil justice committee of the house of representatives” in (c).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

37-5-126. Children's mental health care — Development of plan, projects and programs.

Notwithstanding any law to the contrary, the department shall assist the council on children's mental health care in developing a plan that will establish demonstration sites in certain geographic areas where children's mental health care is child-centered, family-driven, and culturally and linguistically competent and that provides a coordinated system of care for children's mental health needs in this state. The department shall also involve the council in the development of interagency projects and programs, whether state or federally funded, related to children's mental health care, except where otherwise prohibited by state or federal law.

Acts 2008, ch. 1062, § 8.

Compiler's Notes. For the Preamble to the act regarding to the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

37-5-127. License, certification or registration — Notifications — Prerequisites — Web site — Electronic notices.

  1. The department and each board, commission, agency or other governmental entity created pursuant to this title shall notify each applicant for a professional or occupational license, certification or registration from the department, board, commission, agency or other governmental entity where to obtain a copy of any statutes, rules, guidelines, and policies setting forth the prerequisites for the license, certification or registration and shall, upon request, make available to the applicant a copy of the statutes, rules, guidelines, and policies.
  2. The department and each board, commission, agency or other governmental entity created pursuant to this title shall notify each holder of a professional or occupational license, certification or registration from the board, commission, agency or other governmental entity of changes in state law that impact the holder and are implemented or enforced by the entity, including newly promulgated or amended statutes, rules, policies, and guidelines, upon the issuance and upon each renewal of a holder's license, certification or registration.
  3. The department and each board, commission, agency or other governmental entity created pursuant to this title shall establish and maintain a link or links on the entity's web site to the statutes, rules, policies, and guidelines that are implemented or enforced by the entity and that impact an applicant for, or a holder of, a professional or occupational license, certification, or registration from the entity.
    1. The department and each board, commission, agency, or other governmental entity created pursuant to this title shall allow each holder of a professional or occupational license, certification or registration from the department, board, commission, agency or other governmental entity to have the option of being notified by electronic mail of:
      1. Renewals of the holder's license, certification or registration;
      2. Any fee increases;
      3. Any changes in state law that impact the holder and are implemented or enforced by the entity, including newly promulgated or amended statutes, rules, policies and guidelines; and
      4. Any meeting where changes in rules or fees are on the agenda. For purposes of this subdivision (d)(1)(D), the electronic notice shall be at least forty-five (45) days in advance of the meeting, unless it is an emergency meeting then the notice shall be sent as soon as is practicable.
    2. The department and each board, commission, agency or other governmental entity created pursuant to this title shall notify each holder of a license, certification or registration of the availability of receiving electronic notices pursuant to subdivision (d)(1) upon issuance or renewal of the holder's license, certification or registration.

Acts 2008, ch. 1070, § 10; 2012, ch. 952, § 7.

Compiler's Notes. Acts 2008, ch. 1070, § 13 provided that each entity subject to the act shall promulgate rules to effectuate the purposes of the act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

37-5-128. Review of department policies and attached protocol and procedures that affect children the department serves — Uniformity of applicability.

Before March 1 of each year, the department shall appear before the judiciary committee of the senate and the judiciary committee of the house of representatives for a review of the policies of the department and attached protocol and procedures for these policies and any provisions that affect the children the department serves. During the review, the committees shall consider the uniformity of applicability across the state of the department's policies and attached protocol and procedures for these policies and any provisions that affect the children the department serves.

Acts 2009, ch. 87, § 2; 2011, ch. 410, § 3(v); 2013, ch. 236, § 21; 2019, ch. 345, § 46.

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment substituted “judiciary” for “civil justice” following “senate and the”.

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

37-5-129. Review of new departmental policies.

The department shall submit for review by the judiciary committee of the senate and the committee of the house of representatives having oversight over children and families any new departmental policies within sixty (60) days of adoption of the policies.

Acts 2009, ch. 87, § 2; 2011, ch. 410, § 3(w); 2013, ch. 236, § 21; 2019, ch. 345, § 47.

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment substituted “the committee of the house of representatives having oversight over children and families” for “the civil justice committee of the house of representatives”.

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

37-5-130. Cessation of operations — Permanent education records.

In the event that a department of children's services provider agency school ceases operations, or the department no longer contracts with the provider agency, the permanent educational records for students who have been in state custody shall be forwarded to the department by the contract agency or provider. Such records shall be maintained in accordance with department policies and procedures as to educational records, and may be released to appropriate individuals or entities in accordance with department policy.

Acts 2010, ch. 738, § 1.

37-5-131. Education of youth in juvenile detention facilities of the department of children's services or other facilities for youth at risk.

  1. This section shall apply to the following facilities:
    1. Juvenile detention facilities approved, certified or licensed by the department of children's services; and
    2. Facilities for children who are not in the custody of the department of children's services that provide community-based alternative educational programs whose purposes are prevention of delinquency, rehabilitation of delinquent youth or otherwise addressing unruly behavior that places youth at risk educationally or at risk of coming into state custody.
  2. Each facility shall report no later than August 31, 2010, to the department of education the number of youth detained or served, as well as relevant demographic and service delivery information as specified by the department of education, including, but not limited to, date of entry and date of exit from the facility for the time period of July 1, 2008, through June 30, 2010.
  3. On or before January 15, 2011, the department of education shall provide a report containing a compilation of the data and a detailed analysis of the findings to the chair of the judiciary committee of the senate, the chair of the children and family affairs committee of the house of representatives, the executive director of the commission on children and youth, the chairs of the education committees of the senate and the house of representatives and the commissioner of children's services. Such report shall include, but not be limited to, the following recommendations:
    1. A process to properly determine and direct the allocation of BEP funding for the purpose of education of youth in these facilities; and
    2. A process to ensure grades and attendance records are transferable between local education agencies and these facilities.
  4. The state board of education, in consultation with the department of children's services and the department of education, shall develop or modify curriculum-based standards, as necessary, for the education of children in these facilities consistent with those applicable to all other school systems.

Acts 2010, ch. 870, §§ 1, 2; 2011, ch. 410, § 3(x).

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

37-5-132. Case managers — Caseloads — Maximum caseload ratios.

  1. The department shall maintain staffing levels of case managers so that each region has enough case managers to allow caseloads not to exceed an average of:
    1. Twenty (20) active cases relating to initial assessments, including investigations of an allegation of child abuse or neglect; or
    2. Twenty (20) children monitored and supervised in active cases relating to ongoing services.
  2. The department shall comply with the maximum caseload ratios described in subsection (a).

Acts 2018, ch. 562, § 1.

Effective Dates. Acts 2018, ch. 562, § 2. July 1, 2018.

Part 2
Youth Development Centers

37-5-201. Establishment — Coeducational programs.

  1. For the detention, treatment, rehabilitation and education of children found to be delinquent, there shall be youth development centers. Such centers shall be under the supervision and control of the commissioner of children's services.
  2. Nothing in this chapter shall be construed so as to restrict or prohibit coeducational programs in any youth center for delinquent children.
  3. The youth development center located in Fayette County is hereby renamed “The John S. Wilder Youth Development Center.”

Acts 1955, ch. 127, § 1; modified; 1974, ch. 595, § 1; 1975, ch. 160, § 1; T.C.A., § 41-827; Acts 1989; ch. 278, § 57; T.C.A., § 41-5-105; Acts 1996, ch. 1079, § 137.

Cross-References. Accounting for funds, §§ 4-6-116 — 4-6-127.

Appropriations, §§ 4-6-128 — 4-6-134.

Architects and engineers, §§ 4-6-114, 4-6-115.

Discipline in special school district of penal and reformatory institutions, title 49, ch. 6, part 44.

Library region for penal and reformatory in stitutions, § 4-6-144.

Management by department of correction, § 4-6-102.

Medical and dental care, §§ 4-6-109 — 4-6-113.

Special school district, § 4-6-143.

Law Reviews.

Problem of Age and Jurisdiction in the Juvenile Court (C. William Reiney), 19 Vand. L. Rev. 833 (1966).

37-5-202. Superintendents.

There shall be a superintendent of each youth center to be appointed by the commissioner of children's services.

Acts 1955, ch. 127, § 2; impl. am. Acts 1955, ch. 102, § 1; T.C.A., § 41-828; Acts 1989, ch. 278, §§ 54, 56, 58; T.C.A., § 41-5-106; Acts 1996, ch. 1079, § 137.

Cross-References. Counselors of correctional institutions, qualifications, § 8-50-105.

Department of correction superintendent, §§ 4-6-103, 4-6-104.

37-5-203. Powers and duties of superintendent.

  1. The superintendent has charge, control and supervision of the youth center, its employees and students.
  2. Such superintendent has authority to make recommendations to the commissioner of children's services for the release of children placed in the center.

Acts 1955, ch. 127, § 3; 1963, ch. 264, § 3; 1977, ch. 387, § 2; T.C.A., § 41-829; Acts 1989, ch. 278, § 59; T.C.A., § 41-5-107; Acts 1996, ch. 1079, § 137.

Law Reviews.

Criminal Law and Procedure — 1963 Tennessee Survey (Robert E. Kendrick), 17 Vand. L. Rev. 977 (1963).

37-5-204. Education — Character development — Work programs.

  1. The superintendents of such centers shall have the authority, subject to the approval of the commissioner of children's services, to introduce any branch of educational pursuit that they may deem to be in the best interest of the children, and they shall use their utmost efforts for the moral, physical and mental development of the children, so that they may be molded into good men and women and useful citizens.
  2. Any superintendent may, subject to the approval of the commissioner, establish a work opportunity program for children sixteen (16) years of age or older.
  3. The superintendent shall, before any child is permitted to take employment, ensure that the prospective employment meets all requirements of the department of labor and workforce development pertaining to the employment of children.
  4. The superintendent will ascertain the availability of transportation to and from the place of work and the cooperation of the employer or supervisors with supervision requirements. Hours of release for involvement of the work opportunity program will be the responsibility of the superintendent in keeping with departmental consideration for the good of the child and the welfare of the department.
  5. All moneys earned by the child in the work opportunity program shall be posted to the child's trust fund account. Expenditures under this program from the child's earnings should be limited to transportation, special clothing, tools or lunch and other casual expenses with the approval of the superintendent.

Acts 1955, ch. 127, § 4; impl. am. Acts 1955, ch. 102, § 1; 1973, ch. 18, § 1; T.C.A., § 41-830; Acts 1989, ch. 278, §§ 54, 60; T.C.A., § 41-5-108; Acts 1996, ch. 1079, § 137; 1999, ch. 520, § 37.

Cross-References. Counselors at educational and correctional institutions, qualifications, § 8-50-105.

Library region for penal and reformatory institutions, § 4-6-144.

Special school district of penal and reformatory institutions, § 4-6-143.

37-5-205. Transfer and commitment of children.

  1. Fees that are allowed by law for carrying prisoners to the penitentiary shall be allowed to the sheriffs for taking children found to have committed offenses punishable in the penitentiary to such youth centers.
  2. The state shall only be responsible for the transfer of such children as have been found to have committed offenses punishable by imprisonment in the penitentiary. The expense of transporting delinquent children not found to have committed offenses punishable in the penitentiary shall be paid by the counties from which committed.
  3. When any female child is to be transported to such youth centers, the sheriff shall deputize a suitable woman of good moral character to convey such child. In the event the sheriff shall not find such a woman in the county, the department shall provide a proper and suitable escort for the child, and this escort shall be paid from the allowance provided for the sheriff. The expense of the woman so deputized shall be paid from the allowance for the sheriff.

Acts 1955, ch. 127, § 5; impl. am. 1955, ch. 102, § 1; T.C.A., § 41-831; Acts 1989, ch. 278, § 61; T.C.A., § 41-5-109; Acts 1996, ch. 1079, §§ 133, 137.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Law Reviews.

Problem of Age and Jurisdiction in the Juvenile Court (C. William Reiney), 19 Vand. L. Rev. 833 (1966).

37-5-206. Retention of children committed for penitentiary offenses — Transfer to penitentiary — Prosecution for escape.

  1. Any child committed to the department for an offense punishable by confinement in the penitentiary may be retained in a youth center until such child's nineteenth birthday, or at any time after the child's eighteenth birthday, when found to be incorrigible by the superintendent, subject to agreement between the commissioner of correction and the commissioner of children's services, may be transferred to the penitentiary. The authority for transferring such children eighteen (18) years of age or older shall be upon warrant issued by the commissioner, such warrant to contain the name of the child, age at conviction and at the transfer, and the offense for which committed. The superintendent shall furnish to the warden of the penitentiary the original commitment papers in the case.
  2. Any child or inmate sixteen (16) years of age or over, confined in a youth center and who escapes therefrom commits a Class A misdemeanor. The superintendent of the youth center, with the approval of the commissioner, may certify to the district attorney general in the district in which the escape was effected, that such escape has occurred and the facts relating thereto. The child or inmate thus certified as having escaped may be prosecuted as an adult in the court having jurisdiction of the offense, as if the child or inmate were an adult.

Acts 1955, ch. 127, § 6; impl. am. Acts 1955, ch. 102, § 1; 1963, ch. 264, § 4; impl. am. Acts 1981, ch. 120; T.C.A., § 41-832; Acts 1989, ch. 278, § 62; T.C.A., § 41-5-110; Acts 1996, ch. 1079, § 137.

Code Commission Notes.

The misdemeanor in (b) has been designated a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specification as to class is a Class A misdemeanor. See also § 39-11-114.

Cross-References. Disposition of delinquent child, § 37-1-131.

Penalty for Class A misdemeanor, § 40-35-111.

Place of detention, escape from detention, § 37-1-116.

Transfer from juvenile court, § 37-1-134.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 8.6.

37-5-207. Commitment for federal offense.

Authority is given to the department for commitment of children who may be convicted of any offense against the United States in any district court of the United States within the state and sentenced by such court to the department, and to that end, the commissioner may enter into a contract with the attorney general of the United States for their detention, subsistence and proper employment of such juvenile offenders and the rate of compensation to be paid for the use of the institution by the United States.

Acts 1955, ch. 127, § 7; impl. am. Acts 1955, ch. 102, § 1; T.C.A., § 41-833; Acts 1989, ch. 278, § 63; T.C.A., § 41-5-111; Acts 1996, ch. 1079, § 137.

37-5-208. Procedure for commitment — Form.

  1. A judge committing a child under eighteen (18) years of age to the department shall make out and sign a commitment on a form provided by the department and certified to by the clerk under the seal of the court.
  2. Such commitment form, together with information of a social nature, shall be forwarded with the child.

Acts 1955, ch. 127, § 9; impl. am. Acts 1955, ch. 102, § 1; T.C.A., § 41-835; Acts 1989, ch. 278, § 65; T.C.A., § 41-5-113; Acts 1996, ch. 1079, § 137.

Cross-References. Commitment by juvenile court, § 37-1-117.

37-5-209. Records and accounts — Sale of unneeded property — Reports.

  1. The superintendents shall:
    1. Keep complete records of all children, their conduct, character and aptitudes;
    2. Keep a set of account books in which all expenses of the youth center shall be entered, and shall sign all vouchers;
    3. Keep a record of all products made or raised on the grounds of the youth center; and
    4. Sell such products as are not used or needed by the youth center, and make reports of such sales to the commissioner of children's services.
  2. Their books and accounts shall at all times be open to the inspection of any state auditor.
  3. They shall give bond payable to the state, for the safekeeping of all money or property belonging to the state coming into their possession.
  4. They shall make quarterly reports to the commissioner of the income and expenditures of their youth centers, the number of children, their terms, names, ages and conduct.

Acts 1955, ch. 127, § 10; impl. am. Acts 1955, ch. 102, § 1; T.C.A., § 41-836; Acts 1989, ch. 278, § 66; T.C.A., § 41-5-114; Acts 1996, ch. 1079, § 137.

Cross-References. Accounting for funds, §§ 4-6-116 — 4-6-127.

Records of inmates, § 4-6-140.

37-5-210. Buildings and equipment.

The commissioner shall be authorized, subject to the approval of the governor, to erect all buildings necessary for the proper maintenance of the children committed to the department of children's services, and to purchase all things for the proper equipment of the youth centers, under appropriations made from time to time.

Acts 1955, ch. 127, § 12; T.C.A., § 41-838; Acts 1989, ch. 278, § 68; T.C.A., § 41-5-116; Acts 1996, ch. 1079, § 137.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Appropriations, §§ 4-6-128 — 4-6-134.

Architects and engineers, §§ 4-6-114, 4-6-115.

37-5-211. Products of youth centers — Expenditure of receipts.

  1. The commissioner shall keep an account of all products of the youth centers, and shall include a report of same in the commissioner's biennial report.
  2. All money received from the operation of the youth centers shall be expended for the proper maintenance of the youth centers.

Acts 1955, ch. 127, § 13; T.C.A., § 41-839; Acts 1989, ch. 278, § 69; T.C.A., § 41-5-117; Acts 1996, ch. 1079, § 137.

37-5-212. Instruction in art of barbering.

The commissioner is hereby authorized to institute within the youth development centers a course of instruction in the art of barbering as encompassed within the provisions of title 62, chapter 3.

Acts 1961, ch. 66, § 1; T.C.A., § 41-849; Acts 1989, ch. 278, §§ 54, 71; T.C.A., § 41-5-124; Acts 1996, ch. 1079, § 137.

37-5-213. Authorized courses of instruction.

The commissioner is authorized to institute within the youth development centers courses of instruction for:

  1. GED(R) preparation; and
  2. Vocational and occupational training.

Acts 2007, ch. 195, § 1.

Part 3
Community Services Agency Act of 1996

37-5-301. Short title.

This part shall be known and may be cited as the “Community Services Agency Act of 1996.”

Acts 1989, ch. 567, § 1; T.C.A., § 68-2-1101; Acts 1996, ch. 1079, § 149.

37-5-302. Purpose.

The purpose of this part is to provide a mechanism to facilitate the provision of services for children and other citizens in need of services in Tennessee through centralized agencies located throughout the state. The community services agencies may contract with any other agencies to provide assistance wherever needed.

Acts 1989, ch. 567, § 3; T.C.A., § 68-2-1103; Acts 1996, ch. 1079, § 149; 2005, ch. 249, § 1.

