(a) Except in cases where the petition has been heard upon the merits and dismissed, the procedures herein shall be followed to obtain appropriate relief under this rule.
(b) Modification of Orders.
(1) Clerical Mistakes. Clerical mistakes and errors arising from oversight or omission in orders or other parts of the record may be corrected by the court at any time on its own initiative or on motion of any party.
(2) Modification for Changed Circumstances. An order of the court may be modified on the ground that, since the entry of the order, changed circumstances and the best interests of the child require it; however, an order committing a delinquent or unruly child to the Department of Children's Services or an order of dismissal may not be modified on these grounds.
(3) Modification for Newly Discovered Evidence. A dispositional order may be modified on the ground that newly discovered evidence so requires. The court, in making this determination, shall make any modification consistent with the best interests of the child.
(c) Relief from Judgments or Orders.
An order of the court shall be set aside if it is determined that:
(1) It was obtained by fraud or mistake sufficient to satisfy the legal requirements for relief 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. The court must determine that, with regard to such newly discovered evidence, the movant was without fault in failing to present such evidence at the original proceeding, and that such evidence may have resulted in a different judgment at the original proceeding.
(d) Procedure. Any party to a proceeding, a probation officer, or other person having supervision or legal custody of or an interest in a child may seek the relief provided in this rule. A motion shall set forth in concise language the grounds upon which the relief is requested. Notice of the date and time for a hearing on the motion shall be given to the parties to the proceeding and to those affected by the relief sought.
(e) Disposition. After the hearing, the court shall deny or grant relief as the evidence warrants. Where a modification of an order is granted, the court may order any disposition which would be permissible at the original dispositional hearing, or the court may schedule a dispositional hearing in accordance with these rules.
Advisory Commission Comments.
T.C.A. § 37-1-139 authorizes the modification of and relief from orders under certain circumstances. Note that a motion, and not a petition, is to be filed when seeking relief pursuant to this rule.
The procedures in this rule regarding setting aside of orders draws from the concepts contained in T.C.A. § 40-26-105, writ of error coram nobis in criminal matters. Relief pursuant to this statute is limited to “subsequently or newly discovered evidence” and requires the court to find that the defendant was without fault in failing to present such evidence at the original proceeding and that such evidence “may have resulted in a different judgment” had it been presented at the original proceeding.
In the event an order is set aside, the District Attorney General will, of course, decide if a delinquency matter should be retried. The petitioner in an unruly matter will likewise make such a decision. The court, however, is to reschedule the hearing and proceed as it did with the original proceeding.
Placements after a child has been committed to the Department of Children's Services shall be reviewed as provided in T.C.A. § 37-1-137 and these rules.