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conferred by special or private act upon any of the juvenile courts in the state are not intended to be invalidated or repealed by this part, except where inconsistent or in conflict with any provisions of this part.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);
      1. 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;
      2. 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;
      3. 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
      4. 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), rev'd, 576 S.W.3d 356, 2019 Tenn. LEXIS 218 (Tenn. May 29, 2019).

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), rev'd, 576 S.W.3d 356, 2019 Tenn. LEXIS 218 (Tenn. May 29, 2019).

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), rev'd, 576 S.W.3d 356, 2019 Tenn. LEXIS 218 (Tenn. May 29, 2019).

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), rev'd, 576 S.W.3d 356, 2019 Tenn. LEXIS 218 (Tenn. May 29, 2019).

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), rev'd, 576 S.W.3d 356, 2019 Tenn. LEXIS 218 (Tenn. May 29, 2019).

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), rev'd, 576 S.W.3d 356, 2019 Tenn. LEXIS 218 (Tenn. May 29, 2019).

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), rev'd, — S.W.3d —, 2020 Tenn. LEXIS 597 (Tenn. Dec. 16, 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), rev'd, — S.W.3d —, 2020 Tenn. LEXIS 597 (Tenn. Dec. 16, 2020).

Trial court's finding that the mother's failure to exercise appropriate judgment by allowing an intoxicated man whom she had only known three days into her apartment and then agreeing to give him a ride supported a finding of dependency and neglect In re Crystal W., — S.W.3d —, 2021 Tenn. App. LEXIS 19 (Tenn. Ct. App. Jan. 21, 2021).

Determination that the children were dependent and neglected as to the mother was supported by the trial court's consideration of the mother's cooperation with her case manager in taking her medication, her anger issues, her failure to understand the severity of her mental health issues as shown by her belief that she did not need her prescribed medication and was only taking them to show the court she was fit to care for her children. In re Crystal W., — S.W.3d —, 2021 Tenn. App. LEXIS 19 (Tenn. Ct. App. Jan. 21, 2021).

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), appeal denied, In re Anniston H., — S.W.3d —, 2018 Tenn. LEXIS 52 (Tenn. Jan. 18, 2018).

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), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 516 (Tenn. Sept. 18, 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), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 516 (Tenn. Sept. 18, 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), rev'd, — S.W.3d —, 2020 Tenn. LEXIS 597 (Tenn. Dec. 16, 2020).

Mother's parental rights were properly terminated because the circuit court entered an order adjudicating the children dependent and neglected and found that the mother's failure to protect the deceased child rose to the knowing requirement to establish severe abuse as to that child. In re Jaylan J., — S.W.3d —, 2020 Tenn. App. LEXIS 593 (Tenn. Ct. App. Dec. 22, 2020).

Trial court did not err by finding by clear and convincing evidence that the child was the victim of severe child abuse under T.C.A. § 36-1-113(g)(4) based on the parents knowingly exposing her to methamphetamine,, due to the father smoking methamphetamine in her presence and the mother knowing that he was doing so because the parents did not appeal the dependency and neglect order that found that they committed severe child abuse against the child. In re F.S., — S.W.3d —, 2021 Tenn. App. LEXIS 40 (Tenn. Ct. App. Feb. 4, 2021).

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), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 692 (Tenn. Nov. 14, 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), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 13 (Tenn. Jan. 18, 2019).

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.
  4. 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.
  5. 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.
  6. 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), rev'd, 576 S.W.3d 356, 2019 Tenn. LEXIS 218 (Tenn. May 29, 2019).