37-5-303. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Agency” means the community services agency;
  2. “Board” means the community services agency board;
  3. “Commissioner” means the commissioner of finance and administration, or the commissioner's designee, unless otherwise stated in this part;
  4. “Department” means the department of finance and administration, unless otherwise stated in this part; and
  5. “Executive director” means the chief administrative officer of a community service agency.

Acts 1989, ch. 567, § 2; T.C.A., § 68-2-1102; Acts 1996, ch. 1079, § 149; 2005, ch. 249, § 2; 2006, ch. 1011, § 1.

37-5-304. Agencies — Establishment — Public function and purpose.

  1. The commissioner is authorized to establish community services agencies as provided in this part. These agencies shall provide coordination of funds or programs for the care of the citizens of the state.
  2. The commissioner may establish one (1) community services agency in  the metropolitan area of Memphis and Shelby County.
  3. The commissioner may establish multi-county community service agencies with such geographic boundary lines as may be deemed necessary.
  4. The community services agency shall be a political subdivision and instrumentality of the state. As such, it shall be deemed to be acting in all respects for the benefit of the people of the state in the performance of essential public functions, and shall be deemed to be serving a public purpose through improving and otherwise promoting the well-being of the citizens of the state.

Acts 1989, ch. 567, § 4; T.C.A., § 68-2-1104; Acts 1996, ch. 1079, § 149; 2001, ch. 390, § 2; 2005, ch. 249, § 3; 2006, ch. 1011, § 2; 2007, ch. 222, § 2; 2007, ch. 223, § 2; 2007, ch. 478, § 4.

Compiler's Notes. The Davidson County community service agency, formerly created by this section, terminated pursuant to the provisions of title 4, chapter 29, part 1. Wind-up was complete June 30, 2008.

The East Tennessee community service agency, the Mid-Cumberland community service agency, the Northeast community service agency, the Northwest community service agency, the Shelby County community service agency, the South central community service agency, the Southeast community service agency, the Southwest community service agency, and the Upper Cumberland community service agency, formerly created by this section, terminated pursuant to the provisions of title 4, chapter 29, part 1. Wind-up was complete June 30, 2012. The responsibilities for these agencies were transferred to the statewide community services agency, created by § 37-5-305.

Attorney General Opinions. Liability of community service agencies and their boards, OAG 97-092 (6/26/97).

37-5-305. Community services agency board — Statewide community services agency — Creation — Members.

  1. Each community services agency shall be governed by a community services agency board.
  2. There is hereby created and established a statewide community services agency. The statewide board of directors shall consist of the commissioner or the commissioner's designee and twelve (12) members appointed by the governor. The members appointed by the governor shall be as follows:
    1. There shall be one (1) member appointed from each of the nine (9) regional agency areas;
    2. There shall be one (1) member appointed from each of the three (3) grand divisions; and
    3. No two (2) members shall reside in the same county at the time of appointment or reappointment.
  3. The membership of each regional board serving a multi-county community services agency shall be appointed by the governor and shall consist of a representative of each county within the agency boundary and the commissioner or the commissioner's designee.
  4. The membership of each board serving a metropolitan community services agency shall consist of twelve (12) members appointed by the governor, with at least fifty percent (50%) of the appointments made from recommendations by the county mayor. If any municipality within the county has more than sixty percent (60%) of the total population of the county, the governor shall appoint equal number from recommendations submitted by the county mayor and the mayor of the identified municipality.
  5. Appointees to a board governed by subsections (b), (c), and (d) may include, but not be limited to, representatives of the areas of law enforcement, mental health professionals, local education agencies, local courts, social workers, advocates, health care providers, consumers of services provided by the community services agency or persons having specialized knowledge or expertise in the service areas and public and private agencies that provide services to persons in need of services in Tennessee. The members of each board shall be appointed with a good faith effort to reflect a diverse mixture of race and gender.
  6. The term of a member of a board governed by subsections (b), (c), and (d) shall be four (4) years. The terms of initial appointments to the board shall be staggered as follows: one fourth (¼) shall be made for a term of one (1) year, one fourth (¼) for a term of two (2) years, one fourth (¼) for a term of three (3) years, and one fourth (¼) for a term of four (4) years. The governor shall make initial appointments to the statewide board of directors by July 1, 2012.
  7. Members of a board governed by subsections (b), (c), and (d) shall continue in office until the expiration of the terms for which they were respectively appointed and until such time as their successors are appointed.
  8. Vacancies occurring on a board governed by subsections (b), (c), and (d) because of death, resignation or lack of active participation, as determined by the governance policies of the community services agency, shall be filled in the same manner as a regular appointment for the remainder of the unexpired terms.
  9. Members of a board governed by subsections (b), (c), and (d) shall not be compensated for services rendered to the agency, but shall be reimbursed by the agency for actual expenses in accordance with the comprehensive travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.
  10. A board governed by subsections (b), (c), and (d) shall elect a chair from among its members. The board shall also elect other officers as the board finds necessary and appropriate. Such positions are for a term of one (1) year, but officers may be reelected to serve additional terms.
  11. If any matter before a board governed by subsections (b), (c), and (d) involves a project, transaction or relationship in which a member or the member's associated institution, business or board has a direct or conflicting interest, the member shall disclose to the board that interest and shall be prohibited from participating in discussions and voting on that matter.

Acts 1989, ch. 567, § 5; T.C.A., § 68-2-1105; Acts 1996, ch. 1079, § 149; 2003, ch. 90, § 2; 2006, ch. 1011, §§ 3-6; 2012, ch. 986, § 18.

Code Commission Notes.

Former subsection (k), concerning service on community services and health agency boards, was deleted as obsolete by the code commission in 2005.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

The statewide community services agency, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Acts 2012, ch. 986, § 48 provided that all rules, regulations, orders, and decisions heretofore issued or promulgated by any of the boards or commissions, which the act terminates or merges into another board or commission, shall remain in full force and effect. In the case of the boards or commissions that are merged with another board or commission by the act, all final rules, regulations, orders, and decisions together with any matters that are pending on October 1, 2012, shall hereafter be administered, enforced, modified, or rescinded in accordance with the law applicable to the continuing board or commission.

For tables of population of Tennessee municipalities, and for U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

37-5-306. Community services agency board — Powers.

The board has the following powers and duties in addition to the powers and duties granted to or imposed upon it by other sections of this part to:

  1. Adopt written policies, procedures or rules and regulations to govern its internal operations. If such rules and regulations are proposed, they must be submitted for prior approval to the commissioner;
  2. Make and execute contracts and all other instruments necessary or convenient for the exercise of its duties and responsibilities under this part. All contracts pertaining to acquisitions and improvement of real property, pursuant to § 4-15-102, must be approved in advance by the commissioner and the state building commission. Contracts for services must be approved pursuant to rules and regulations promulgated by the commissioner;
  3. Acquire or dispose of in the name of the board, real or personal property or any interest therein, including rights or easements, on either a temporary or long-term basis by gift, purchase, transfer, foreclosure, lease or otherwise, subject to subdivision (2);
  4. Procure insurance in amounts and from insurers that it deems desirable to protect itself in carrying out its duties and responsibilities under this part;
  5. Seek assistance from the commissioner of finance and administration, the comptroller of the treasury, the state treasurer and other state agencies;
  6. Receive, administer, allocate and disburse funds made available under this part, funds and contributions from private or local public sources that may be used in support of a community services program, and funds made available under any federal or state assistance program for which an agency organized in accordance with this part may serve as grantee, contractor or sponsor of projects appropriate for inclusion in community services programs;
  7. Perform other acts necessary or convenient to exercise the powers granted or reasonably implied in this part;
  8. Procure goods, materials, supplies and equipment in accordance with applicable state or federal guidelines, and where practical, on a competitive basis; and
  9. Contract with other state agencies to provide services to those agencies as deemed appropriate by the board.

Acts 1989, ch. 567, § 6; T.C.A., § 68-2-1106; Acts 1996, ch. 1079, § 149.

Attorney General Opinions. Liability of community service agencies and their boards, OAG 97-092 (6/26/97).

37-5-307. Commissioner — Powers and duties.

  1. The commissioner has the duty and responsibility to:
    1. Promulgate rules and regulations to carry out the commissioner's responsibilities under this part;
    2. Review and approve plans of operation submitted in accordance with § 37-5-310, with the concurrence of the comptroller of the treasury;
    3. Enter into such contracts, subject to applicable rules and regulations and procedures, as necessary to carry out this part;
    4. Appoint an executive director for each agency with such appointment subject to the approval of the agency board. Nothing in this subdivision (a)(4) shall prohibit a board from submitting recommendations to the commissioner for the appointment of an executive director;
    5. Require each agency to submit annual reports on each preceding fiscal year to reflect the nature and extent of all financial transactions and to assure financial integrity; and
    6. Perform other acts necessary or convenient to exercise the powers granted or reasonably implied in this part.
  2. All rules concerning community service agencies promulgated by the commissioner of children's services prior to July 1, 2005, and in effect on March 12, 2014, shall remain in full force and effect and shall be administered by the department of finance and administration until duly amended, repealed, expired, modified or suspended.

Acts 1989, ch. 567, § 7; T.C.A., § 68-2-1107; Acts 1996, ch. 1079, § 149; 2001, ch. 390, § 3; 2006, ch. 1011, § 7; 2014, ch. 525, § 3.

Compiler's Notes. For transfer of certain powers and duties to the office of children's services administration in the department of finance and administration, see Executive Order No. 58 (June 29, 1994).

Amendments. The 2014 amendment added (b).

Effective Dates. Acts 2014, ch. 525, § 4. March 12, 2014.

37-5-308. Executive director — Employees and expenses.

The executive director, subject to approval of the board and approval of the plan of operation pursuant to § 37-5-310, has the authority to hire such employees and incur such expenses as may be necessary for proper discharge of the duties of the agency.

Acts 1989, ch. 567, § 8; T.C.A., § 68-2-1108; Acts 1996, ch. 1079, § 149; 2001, ch. 390, § 4.

37-5-309. Contracts for provisions of health care — Termination.

  1. The agency shall, to the maximum extent possible, contract with private providers, clinics and local governments for the provision of services for the citizens of the state.
  2. The agency shall terminate a contract under the following conditions:
    1. Fraud or misappropriation of funds;
    2. Delivery of services under the contract in a manner not consistent with the appropriate standard of care; or
    3. Other reasons provided under the law and rules and regulations of the commissioner promulgated pursuant to this part.
  3. Additionally, the agency shall have authority to terminate a contract for cause.

Acts 1989, ch. 567, § 9; T.C.A., § 68-2-1109; Acts 1996, ch. 1079, § 149; 2006, ch. 1011, §§ 8, 9.

37-5-310. Plan of operation.

  1. At least ninety (90) days prior to the beginning of each state fiscal year, the board shall submit a plan of operation for review and approval to the commissioner and the comptroller of the treasury. The plan of operation shall be in such form as may be required by the department and shall include, but not be limited to, the following:
    1. A budget for operating and capital expenditure;
    2. Contracts for services;
    3. Appropriate policies and procedures adopted by the board to govern the expenditures of funds; and
    4. Other items as required by the department through rules and regulations.
  2. The plan of operation may be amended during the fiscal year with the written approval of the commissioner and the comptroller of the treasury.

Acts 1989, ch. 567, § 11; T.C.A., § 68-2-1111; Acts 1996, ch. 1079, § 149; 2006, ch. 1011, §§ 10, 11.

Code Commission Notes.

Former subsection (c), concerning the establishment of bank accounts by the agency, was deleted as obsolete by the code commission in 2005.

37-5-311. Disposition of funds.

  1. The executive director of each agency shall deposit with the state treasurer funds received from the United States treasury and other funds earned, given or granted to the agency, including state funds.
  2. Such funds may be invested in the local government investment pool pursuant to title 9, chapter 4, part 7.
  3. The board may establish such bank accounts pursuant to § 9-4-302, as are necessary for the efficient management of the agency.

Acts 1989, ch. 567, § 12; T.C.A. § 68-2-1112; Acts 1996, ch. 1079, § 149.

37-5-312. Annual reports.

  1. Each board shall make an annual report to the governor and to the commissioner.
  2. This report shall contain an accounting for all money received and expended, statistics on persons served during the year, recommendations and such other matters as the board deems pertinent.

Acts 1989, ch. 567, § 13; T.C.A., § 68-2-1113; Acts 1996, ch. 1079, § 149.

37-5-313. Annual audit — Accounting records.

  1. The comptroller of the treasury shall make an annual audit of the program established by this part as part of the comptroller's annual audit pursuant to § 9-3-211.
  2. The community services agencies shall maintain all books and records in accordance with generally accepted accounting principles, and any additional accounting and reporting requirements published by the comptroller of the treasury. Such records shall be made available for inspection to the department and the comptroller of the treasury, upon request.

Acts 1989, ch. 567, § 14; T.C.A., § 68-2-1114; Acts 1996, ch. 1079, § 149; 2016, ch. 573, § 1.

Amendments. The 2016 amendment substituted “any additional accounting and reporting requirements published by the comptroller of the treasury” for “at no less than those recommended in the ‘Accounting Manual for Recipients of Grant Funds in Tennessee’ published by the comptroller of the treasury” at the end of the first sentence in (b).

Effective Dates. Acts 2016, ch. 573, § 2. March 8, 2016.

37-5-314. State employees.

Employees of the community services agencies shall be considered “state employees” for purposes of § 9-8-307. Designated volunteers providing services under this part shall also be considered “state employees” for purposes of § 9-8-307; provided, that designated volunteers who are medical professionals providing direct health care pursuant to this part shall be considered “state employees” solely for the category of “professional liability” pursuant to § 9-8-307.

Acts 1989, ch. 567, § 15; 1993, ch. 530, § 2; T.C.A., § 68-2-1115; Acts 1996, ch. 1079, § 149; 2012, ch. 798, § 16.

37-5-315. Construction — Generally.

This part shall be given the following construction:

  1. This part shall be construed as remedial legislation and shall be given liberal construction to effectuate its purpose;
  2. This part shall not be construed as creating an employer-employee relationship between the department, the community services agencies or their contractors; and
  3. If any provision of this part or the application thereof to any person or circumstances is held to be invalid, such invalidity shall not affect other provisions or applications of the part that can be given effect without the invalid provisions or applications, and to that end the provisions of this part are declared to be severable.

Acts 1989, ch. 567, § 17; T.C.A., § 68-2-1117; Acts 1996, ch. 1079, § 149.

37-5-316. Participation in retirement system.

  1. Community services agencies shall be eligible to be participating employers in the Tennessee consolidated retirement system.
  2. All liabilities owed by a community health agency and all assets of whatever kind and nature and wherever located, including, but not limited to, real property, personal property, cash, equipment and fund balances held in the name of a community health agency shall be transferred to the appropriate community services agency.
  3. The employees of a community health agency shall be transferred to the appropriate community services agency, and such transfer shall not constitute a break in service for such employees.
  4. No action taken pursuant to this act shall be deemed to change the structure of the organization, formerly known as a community health agency, for federal tax reporting purposes, nor reduce employees' benefit-related plans including, but not limited to, retirement plans, deferred compensation plans, cafeteria plans and health plans.
  5. Contracts or leases entered into prior to May 21, 1996, by and between a community health agency and any entity shall continue in full force and effect as to all essential provisions in accordance with the terms and conditions of such contracts or leases as if such contracts or leases had originally been entered into by and between such entities and the appropriate community services agency, unless and until such contracts or leases are amended or modified by the parties thereto or until the expiration of such contracts or leases.

Acts 1990, ch. 1027, § 13; 1995, ch. 164, § 11; T.C.A., § 68-2-1118; Acts 1996, ch. 1079, § 149.

37-5-317. Transfer of career service employees from community services agencies to the department of children's services or the department of health in certain communities.

  1. Notwithstanding any law to the contrary, including § 8-30-309, and recognizing the years of faithful and dedicated service to the state of Tennessee by the employees of the community services agencies, community services agency employees who serve in jobs that would be classified as career service, as formerly defined in § 8-30-208 [repealed and reenacted], had they been employed in the state service, and whose functions and positions are transferred to either the department of children's services or the department of health by each department's respective commissioner on or before June 30, 2006, shall be transferred into the department of children's services or the department of health. Such employees shall receive the benefits and protection of career service status and shall be eligible for participation in the state health insurance plan without further examination or competition.
  2. All community service agency employees transferred to the department of children's services or the department of health, pursuant to this part, shall be subject to a minimum probationary period of six (6) months, beginning on the first day of service with the respective department, pursuant to §§ 8-30-312 and 8-30-314, unless the transferred community service agency employee has previously served the minimum six-month probationary period.
  3. All such transfers shall take place no later than June 30, 2006.
  4. Transfers of employees from the community services agencies to the department of children's services or the department of health, pursuant to this section, shall not result in any diminution, impairment or interruption of current salary, accrued sick and annual leave, seniority, participation in the Tennessee consolidated retirement system, or amounts already accrued under a deferred compensation plan; however, this shall not impair the department's authority, through establishing policies and procedures, to correct salary disparities through the promotional process.
  5. Any employee so transferred shall be eligible for promotion pursuant to the provisions of title 8, chapter 30, after the transfer takes effect.
  6. This section shall not apply to a county having a metropolitan form of government whose employees provide services for the community service agencies pursuant to § 37-5-304 .

Acts 2001, ch. 390, § 1; 2005, ch. 354, § 1.

Compiler's Notes. Acts 2006, ch. 1011, § 2, deleted former § 37-5-304(e). The former reference to subsection (e) of the section has been deleted from the section reference in (f).

Former title 8, ch. 30, part 2, §§ 8-30-201 — 8-30-224, concerning  career service employees, was repealed and reenacted by Acts 2012, ch. 800, §§ 10-21, effective October 1, 2012.  Pursuant to § 8-30-201, state service is now divided into the preferred service and executive service.

37-5-318. Transfer of employees from community services agencies to the department of children's services in counties with a metropolitan form of government.

