Dependent and Neglect Proceedings

215

Rule 302: Procedures Upon Taking Child Into Custody.

(a)  Child Taken Into Custody Without Court Order.  When a child is taken into custody without a court order pursuant to T.C.A. § 37-1-113(a)(3), a written protective custody order for the removal of legal custody, containing the probable cause determination required by T.C.A. § 37-1-114(a)(2), shall issue from a magistrate, as defined byT.C.A. §§ 37-1-107 or 40-1-106, within 48 hours of the taking of physical custody. The probable cause determination shall be based on a written affidavit, which may be sworn to in person or by audio-visual electronic means. If the court denies the protective custody order, the child shall be returned to the parent, guardian, or legal custodian. If the protective custody order is issued, a preliminary hearing shall be held within 72 hours, excluding non-judicial days, of the child being taken into custody.

(b)  Child Taken Into Custody Pursuant to Court Order.  If a child is removed from the home of a parent, guardian or legal custodian pursuant to a protective custody order, the child shall not remain in protective custody longer than72 hours, excluding non-judicial days, unless a preliminary hearing is held.

(c)  Findings of Protective Custody Order.  A protective custody order issued pursuant to subdivision (a) or (b) shall include findings of fact supporting the probable cause determination required by T.C.A. § 37-1-114(a)(2). In addition, if the protective custody order places the child in the custody of the Department of Children’s Services, the order shall include facts supporting a finding that it is contrary to the welfare of the child to remain in the home.

(d)  Preliminary Hearing.

(1)  Appointment of Guardian ad Litem.  The court shall make every effort to appoint a guardian ad litem for the child prior to the preliminary hearing.

(2)  Notification of Rights.  At the beginning of the preliminary hearing, the court shall inform the parties of the purpose of the hearing and the possible consequences of the preliminary hearing, and shall inform the parties of their rights pursuant to Rule 303.

(3)  Evidence. Reliable hearsay may be considered at the preliminary hearing. 

(4)  Required Determinations.  The court, in making a decision on whether the child’s continued removal from the home is warranted, shall:

(A)     Determine whether probable cause exists that the child is a dependent and neglected child; and

(B)     If probable cause is found, determine whether the child is subject to an immediate threat to the child’s health or safety, or whether the child may be removed from the jurisdiction of the court; and

(C)      Determine whether any less drastic alternative is available to the removal of the child from the custody of the parent, guardian or legal custodian.

(5)  Determination at Preliminary Hearing.  If the court finds that the child’s continued removal from the home is not warranted, the court shall return the child to the person from whom custody was removed. If the court determines at the hearing that the child's removal is required, the court may order that the child be placed in the custody of a suitable person, persons, or agency. If the court returns the child to the person from whom custody was removed, the court may enter a temporary order setting forth conditions of the return designed to protect the rights and interests of the child and the parties pending further hearing.

(6)  Waiver of Time Limit for Preliminary Hearing.  The time limit for the hearing may be waived by a knowing and voluntary written waiver by the respondent. Any such waiver may be revoked at any time, at which time a preliminary hearing shall be held within the time frame outlined in T.C.A. § 37-1-117.

Advisory Commission Comments.

Subdivision(a) establishes the procedure for obtaining a probable cause determination when the child has been removed from the home due to the existence of exigent circumstances and without a court order. T.C.A. § 37-1-128(b)(2) currently requires both the probable cause determination defined in T.C.A. § 37-1-114(a)(2) and a court order for removal of a child from the child's parent, guardian, legal custodian or the person who physically possesses or controls the child. T.C.A. § 37-1-113(a)(3) also references the probable cause determination contained in T.C.A. § 37-1-114(a)(2). Reading these three statutes in conjunction, T.C.A. § 37-1-113(a)(3) must be interpreted to allow the taking of physical possession of the child only, prior to the judicial probable cause determination and order. Subdivision(a) provides a time limit for the judicial probable cause determination and issuance of the statutorily-required order prior to the preliminary hearing. The judge or magistrate should be contacted after removal to make the probable cause determination and to issue a written order within the 48 hour limit. These requests and determinations are made ex parte as to the parent, guardian, or legal custodian. Non-judicial days are included in the time computation and shall not extend the 48 hour limit. As these requests address the immediate protection of the child, as referenced by T.C.A. § 37-1-128(b)(2), the time limit requires that judges and magistrates be available at inconvenient hours to make probable cause determinations.  

The probable cause determination in subdivision (a) must be based on a written affidavit reciting the facts, which may be sworn to in person or by electronic means. Black’s Law Dictionary defines affidavit as "(a) voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths."  Black’s Law Dictionary 66 (9th ed. 2009).

The time limit of 48 hours tracks the time period in Rule 203 regarding the probable cause determination required after a warrantless arrest of a child alleged to be delinquent. That time limit is based on Gerstein v. Pugh, 420 U.S. 103 (1974), County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991), Cox v. Turley, 506 F.2d 1347, 1353 (6th Cir. 1974), State v. Bishop, No. W2010-01207-SC-R11-CD, 2014 Tenn. LEXIS 189, 2008 WL 888198 (Tenn. 2013), and State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996). It is reasonable to apply the same time limits for a probable cause determination by an independent magistrate to (1) a delinquent child arrested without a warrant, and (2) a parent whose child is removed without a prior court order, as well as the child who is removed in a dependent and neglect case.

If a child is taken into custody pursuant to either subdivisions (a) or (b) (which is applicable to the situation where the court issues a protective custody order prior to the child being removed from the home), a preliminary hearing must be held within 72 hours, excluding non-judicial days, of when the child was taken into custody, pursuant to T.C.A. § 37-1-117. Pursuant to Rule 111, judges may consider entering a scheduling order at a preliminary hearing, especially when the child is in the custody of the Department of Children’s Services. The scheduling order may include, but is not limited to, the dates of the Department’s child and family team meeting, ratification hearing, foster care review board, adjudication, and dispositional hearings.

The second sentence of subdivision (c) is applicable to a child who is placed in custody of the Department of Children’s Services. Federal law requires a “contrary to the welfare” finding in the first order that removes the child from the home in order for the child to be eligible for Title IV-E funding. 45 C.F.R. § 1356.21(E).

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