Rule 302 Procedures Upon Taking Child Into Custody

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. § 37-1-117(b) 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. § 37-1-117(b), 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 audio visual 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).

Advisory Commission Comments [2017].

The first paragraph of the original Advisory Commission Comment is amended by changing two references to T.C.A. §37-1-128(b) to T.C.A. §37-1-117(b), in light of the amndments to the statues.