  1. Notwithstanding any law to the contrary, including § 8-30-309, any county having a metropolitan form of government whose employees provide services for the community services agency, pursuant to § 37-5-304, and who serve in positions funded by the department of children's services may be transferred to the department of children's services by the commissioner, on or before June 30, 2006. Such employees shall receive the benefits and protection of career service status and shall be eligible for participation in the state health insurance plan without further examination or competition. Salaries of transferred employees of a county having a metropolitan form of government shall be within the appropriate salary range for state job classifications and shall be at least equal to, but not less than, the median salary of department of children's services employees in the county having a metropolitan form of government.
  2. All employees of a county having a metropolitan form of government who provide services for the community services agency, pursuant to § 37-5-304, and who are transferred to the department of children's services, pursuant to this section, shall be subject to a minimum probationary period of six (6) months beginning on the first day of service with the department, pursuant to §§ 8-30-312 and 8-30-314, unless the transferred employee has previously served the minimum six-month probationary period.
  3. All such transfers shall take place no later than June 30, 2006.

Acts 2005, ch. 354, § 2.

Compiler's Notes. Acts 2006, ch. 1011, § 2, deleted former § 37-5-304(e). The former reference to subsection (e) of the section has been deleted from the section reference in (b).

37-5-319. Transfer of executive service employees whose functions are transferred from community services agencies to the department of children's services.

  1. Notwithstanding any provisions of law to the contrary, including § 8-30-309, and recognizing the years of faithful and dedicated service to the state of Tennessee by the employees of the community services agencies, community services agency employees who serve in jobs that would be classified as executive service, as formerly defined in § 8-30-208 [repealed and reenacted], had they been employed in the state service, and whose functions and positions are transferred to the department of children's services by the commissioner on or before June 30, 2006, shall be transferred into the department of children's services. Such employees shall be eligible for participation in the state health insurance plan without further examination or competition.
  2. All such transfers shall take place no later than June 30, 2006.
  3. Transfers of employees from the community services agencies to the department of children's services pursuant to this section shall not result in any diminution, impairment or interruption of accrued sick and annual leave, seniority, participation in the Tennessee consolidated retirement system, or amounts already accrued under a deferred compensation plan.

Acts 2005, ch. 354, § 3.

Compiler's Notes. Former title 8, ch. 30, part 2, §§ 8-30-201 — 8-30-224, concerning career service employees, was repealed and reenacted by Acts 2012, ch. 800, §§ 10-21, effective October 1, 2012. Pursuant to § 8-30-201, state service is now divided into the preferred service and executive service.

Part 4
Trafficking in Children

37-5-401. Consent required for importation of child.

No person, agency, association, institution or corporation shall bring or send into this state any child for the purpose of giving the child's custody to some person, institution, corporation or agency in the state, or procuring its adoption by some person in the state without first obtaining the written consent of the department of human services.

Williams, § 4727.1; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-505, 14-9-201; T.C.A., § 71-3-401; Acts 1996, ch. 1079, § 157.

Law Reviews.

Justice for Victims of Human Trafficking and Forced Labor: Why Current Theories of Corporate Liability Do Not Work, 43 U. Mem. L. Rev. 1047 (2013).

Prosecuting Demand as a Crime of Human Trafficking: The Eighth Circuit Decision in United States v. Jungers, 43 U. Mem. L. Rev. 917 (2013).

Using Commercial Driver Licensing Authority to Combat Human Trafficking Related Crimes on America's Highways, 43 U. Mem. L. Rev. 969 (2013).

37-5-402. Placement of imported child.

  1. The person, agency or corporation with whom a child is placed for either of the purposes set out in § 37-5-401 shall be responsible for the child's proper care and training.
  2. The department of human services, through its agents, shall permit the placing of such child only with a licensed child-caring or child-placing agency or maternity home or in a family home that has been studied and approved by the department's own agent.

Acts 1951, ch. 116, § 1 (Williams, § 4737.1); impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-1506, 14-9-202; T.C.A., § 71-3-402; Acts 1996, ch. 1079, § 157.

Cross-References. Licensing of agencies, §§ 71-3-501 — 71-3-513.

Collateral References.

Right in child custody proceedings to cross-examine investigating officer whose report is used by court in its decision. 59 A.L.R.3d 1337.

37-5-403. Bond on importation of child.

  1. The department may in its discretion require of a person, agency, association, institution or corporation that brings or sends a child into the state, with the written consent of the department, as provided in § 37-5-401, a continuing bond in a sum not less than one thousand dollars ($1,000), nor more than ten thousand dollars ($10,000), with such condition as may be prescribed and such sureties as may be approved by the department.
  2. Such bond shall be made in favor of, and filed with, the department, with the premium prepaid by the person, agency, association, institution or corporation desiring to place such child in the state.

Acts 1951, ch. 116, § 1 (Williams § 4737.1); impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-1507, 14-9-203; T.C.A., § 71-3-403; Acts 1996, ch. 1079, § 157.

37-5-404. Consent to take child out of state.

  1. No child shall be taken or sent out of the state for the purpose of placing the child in a foster home or in a child-caring institution without first obtaining the written consent of the department of human services.
  2. All out-of-state placements shall be cleared with the proper authorities of the receiving state by the department.
  3. The foster home or child-caring institution in which the child is placed shall report to the department at such times and through such agency and in such form as the department may direct as to the location and well-being of such child.
  4. A violation of this section is a Class C misdemeanor.

Acts 1951, ch. 116, § 1 (Williams § 4737.1); impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-1508, 14-9-204; Acts 1989, ch. 591, § 113; T.C.A., § 71-3-404; Acts 1996, ch. 1079, § 157.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

37-5-405. Penalty for violations.

Every person acting for that person or for any agency who violates any of the provisions of this part, or any agency or corporation that, through its agents, violates any of the provisions of this part, or any person or agency that makes any false statements to the department of human services regarding the placement of such child, as herein set out, commits a Class A misdemeanor and shall be punished by a fine of not more than two hundred dollars ($200), or by imprisonment for not more than six (6) months, or by both fine and imprisonment.

Acts 1951, ch. 116, § 1 (Williams § 4737.1); impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), § 14-1509, Acts 1989, ch. 591, §§ 1, 6; T.C.A., § 14-9-205; T.C.A., § 71-3-405; Acts 1996, ch. 1079, § 157.

Code Commission Notes.

The misdemeanor in this section has been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specification as to category is a Class A misdemeanor. See also § 39-11-114.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

37-5-406. Exemption of relatives of child.

None of the provisions of this part shall apply when a child is brought into, or sent into, or taken out of, or sent out of the state, by a parent, stepparent, grandparent or other natural or legal guardian of the child.

Acts 1951, ch. 116, § 1 (Williams § 4737.1); T.C.A. (orig. ed.), §§ 14-1510, 14-9-206; T.C.A., § 71-3-406; Acts 1996, ch. 1079, § 157.

Part 5
Child Care Agencies

37-5-501. Part definitions.

  1. As used in this part, unless the context otherwise requires, “child care agency” includes “child abuse agency,” “child caring institution,” “child placing agency,” “detention center,” “family boarding home or foster home,” “group care home,” “maternity home,” or “temporary holding resource” as defined in subsection (b).
  2. As used in this part, unless otherwise excluded pursuant to § 37-5-503, and unless the context otherwise requires:
    1. “Care giver,” “care givers,” “care provider,” or “care providers” mean the person or persons or entity or entities responsible for providing for the supervision, protection and basic needs of the child;
    2. “Child” or “children” means a person or persons under eighteen (18) years of age;
      1. “Child abuse agency” means and includes any place, facility or service operated by any entity or person, that undertakes to or does provide any services of any nature whatsoever, including, but not limited to, emergency shelter care, homemaker services, or parent training services, designed to prevent or treat child abuse or neglect or to protect children from child abuse or neglect. “Child abuse agency” does not include any entity or a person licensed by the state to practice medicine or psychology while in the course of such practice; nor any school, hospital, mental health center, or similar institution operated or approved by any agency or department of the state; nor any church or church-related organization;
      2. Nothing in subdivision (b)(3)(A) shall be construed, however, to diminish or repeal the duty of any person to report suspected child abuse pursuant to chapter 1, parts 4 and 6 of this title; and
      3. The provisions of this subdivision (b)(3) do not constitute an appropriation of funds, and, commencing with the fiscal year beginning July 1, 2000, no funds shall be expended under the provisions of this subdivision (b)(3) unless such funds are specifically appropriated in the general appropriations act pursuant to §§ 9-4-5101 — 9-4-5114, or a specific amendment or supplement thereto;
    4. “Child care” means the provision of supervision, protection and the basic needs of a child for twenty-four (24) hours a day including the provision of such temporary services to a child awaiting placement in permanent care. Care for a child of less than twenty-four (24) hours duration is licensed by the department of human services pursuant to title 71, chapter 3, part 5;
    5. “Child care agency” or “agency” means the person or entity that provides child care, regardless of whether such person or entity is licensed;
    6. “Child caring institution” means any place or facility operated by any entity or person providing residential child care for thirteen (13) or more children who are not related to the primary care givers;
    7. “Child placing agency” means any entity or person that places children in foster boarding homes or foster homes for temporary care or for adoption or any other entity or person or group of persons who are engaged in providing adoption studies or foster care studies or placement services as defined by the rules of the department;
    8. “Commissioner” means the commissioner of children's services;
    9. “Department” means the department of children's services;
    10. “Detention center” means a place or facility operated by any entity or person, governmental or otherwise, for the confinement in a hardware secure facility of a child or children who meet the criteria of § 37-1-114(c) or other applicable laws and who:
      1. Are in need of legal temporary placement;
      2. Are awaiting adjudication of a pending petition; or
      3. Are awaiting disposition or placement;
    11. “Family boarding home or foster home” means a home (occupied residence) operated by any entity or person that provides residential child care to at least one (1) child but not more than six (6) children who are not related to the primary care givers;
    12. “Foster child or children” means the person or persons who are living in a child care or residential child care facility as a result of the removal by a court of custody from the child's parent or parents to the department, by a surrender of parental or guardian rights executed by the child's parent or parents or guardian, or as the result of the execution of any legal document transferring legal custody from the parent or parents or guardian of the child to the department, or to the entity or person operating a child care agency;
    13. “Group care home” means any place or facility operated by any entity or person that provides residential child care for at least seven (7) children but not more than twelve (12) children who are not related to the primary care givers;
    14. “Maternity home” means any place or facility operated by any entity or person that receives, treats or cares for more than one (1) child or adult who is pregnant out of wedlock, either before, during or within two (2) weeks after childbirth; provided, that the licensed child placing agencies and licensed maternity homes may use a family boarding home approved and supervised by the agency or home, as a part of their work, for as many as three (3) children or adults who are pregnant out of wedlock; and provided further, that “maternity home” does not include children or women who receive maternity care in the home of a person to whom they are kin within the sixth degree of kindred computed according to civil law, nor does it apply to any maternity care provided by general or special hospitals licensed according to law and in which maternity treatment and care is part of the medical services performed and the care of children is brief and incidental;
    15. “Related” means, for purposes of “child care,” the children, step-children, grandchildren, step-grandchildren, siblings of the whole or half-blood, step-siblings, nieces, nephews or foster children of the primary care giver. For purposes of “residential child care,” “related” means children, step-children, grandchildren, step-grandchildren, siblings of the whole or half-blood, step-siblings, nieces or nephews of the primary care provider;
    16. “Residential child care” means the provision of supervision or protection, and meeting the basic needs of a child for twenty-four (24) hours per day; and
    17. “Temporary holding resource” means a place or facility housing primarily no more than eight (8) children operated by any entity or person, governmental or otherwise, providing a short-term (less than seventy-two (72) hours, exclusive of non-judicial days) placement alternative for a child or children in a primarily staff-secure facility, as defined by the department, while the child or children await adjudication of a pending petition or disposition following adjudication, or pending return to a dispositional placement. This facility shall have a maximum of two (2) hardware secure rooms. At least one half (½) of the rooms in the facility shall be non-hardware secure.

Acts 2000, ch. 981, § 19.

NOTES TO DECISIONS

1. Caregiver.

Weight of the evidence in the record showed that both the mother and the father spent significant amounts of time with the child and that both parents, not just the mother, should equally be considered the primary caregiver for the child, given that the undisputed evidence showed that the father was very involved in the child's life and spent a substantial amount of time with the child, both in extracurricular activities and attending to his basic needs. Allen v. Allen, — S.W.3d —, 2013 Tenn. App. LEXIS 226 (Tenn. Ct. App. Apr. 3, 2013).

2. Child Care.

Substantial noncompliance with the permanency plan was available as a ground for termination of the parents'  rights because the evidence and testimony showed that the foster parents were providing the children with child care, and coupled with the substantial involvement of the Tennessee Department of Children Services (DCS), as the children were very young and the foster parents had provided a home for them and for them to attend daycare and a headstart program. The care in which the children were placed qualified as foster care with the DCS or in the care of an agency. In re Kah'Nyia J., — S.W.3d —, 2018 Tenn. App. LEXIS 238 (Tenn. Ct. App. Apr. 30, 2018).

37-5-502. Basis for licensing — Regulations — License application — Temporary license — Non-transferability of license — Transfer of operation to circumvent licensing laws or regulations — Fees.

    1. Any person or entity operating a child abuse agency, child caring institution, child placing agency, detention center, family boarding home or foster home, group care home, maternity home, or temporary holding resource, as defined in § 37-5-501, must be licensed by the department as provided by this part.
      1. The department has the authority to issue regulations pursuant to the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 2, for the licensing of any persons or entities subject to any provisions of this part and the enforcement of appropriate standards for the health, safety and welfare of children under the care or supervision of those entities.
      2. To the extent they are not inconsistent with the statutory provisions of this part, the regulations of the department that are in effect on July 1, 2000, shall remain in force and effect until modified by regulatory action of the department.
    3. The department's regulations of child care agencies shall be developed, and the continued approval of the licensing of a child care agency, shall be based upon the following criteria:
      1. The safety, welfare and best interests of the children in the care of the agency;
      2. The capability, training and character of the persons providing or supervising the care to the children;
      3. The quality of the methods of care and instruction provided for the children;
      4. The suitability of the facilities provided for the care of the children;
      5. The adequacy of the methods of administration and the management of the child care agency, the agency's personnel policies, and the financing of the agency; and
      6. The present need for the child care agency.
    1. The department shall provide reasonable assistance to applicants or licensees in meeting the child care standards of the department, unless the circumstances demonstrate that further assistance is not compatible with the continued safety, health or welfare of the children in the agency's care, and that regulatory action affecting the agency's license is warranted. All costs and expenses arising from or related to meeting the child care standards of the department shall be borne entirely by the applicant or licensee.
    2. If a licensee is denied the renewal of a license, or if a license is revoked, or if any applicant for a license cannot meet the standards, then the department shall assist in planning for the placement of such children in licensed child care agencies, or other suitable care, return them to their own homes or make any other plans as seem necessary and advisable to meet the particular needs of the children involved.
  3. Application for a license to operate a child care agency shall be made in writing to the department in such manner as the department determines and shall be accompanied by the appropriate fee set forth in the fee schedule in subsection (f).
      1. If the department determines that the applicant for a license that is not the renewal of an existing license, has presented satisfactory evidence that the facility that is proposed for the care of children has received fire safety and environmental safety approval, that the applicant and the personnel who will care for the children are capable in all substantial respects to care for the children and that the applicant has the ability and intent to comply with the licensing law and regulations, the department shall issue a temporary license to the applicant; provided, that no temporary license shall be issued for child care agencies that federal law or regulations do not permit the department to license until all necessary licensing requirements are met.
      2. If the department determines that the conditions of the applicant's facility, its methods of care or other circumstances warrant, it may issue a restricted license that limits the agency's authority in one (1) or more areas of operation.
    2. The purpose of the temporary license is to permit the license applicant to demonstrate to the department that it has complied with all licensing laws and regulations applicable to its classification prior to the issuance of an initial annual license.
    3. Within ninety (90) days of the issuance of the temporary license, the department shall determine if the applicant has complied with all regulations governing the classification of child care agency for which the application was made.
      1. If the department determines that the applicant has complied with all licensing regulations for the classification of child care agency for which application was made, the department shall issue an annual license.
      2. If the department determines that the conditions of the applicant's facility, its methods of care or other circumstances warrant, it may issue a restricted license that limits the agency's authority in one (1) or more areas of operation.
    5. In granting any license, the department may limit the total number of children who may be enrolled in the agency regardless of whether the agency may have the physical capacity to care for more children.
    6. The licensee shall post the license in a clearly visible location as determined by the department so that persons visiting the agency can readily view the license.
    7. If the department fails to issue or deny an annual license within ninety (90) days of the granting of the temporary license, the temporary license shall remain in effect, unless suspended, as provided in § 37-5-514 until such determination is made. If an annual license is denied following the issuance of a temporary license, and if a timely appeal is made of the denial of the annual license, the temporary license shall remain in effect, unless suspended, until the board of review renders a decision regarding the denial of the annual license.
    8. If a temporary or annual license is denied, or an annual license is restricted, the applicant may appeal the denial or restriction as provided in § 37-5-514.
    1. Except as provided herein, no license for a child care agency shall be transferable, and the transfer by sale or lease, or in any other manner, of the operation of the agency to any other person or entity shall void the existing license immediately and any pending appeal involving the status of the license, and the agency shall be required to close immediately. If the transferee has made application for, and is granted, a temporary license, the agency may continue operation under the direction of the new licensee. The new licensee in such circumstances may not be the transferor or any person or entity acting on behalf of the transferor.
    2. If the department determines that any person or entity has transferred nominal control of an agency to any persons or entities who are determined by the department to be acting on behalf of the purported transferor in order to circumvent a history of violations of the licensing law or regulations or to otherwise attempt to circumvent the licensing law or regulations or any prior licensing actions instituted by the department, the department may deny the issuance of any license to the applicant. The denial of the license may be appealed as provided in § 37-5-514.
      1. The license of any agency shall not be voided nor shall any pending appeal be voided pursuant to this subsection (e) solely for the reason that the agency is subject to judicial orders directing the transfer of control or management of a child care agency or its license to any receiver, trustee, administrator or executor of an estate, or any similarly situated person or entity.
      2. If the current licensee dies, and provided that no licensing violations require the suspension, denial or revocation of the agency's license, the department may grant family members of the licensee, or administrators or executors of the licensee, a temporary license to continue operation for a period of ninety (90) days. At the end of such period, the department shall determine whether an annual or extended license should be granted to a new licensee as otherwise provided in this section.
      3. Nothing in this subsection (e) shall be construed to prevent the department from taking any regulatory or judicial action as may be required pursuant to the licensing laws and regulations that may be necessary to protect the children in the care of such agency.
  6. The following fees shall apply to applications for licenses for child care agencies licensed pursuant to this part:
    1. Family boarding home or foster care home  $25.00
    2. Group care home  25.00
    3. Any child caring institution or child placing agency  25.00
    4. Maternity home  25.00
    5. Child abuse agency  25.00
    6. Detention center  25.00
    7. Temporary holding resources  25.00
  7. All licensure application and renewal fees collected by the department pursuant to this part shall be paid into the general fund, but shall be earmarked for and dedicated to the department. Such earmarked fees shall be used by the department exclusively to improve child care quality in this state by funding activities that include, but are not limited to, child care provider training activities, but excluding any costs associated with conducting criminal background checks.
  8. A license issued to a child placing agency by the department shall include all boarding homes, group care homes or foster homes approved, supervised and used by the licensed agency as a part of its work.
  9. Notwithstanding any provisions of title 13, chapter 7, to the contrary, upon adoption of a resolution by a two thirds (2/3) vote of the county legislative body, any zoning authority, in determining the suitability of a request for any use of property for the establishment or alteration of any child care agency, may consider the criminal background of the person or persons making a request to such board or may consider the criminal background of any person or persons who will manage or operate such child care agency. The board may require the person to submit a fingerprint sample and a criminal history disclosure form and may submit the fingerprint sample for comparison by the Tennessee bureau of investigation pursuant to § 38-6-109, or it may conduct the background check by other means as it deems appropriate. The zoning authority shall be responsible for all costs associated with obtaining such criminal background information.

