Rule 109. Orders for the Attachment of Children

Rule 109. Orders for the Attachment of Children

(a)   Requirements for Issuance of Orders for Attachment.  Orders for the attachment of children shall be based upon a judicial determination that there is probable cause to believe that the child is in need of the immediate protection of the court because:

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

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

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

The statement of a person requesting the order of attachment must be by affidavit or sworn testimony reduced to writing and must provide sufficient factual information to support an independent determination that probable cause exists for the issuance of the order. If hearsay evidence is relied upon, the affidavit or testimony must include the basis for the credibility of both the declarant and the declarant’s statements.

(b) An attachment for a violation of pretrial diversion, judicial diversion, probation, or home placement (aftercare) supervision shall not issue unless:

 (1) The child poses a significant likelihood of significant injury to another person or significant likelihood of damage to property;

 (2) The child cannot be located by the supervising person, persons, or entity after documented efforts to locate the child by the supervising person, persons, or entity; or

 (3) The child fails to appear for a court proceeding. If the child has an attorney of record, that attorney must be served with the attachment request made to the court.

(c)  Failure to Appear.  When a child fails to appear at a hearing or other court-scheduled proceeding to which the child has been properly served or directed by appropriate court personnel to appear, the court may, on its own initiative or on the basis of a sworn writing, issue an attachment.

(d)    Terms of Order.  The order for attachment shall order that the child be brought immediately before the court or that the child be taken into custody in accordance with Rule 203 or 302.

[As amended by order filed December 21, 2016, effective July 1, 2017 and as amended by order filed January 8, 2019 effective October 1, 2019.]

Advisory Commission Comments.

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. The Commission notes that the offense of failure to appear is a defined offense and may provide independent grounds for the issuance of an order to take a child into custody if charged.

The issuance of an order of attachment does not determine what should occur once that child is taken into custody. There may be instances in which an order to take a child into custody is warranted but, once accomplished, that child may not meet the requirements to be held in a secure facility pending hearing. In addition, the purpose of an order to take a child into custody may vary from case to case. The order should give specific instructions as to how the attachment order should be carried out.

Subdivision(b) allows the court to issue an attachment in the event the child fails to appear at a court-scheduled hearing, meeting or conference after the child has been duly summoned to appear and fails to do so.  The attachment may direct the appropriate authorities to take the child to a detention facility or to court or to another place.  Prior to issuing an attachment for failure to appear, whether or not the child is charged with the delinquent act of failure to appear, the child must have received appropriate notice specifying the date, time and location of the proceeding in issue.  Accordingly, the Commission encourages each court to implement notice procedures which satisfy due process and afford court participants ample notice of proceedings.  For instance, a summons generally is required to initiate most court proceedings, unless the child is served with an arrest warrant or has been issued a citation, while notice of subsequent court dates may be accomplished by less formal means so long as the method chosen is effective.

This rule clarifies the evidentiary requirements for the issuance of orders for the attachment of children based on the provisions of T.C.A. §§ 37-1-113(2), 114(a)(2), 117(b), and 122.

This rule will apply to the process of obtaining an “arrest order” for a child pursuant to T.C.A. §§ 37-1-113(2).

As only attachments of children are addressed in this rule, reference to T.C.A. § 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.

Advisory Commission Comments [2017].

The rule is amended by adding this 2017 Advisory Commission Comments as further explanation. Additionally, the fourth 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 amendments to the statutes.

An attachment is distinguished from an order for the removal of custody or order of detention, in that it addresses only the physical taking of the person of the child, under terms specified by the court, for the purposes specified in this rule. An attachment may accompany an order of removal of custody,  order of detention, or other order, if necessary to accomplish the taking of child’s person, but will not be necessitated in every case, as where the child is already in the physical custody of the intended entity.

If the probable cause determination in subdivision (a) is based on a written affidavit reciting the facts, it may be sworn to in person or by audio-visual 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).

Advisory Commission Comments [2019].

Rule 109 is amended by adding new subdivision (b) to address the amendment to Tenn.Code Ann. §37-1-122(c) (2018 Tenn. Pub. Acts, ch. 1052, §16 (effective July 1, 2018)).  As a result of the statutory changes, the reference to subsection (b) in the third paragraph of the original Advisory Commission Comment changes to point to subsection (c) of the rule. Also, the statutory references in the fourth and fifth paragraphs of the original Advisory Comment should point to Tenn. Code Ann. §37-1-113(a)(2) but originally the comment inadvertently omitted the(a); the cross-reference is corrected here to point to Tenn. Code Ann. §37-1-113(a)(2).