(a) Initial Inquiry by Court. At the beginning of each hearing, the court shall ascertain whether all necessary persons are before the court, which may include the child, parents (including alleged biological fathers), guardian or other custodian, and other parties and participants to the proceeding. If a necessary person is not present, the court shall determine whether notice of the hearing was provided to that person and whether the hearing may proceed.
(b) Responsibility of Department when Party to Proceeding. If a parent’s identity or whereabouts are unknown and the Department of Children’s Services is a party to the proceedings, the court shall ascertain whether the Department has made reasonable efforts to determine the identity and the whereabouts of the absent parent and include such finding in its order.
(c) Participation by Contemporaneous Means. Inany proceeding, for good cause shown in compelling circumstances and with appropriate safeguards, the court may permit participation in open court by contemporaneous audio-visual transmission from a different location. However, during a delinquent or unruly adjudicatory hearing, a witness may only testify from a different location if the child has waived the right to confrontation.
Advisory Commission Comments.
The 2016 amendment is based on the requirements of the previous rule regarding permanency hearings. It is important that juvenile courts make the same inquiries at all hearings. If the court determines that an absent party did not receive adequate notice of the hearing, then the hearing should be continued.
Statutory law should be consulted in determining whether a participant is a necessary person pursuant to subdivision (a). T.C.A. § 37-1-149(b) provides for the appointment of a court appointed special advocate (CASA) to act in the best interests of the child “during and after court proceedings.” T.C.A. § 37-2-416 specifies that foster parents, prospective adoptive parents, or a relative providing care for a child in state custody should be notified of any hearing or review to be held with respect to the child. The statute indicates these persons have a right to be heard at any hearing or review. However, these statutes do not confer party status to CASA volunteers, foster parents, prospective adoptive parents, or a relative providing care for a child. If these participants are to testify, they should be treated as any other witness.
When a parent, who is absent due to that parent’s incarceration, expresses a desire to participate by audio-visual means, the court should request that the facility make reasonable accommodations to allow that parent’s participation possible. If the facility where the parent is incarcerated is able to transport and guard the parent for the purpose of in-person participation, the court should assist with coordinating those efforts.
When the court is determining whether or not the Department of Children’s Services has made reasonable efforts to ascertain the identity and whereabouts of an absent parent, the court may find it helpful to consult the Department’s Administrative Policies and Procedures on conducting diligent searches.
Subdivision (c) is similar to Tenn. R. Civ. P. 43.01 and allows for participation by a party or witness by contemporaneous audio-visual transmission from a different location. This should be allowed only for good cause, in compelling circumstances, and with appropriate safeguards. Additionally, a number of statutes permit telephonic testimony in certain types of cases. See, e.g., Tenn. Code Ann. § 24-7-121(d) (2000) (permitting telephonic testimony regarding payment records in child support cases); Tenn. Code Ann. § 34-8-106(b) (Supp. 2014) (permitting witnesses located in other states to testify by telephone in conservatorship or guardianship proceedings); Tenn. Code Ann. § 36-1-113(f)(3) (2014) (permitting an incarcerated parent or guardian to participate by telephone in a hearing to terminate parental rights); Tenn. Code Ann. § 36-5-2316(f) (2014) (permitting a witness located in another state to testify by telephone in cases under the Uniform Interstate Family Support Act); Tenn. Code Ann. § 36-6-214(b) (2014) (permitting a witness located in another state to testify by telephone in cases under the Uniform Child Custody Jurisdiction and Enforcement Act). Participation by an attorney from a different location may be appropriate in preliminary or administrative matters.