Acts 2000, ch. 981, § 20.

37-5-503. Program and facilities exempt from licensing.

The following entities, facilities or programs are excluded from licensing or approval as child care agencies pursuant to this part:

  1. All child care regulated by the departments of education or human services;
  2. Public or private summer day camps or overnight camps such as those operated by the Boy or Girl Scouts, the YMCA or YWCA, by church or religious organizations or by organizations representing disabled children that operate less than ninety (90) days per year and other similar businesses or programs as determined by the department;
  3. Entities or persons licensed or otherwise regulated by other agencies of the state or federal governments providing health, psychiatric or psychological care or treatment or mental health care or counseling for children while the entity or person is engaged in such licensed or regulated activity;
  4. Schools and educational programs and facilities, the primary purpose of which is to provide a regular course of study necessary for advancement to a higher educational level or completion of a prescribed course of study, and that may, incident to such educational purpose, provide boarding facilities to the students of such programs; provided, that boarding schools that provide services intended to correct or ameliorate behaviors of youth that prevent or inhibit their ability to function normally in their home, community, or school, or agencies serving children as an alternative to their remaining in a dysfunctional or harmful home environment, shall not be exempted from licensure as a child care agency under this part; and
  5. Orphanages or other similarly designated homes affiliated with, funded, and operated by a church or religious organization, which homes receive their principal financial support from such church or religious affiliation in counties having a population of not less than twelve thousand three hundred (12,300) nor more than twelve thousand three hundred fifty (12,350), according to the 1970 federal census.

Acts 2000, ch. 981, § 21; 2003, ch. 355, § 26.

Compiler's Notes. Acts 2003, ch. 355, § 66 provided that no expenditure of public funds pursuant to the act shall be made in violation of the provisions of Title VI of the Civil Rights Act of 1964, as codified in 42 U.S.C. § 2000d.

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

37-5-504. Preexisting agencies subject to chapter.

All child caring institutions, child placing agencies and maternity homes chartered in this state prior to July 1, 2000, shall be subject to all of its requirements.

Acts 2000, ch. 981, § 22.

37-5-505. Receiving children.

Child caring institutions, and child placing agencies, family boarding homes, group care homes or foster homes, when licensed in accordance with this part, may receive needy or dependent children from their parents or legal guardians for special, temporary or continued care. The parents or guardians may sign releases or agreements giving to such institutions or agencies custody and control of the persons of such children during the period of such care, which may be extended until the children arrive at legal age, or they may surrender such children to a licensed child placing agency for purposes of adoption, such surrender to be in conformity with the provisions of the law governing the surrender of children for adoption.

Acts 2000, ch. 981, § 23.

37-5-506. Selection and supervision of foster homes.

  1. Child placing agencies, in placing children in private families, shall safeguard their welfare by a thorough investigation of each applicant and its home and its environment, carefully select the home in which the child is placed, and personally and adequately supervise each home and child until the child is legally adopted or released.
  2. All children placed in private families shall be, as far as it is practicable, placed with those of the same religious faith as the children themselves, or their parents.

Acts 2000, ch. 981, § 24.

37-5-507. Unlicensed placement of children for care or adoption.

  1. Private individuals, including midwives, physicians, nurses, hospital officials, lawyers and the officials of any nonchartered or nonlicensed child caring institution, child placing agency, or maternity home, are forbidden to engage in placing children for temporary care or for adoption.
  2. A violation of this section is a Class A misdemeanor.

Acts 2000, ch. 981, § 25.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

37-5-508. Injunctions against unlicensed operations.

  1. The department may, in accordance with the laws of the state of Tennessee governing injunctions, maintain an action in the name of the state of Tennessee to enjoin any person, partnership, association, corporation or other entity from establishing, conducting, managing or operating any place or facility providing services to children without having a license as required by law, or from continuing to operate any such place or facility following suspension of a license or following the effective date of the denial or revocation of a license.
  2. In charging any defendant in a complaint for such injunction, it shall be sufficient to charge that such defendant did, upon a certain day and in a certain county, establish, conduct, manage or operate a place, home or facility of any kind that is a child care agency as defined in this part or to charge that the defendant is about to do so without having in effect a license as required by law, or that the defendant continues to operate any such place or facility following suspension of a license, or following the effective date of the denial or revocation of a license, without averring any further or more particular facts concerning the case. Refusal to obey the inspection order may be punished as contempt.

Acts 2000, ch. 981, § 26.

Cross-References. Contempt, title 29, ch. 9.

37-5-509. Criminal violations.

  1. Any person or entity, as defined in § 37-5-501, operating a child care agency without being licensed by the department or who continues to operate while a suspension of the license is in effect, or who operates a child care agency following the effective date of a denial or revocation of a license, commits a Class A misdemeanor.
  2. Each day of operation without an effective license constitutes a separate offense.
    1. It is unlawful for any person who is an operator, licensee or employee of a child care agency to make any statement, whether written or verbal, knowing such statement is false, including, but not limited to, statements regarding:
      1. The number of children in the child care agency;
      2. The area of the child care agency used for child care; or
      3. The credentials, licensure or qualification of any care giver, employee, substitute or volunteer of the child care agency, when such statement is made to a parent or guardian of a child in the care of such agency, to any state or local official having jurisdiction over such agencies, or to any law enforcement officer.
    2. In order for subdivision (c)(1) to apply, the falsity of the statement must place at risk the health or safety of a child in the care of the child care agency.
    3. A violation of subdivision (c)(1) is a Class A misdemeanor.
    4. This subsection (c) includes statements made in any child care agency license application that misrepresents or conceals a material fact that would have resulted in the license's being denied.
    5. In addition to any punishment authorized under this subsection (c), the department may also take any licensure action authorized under this part.

Acts 2000, ch. 981, § 27.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

37-5-510. Public agencies — Inspection and report.

  1. Any child care agency, as defined in § 37-5-501, that is under the direct management of an administrative department of the state, a county, or a municipality, or any combination of these three (3), shall not be subject to licensure, but shall meet the minimum standards for programs and care as required of such child care agencies.
    1. The commissioner, through the commissioner's authorized representative, shall make periodic inspections of such publicly administered child care agencies.
    2. The report of such inspections and recommendations shall be made in writing to the executive head of the publicly administered child care agency, the board of directors, if any, and the division of the state, county or municipal government that has the duty under the law to operate such agency.
  3. It is the duty of the department to cooperate with the publicly administered agencies herein referred to, to implement recommended changes in program and policies.
  4. If, within a reasonable time, such standards and recommendations are not met, it shall be the duty of the commissioner to make public in the community in which this agency is located, the report of the above-mentioned inspection.
    1. If violations of the standards for child care agencies are found and are not corrected within a reasonable time, or, if serious violations are found that meet the requirements that would justify the suspension of a child care agency's license pursuant to § 4-5-320, the department may file a complaint in the chancery court of the county in which the child care agency is located.
    2. The chancery court shall have jurisdiction to hear the complaint and to enter any orders or injunctive relief necessary to ensure the correction of such violations or to suspend the operations of the facility for the protection of the children who are in the care of the child care agency.

Acts 2000, ch. 981, § 28.

37-5-511. Criminal violation information required of persons having access to children — Review of vulnerable persons registry — Verification — Exclusion from access to children.

    1. Each person:
      1. Applying to work with children as a paid employee with a child care agency as defined in § 37-5-501, or with the department in any position in which any significant contact with children is likely in the course of the person's employment; or
      2. A new volunteer who is expected to provide volunteer services in excess of twenty (20) hours per month in a child care agency, or with the department, in any position in which any significant contact with children is likely in the course of the person's volunteer status, shall complete a criminal history disclosure form in a manner approved by the department, and shall agree to release all records involving the person relating criminal history of such person to the child care agency and to the department for the purpose of verifying the accuracy of criminal violation information contained on the disclosure form required by this section.
    2. Such persons also shall submit to a criminal history records check to be conducted through the Tennessee bureau of investigation, shall supply fingerprint samples to the Tennessee bureau of investigation and to the federal bureau of investigation, and shall submit to a review of such person's status on the department of health's vulnerable persons registry under title 68, chapter 11, part 10;
    3. The disclosure forms shall include at a minimum the following information:
      1. The social security number of the applicant or volunteer;
      2. The complete name of the applicant or volunteer;
      3. Disclosure of information relative to any violations of the law, including pending criminal charges of any kind, and any conviction involving a sentence or suspended or reduced sentence and a release of all records involving the person's criminal background history; and
      4. A space for the applicant or volunteer to state any circumstances that should be considered in determining whether to allow the person to be employed or to remain as a resident in the agency or to provide volunteer services.
    4. The form shall notify the applicant or volunteer that falsification of required information may subject the person to criminal prosecution, and that the person's employment or volunteer status with the agency or the department is conditional pending a criminal records history review regarding the person's criminal history status.
    5. A copy of the disclosure form shall be maintained in the child care agency's records for review by the department, and the department shall maintain a copy of the disclosure form in the records of the applicant for employment or volunteer services with the department.
    1. The disclosure form shall be sent to the department by the child care agency and, pursuant to § 38-6-109, the department may directly access the computer files of the Tennessee bureau of investigation's Tennessee crime information center (T.C.I.C.) using only names or other identifying data elements contained in the disclosure form or such other information as may be available to the department to obtain available Tennessee criminal history background information for the purpose of criminal background reviews.
    2. If information obtained by this method indicates that there exists or may exist a criminal record on the individual, the department shall further review the criminal record history with the individual and the entity with whom the individual is associated to obtain further verification, and the department shall request fingerprint samples from the individual and submit the fingerprints for a complete Tennessee and federal criminal history background review pursuant to § 38-6-109. The department shall pay the costs of such fingerprint background checks pursuant to §§ 38-6-103 and 38-6-109.
    3. Pending the outcome of the background check, the applicant for employment or for a volunteer services position shall be conditional with the agency or with the department, and shall be dependent upon the outcome of the background check.
    4. The results of the inquiry to the Tennessee bureau of investigation shall be recorded in the applicant's or volunteer's records.
    5. If the information on the form appears to have been falsified, the Tennessee bureau of investigation shall report such finding to the department. The department shall notify, in writing, the appropriate district attorney general of such falsification.
  3. The agency, and the department for its employees and volunteers, shall utilize the information on the form to conduct an inquiry of the department of health's vulnerable persons registry pursuant to title 68, chapter 11, part 10, for a review of the person's status on such registry. The results of the inquiry to the registry shall be maintained in the applicant's or volunteer's records.
    1. Whether obtained by use of the procedures established in this section or whether such information is obtained by any other means, conviction of an offense, or a lesser included offense, or a finding in a juvenile proceeding, involving the physical, sexual or emotional abuse or gross neglect of a child or that constitutes conviction of an offense, or a finding in a juvenile proceeding, involving violence against a child, or any person, or conviction of an offense determined by the department, pursuant to properly promulgated rules, to present a threat to the health, safety or welfare of children, and any pending warrants, indictments or presentments, or pending juvenile proceedings, for such offenses or acts as a juvenile, as determined by rules of the department, or the identification of the individual on the department of health's vulnerable persons registry pursuant to title 68, chapter 11, part 10, shall disqualify the individual from employment with, as a licensee of a child care agency or from providing any volunteer services to children in, or from having any access whatsoever to children as a resident of, a child care agency as defined by this part, or with the department; provided, that the exclusionary provisions of this section shall not apply to children in the care, custody or control of the department.
    2. No person who is currently charged with or who has been convicted of or pled guilty to a violation of § 39-13-213, § 55-10-101, § 55-10-102 or § 55-10-401, or any felony involving use of a motor vehicle while under the influence of any intoxicant, may, for a period of five (5) years after the date of such conviction or felony plea, be employed as or serve as a driver transporting children for a child care agency.
    3. The child care agency, and the department for its employees, shall immediately exclude an individual from employment or volunteer services with children, if the results of the criminal background check or review of the vulnerable person's registry demonstrate to the agency, or upon review by the department demonstrate, that the criminal history of such individual is within the prohibited categories established in subdivision (d)(1). If an exemption from the exclusion is provided for by rule of the department pursuant to subsection (e), such person shall remain excluded until it is determined by the department whether there is a basis for an exception from the exclusion.
    4. The failure of a child care agency to exclude a person with a prohibited criminal history from employment with, or from the provision of volunteer services, or the failure, as determined by the department, to adequately restrict the access to children of a resident at a child care agency, shall subject the child care agency to immediate suspension of the agency's license by the department.
    5. Any person who is excluded based upon the results of the criminal history background review may appeal the exclusion to the department within ten (10) days of the mailing date of the notice of such exclusion to the subject person.
    6. If timely appealed, the department shall provide an administrative hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, in which the appellant may challenge the accuracy of the report, and may challenge the failure to grant an exception to the exclusion required by this subsection (d) if a rule for such purpose is promulgated by the department pursuant to subsection (e).
    7. The appellant may not collaterally attack the factual basis of an underlying conviction, except to show that the applicant is not the person identified on the record. Further, except to show that the applicant is not the person identified on the record, the appellant may not collaterally attack or litigate the facts that are the basis of a reported pending criminal charge, except to show that such charge was, or, since the report was generated, has been, dismissed, nolled or has resulted in an acquittal.
  5. The department may by rule promulgate standards of review for the purpose of considering exemptions from the criminal background exclusion established by this section.
  6. Nothing in this section shall be construed to prevent the exclusion of any individual from providing care for, from being licensed, approved or certified for the care of children pursuant to this part or from having access to a child in a child caring situation if the discovery of a criminal or juvenile proceeding background is discovered and verified in any manner other than through a procedure established pursuant to this section. All procedures, rules, and appeal processes established pursuant to this section for the protection of children and the due process rights of excluded individuals shall also be applicable to such individuals.
  7. It is unlawful for any person to falsify any information required on the disclosure form required by this section. A person who knowingly fails to disclose on the disclosure form required information or who knowingly discloses false information or who knowingly assists another to do so commits a Class A misdemeanor.
  8. The provisions of this section shall apply to detention centers and temporary holding resources described in § 37-5-109.

Acts 2000, ch. 981, § 29; 2003, ch. 26, §§ 1, 2; 2006, ch. 808, § 2.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

37-5-512. Abuse, neglect, or sexual abuse.

