Rule 11. Orders for the Attachment of Children. -

Orders for the attachment of children shall only issue for extraordinary matters and under the following circumstances:

(a) Failure to Appear. When a child fails to appear at a hearing or conference to which the child has been properly summoned or personally notified to appear, the referee or judge may issue an order of attachment; or

(b) Requirements for Issuance of Orders in Other Cases. Where an order of attachment is sought to be issued in any other case, the following requirements must be met:

(1) The judge or referee must determine, from the juvenile court petition and the affidavit and/or sworn testimony presented, that there is probable cause to believe that an offense has been committed and that the child committed it or, in the case of a child alleged to be dependent and neglected, that the child is in need of the immediate protection of the court. In making this probable cause determination, the judge or referee shall be governed by the following:

(i) The statement of a person requesting an order of attachment must be reduced to writing and made upon oath;

(ii) The written affidavit must provide sufficient factual information to support an independent judgment that probable cause exists for the issuance of the order of attachment; and

(iii) If hearsay evidence is relied upon, the basis for the credibility of both the informant and the informant's information must also appear in the affidavit.

(2) Pursuant to Tenn. Code Ann. § 37-1-121, the judge or referee must also find that:

(i) The conduct, condition or surroundings of the child are endangering the child's health or welfare or that of others; or

(ii) The child may abscond or be removed from the jurisdiction of the court; or

(iii) Service of a summons would be ineffectual or the parties are evading service.

(3) If the judge or referee determines that both requirements (1) and (2) above have been satisfied, then he or she may order that the child be taken into custody immediately and brought before the court in accordance with Rule 5.

Advisory Commission Comments.

The same restrictions that apply to issuance of an arrest order in adult proceedings generally apply to the issuance of attachments in juvenile court proceedings. See Tenn. Code Ann. § 37-1-113. Ordinarily, proceedings in juvenile court will be initiated and conducted pursuant to the issuance of a petition and summons rather than the issuance of attachment. Attachments should be used only when necessary to further the goals and purposes of the Juvenile Court Act.

As only attachments of children are addressed in this rule, reference to Tenn. Code Ann. § 37-1-122, regarding attachments of parents, guardians, and other persons having custody of children under juvenile court jurisdiction, was omitted from the rule. That code section should be consulted for guidance in regard to such action.

In its order filed August 26, 2011, the Supreme Court provided that: “The Advisory Commission on the Rules of Practice & Procedure annually presents recommendations to the Court to amend the Tennessee Rules of Appellate, Civil, Criminal and Juvenile Procedure and the Tennessee Rules of Evidence. In August 2011, the Advisory Commission completed its 2010-2011 term and presented its recommendations to the Court. After considering the amendments recommended by the Commission, the Court hereby publishes for public comment the proposed amendments set out in the Appendix to this order.

“The Court hereby solicits written comments on the proposed amendments from the bench, the bar, and the public. The deadline for submitting written comments is Friday, October 28, 2011. Written comments should be addressed to: Mike Catalano, Clerk, Tennessee Appellate Courts, 100 Supreme Court Building, 401 7th Avenue North, Nashville, TN 37219-1407 and should reference the docket number [M2011-01820-SC-RL2-RL].”

The proposed amendment to Rule 11 promulgated by the Supreme Court in its order dated August 26, 2011, would substitute “magistrate” for “referee”.

The proposed 2012 Advisory Commission Comments would read: “The 2012 amendment substitutes the term ‘magistrate’ for the term ‘referee,’ consistent with statutory changes enacted by the General Assembly.”