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, 576 S.W.3d 356, 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, 576 S.W.3d 356, 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.
    1. 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.
  4. 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.
  5. 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.
  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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, 582 S.W.3d 241, 2019 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 18, 2019), appeal denied, State ex rel. Groesse v. Sumner, — S.W.3d —, 2019 Tenn. LEXIS 277 (Tenn. June 20, 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), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 303 (Tenn. May 16, 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, 582 S.W.3d 241, 2019 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 18, 2019), appeal denied, State ex rel. Groesse v. Sumner, — S.W.3d —, 2019 Tenn. LEXIS 277 (Tenn. June 20, 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.
  1. 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.
  2. 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.
  3. 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.
    3. 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.
  9. 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.
  1. 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.
    2. 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.
    3. 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.
  1. 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.
  1. [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.
  2. 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.
    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
  3. 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.
    3. 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), rev'd, — S.W.3d —, 2020 Tenn. LEXIS 597 (Tenn. Dec. 16, 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
      1. The child needs services or treatment that are available only if the child is in custody; and
      2. The services or treatment the child needs are evidence-based and will be provided by a qualified provider;
      3. 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;
      4. 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);
      5. 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;
      6. 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;
      7. 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;
      8. In no event shall a child be delayed from attending school for more than five (5) school days from the date of notice;
      9. 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;
      10. 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;
      11. 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;
    2. 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.
    2. 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.
    3. 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.
    4. 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;
    1. A hearing on whether the transfer should be made is held in conformity with §§ 37-1-124, 37-1-126 and 37-1-127;
    2. 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
    3. 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.
  6. 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.
  7. 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).
  8. 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.
  9. 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.
  10. 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.
  11. 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).

Juvenile court did not err in transferring defendant to criminal court because, from the record, it appeared that the juvenile court was presented with probable cause to conclude that defendant was not committable to an institution for either the mentally disabled or the mentally ill and that the interests of the community would be best served by legal restraint. State v. Golden, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 692 (Tenn. Crim. App. Oct. 23, 2020).

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 FED App. 93N, 722 Fed. Appx. 552, 2018 U.S. App. LEXIS 4780 (6th Cir. Feb. 27, 2018), cert. denied, 202 L. Ed. 2d 32, 139 S. Ct. 123, — U.S. —, 2018 U.S. LEXIS 4865 (U.S. Oct. 1, 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), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 323 (Tenn. June 3, 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), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 424 (Tenn. Aug. 7, 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.
    1. 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).
    2. Such report shall be prepared by the probation officer assigned to the juvenile to be committed.
    3. 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.
    4. 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.
    5. 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.
    1. 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.
    1. 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.
  1. 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.
    3. 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), rehearing denied, — S.W.3d —, 2018 Tenn. App. LEXIS 364 (Tenn. Ct. App. June 27, 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.
  2. 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.
  3. 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.
    3. 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.
  2. 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).
  3. 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.
  4. 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
    1. 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.
  4. 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;
      1. 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
      2. 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
    1. 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.
  4. 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.
  1. 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.
  2. 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.
  1. 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. §§ 37-1-30237-1-322, 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), rev'd, — S.W.3d —, 2020 Tenn. LEXIS 597 (Tenn. Dec. 16, 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.
  2. 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.
  3. 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).
  7. 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), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 461 (Tenn. July 12, 2018).

In a termination of parental rights case, the Department of Children's Services (DCS) made reasonable efforts to assist the mother in establishing a suitable home in the four months following removal of the children, including providing transportation and services to allow the mother to participate in supervised therapeutic visitation with the children, but she failed to follow up on information concerning housing opportunities and obtaining a mental health assessment; she voluntarily ceased attending individual counseling during the first four months the children were in DCS custody; and she refused to participate in family counseling, even telephonically. In re Treymarion S., — S.W.3d —, 2020 Tenn. App. LEXIS 599 (Tenn. Ct. App. Dec. 30, 2020).

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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  2. 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.
  3. 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, 33-3-61033-3-616, 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 §§ 37-1-17537-1-181 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.
  1. 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.
  2. 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. §§ 37-1-30337-1-322, 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.
  1. 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.
  2. 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.
  1. 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).
  2. 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.
  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 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.
  4. 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.
  5. Every physician or other person