    1. Notwithstanding § 71-3-503 or § 37-5-503, the department has the authority and responsibility to fully investigate, in accordance with the provisions of chapter 1, parts 1, 4 and 6 of this title, any allegation of abuse, neglect or sexual abuse that it receives regarding any child or children in the care of, or subject to the supervision, instruction or treatment of, any public or private entity or any person, whether or not such entity or person is subject to licensure or approval pursuant to this part or title 71, chapter 3, part 5, or title 49, chapter 1, part 11.
    2. The departments of education and human services shall immediately report all allegations of abuse or neglect in any child care agency or child care program that they may license, approve, or certify to the department of children's services for investigation and shall cooperate with the department of children's services in any investigations of abuse or neglect involving any such agency or program. If the department of children's services receives a report of abuse or neglect in any child care program certified by the department of education or a child care agency licensed by the department of human services, it shall immediately notify the appropriate department of its investigation.
      1. The departments of children's services, education and human services shall utilize any information obtained in the course of such investigations in the determination of whether appropriate care is being provided to children who may be in the care of any child care agency or child care program that the departments of children's services, education or human services license, approve or certify.
      2. For purposes related to that determination and any appropriate licensing or approval action, the departments of education and human services shall be permitted access to the department of children's services' records; provided, that any information contained in any record of the departments of education or human services, or records relating to the investigation of the report of harm by the department of children's services shall be confidential and shall be released:
        1. Only in the proceedings concerning any certification, licensing or approval action or injunctive action by the department of education or human services permitted by title 49, chapter 1, part 11, or title 71, chapter 3, part 5;
        2. As otherwise permitted by the restrictions and conditions for the release of confidential records of the department of children's services pursuant to title 4 and chapter 1, part 4 or 6 of this title;
        3. As otherwise permitted by the department of children's services' regulations concerning procedures for release of information of validated perpetrators of child abuse; or
        4. Notwithstanding any other law to the contrary, including any provisions related to expunction of records under title 40, the limited release of confidential records pursuant to this section shall not alter the confidential character of such records, which shall be maintained, as necessary, to protect children.
      3. For purposes of this subdivision (a)(3), the rules of the department of children's services concerning release procedures for due process purposes shall apply to the release procedures of the departments of education and human services regarding perpetrators of child abuse validated by the department of children's services. Nothing herein shall be construed to permit the release of the name or identifying information of any person reporting child abuse or neglect under chapter 1, part 4 or 6 of this title.
    4. In the conduct of such investigations involving the alleged abuse or neglect of any child or in the evaluation of the appropriateness of any child care program or child care agency or the appropriateness of the care provided by any person, the departments of children's services, education and human services shall be granted access to the records of children in the care of the person or entity and to all personnel files of the director and employees of the person or entity and to all records of the person or entity. They shall be allowed to inspect all the premises in which children are kept or cared for and shall be allowed to interview any and all children in the care of such person or entity if the departments of children's services, education or human services determine that it is necessary to do so.
  2. If admission to the places, facilities or homes of the entities or persons involved in the care, supervision, instruction or treatment of the child is denied or delayed for any reason, the chancery, circuit or juvenile court of the county where the entity or person is located shall, upon cause shown by the department of children's services in investigations of abuse or neglect or sexual abuse involving any person or entity or in any of its licensing or approval activities, or upon cause shown by the departments of education or human services in any certification, licensing or approval activities, immediately, by ex parte order, direct the persons in charge of such places, facilities or any persons having responsibility for the care, supervision, instruction or treatment, of the child or children to allow entrance for the review of records, inspection of the premises, and to permit any interviews with or examinations of the children as permitted pursuant to chapter 1 of this title, title 49, chapter 1, part 11, or title 71, chapter 3, part 5.
    1. If the departments of children's services, education or human services determine at any time that any person employed or associated in any manner with any person or entity, or any person providing care, supervision, instruction or treatment, of children has, at any time, abused, neglected or sexually abused a child, the department with certification, licensing or approval authority may take certificate or licensing action to prevent any child care program or child care agency certified, licensed or approved by it from continuing to provide care for children if such program or agency fails or refuses to take appropriate or timely action to prevent future abuse, neglect or sexual abuse by that person.
    2. If the entity or person is subject to certification by the department of education pursuant to title 49, chapter 1, part 11, or is subject to licensure or approval by the department of human services pursuant to title 71, chapter 3, part 5, those departments may, in addition to any certificate, licensing or approval action, bring an action in the chancery, circuit or juvenile court of the county where the abuse, neglect or sexual abuse occurred or where the person resides to enjoin the entity found to have failed to protect the child or children from abuse, neglect or sexual abuse or the person who, at anytime, abused, neglected or sexually abused a child or children, from continuing currently, or in the future, to provide care, supervision, instruction or treatment for children on a full-time or part-time basis, or to enjoin the person who perpetrated the abuse or neglect from being associated in any manner with any entities or persons providing care, supervision, instruction or treatment for children.
    3. If the department of children's services determines at any time that any person employed or associated in any manner with an entity or person, or any person individually, providing care, supervision, instruction or treatment of children, has at any time abused, neglected or sexually abused a child, the department may bring an action for injunctive relief as permitted by subdivision (c)(2), whether or not the entity or person is subject to certification, licensure or approval by the departments of children's services, education or human services.
    4. In order to facilitate the protection of children, the departments of children's services, education and human services are specifically authorized to enter into inter-agency agreements for cooperative arrangements in any investigations or litigation authorized by this part.

Acts 2000, ch. 981, § 30.

Cross-References. Confidentiality of public records, § 10-7-504.

37-5-513. Inspection of persons or entities providing child care.

  1. It is the duty of the department, through its duly authorized agents, to inspect at regular intervals, without previous notice, all child care agencies or suspected child care agencies, as defined in § 37-5-501.
    1. The department is given the right of entrance, privilege of inspection, access to accounts, records, and information regarding the whereabouts of children under care for the purpose of determining the kind and quality of the care provided to the children and to obtain a proper basis for its decisions and recommendations.
    2. If refused entrance for inspection of a licensed, approved or suspected child care agency, the chancery or circuit court of the county where the licensed, approved or suspected child care agency may be located may issue an immediate ex parte order permitting the department's inspection upon a showing of probable cause, and the court may direct any law enforcement officer to aid the department in executing such order and inspection. Refusal by the child care agency to obey the inspection order may be punished as contempt.
  3. Any violation of the rights given in this section is a Class A misdemeanor.

Acts 2000, ch. 981, § 31.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

37-5-514. Violations of licensing regulations — Probation, suspension, denial and revocation of licenses — Appeal procedures.

  1. If any complaint is made to the department concerning any alleged violation of the laws or regulations governing a child care agency, the department shall investigate such complaint and shall take such action as it deems necessary to protect the children in the care of such agency.
    1. If, during the licensing period, the department determines that a child care agency is not in compliance with the laws or regulations governing its operation, and if, after reasonable written notice to the agency of the violation, the department determines that the violation remains uncorrected, the department may place the licensed agency on probation for a definite period of not less than thirty (30) days nor more than sixty (60) days, as determined by the department, and the department shall require the posting by the agency of the notice of probation. The department shall provide the agency a written basis describing the violation of the licensing rules that supports the basis for the probationary status.
      1. If placed on probation, the agency shall immediately post a copy of the probation notice, together with a list provided by the department of the violations that were the basis for the probation, in a conspicuous place as directed by the department and with the agency's license, and the agency shall immediately notify, in writing, the custodians of each of the children in its care of the agency's status, the basis for the probation and of the agency's right to an informal review of the probationary status.
      2. If the agency requests an informal review within two (2) business days of the imposition of probation, either verbally or in writing to the department's licensing staff that imposed the probation, the department shall informally review the probationary status by a department licensing staff person or other designee who was not involved in the decision to impose the probation. The agency may submit any written or oral statements as argument to such staff person or designee within five (5) business days of the imposition of the probation. Written and oral statements may be received by any available electronic means. The licensing staff person or designee shall render a decision, in writing, upholding, modifying or lifting the probationary status within seven (7) business days of the imposition of the probation.
    3. If the licensing staff person or designee did not lift the probation under subdivision (b)(2)(B), the agency may also appeal such action in writing to the commissioner within five (5) business days of the receipt of the notice of the licensing staff person, or designee's decision regarding the agency's probationary status as determined in subdivision (b)(2)(B). If timely appealed, the department shall conduct an administrative hearing pursuant to the contested case provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, concerning the department's action within fifteen (15) business days of receipt of the appeal, and shall render a decision, in writing, within seven (7) business days following conclusion of the hearing. The hearing officer may uphold, modify or lift the probation.
    4. This subsection (b) shall be discretionary with the department, and shall not be a prerequisite to any licensing action to suspend, deny or revoke a license of a child care agency.
    1. If the department determines that any applicant for a temporary license or for the renewal of an existing license has failed to attain, or an existing licensee has failed to maintain, compliance with licensing laws or regulations after reasonable notice of such failure and a reasonable opportunity to demonstrate compliance with licensing laws or regulations, the department may deny the application for the new or renewed license or may revoke the existing license; provided, that the department at any time may deny a temporary license if the applicant fails to meet the initial requirements for its issuance; and, provided, further, if the department determines that repeated or serious violations of licensing laws or regulations warrant the denial or revocation of the license, then, notwithstanding any provisions of § 4-5-320 or this subsection (c) to the contrary, the department may seek denial or revocation of the license regardless of the licensee's demonstration of compliance either before or after the notice of denial of the application or after notice of the revocation.
    2. Notwithstanding § 4-5-320, the notice of denial or revocation may be served personally by an authorized representative of the department who shall verify service of the notice by affidavit, or the notice may be served by certified mail, return receipt requested.
    3. If application for the temporary or annual license is denied or if an existing license is revoked, the applicant may appeal the denial or revocation by requesting, in writing, to the department a hearing before the child care agency board of review within ten (10) days of the personal delivery or mailing date of the notice of denial or revocation. Failure to timely appeal shall result in the expiration of any existing license immediately upon the expiration of the time for appeal.
    4. The hearing upon the denial or revocation shall be heard by the board of review within thirty (30) days of the date of service of the notice of denial or revocation; provided, that, for good cause as stated in an order entered on the record, the board or the administrative law judge or hearing officer may continue the hearing. In order to protect the children in the care of the agency from any risk to their health, safety and welfare, the board or administrative law judge or hearing officer shall re-set the hearing at the earliest date that circumstances permit.
      1. If timely appeal is made, pending the hearing upon the denial or revocation, the child care agency may continue to operate pending the decision of the board of review unless the license is summarily suspended as provided in subsection (d).
      2. The board, as part of its decision regarding the status of the applicant's application for a license or the licensee's license, may direct that the child care agency be allowed to operate on a probationary or conditional status, or may grant or continue the license with any restrictions or conditions on the agency's authority to provide care.
    1. Subject to the following provisions of this subsection (d), if the department determines at any time that the health, safety or welfare of the children in care of the child care agency imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of the license may be ordered by the department pending any further proceedings for revocation, denial or other action. If the department determines that revocation or denial of the license is warranted following suspension, those proceedings shall be promptly instituted and determined as authorized by this part.
    2. The department shall set forth with specificity in its order the legal and factual basis for its decision stating therein the specific laws or regulations that were violated by the agency, and shall state with specificity in the order the reasons that the issuance of the order of summary suspension is necessary to adequately protect the health, safety or welfare of children in the care of the child care agency. Summary suspension may be ordered in circumstances that have resulted in death, injury or harm to a child or that have posed or threatened to pose a serious and immediate threat of harm or injury to a child based upon the intentional or negligent failure to comply with licensing laws or regulations.
    3. In issuing an order of summary suspension of a license, the department shall use, at a minimum, the following procedures:
      1. The department shall proceed with the summary suspension of the agency's license and shall notify the licensee of the opportunity for an informal hearing within three (3) business days of the issuance of the order of summary suspension before an administrative law judge or before a hearing officer who is not an employee of the department.
      2. The notice provided to the licensee may be provided by any reasonable means and, consistent with the provisions of subdivision (d)(2), shall inform the licensee of the reasons for the action or intended action by the department and of the opportunity for an informal hearing as permitted by subdivision (d)(3)(C).
      3. The informal hearing described by this subdivision (d)(3) shall not be required to be held under the contested case provisions of the Uniform Administrative Procedures Act. The hearing is intended to provide an informal, reasonable opportunity for the licensee to present to the hearing official the licensee's version of the circumstances leading to the suspension order. The sole issues to be considered are whether the public health, safety or welfare imperatively required emergency action by the department and what, if any, corrective measures have been taken by the child care agency following the violation of licensing laws or regulations and prior to the issuance of the order of summary suspension that eliminate the danger to the health, safety or welfare of the children in the care of the agency. The hearing official may lift, modify or continue the order of summary suspension.
      4. Subsequent to the hearing on the summary suspension, the department may proceed with revocation or denial of the license or other action as authorized by this part, regardless of the decision concerning summary suspension of the license.
    4. The department shall by rule establish any further necessary criteria that it determines are required for the determination of circumstances that warrant imposition of the summary suspension order and any other necessary procedures for implementation of the summary suspension process.
    5. If the conditions existing in the child care agency present an immediate threat to the health, safety or welfare of the children in care, the department may also seek a temporary restraining order from the chancery or circuit court of the county in which the child care agency is located seeking immediate closure of the agency to prevent further harm or threat of harm to the children in care, or immediate restraint against any violations of the licensing laws or regulations that are harming or that threaten harm to the children in care. The department may seek any further injunctive relief as permitted by law in order to protect children from the violations, or threatened violations, of the licensing laws or regulations. The use of injunctive relief as provided by this subdivision (d)(5) may be used as an alternative, or supplementary measure, to the issuance of an order of summary suspension or any other administrative proceeding.
    1. In determining whether to deny, revoke or summarily suspend a license, the department may choose to deny, revoke or suspend only certain authority of the licensee to operate, and may permit the licensee to continue operation, but may restrict or modify the licensee's authority to provide certain services or perform certain functions, including, but not limited to: transportation or food service, enrollment of children at the agency, the agency's hours of operation, the agency's use of certain parts of the agency's physical facilities or any other function of the child care agency that the department determines should be restricted or modified to protect the health, safety or welfare of the children. The board of review, in considering the actions to be taken regarding the license, may likewise restrict a license or place whatever conditions on the license and the licensee it deems appropriate for the protection of children in the care of the agency.
    2. The actions by the department or the board authorized by this subsection (e) may be appealed as otherwise provided in this part for any denial, revocation or suspension.
    1. When an application for a license has been denied, or a license has been revoked, on one (1) occasion, the child care agency may not reapply for a license for a period of one (1) year from the effective date of the denial or revocation order if not appealed or, if appealed, from the effective date of the board's or reviewing court's order.
    2. If application for a license has been denied, or a license has been revoked, on two (2) occasions, the child care agency may not reapply for a license for a period of two (2) years from the effective date of the denial or revocation if not appealed or, if appealed, from the effective date of the board's or reviewing court's order.
    3. If an application for a license has been denied, or a license has been revoked on three (3) occasions, the agency shall not receive another license for the care of children.
    4. No person who served as full or part owner or as director or as a member of the management of a child care agency shall receive a license to operate a child care agency if that person participated in such capacity in a child care agency that has been denied a license, or that had a license revoked, on three (3) occasions.
      1. The time restrictions of subdivisions (f)(1) and (2) may be waived by the board of review in the hearing in which the denial or revocation is sustained, or, if requested by the former licensee in writing to the commissioner, in a separate subsequent hearing before the board of review or, in the discretion of the commissioner, upon review by the commissioner.
      2. The agency must show to the board's or the commissioner's satisfaction that the agency has corrected the deficiencies that led to the denial or revocation, and that the child care agency can demonstrate that it has the present and future ability, and is willing, to maintain compliance with licensing laws or regulations. The decision of the board or the commissioner shall be reduced to an order, which shall be a final order pursuant to the Uniform Administrative Procedures Act, and may be appealed pursuant to § 4-5-322.
      3. No waiver may be granted for any permanent restriction that has been imposed pursuant to subdivision (f)(3).
    1. In conducting hearings before the board of review on the appeal of a denial or revocation of a license or for review of summary suspension orders, it is the legislative intent that such hearings be promptly determined consistent with the safety of the children in the care of the child care agency appealing the department's licensing action and with the due process rights of the license applicants or licensees.
    2. If, however, the administrative procedures division of the office of the secretary of state certifies by letter to the recording secretary of the board of review that the division's contested case docket prevents the scheduling of a hearing on the appeal of a denial or revocation of a license before the board of review within the initial time frames set forth in this part, then the department shall have authority to appoint a hearing officer from the department to conduct the proceedings before the board. The substitute hearing officer shall have all authority as an administrative law judge of the department of state. The hearing may be continued by order of the board for the purpose of obtaining a substitute hearing officer.
    3. Hearings on summary suspension orders shall be heard by an administrative law judge from the administrative procedures division of the secretary of state's office. The administrative law judge shall have authority, as otherwise permitted in this section, to enter orders binding on the department resulting from show cause hearings involving summary suspension orders. If the administrative procedures division informs the department that the division's contested case docket prevents the scheduling of a hearing on the issuance of a summary suspension order within the initial time frames set forth in this part, the department may utilize a hearing officer from the department to conduct the show cause hearing.
  8. By July 1, 2000, any initial rules to implement this section shall be by emergency rules of the department; provided, that any permanent rules shall be promulgated pursuant to the provisions of the Uniform Administrative Procedures Act.

Acts 2000, ch. 981, § 32; 2009, ch. 566, §  12.

Compiler's Notes. Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced.

37-5-515. Board of review for licensing actions.

Actions by the department to deny or revoke or to otherwise limit any license, except for the summary suspension of a license, shall be reviewed by the child care agency board of review established pursuant to title 71, chapter 3, part 5.

Acts 2000, ch. 981, § 33.

37-5-516. Licensing standards committees.

  1. The commissioner shall appoint a standards committee composed of twelve (12) citizens, three (3) from each grand division of the state, and three (3) at-large for the purpose of developing or reviewing standards and regulations for each class of child care agency defined in this part. The classes of child care agencies regulated by the department shall be represented by members of the standards committee.
  2. For any new class of child care agency as defined in this part, the standards committee shall develop and recommend to the commissioner the standards and regulations for that new class of child care agency. The standards and regulations of each existing class of child care agency shall be reviewed by a standards committee beginning every four (4) years following the date of submission of its last recommendations or more frequently as the commissioner may direct.
  3. The standards committee shall act in an advisory capacity to the commissioner in recommending any initial standards or regulations or any changes to the existing standards or regulations of any class of child care agency.
  4. The committee shall cease to exist upon submitting its recommendations to the commissioner, but may be re-established by the commissioner at any time to further review its recommendations or to consider additional standards or regulations or to consider revisions to the standards or regulations.
    1. In making appointments to the committee, the commissioner shall strive to ensure that at least one (1) person serving on the committee is sixty (60) years of age or older and that at least one (1) person serving on the committee is a member of a racial minority.
    2. Except as otherwise provided in this section, in making appointments to the standards committee, the department shall strive to ensure that the membership of the standards committee includes a balance of representatives of the regulated industry and persons whose expertise would be of assistance to the department. The department shall appoint child advocates, social workers, attorneys, and other persons with knowledge and expertise in the specified area, as well as citizen members to the committee.
  6. The members of the committee shall not receive any compensation for their services but shall be reimbursed for their travel to and from the committee meetings and for their meals and lodging in accordance with the state travel procedures and regulations.

Acts 2000, ch. 981, § 34; 2007, ch. 453, § 3; 2011, ch. 281, § 3.

Compiler's Notes. The Standards committee, department of children's services, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

37-5-517. Individual plans — Reports.

  1. An agency shall prepare a written plan for each child in foster care and each child placed in its care by voluntary agreement. Such plans shall be prepared at the time a child comes under the supervision of the agency. Such plan shall be subject to review by the department. Failure to prepare such a plan shall be grounds for revocation of the agency's license.
  2. In its annual report to the department pursuant to § 37-5-519, the agency shall include the number of children in foster care, the total number of children who have been in care during the year, the number of plans prepared, the number of children adopted, and the average length of the stay of the children.

