Article II. Prehearing Procedures

215

Rule 14: Informal Adjustment in Delinquent and Unruly Cases.

(a) Criteria for Informal Adjustment. Subject to court approval, on a case-by-case basis, and in accordance with local rules, if after investigation in a delinquent or unruly case, the designated court officer concludes that a child is within the jurisdiction of the juvenile court, the officer may undertake to remedy the situation by giving counsel and advice to the parties with a view to an informal adjustment of the case. Such counsel shall not continue for more than three months unless extended by the court pursuant to T.C.A. § 37-1-110. In determining whether informal adjustment should be undertaken, the designated court officer may consider:

(1) Whether the child has had a problem in the home, school or community which indicates that some supervision would be desirable;

(2) Whether the child and the parent, guardian or legal custodian seem able to resolve the matter with the assistance of the designated court officer or other court staff, and without formal juvenile court action;

(3) Whether further observation or evaluation by the designated court officer is needed before a decision can be reached;

(4) The attitude of the child, the parent, guardian, or legal custodian, and/or any other affected persons or agencies;

(5) The age, maturity and mental condition of the child;

(6) The prior history or record, if any, of the child;

(7) The recommendation, if any, of the referring party or agency;

(8) Any other circumstances which indicate that informal adjustment would be consistent with the welfare and safety of the child and the protection of the public.

(b) Notice to Parties.

(1) When the designated court officer determines that informal adjustment is appropriate, the officer shall notify the child and the child's parent, guardian or legal custodian, by letter, telephone or otherwise, to attend a conference at a designated date, time, and place.

(2) At the time the notice to attend the conference is made, the child and his parent, guardian or legal custodian shall be informed that they may be represented by an attorney at the conference.

(c) Informal Adjustment Conference.

(1) If the child and the child's parent, guardian or legal custodian appear at the informal adjustment conference without an attorney, the designated court officer shall at the commencement of the conference inform them of their right to an attorney and the right of the child to decline to discuss the allegations of the petition or complaint. After being so informed, if either the child or the child's parent, guardian or legal custodian indicates a desire to be represented by an attorney, the designated court officer shall adjourn the conference to afford them an opportunity to hire an attorney, or shall provide a court-appointed attorney for any child who is unable to afford an attorney or whose parents refuse to hire an attorney against the wishes of the child.

(2) The designated court officer shall inform the child and the child's custodian:

(i) That information has been received concerning the child which appears to establish the jurisdiction of the juvenile court to act under the Juvenile Code;

(ii) That the officer intends to discuss with them (A) recommendations for action or conduct in the interests of the child to correct the conditions of behavior or environment which may exist; (B) continuing conferences and contacts with the child and the child's parent, guardian or legal custodian by the designated court officer or other authorized persons; and (C) the child's general behavior, the home and school environment, and other factors bearing upon the proposed informal adjustment;

(iii) That during the informal adjustment process no further formal proceedings will occur on the present allegation(s);

(iv) That the informal adjustment process is voluntary with the child and the child's parent, guardian or legal custodian, and that they may withdraw from informal adjustment at any time;

(v) That for purposes of the informal adjustment, the jurisdiction of the court and the allegations of fact in the complaint or petition are and will be assumed to be true, but that the designated court officer will not make a finding of fact, nor will any information obtained or divulged or the fact of an attempted informal adjustment be used as evidence in the event of a court hearing, nor does the agreement to an informal adjustment necessarily constitute an admission of the alleged facts;

(vi) That if the child or the child's parent, guardian or legal custodian denies that the juvenile court has jurisdiction to act under the Juvenile Code, or wishes the facts to be determined by the court at a hearing, no further effort will be made to arrive at informal adjustment and the case will be set for a hearing;

(vii) That the designated court officer may terminate the effort at informal adjustment at any time and thereupon may request dismissal of the case without further proceedings;

(viii) That the designated court officer may file a petition or proceed on a previously filed petition in the juvenile court if the child has not followed the conditions and requirements recommended at the informal adjustment conference or has withdrawn therefrom; and

(ix) That if the child successfully completes the informal adjustment program recommended by the designated court officer, no petition will be filed on the charges which are the subject matter of the complaint forming the basis for the informal adjustment or, if a petition has been filed, the matter shall be dismissed with prejudice.

(3) Following the initial conference, subsequent conferences may be scheduled by the designated court officer during the informal adjustment process.

(d) Termination of Informal Adjustment.

(1) The designated court officer may terminate the informal adjustment process and request dismissal of the case without further proceedings if the child successfully completes the recommended informal adjustment program or if other sufficient reasons exist for dismissal.

(2) The designated court officer may terminate the informal adjustment and file a petition in the juvenile court if at any time the child or the child's parent, guardian or legal custodian:

(i) Declines to participate further in the informal adjustment process;

(ii) Denies the jurisdiction of the court to act under the Juvenile Code;

(iii) Expresses a desire that the facts be determined by the court;

(iv) Fails without reasonable excuse to attend scheduled conferences; or

(v) Fails to comply with the terms of the informal adjustment program.

(3) The informal adjustment process shall not continue beyond a period of three months from its commencement unless extended by the court for an additional period not to exceed six months by an order entered prior to the expiration of the original three-month period.

(4) Upon termination of the informal adjustment process, the designated court officer shall notify the child and the child's parent, guardian or legal custodian thereof and report such action to the court. Such notification shall include the basis for the termination.

(5) When a matter is informally adjusted, such disposition precludes any confinement of the child on that matter during the period of the informal adjustment.

Advisory Commission Comments.

The intent of Rule 14 is to allow local courts flexibility in how they handle informal adjustment, but also to spell out those basic procedures which must take place in every case in which informal adjustment is undertaken to assure that informal adjustment is voluntary, as required in T.C.A. § 37-1-110. Over and above these mandated procedures, local courts may adopt local rules and procedures which may address such issues as whether informal adjustment is to be handled on a case by case basis and what programs may be used in the informal adjustment of cases. It should further be noted that, although attitude may be a factor under section (a)(4) to consider in determining whether to undertake informal adjustment, it should not be the sole basis for denying informal adjustment.

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