Dependent and Neglect Proceedings

215

Rule 306: Taking Children's Testimony.

(a)  Any examination of a child witness shall be conducted in a manner that takes into account the child’s age and developmental level. Such testimony shall be recorded.

(b)  When a child testifies, the examination shall be conducted either in chambers or in a courtroom which has been cleared of observers and non-party witnesses.

(c)  Upon motion of any party or upon its own initiative and upon good cause shown based upon the best interest of the child, the court may order one or more of the following accommodations:

(1)  Arrangement of the courtroom or chambers so that certain individuals are not within the child’s line of vision;

(2)  Exclusion of the parties from chambers or the courtroom while the child is testifying; any motion for exclusion of the parties shall be made prior to trial, except in extraordinary circumstances;

(3)  Examination of the child through written questions and written answers; 

(4)  Observation by the parties of the child’s testimony by closed circuit television or other contemporaneous audio-visual transmission; 

(5)  Examination of the child by the court rather than directly by the parties or attorneys;

(6)  Allowing the presence of a properly trained comfort animal;

(7)  Permitting the child to have a stuffed animal or similar comfort toy while the child is testifying; or

(8)  Permitting the child to be accompanied by a support person who is not a party or a witness.

(d)  If the court excludes the parties from chambers or the courtroom while the child is testifying, the court shall ensure the following procedures are followed:

(1)  Counsel for the parties and child(ren), including the guardian(s) ad litem, shall be permitted to be present during the child’s testimony.

(2)  The court shall inform any party who is not represented by counsel of the right to be represented by counsel and shall appoint counsel if requested by an indigent party who is entitled to an attorney.

(e)   If the court examines the child rather than permitting the parties or attorney to directly examine the child, the court shall ensure the following procedures are followed:

(1)  The parties or their counsel if represented, the guardian(s) ad litem, and attorney(s) ad litem shall submit written questions to the court prior to the child’s testimony. The court shall ask the questions as written.

(2)  If a party or attorney has an objection to a question, he or she may make the objection by raising his or her hand and then submitting the objection in writing. The written objection shall be provided to the party or attorney who wrote the question, and he or she shall be provided an opportunity to respond to the objection, before the court may sustain the objection.

(3)  After all of the submitted questions have been asked by the court, the court shall take a recess. During the recess, the attorneys shall have an opportunity to consult with their clients. If a party or attorney wishes to ask additional questions, he or she shall submit the questions in writing prior to the end of the recess.

(4)  The court shall continue the above process until there are no further questions for the child from any party or attorney.

Advisory Commission Comments.

The Commission drafted this rule in order to provide guidelines to courts and attorneys as they seek to balance the due process rights of the respondents with the need to protect child witnesses from unnecessary trauma.

Subdivision (b) requires that when a child testifies the examination must be conducted either in chambers or in a courtroom which has been cleared of observers and non-party witnesses. Court appointed special advocates (CASAs) appointed pursuant to T.C.A. § 37-1-149, as well as foster parents, prospective adoptive parents, and relatives providing care for a child in state custody are not parties to the dependent and neglected action and should be excluded from the courtroom while the child is testifying.

When an unrepresented party requests appointment of an attorney or time to retain an attorney due to the court’s decision to allow a child’s testimony to be taken pursuant to subdivision (d), the hearing will likely need to be continued. In addition to the time it takes to appoint or retain the attorney, the attorney will need reasonable time to prepare.

Courts and attorneys should note that it is neither necessary nor desirable for the alleged perpetrator to be made a party to the dependent and neglect proceeding unless that person is the child’s parent or legal guardian.  In cases where the alleged perpetrator is not the parent or legal guardian, and where a court order limiting the alleged perpetrator’s access to the child is appropriate, a related petition for a restraining order pursuant to T.C.A. § 37-1-152 and Rule 108 could accomplish the goal of protecting the child without granting the alleged perpetrator party status in the underlying action.  In addition to other benefits, this strategy could limit or eliminate the alleged perpetrator’s participation in the dependent and neglect case hearings and increase the child’s comfort level.

Courts and attorneys may find it helpful to refer to Rule 112 concerning when testimony may be taken by audio-visual means.

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