Acts 2000, ch. 981, § 35.

37-5-518. Annual reports of child care agencies.

  1. Each child care agency shall make an annual report of its work to the department in such reasonable form as the department shall prescribe.
  2. The department shall prepare and supply to all child care agencies the necessary printed forms to record the requested information.

Acts 2000, ch. 981, § 36.

37-5-519. Departmental annual report.

The department shall prepare a comprehensive annual report of the status of child care agencies within the state subject to its jurisdiction, accompanied by special comments and recommendations, and the reports shall be published at state expense for the information of the general assembly and for distribution to interested persons. The report shall be published as part of the department's annual report required by § 37-5-105(4).

Acts 2000, ch. 981, § 37; 2015, ch. 178, § 4.

Amendments. The 2015 amendment substituted “the” for “such” in the middle of the first sentence and added the second sentence to the section.

Effective Dates. Acts 2015, ch. 178, § 5. April 16, 2015.

Cross-References. Reporting requirement satisfied by notice to legislators of publication of report, § 3-1-114.

Part 6
Multi-level Response System for Children and Families

37-5-601. Part definitions.

As used in this part, unless the context requires otherwise:

  1. “Family” means the members of a household living, on a full-time or a part-time basis, in one (1) house, condominium, apartment or other dwelling; people related by blood or ancestry, marriage, or adoption; any person who is holding out to the public as being a family member of a minor; foster parents and foster children; stepparents and stepchildren; and any other group that the department determines by policy or rule to constitute a family for purposes of this part; and
  2. “Maltreatment” means abuse as defined in § 37-1-102, or child sexual abuse as defined in § 37-1-602.

Acts 2005, ch. 391, § 2.

Law Reviews.

Differential Response in Child Protection Services: Perpetuating the Illusion of Voluntariness (Soledad A. McGrath), 42 U. Mem. L. Rev. 629 (2012).

37-5-602. Purposes.

  1. The purposes of this part are to safeguard and enhance the welfare of children and to preserve family life, by preventing harm and sexual abuse to children and by strengthening the ability of families to parent their children effectively through a multi-level response system using available community-based public and private services. It is intended that the department perform its function under this part pursuant to the belief that families can change the circumstances associated with the level of risk to a child, when they are provided with intensive and comprehensive services tailored to their strengths and needs. The department's fundamental assumptions shall be that most children are better off with their own families than in substitute care, and that separation has detrimental effects on both parents and children. Whenever possible, preservation of the family should serve as the framework for services, but, in any case, the best interests of the child shall be paramount.
  2. The further purpose of this part is to authorize and require the department to develop a demonstration program to carry out the purposes stated in subsection (a). A specific objective of the demonstration program is to reduce the incidence of children who are subjected to maltreatment. Until the program is in effect statewide, this part shall be in effect only in the areas in which the demonstration program is established.

Acts 2005, ch. 391, § 3.

Law Reviews.

Differential Response in Child Protection Services: Perpetuating the Illusion of Voluntariness (Soledad A. McGrath), 42 U. Mem. L. Rev. 629 (2012).

37-5-603. Establishment of demonstration program — State advisory committee — Reporting.

    1. No later than July 1, 2006, the department shall establish a demonstration program that conforms to the requirements of this part and carries out its purposes in at least three (3) but no more than five (5) areas of the state selected by the department. The multi-level response system shall be designed to protect children from maltreatment, through the effective use of available community-based public and private services. The program should be staffed by case managers and other personnel and child protective services investigators, as called for in this part. There shall be at least one (1) area in each grand division of the state. Areas may be composed of any combination of one (1) or more counties. No later than July 1, 2007, the demonstration program shall be expanded to include a total of no less than ten (10) areas of the state selected by the department. No later than July 1, 2010, the program shall be implemented in all areas of the state.
    2. To facilitate accomplishment of the purposes of this part, the department shall establish a state advisory committee composed of representatives from the offices of the commissioners of correction, education, health, human services, mental health and substance abuse services, and intellectual and developmental disabilities, the commission on children and youth, and any other state or community-based public or private agency or office that the department determines serves children or families in ways that might be used in the demonstration program. The department shall pursue the creation of such interagency agreements permitted by law as will enable the department to accomplish the purposes of this part.
  2. The department shall advise the governor, the judiciary committee of the senate, the committee of the house of representatives having oversight over children and families, and the health and welfare committee of the senate of the progress the department is making toward implementation of the program by providing them with a summary progress report highlighting key implementation activities, including, but not limited to, site selection, timelines, barriers to implementation, identification of needed resources, interagency cooperation, and progress in establishing local advisory committees, on October 1, 2005, and every six (6) months thereafter, until statewide implementation is achieved. After the first year of operation of the program, the department shall include in its report any recommendations for changes in the law, including whether there are any kinds of cases investigated under chapter 1, parts 4 and 6 of this title, that the experience of the department shows can be safely excluded from mandatory investigation under those parts.

Acts 2005, ch. 391, § 4; 2010, ch. 1100, § 64; 2011, ch. 410, § 3(y); 2012, ch. 575, § 2; 2013, ch. 236, § 28; 2019, ch. 345, § 48.

Compiler's Notes. Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment substituted “the committee of the house of representatives having oversight over children and families, and” for “the civil justice committee of the house of representatives and” in (b).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Law Reviews.

Differential Response in Child Protection Services: Perpetuating the Illusion of Voluntariness (Soledad A. McGrath), 42 U. Mem. L. Rev. 629 (2012).

37-5-604. Screening instrument — Assessment — Determination of level of intervention — Investigation of reports of harm or sexual abuse.

  1. Upon receipt of a report of harm pursuant to § 37-1-403, the department shall make an initial screening decision using an approved screening instrument. The screening instrument shall be developed by the department. If the report does not allege that the child has been harmed or that the child has been sexually abused, after reviewing the information available and using the screening instrument, the department shall determine whether the child is at risk of maltreatment. If the child is at risk of maltreatment, the department shall determine whether the appropriate level of intervention is:
    1. Investigation pursuant to chapter 1 of this title;
    2. Assessment of the child and the family's need for and referral to available community-based public or private services;
    3. Referral for available community-based public or private services without assessment or investigation; or
    4. No further action by the department.
  2. If the department receives a report under chapter 1, part 4 or part 6 of this title, that alleges a child has actually been harmed or sexually abused, the department shall investigate such report, with child protective services investigators, to the extent that they are available, pursuant to chapter 1, part 4 or part 6 of this title. The department also may proceed at the same time with assessment under this section.
  3. If the department determines that an assessment of the child and family is appropriate, the department shall give the parents, guardian, or others exercising parental authority, a written and oral explanation of the procedure for assessment of the child and family and its purposes. The assessment of the child and family and identification of service needs shall be based on information gathered from the family and other sources. The department shall have such face-to-face contact with the child, parents, other family members, and other sources, as is necessary to make the assessment reliable. If the parent is not present during contact with a child, the child's parent or guardian shall be contacted as soon as possible following contact with the child. The assessment of the child and family shall be completed within forty-five (45) days of receipt of the report. However, upon written justification by the department, the assessment of the child and family may be extended up to a total of sixty (60) days. The assessment of the child and family shall be in writing and shall be completed in accordance with department policy or regulations.
  4. Upon completion of the assessment of the child and family, the department shall consult with the family about available community-based public or private services to address the family's needs. When appropriate, families shall be offered services through the department, other public agencies, or community-based private agencies, which may include faith-based organizations, to promote meeting the needs of the family. The department may not require a family to participate in available public or private community-based services that it offers the family. If the family does not cooperate with the provision of community-based public or private services or provide alternative services of its own to meet such needs, then the department shall assess whether further steps should be taken to carry out the purposes of this part. If a family that declines services that are offered to them does not provide adequate alternative services of its own, the department shall inform the parents that their actions in declining services may be considered in future action by the department.
  5. If the department determines, under subsection (a), that the appropriate level of intervention is referral for available community-based public or private services without assessment or investigation, then the department may refer the family for preventive community-based public or private services. Families have the option of declining services offered as a result of a report of harm that did not result in an investigation or assessment of the child and family. If the family declines the services, the case shall be closed, unless the local department determines that sufficient cause exists to redetermine the case as one that needs to be investigated or assessed. Any family that declines services offered to them shall be informed that their actions in declining services may be considered in evaluating any future reports of harm received by the department.
  6. The department shall commence an immediate investigation, if, at any time during the provision of services under this part, the department determines that an investigation is required by chapter 1, part 4 or part 6 of this title, and that investigation shall be conducted under those provisions. The district attorney general and law enforcement officials shall be informed of the investigation as required under those provisions.

Acts 2005, ch. 391, § 5; 2011, ch. 410, § 3(z).

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Law Reviews.

Differential Response in Child Protection Services: Perpetuating the Illusion of Voluntariness (Soledad A. McGrath), 42 U. Mem. L. Rev. 629 (2012).

37-5-605. Annual report — Collection and maintenance of data.

  1. No later than October 1, 2007, the department shall submit to the governor, the health and welfare committee of the senate, the committee of the house of representatives having oversight over children and families, and the judiciary committee of the senate a report on the first full year of the demonstration program. No later than October 1, 2008, and each year thereafter until this part is implemented in all areas of the state, the department shall provide an annual report evaluating the demonstration project to the same parties. Upon request, all persons and groups to whom the annual report is distributed shall be entitled to receive a detailed explanation of the procedures used to evaluate the system and shall be given the raw data used to support the report. Outcomes to be evaluated in each of these reports shall include, but not be limited to, the following:
    1. The safety of children under the program compared with children served under chapter 1, part 4 or part 6 of this title, in light of the following and other factors that may provide useful information about the effectiveness of the program for its purposes:
      1. The number of cases processed under the program, by types of risks and needs addressed;
      2. The number of cases referred for proceedings under chapter 1 of this title, by type;
      3. The number of final dispositions of cases in the current reporting year by disposition as follows:
        1. Closed on initial review;
        2. Closed after assessment;
        3. Closed after assessment and referral for available community-based public or private services;
        4. Numbers and types of cases in which the department proceeded under chapter 1 of this title, after the initial review; and
        5. Numbers and types of cases in which there were reports of harm or sexual abuse under chapter 1, part 4 or part 6 of this title, with respect to children in a family considered or served under this part;
      4. The extent to which the program has reduced the incidence of children who are subjected to harm or sexual abuse that would require a report under chapter 1, part 4 or part 6 of this title, or who otherwise would become eligible for services under chapter 1 of this title;
      5. To whom reports of harm or sexual abuse were determined to show that there had been no harm or sexual abuse or that those reports were invalid; and
      6. The type and amount of community-based public or private services received by families;
    2. The timeliness of response by the department under the program;
    3. The timeliness of services provided to children and families under the program;
    4. The level of coordination with public and private community-based service providers to ensure community-based services are available to the public through the program;
    5. The cost effectiveness of the program with respect to the department, available community-based public and private service resources, and law enforcement and judiciary resources that might otherwise have become involved in the cases; and
    6. The effectiveness of the program in enhancing the welfare of children and keeping families together.
  2. Upon implementation of the multi-level response system in any area, the department shall ensure that all data necessary for compliance with this section is collected and maintained.

Acts 2005, ch. 391, § 6; 2011, ch. 410, § 3(aa); 2013, ch. 236, § 27; 2019, ch. 345, § 49.

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment substituted “the committee of the house of representatives having oversight over children and families” for “the civil justice committee of the house of representatives” in (a).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Law Reviews.

Differential Response in Child Protection Services: Perpetuating the Illusion of Voluntariness (Soledad A. McGrath), 42 U. Mem. L. Rev. 629 (2012).

37-5-606. Training and information.

Before the demonstration program is instituted in an area, the department shall assure that all personnel in the program in that area are thoroughly trained in matters relating to their role in the program, utilizing, to the extent possible, existing training resources for each profession. The training shall include information on the culturally diverse community, including, but not limited to, religious, dietary, and education requirements of families affected by this part. At a minimum, training should be provided to all departmental personnel involved in the demonstration project, including case managers. In addition, the department shall offer training to community-based service providers, attorneys, prosecutors, guardians ad litem, judges, and law enforcement personnel. Informational materials concerning the demonstration program should be prepared for families and their attorneys.

Acts 2005, ch. 391, § 7.

Law Reviews.

Differential Response in Child Protection Services: Perpetuating the Illusion of Voluntariness (Soledad A. McGrath), 42 U. Mem. L. Rev. 629 (2012).

37-5-607. Independent local advisory board.

In each county in which the multi-level response system is implemented, the department shall facilitate the formation of an independent local advisory board, which shall not be a part of the department, and which shall be composed of appropriate community representatives, including representatives from families in the community, local public agencies, including schools, health departments and other health care providers, juvenile court, and law enforcement officials, and other available community-based resources. Each local advisory board shall recommend ways to bring together the department, families, and available resource providers within that community and shall assist with the development of community-based resources that may be needed by families. The local advisory board may review individual cases, in its discretion, to the extent that such review may be done without jeopardizing the confidentiality of the records or the confidentiality obligations of those who provided the information. The department shall collaborate with the local advisory board and the community to identify or develop local formal and informal services for children and families.

Acts 2005, ch. 391, § 8; 2010, ch. 692, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Law Reviews.

Differential Response in Child Protection Services: Perpetuating the Illusion of Voluntariness (Soledad A. McGrath), 42 U. Mem. L. Rev. 629 (2012).

37-5-608. Rules and regulations.

The commissioner is authorized to promulgate rules and regulations to effectuate the purposes of this part. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2005, ch. 391, § 9.

Law Reviews.

Differential Response in Child Protection Services: Perpetuating the Illusion of Voluntariness (Soledad A. McGrath), 42 U. Mem. L. Rev. 629 (2012).

Part 1
Liability of Parent or Guardian for Acts of Juveniles

37-10-101. Recovery for injury or damage by juvenile.

Any municipal corporation, county, town, village, school district or department of this state, or any person, or any religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in an action in assumpsit in an amount not to exceed ten thousand dollars ($10,000) in a court of competent jurisdiction from the parents or guardian of the person of any minor under eighteen (18) years of age, living with the parents or guardian of the person, who maliciously or willfully causes personal injury to such person or destroys property, real, personal or mixed, belonging to such municipal corporation, county, town, village, school district or department of this state or persons or religious organizations.

Acts 1957, ch. 76, § 1; 1969, ch. 170, § 1; 1976, ch. 408, § 1; 1981, ch. 161, § 1; T.C.A., § 37-1001; Acts 1985, ch. 439, § 1.

Cross-References. Liability for acts of delinquent child, § 37-1-131.

Support of child over 18 in high school, § 34-1-102.

Law Reviews.

Negligence — Parent's Failure to Prevent Tort by Child, 31 Tenn. L. Rev. 553 (1964).

Tort Liability for Intentional Acts of Family Members: Will Your Insurer Stand by You?, 68 Tenn. L. Rev. 1 (2000).

Attorney General Opinions. There is no authority to hold a parent or guardian civilly liable for a minor child's conversion of the property of another unless such action is based on the willful or malicious destruction of such property and the parent knew or should have known of the child's tendency to commit wrongful acts and the parent had the opportunity to control the child but failed to exercise reasonable means to restrain the tortious conduct, OAG 01-010 (1/25/01).

The statute confers liability only upon a guardian or parent of a child, not upon an agency that has the child only by virtue of a contract with the state, OAG 02-086 (8/6/02).

37-10-102. Limitation on amount of recovery.

The recovery shall be limited to the actual damages in an amount not to exceed ten thousand dollars ($10,000), in addition to taxable court costs.

Acts 1957, ch. 76, § 2; 1969, ch. 170, § 2; 1976, ch. 408, § 2; 1981, ch. 161, § 2; T.C.A., § 37-1002.

NOTES TO DECISIONS

1. Damages.

Because a conflict exists with respect to damages between this section and the common law, the statute prevails over the common law; damages for the intentional shooting of plaintiff's son by the defendant's minor child were capped at $10,000. Lavin v. Jordon, 16 S.W.3d 362, 2000 Tenn. LEXIS 202 (Tenn. 2000).

37-10-103. Circumstances under which parent or guardian liable.

  1. A parent or guardian shall be liable for the tortious activities of a minor child that cause injuries to persons or property where the parent or guardian knows, or should know, of the child's tendency to commit wrongful acts that can be expected to cause injury to persons or property and where the parent or guardian has an opportunity to control the child but fails to exercise reasonable means to restrain the tortious conduct.
  2. A parent or guardian shall be presumed to know of a child's tendency to commit wrongful acts, if the child has previously been charged and found responsible for such actions.

Acts 1957, ch. 76, § 3; 1981, ch. 161, § 3; T.C.A., § 37-1003; Acts 1985, ch. 439, § 2.

Attorney General Opinions. Criminal liability of parents for acts of children, OAG 98-019 (1/15/98).

There is no authority to hold a parent or guardian civilly liable for a minor child's conversion of the property of another unless such action is based on the willful or malicious destruction of such property and the parent knew or should have known of the child's tendency to commit wrongful acts and the parent had the opportunity to control the child but failed to exercise reasonable means to restrain the tortious conduct, OAG 01-010 (1/25/01).

NOTES TO DECISIONS

1. Construction.

This section was intended only to set forth the circumstances under which parents could be held liable, and was not intended to provide for a cause of action separate and independent of that stated in T.C.A. § 37-10-101. Lavin v. Jordon, 16 S.W.3d 362, 2000 Tenn. LEXIS 202 (Tenn. 2000).

2. Burden of Proof.

Plaintiffs need to show more than the mere existence of a parent/child relationship to establish a prima facie case under this section; plaintiffs must now show that the parents are actually at fault before any liability can attach. Lavin v. Jordon, 16 S.W.3d 362, 2000 Tenn. LEXIS 202 (Tenn. 2000).

3. Damages.

The total amount of damages recoverable by the plaintiffs based upon allegations of intentional conduct by the defendant's minor child was governed by T.C.A. § 37-10-102. Lavin v. Jordon, 16 S.W.3d 362, 2000 Tenn. LEXIS 202 (Tenn. 2000).

4. Summary Judgment.

Trial court properly granted a step-grandmother's motion for summary judgment on a mother's claim for negligent supervision because no factual basis existed in the record from which to conclude that a legal duty arose requiring the step-grandmother to supervise the mother's daughter with respect to the operation of an ATV; there was no evidence from which to conclude that the daughter had a specific tendency to disregard instructions, or if so, that the step-grandmother knew of the same. Ward v. Ward, — S.W.3d —, 2015 Tenn. App. LEXIS 888 (Tenn. Ct. App. Oct. 30, 2015).

Part 2
Tennessee Missing Children Recovery Act

37-10-201. Short title — Part definitions.

  1. This part shall be referred to as the “Tennessee Missing Children Recovery Act.”
  2. As used in this part, unless the context otherwise requires:
    1. “Child” means any person under twenty-one (21) years of age;
    2. “Missing child” means a child who is believed to have been removed by force, persuasion, trick, enticement, false pretense, has voluntarily left the custody of such child's parent without permission or is absent for unexplained or unknown reasons; and
    3. “Parent” means a natural or adoptive parent, guardian, or person or organization standing in a loco parentis position by virtue of an order of a court.

Acts 1985, ch. 158, § 1; 2005, ch. 5, § 1.

Cross-References. Interstate communication of criminal statistics, title 38, ch. 10.

Law Reviews.

1985 Tennessee Survey: Selected Developments in Tennessee Law, 53 Tenn. L. Rev. 373 (1986).

37-10-202. Initial missing child report — Statement of identification information.

Whenever the parent knows, learns or believes that a child under the parent's charge and care is missing, such parent shall report the child to a police or sheriff's office, Tennessee bureau of investigation or any law enforcement officer and make a statement to the agency of all available facts that will aid in the recognition, identification or location and recovery of the child.

Acts 1985, ch. 158, § 2.

37-10-203. Formal missing child report — Entry of report into NCIC.

Every law enforcement officer receiving information from a parent or any source that it deems creditable shall prepare a formal missing child report.  A law enforcement agency reporting a missing child is further required to enter or cause to be entered the report of the missing child into the National Crime Information Center (NCIC) within two (2) hours of the receipt of the initial missing child report.

Acts 1985, ch. 158, § 3; 2009, ch. 76, § 1; 2012, ch. 856, § 1.

37-10-204. Reports to juvenile court judge — Missing child order.

  1. The law enforcement agency taking or making a report of a missing child shall submit its report, together with any additional data reduced to writing in the form of statements or notes, to a judge of the juvenile court within a reasonable time.
  2. The judge shall review the report and information and determine whether or not there is probable cause to believe the child is a missing child.
    1. If a decision of “missing child” is made, a “missing child” order shall be issued and delivered to any lawful officer or the Tennessee bureau of investigation authorizing the bureau or any officer holding the order, a true copy thereof or possessing knowledge of the existence thereof, to investigate the circumstances relating to the missing child in compliance with existing constitutional, statutory and case law and upon identification or location of the missing child to take custody of the child, using legal process when necessary, for immediate delivery to a judge of any juvenile or other court of record for appropriate orders and disposition pursuant to law.
    2. If probable cause for issuance of a “missing child” order is not found, the judge shall so order and the missing child report should be cancelled by the bureau, which shall give notice of the cancellation to all appropriate law enforcement agencies.
    1. If the court issues a “missing child” order pursuant to this section and believes that certain telephone records are necessary to or would be of assistance in locating such child, the court may send a copy of the “missing child” order and a written request for any telephone records the court believes to be pertinent to the missing child who is the subject of the order to any telecommunications service provider as defined in § 65-4-101. The request shall state with all reasonable specificity the precise telephone records requested and the reason such records are pertinent to locating the missing child.
    2. Upon receiving such a request, the telecommunications service provider shall, without delay and at no charge, supply the requested telephone records to the juvenile court judge issuing the request.

Acts 1985, ch. 158, § 4; 2004, ch. 627, § 1.

Cross-References. Interstate communication of criminal statistics, title 38, ch. 10.

37-10-205. Forms — File of missing children — Monthly reports of missing children — Dissemination of information.

The Tennessee bureau of investigation shall specify a uniform form for the missing child report and data, so that the same may be transmitted by computer or mail. The bureau shall also establish, maintain and manage a file of “missing children” and collect any available relevant data concerning the missing child and disseminate the same by computer, mail or any other reliable communication device to any law enforcement agency. The bureau shall publish a monthly report of all missing children and recovery of children and distribute the same to all full-time law enforcement agencies in the state, the general assembly and executive branches of government, to the news media, and to every director of schools in the state, who shall then distribute the report to the principal of every school within such director's school system. Whenever possible, this report shall contain the photographs of the missing children. The bureau is authorized to transmit information on missing children to the federal bureau of investigation or any other state maintaining missing children files and may conform its reports to any federal agency reports so as to facilitate the automated exchange of information.

Acts 1985, ch. 158, § 5; 1987, ch. 136, § 1.

Cross-References. Interstate communication of criminal statistics, title 38, ch. 10.

37-10-206. Child fingerprint cards.

Parents are authorized to have official fingerprint cards made for their children by taking their children to any law enforcement office or by having the same made by any private or public agency upon signing an authorization therefor. The Tennessee bureau of investigation shall deliver appropriate blank child fingerprint cards to law enforcement offices or private agencies upon request without cost. Whenever any child is fingerprinted as authorized in this section, the card shall be delivered to the Tennessee bureau of investigation or the parent as specified by the parent in the authorization form. The bureau shall not be required to accept any nonstandard child fingerprint card.

Acts 1985, ch. 158, § 6.

37-10-207. Children's fingerprint card file.

The Tennessee bureau of investigation shall maintain a separate fingerprint card file for “Children”, which shall consist of the “children” fingerprint cards submitted to it pursuant to § 37-10-206, together with any latent prints believed to be children's prints that have been submitted to it for purposes of identifying missing children. Once each year the bureau shall remove and return to the parent or destroy all fingerprint cards from the children's fingerprint file for children who have become eighteen (18) years of age, unless the child has been reported missing or the child requests in writing that such child's fingerprint remain in the file. Also, the bureau shall destroy any child's fingerprint card upon written request of the parent. The bureau is also authorized to receive “children” fingerprint cards or copies thereof from the federal bureau of investigation when the prints may have been sent directly to the bureau without having also been sent to the Tennessee bureau of investigation as herein provided. The bureau shall not file any of the children's fingerprints authorized herein in any other fingerprint card file. The bureau shall only search the children's fingerprint card file for the purpose of trying to locate or identify children who have been reported as missing children, and the file shall never be searched for the purpose of identifying a child as having committed a crime unless the parent so requests in writing.

Acts 1985, ch. 158, § 7.

37-10-208. Impact upon interstate compact on juveniles.

The provisions of §§ 37-10-201 — 37-10-207 are not intended to modify any of the provisions of chapter 4 of this title relating to the Interstate Compact on Juveniles, but the documents herein authorized may be used in aid of proceedings under that chapter.

Acts 1985, ch. 158, § 7.

37-10-209. Distribution of materials concerning missing children — Solicitation of contributions.

  1. No organization shall solicit contributions for the purpose of distributing materials containing information relating to missing children unless it complies with all of the following requirements:
    1. Such organization has been incorporated under title 48, chapters 51-68, or the nonprofit corporation law of another state prior to the time of the solicitation of contributions, or such organization is an unincorporated charitable association, trust, society, or other group; and
    2. It has been exempt from federal income taxation under 26 U.S.C. § 501(a) and described in 26 U.S.C. § 501(c)(3), 501(c)(4), 501(c)(8), 501(c)(10) or 501(c)(19) as now or hereafter amended, prior to the time of the solicitation of contributions.
  2. No organization that solicits contributions for the purpose of distributing materials containing information relating to missing children shall expressly state or imply in any way that it is affiliated with, or is soliciting contributions on behalf of, an organization established to assist in the location of missing children without the express written consent of that organization.
  3. Whoever violates subsection (a) or (b) is guilty of improper solicitation of contributions for missing children, which shall be punishable as a Class A misdemeanor.
  4. “Missing children” or “missing child” means a minor child who has run away from or who is otherwise missing from the home of, or the care, custody and control of, such child's parents, custodial parent, guardian, legal guardian, or other person having responsibility for the minor.
  5. Nothing in this section shall be construed as exempting any person or organization from the requirements of the Solicitation of Charitable Funds Act, compiled in title 48, chapter 101, part 5.

Acts 1986, ch. 759, § 1; 1989, ch. 591, §§ 1, 6.

Code Commission Notes.

The misdemeanor in this section has been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specification as to category is a Class A misdemeanor. See also § 39-11-114.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Part 3
Parental Consent for Abortions by Minors

37-10-301. Legislative intent and findings.

  1. It is the intent of the general assembly in enacting this parental consent provision to further the important and compelling state interests of:
    1. Protecting minors against their own immaturity;
    2. Fostering the family structure and preserving it as a viable social unit; and
    3. Protecting the rights of parents to rear children who are members of their household.
  2. The general assembly finds as fact that:
    1. Immature minors often lack the ability to make fully informed choices that take into account of both immediate and long-range consequences;
    2. The medical, emotional, and psychological consequences of abortion are serious and can be lasting, particularly when the patient is immature;
    3. The capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion are not necessarily related;
    4. Parents ordinarily possess information essential to a physician's exercise of the physician's best medical judgment concerning the child; and
    5. Parents who are aware that their minor daughter has had an abortion may better ensure that their daughter receives adequate medical attention after the abortion.
  3. The general assembly further finds that parental consultation is usually desirable and in the best interests of the minor.

Acts 1988, ch. 929, § 1.

Compiler's Notes. Acts 1995, ch. 458, §§ 1, 2 provided for the revival, reenactment and placing in full effect the provisions of §§ 37-10-301 — 37-10-307, which require parental consent to perform an abortion on a minor.

Cross-References. Abortion, title 39, ch. 15, part 2.

Ambulatory surgical care centers terminating pregnancies, licensing, § 68-11-223.

Child Rape Protection Act of 2006, § 39-15-210.

Public school nurse program, title 68, ch. 1, part 12.

Law Reviews.

Assisting Minors Seeking Abortions in Judicial Bypass Proceedings: A Guardian ad Litem Is No Substitute for an Attorney, 55 Vand. L. Rev. 581 (2002).

Attorney General Opinions. Health of the mother exception, defining gestation, OAG 97-062 (5/5/97).

Imposing a mandatory parental consent requirement upon a pregnant minor’s ability to obtain an abortion, without allowing a judicial by-pass procedure, would be unconstitutional, OAG 04-055 (3/30/2004).

Collateral References.

Women's Reproductive Rights Concerning Abortion, and Governmental Regulation Thereof — Supreme Court Cases. 20 A.L.R. Fed. 2d 1.

Validity, construction, and application of statutes requiring parental notification of or consent to minor's abortion. 77 A.L.R.5th 1.

37-10-302. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Abortion” means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a woman known to be pregnant with intent other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus;
  2. “Emancipated minor” means any minor who is or has been married or has by court order or otherwise been freed from the care, custody and control of the minor's parents; and
  3. “Minor” means any person under eighteen (18) years of age.

Acts 1988, ch. 929, § 2.

Compiler's Notes. Acts 1995, ch. 458, §§ 1, 2 provided for the revival, reenactment and placing in full effect the provisions of §§ 37-10-301 — 37-10-307, which require parental consent to perform an abortion on a minor.

Cross-References. Abortion, title 39, ch. 15, part 2.

Attorney General Opinions. The use of RU-486 can, depending on when the drug is administered to a given individual, fall under the definition of an “abortion” under T.C.A. § 37-10-302(a)(1); if the drug is administered before implantation of the embryo in the uterine wall, the drug is a contraceptive, but if the drug is administered after implantation of the embryo in the uterine wall, the drug serves to cause an abortion, OAG 01-30 (3/7/01).

Imposing a mandatory parental consent requirement upon a pregnant minor’s ability to obtain an abortion, without allowing a judicial by-pass procedure, would be unconstitutional, OAG 04-055 (3/30/2004).

37-10-303. Written consent required — Petition for waiver.

    1. No person shall perform an abortion on an unemancipated minor unless such person or such person's agent first obtains the written consent of one (1) parent or the legal guardian of the minor. The consent shall be signed. The person shall obtain some written documentation, other than the written consent itself, that purports to establish the relationship of the parent or guardian to the minor and the documentation, along with the signed consent, shall be retained by the person for a period of at least one (1) year. Failure of the person performing the abortion to obtain or retain the documentation and consent is a Class B misdemeanor, punishable only by a fine, unless the failure of the person performing the abortion to retain the required documentation was due to a bona fide, imminent medical emergency to the minor, in which case there is no violation.
    2. A person commits a Class A misdemeanor who impersonates the parent or legal guardian of an unemancipated minor for the purpose of circumventing the requirements of subdivision (a)(1).
  2. If neither a parent nor a legal guardian is available to the person performing the abortion or such person's agent, or the party from whom consent must be obtained pursuant to this section refuses to consent to the performance of an abortion, or the minor elects not to seek consent of the parent or legal guardian whose consent is required, then the minor may petition, on the minor's own behalf, or by next friend, the juvenile court of any county of this state for a waiver of the consent requirement of this section, pursuant to the procedures of § 37-10-304.
  3. If a criminal charge of incest is pending against a parent of such minor pursuant to § 39-15-302, the written consent of such parent, as provided for in subdivision (a)(1), is not required.

Acts 1988, ch. 929, § 3; 1995, ch. 458, § 3; 2006, ch. 932, §§ 1, 3.

Compiler's Notes. Acts 1995, ch. 458, §§ 1, 2 provided for the revival, reenactment and placing in full effect the provisions of §§ 37-10-301 — 37-10-307, which require parental consent to perform an abortion on a minor.

Cross-References. Abortion, title 39, ch. 15, part 2.

Penalties for Class A and B misdemeanors, § 40-35-111.

Research and experimentation upon aborted fetuses, consent of mother required, § 39-15-208.

Law Reviews.

Assisting Minors Seeking Abortions in Judicial Bypass Proceedings: A Guardian ad Litem Is No Substitute for an Attorney, 55 Vand. L. Rev. 581 (2002).

The Lawyer's Moval Autonomy & Formal Opinion 140 (Ernest F. Lidge III), 33 No. 1 Tenn. B.J. 12 (1997).

Attorney General Opinions. Residency and venue requirements, OAG 96-053 (3/26/96).

Imposing a mandatory parental consent requirement upon a pregnant minor’s ability to obtain an abortion, without allowing a judicial by-pass procedure, would be unconstitutional, OAG 04-055 (3/30/2004).

Disciplinary Board Opinions.

Court-appointed attorneys for minors seeking abortions via judicial bypass of parental consent did not commit ethical violations, where such procedure had not been found unconstitutional. Formal Ethics Opinion 96-F-140 (6/13/96).

NOTES TO DECISIONS

1. Venue.

The venue provision of subsection (b) of this section, which permits the minor seeking judicial bypass to petition the juvenile court of any Tennessee county, prevails over the more limited venue provision found in Rule 24 of the Rules of the Supreme Court of Tennessee.Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 1999 FED App. 162P, 1999 U.S. App. LEXIS 8481 (6th Cir. Tenn. 1999), rehearing denied, 184 F.3d 600, 1999 U.S. App. LEXIS 18895 (6th Cir. 1999).

2. Liability.

The district court properly found that the juvenile courts were bound by the Memphis Planned Parenthood  injunction, and because there was no judicial bypass procedure in place at the time that the minor received an abortion, defendants could not be liable under the Parental Consent Act, T.C.A. § 37-10-301 et seq., in the absence of a judicial bypass procedure. Blackard v. Memphis Area Med. Ctr. for Women, Inc., 262 F.3d 568, 2001 FED App. 286P, 2001 U.S. App. LEXIS 19024 (6th Cir. Tenn. 2001), cert. denied, 535 U.S. 1053, 122 S. Ct. 1908, 152 L. Ed. 2d 819, 2002 U.S. LEXIS 3230 (2002).

37-10-304. Applicability — Pseudonym — Counsel — Court proceedings — Appeals.

  1. The requirements and procedures under this part are available and apply to minors, whether or not they are residents of this state.
  2. The court shall ensure that the minor's identity is kept anonymous. The minor shall be allowed to proceed under a pseudonym and shall be allowed to sign all documents, including the petition, by that pseudonym. In any proceedings involving the use of a pseudonym by the minor, the court shall require one (1) copy of the petition to be filed, under seal, that contains the true name of the minor. This copy of the petition shall be kept in a separate file, under seal, and shall not be available for inspection by anyone, except as provided in subsection (h).
    1. The minor may participate in proceedings in the court on the minor's own behalf or through a next friend. The court shall advise the minor that the minor has a right to court-appointed counsel and shall provide the minor with such counsel upon the minor's request. The state shall further provide a court-appointed advocate in each judicial district to give information regarding the legal process to the minor and to coordinate with the court-appointed counsel. Such court-appointed advocates shall be compensated from funds appropriated for the reimbursement of court-appointed counsel.
    2. [Deleted by 2020 amendment.]
  4. Court proceedings under this section shall be given such precedence over other pending matters as is necessary to ensure that the court may reach a decision promptly, but in no case shall the court fail to rule within forty-eight (48) hours of the time of application; provided, that the forty-eight-hour limitation may be extended at the request of the minor. If, for any reason except the request of the minor, the court shall not have ruled within forty-eight (48) hours, the minor may deem the petition denied and immediately appeal the denial as provided in subsection (g). This provision is not deemed to restrict or forbid any other remedy now existing or hereafter enacted in such a situation.
  5. The consent requirement shall be waived if the court finds either that:
    1. The minor is mature and well-informed enough to make the abortion decision on the minor's own; or
    2. The performance of the abortion would be in the minor's best interests.
  6. A court that conducts proceedings under this section shall issue written and specific factual findings and legal conclusions supporting its decision and shall order that a confidential record of the evidence be maintained.
  7. An expedited, anonymous appeal shall be available to any minor. The appeal shall be de novo to the circuit court for the county in which the juvenile court is located. The appeal may be heard by the circuit court judge sitting in another county if necessary to meet the time limitations of this section. A notice of appeal shall be filed within twenty-four (24) hours of the decision by the juvenile court, but may be filed at any time, if the juvenile court has not ruled within forty-eight (48) hours of the filing of the petition. The record from the juvenile court must be received in the circuit court and the appeal docketed there within five (5) calendar days of the filing of the notice of appeal. The appeal shall be heard and a decision rendered by the circuit court within five (5) calendar days from when the case is docketed in the circuit court. For the purpose of expediting the appellate procedure under this section, the time requirements of this section may be reduced by the Tennessee supreme court pursuant to its rulemaking authority in order to ensure an expedited appeal. The decision of the circuit court shall be appealable to the Tennessee supreme court in an anonymous and expedited manner as provided by the rules of the Tennessee supreme court. Jurisdiction under this section will remain in the Tennessee supreme court, notwithstanding any other statute or rule to the contrary.
  8. All court files, documents, exhibits, and all other records lodged in or subject to the control of the court shall be kept confidential and under seal. Statistical summaries of these proceedings may be compiled for such reporting purposes as the supreme court may by rule require or allow. However, no information shall be released for these purposes that would tend to identify any minor who has made use of this procedure.
  9. The supreme court is respectfully requested to promulgate any rules necessary to ensure that proceedings under this part are handled in an expeditious and anonymous manner, including any amendments to the Tennessee Rules of Appellate Procedure, Tennessee Rules of Civil Procedure and Tennessee Rules of Juvenile Procedure.
  10. No fees shall be required of any minor who makes use of the procedures provided by this section.

Acts 1988, ch. 929, § 4; 1989, ch. 412, § 1; 2020, ch. 764, § 1.

Compiler's Notes. Acts 1995, ch. 458, §§ 1, 2 provided for the revival, reenactment and placing in full effect the provisions of §§ 37-10-301 — 37-10-307, which require parental consent to perform an abortion on a minor.

Amendments. The 2020 amendment deleted (c)(2) which read: “The department of children's services shall assign from existing staff at least one (1) court advocate in each judicial district to provide minors with information regarding requirements and procedures established by the provisions of this part, to assist in coordination of the activities of court-appointed counsel, to attend legal proceedings with the minor or the minor's next friend, and to make available written material concerning the provisions and applications of this part. The advocate shall be trained in the juvenile court procedures, in the procedures established by this part, and in counseling minors. The department shall provide a toll-free telephone number for minors to use in order to obtain the telephone number and address of a court advocate. The department shall further provide and distribute a written brochure or information sheet that summarizes the provisions and applications of this part and that contains the toll-free telephone number as well as the names, addresses, and telephone numbers of the court advocates in each judicial district.”

Effective Dates. Acts 2020, ch. 764, § 4. July 13, 2020.

Cross-References. Abortion, title 39, ch. 15, part 2.

Confidentiality of public records, § 10-7-504.

Expedited appeals of denial of consent for abortion, Tenn. R. Sup. Ct. 24.

Rule Reference. This section is referred to in Rules 13 and 24 of the Rules of the Supreme Court of Tennessee.

This section is referred to in the Advisory Commission Comments under Rule 27 of the Tennessee Rules of Juvenile Procedure.

Law Reviews.

Assisting Minors Seeking Abortions in Judicial Bypass Proceedings: A Guardian ad Litem Is No Substitute for an Attorney, 55 Vand. L. Rev. 581 (2002).

Disciplinary Board Opinions.

Court-appointed attorneys for minors seeking abortions via judicial bypass of parental consent serves not as guardian ad litem but as advocate for the minor; such counsel must not fail to seek the minor's lawful objective, and has a duty of undivided loyalty to the minor. Formal Ethics Opinion 96-F-140 (6/13/96).

Attorney General Opinions. Interpretation of various aspects of judicial bypass, OAG 96-053 (3/26/96).

Imposing a mandatory parental consent requirement upon a pregnant minor’s ability to obtain an abortion, without allowing a judicial by-pass procedure, would be unconstitutional, OAG 04-055 (3/30/2004).

NOTES TO DECISIONS

1. Appeal.

The judicial bypass procedure's twenty-four hour period for filing a notice of appeal does not place an undue burden upon a minor's ability to obtain a judicial bypass since: (1) A minor may file or arrange for her attorney's filing of a notice of appeal before or at the conclusion of the hearing on her petition; (2) The window of time within which the minor must remain in contact with the court is only forty-eight hours; (3) The minor has and must be notified that she has the right to appointed counsel; and (4) The appeal provision expedites the judicial bypass process and thereby serves the significant state interest in protecting the health of the minor. Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 1999 FED App. 162P, 1999 U.S. App. LEXIS 8481 (6th Cir. Tenn. 1999), rehearing denied, 184 F.3d 600, 1999 U.S. App. LEXIS 18895 (6th Cir. 1999).

The de novo hearing provision of subsection T.C.A. § 37-10-304(g) does not create an unconstitutional burden since requiring a hearing at both the juvenile and circuit court levels best serves the purpose of assuring that those minors who qualify for judicial bypass receive it and that those who do not qualify must obtain parental consent. Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 1999 FED App. 162P, 1999 U.S. App. LEXIS 8481 (6th Cir. Tenn. 1999), rehearing denied, 184 F.3d 600, 1999 U.S. App. LEXIS 18895 (6th Cir. 1999).

2. Invalid Injunction.

The district court abused its discretion in enjoining the state from enforcing this statute and Rule 24 of the Rules of the Supreme Court of Tennessee rather than severing the provisions it found offensive and leaving the remainder intact. Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 1999 FED App. 162P, 1999 U.S. App. LEXIS 8481 (6th Cir. Tenn. 1999), rehearing denied, 184 F.3d 600, 1999 U.S. App. LEXIS 18895 (6th Cir. 1999).

37-10-305. Medical emergencies.

The requirements of § 37-10-303 shall not apply when, in the best medical judgment of the physician based on the facts of the case before the physician, a medical emergency exists that so complicates the pregnancy as to require an immediate abortion.

Acts 1988, ch. 929, § 5.

Compiler's Notes. Acts 1995, ch. 458, §§ 1, 2 provided for the revival, reenactment and placing in full effect the provisions of §§ 37-10-301 — 37-10-307, which require parental consent to perform an abortion on a minor.

Attorney General Opinions. Imposing a mandatory parental consent requirement upon a pregnant minor’s ability to obtain an abortion, without allowing a judicial by-pass procedure, would be unconstitutional, OAG 04-055 (3/30/2004).

37-10-306. Violations.

Any person who intentionally performs an abortion with knowledge that, or with reckless disregard as to whether the person upon whom the abortion is to be performed is an unemancipated minor, and who intentionally or knowingly fails to conform to any requirement of this part, commits a Class A misdemeanor.

Acts 1988, ch. 929, § 6; 1989, ch. 591, §§ 1, 6.

Code Commission Notes.

The misdemeanor in this section has been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specification as to category is a Class A misdemeanor. See also § 39-11-114.

Compiler's Notes. Acts 1995, ch. 458, §§ 1, 2 provided for the revival, reenactment and placing in full effect the provisions of §§ 37-10-301 — 37-10-307, which require parental consent to perform an abortion on a minor.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Attorney General Opinions. Imposing a mandatory parental consent requirement upon a pregnant minor’s ability to obtain an abortion, without allowing a judicial by-pass procedure, would be unconstitutional, OAG 04-055 (3/30/2004).

NOTES TO DECISIONS

1. In General.

The district court properly found that the juvenile courts were bound by the Memphis Planned Parenthood  injunction, and because there was no judicial bypass procedure in place at the time that the minor received an abortion, defendants could not be liable under the Parental Consent Act, T.C.A. § 37-10-301 et seq., in the absence of a judicial bypass procedure. Blackard v. Memphis Area Med. Ctr. for Women, Inc., 262 F.3d 568, 2001 FED App. 286P, 2001 U.S. App. LEXIS 19024 (6th Cir. Tenn. 2001), cert. denied, 535 U.S. 1053, 122 S. Ct. 1908, 152 L. Ed. 2d 819, 2002 U.S. LEXIS 3230 (2002).

37-10-307. Civil actions.

  1. Failure to obtain consent pursuant to the requirements of this part is prima facie evidence of failure to obtain informed consent and of interference with family relations in appropriate civil actions. The law of this state shall not be construed to preclude the award of exemplary damages in any appropriate civil action relevant to violations of this part. Nothing in this part shall be construed to limit the common law rights of parents.
  2. In addition to the action provided for in subsection (a), a person or entity that fails to comply with the notice requirements of § 39-15-202(a)(2) [See Compiler's Notes] shall be subject to the penalties and action provided for in § 39-15-202(a)(3) [See Compiler's Notes].

Acts 1988, ch. 929, § 7; 2010, ch. 790, § 3.

Compiler's Notes. Acts 2010, ch. 790, § 1 provided that the act shall be known and may be cited as the “Freedom From Coercion Act.”

Acts 1995, ch. 458, §§ 1, 2 provided for the revival, reenactment and placing in full effect the provisions of §§ 37-10-301 — 37-10-307, which require parental consent to perform an abortion on a minor.

Section 39-15-202, referred to in (b), was rewritten by Acts 2015, ch. 473, §  1, effective July 1, 2015. Current provisions relating to the notice requirements and penalties formerly found in subdivisions (a)(2) and (a)(3) may now be found in §  39-15-202(i).

Cross-References. Research, photography, sale and experimentation on aborted fetuses, consent of mother required, § 39-15-208.

Law Reviews.

Assisting Minors Seeking Abortions in Judicial Bypass Proceedings: A Guardian ad Litem Is No Substitute for an Attorney, 55 Vand. L. Rev. 581 (2002).

Disciplinary Board Opinions.

Right of attorney appointed on behalf of minor seeking abortion via judicial bypass procedure to decline the appointment for moral, religious or malpractice insurance reasons. Formal Ethics Opinion 96-F-140 (6/13/96).

Attorney General Opinions. Imposing a mandatory parental consent requirement upon a pregnant minor’s ability to obtain an abortion, without allowing a judicial by-pass procedure, would be unconstitutional, OAG 04-055 (3/30/2004).

NOTES TO DECISIONS

1. In General.

The district court properly found that the juvenile courts were bound by the Memphis Planned Parenthood  injunction, and because there was no judicial bypass procedure in place at the time that the minor received an abortion, defendants could not be liable under the Parental Consent Act, compiled in T.C.A. § 37-10-301 et seq., in the absence of a judicial bypass procedure. Blackard v. Memphis Area Med. Ctr. for Women, Inc., 262 F.3d 568, 2001 FED App. 286P, 2001 U.S. App. LEXIS 19024 (6th Cir. Tenn. 2001), cert. denied, 535 U.S. 1053, 122 S. Ct. 1908, 152 L. Ed. 2d 819, 2002 U.S. LEXIS 3230 (2002).

37-10-308. Severability.

If any one (1) or more provision, section, subsection, sentence, clause, phrase or word of this part or the application thereof to any person or circumstance is found to be unconstitutional, the same is declared to be severable and the balance of this part shall remain effective notwithstanding the unconstitutionality. The legislature declares that it would have passed this part, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one (1) or more provision, section, subsection, sentence, clause, phrase or word be declared unconstitutional.

Acts 2006, ch. 932, § 2.

Attorney General Opinions. Imposing a mandatory parental consent requirement upon a pregnant minor’s ability to obtain an abortion, without allowing a judicial by-pass procedure, would be unconstitutional, OAG 04-055 (3/30/2004).

Part 4
Childhood Immunizations

37-10-401. Responsibility of parents to have children immunized — Specific vaccines — Immunization registry.

  1. It is the responsibility of each parent or legal guardian to ensure that such person's child or children receive the vaccines as are recommended by guidelines of the Center for Disease Control or the American Academy of Pediatrics to be administered to a child. The parent or legal guardian is encouraged to obtain the recommended immunizations within the first two (2) years of the child's life. Such vaccines include, without limitation, the following specific vaccines:
    1. Diphtheria-tetanus-pertussis (DTP);
    2. Polio: oral polio vaccine (OPV) or inactivated polio vaccine (IPV);
    3. Measles-mumps-rubella (MMR);
    4. Haemophilus influenzae type b conjugate vaccines (Hib);
    5. Hepatitis B vaccine (Hep B);
    6. Pneumoccocal vaccine, when medically indicated;
    7. Influenza vaccine, when medically indicated; and
    8. Varicella, when available.
  2. Subject to availability of funding for such purpose, the department of health is authorized to provide free vaccine, through the first twenty-four (24) months of life, for Tennessee children born after January 1, 1996. If an administration fee is charged by a health provider receiving this vaccine, such fee may not exceed the administration fee established by the health care financing administration under the Vaccines for Children Program established in the Omnibus Budget Reconciliation Act of 1993. No immunization may be withheld due to a family's inability to pay the fee.
  3. The department shall establish and maintain an immunization registry for children. By January 1, 1996, the department shall incrementally require all local public health departments to report, in a designated format, the record of each immunization given. Other health care providers or any third party payor or health insurance entity regulated by the department of commerce and insurance doing business in Tennessee, or any entity that has elected, organized and qualified as a self-insured entity may likewise report such records. Information from the registry shall be available to parents and legal guardians; health care providers; any third party payor or health insurance entity regulated by the department of commerce and insurance doing business in Tennessee; any entity that has elected, organized and qualified as a self-insured entity; and schools, child care facilities, and other institutions having care or custody of children.
  4. The commissioner of health shall report to the members of the health committee of the house of representatives, and the  health and welfare committee of the senate, by March 1 of each year, on the immunization rates in each county and improvements or changes made during the preceding year.

Acts 1993, ch. 377, § 1; 1995, ch. 537, §§ 1, 2; 2003, ch. 40, § 2; 2011, ch. 410, § 3(bb); 2013, ch. 236, § 54.

Compiler's Notes. The program referred to in (b) is apparently the program for distribution of pediatric vaccines established by 42 U.S.C. § 1396s.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Collateral References.

Power of court or other public agency to order vaccination over parental religious objection. 94 A.L.R.5th 613.

37-10-402. Conflict with religious tenets and practices of parent.

In the absence of an epidemic or immediate threat thereof, this section does not apply to any child whose parent or guardian files with proper authorities a signed, written statement that such immunization and other preventative measures conflict with the religious tenets and practices of the parent or guardian affirmed under penalties of perjury.

Acts 1993, ch. 377, § 1.

Cross-References. Perjury, title 39, ch. 16, part 7.

Collateral References.

Power of court or other public agency to order vaccination over parental religious objection. 94 A.L.R.5th 613.

37-10-403. Immunity from criminal and civil liability.

No parent or legal guardian shall be criminally prosecuted nor civilly liable for failure to comply with the provisions of this part.

Acts 1993, ch. 377, § 2.

Part 5
Information on Child Abuse Prevention

37-10-501. Promotion of parental help line for prevention of child abuse.

In an effort to inform the citizens of Tennessee of a free resource for families and reduce instances of child abuse, the following measures shall be performed. All public transportation buses within the state of Tennessee are urged to promote the existence of a parental help line organized by the nonprofit organization Prevent Child Abuse Tennessee and the telephone numbers for such organization, 1-800-356-6767 and 1-800-CHILDREN, as space allows in interior advertising. The department of education shall require all local education agencies to distribute information on the help line, including the telephone number, to students and the students' parents. The department of human services shall also require any licensed child care facility to distribute information on the help line, including the telephone number, to children who attend the facility and the children's parents. This section shall assist children, parents, teachers and child care workers in providing the information and support necessary for the positive development of children through a currently existing, and free to the public, resource.

Acts 2010, ch. 1105, § 1.

Chapter 11
Juvenile Offender Surcharges

37-11-101. Legislative findings and intent.

The general assembly hereby finds, determines, and declares that the commission of violent crimes by juveniles exacts an unacceptable toll on the fiscal resources of both state and local governments and thereby increases the financial burden upon the taxpayers of this state. It is the intent of the general assembly in enacting this chapter to require, as much as possible, that juveniles convicted as adults of violent crimes pay for the cost of the rehabilitation, education, and treatment of juveniles sentenced to the youthful offender system or committed to the department of correction.

Acts 1994, ch. 984, § 1.

37-11-102. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Convicted” and “conviction” means a plea of guilty or a verdict of guilty by a judge or jury, and includes a plea of no contest accepted by the court;
  2. “Juvenile” means a person under eighteen (18) years of age; and
  3. “Violent crime” means a felony enumerated as a violent crime under § 40-35-118 or a felony involving a weapon or firearm.

Acts 1994, ch. 984, § 1.

37-11-103. Disposition of juvenile fines — Youthful offender system fund.

  1. Each juvenile who is convicted as an adult of a violent crime shall be required to pay any fine imposed by the court to the clerk of such court, who shall allocate the fine as follows:
    1. Five percent (5%) shall be retained by the clerk for administrative costs incurred pursuant to this section. Such amount retained shall be transmitted to the state treasurer, who shall credit the same to the general fund, and such amount shall be subject to appropriation by the general assembly for the costs of such administration;
    2. Ninety-five percent (95%) shall be transferred to the state treasurer who shall credit the same to the youthful offender system fund created pursuant to subsection (b).
  2. There is hereby created in the state treasury a youthful offender system fund, which shall consist of moneys received by the state treasurer pursuant to subdivision (a)(2). In accordance with § 8-22-118, all interest derived from the deposit and investment of this fund shall be credited to the general fund. Any moneys not appropriated by the general assembly shall remain in the youthful offender system fund and shall not be transferred or revert to the general fund of the state at the end of any fiscal year. All moneys in the fund shall be subject to annual appropriation by the general assembly to the division of youth services in the department of correction to cover the direct and indirect costs associated with the rehabilitation, education, and treatment of juvenile offenders committed to the department.

Acts 1994, ch. 984, § 1.

Compiler's Notes. Acts 1994, ch. 984, § 1 potentially authorized the creation of a youthful offender system; however, such system, was not approved by the Ninety-Eighth General Assembly.