Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Current Through February 2016

Physical Abuse

Citation: Ann. Code § 37-1-102‘Abuse’ exists when a person under age 18 is suffering from, has sustained, or may be in immediate danger of suffering from or sustaining a wound, injury, disability, or physical or mental condition caused by brutality, neglect, or other actions or inactions of a parent, relative, guardian, or caregiver.

‘Severe child abuse’ means:

• The knowing exposure of a child to, or the knowing failure to protect a child from, abuse or neglect that is likely to cause serious bodily injury or death, and the knowing use of force on a child that is likely to cause serious bodily injury
• Specific brutality, abuse, or neglect toward a child that in the opinion of qualified experts has caused or will reasonably be expected to produce severe psychosis, severe neurotic disorder, severe depression, severe developmental delay or retardation, or severe impairment of the child’s ability to function adequately in the child’s environment, and the knowing failure to protect a child from such conduct
• The commission of any act towards the child prohibited by §§ 39-13-502 [aggravated rape], 39-13-504 [aggravated sexual battery], 39-13-515 [promoting prostitution], 39-13-522 [rape of a child], 39-15-302 [incest], 39-15-402 [aggravated child abuse, neglect, or endangerment], and 39-17-1005 [aggravated sexual exploitation of a minor], or the knowing failure to protect the child from the commission of any such act towards the child
• Knowingly allowing a child to be present within a structure where the act of creating methamphetamine is occurring

Neglect

Citation: Ann. Code § 37-1-102‘Dependent and neglected child’ means a child:

• Who is without a parent, guardian, or legal custodian
• Whose parent, by reason of cruelty, mental incapacity, immorality, or depravity, is unfit to care properly for the child
• Who is under unlawful or improper care, supervision, custody, or restraint by any person, corporation, agency, association, institution, society, or other organization or who is unlawfully kept out of school
• Whose parent or guardian neglects or refuses to provide necessary medical, surgical, institutional, or hospital care
• Who, because of lack of proper supervision, is found in a place the existence of which is in violation of law
• Who is in a condition of such want or suffering, or is under such improper guardianship or control, as to injure or endanger his or her morals or health
• Who is suffering from abuse or neglect
• Who has been in the care and control of one or more agencies or persons not related by blood or marriage for a continuous period of 6 months or longer in the absence of a power of attorney or court order, and that person or agency has not initiated judicial proceedings seeking either legal custody or adoption of the child
• Who is or has been allowed, encouraged, or permitted to engage in prostitution or obscene or pornographic photographing, filming, posing, or similar activity, and whose parent or guardian neglects or refuses to protect the child from further such activity
• Who willfully has been left in the sole financial and physical care of a related caregiver for not less than 18 consecutive months by the child’s parent(s) or legal custodian, and the child will suffer substantial harm if removed from the continuous care of such relative

Sexual Abuse/Exploitation

Citation: Ann. Code § 37-1-602‘Child sexual abuse’ means the commission of any act involving the unlawful sexual abuse, molestation, fondling, or carnal knowledge of a child under age 13 that, on or after November 1, 1989, constituted the criminal offense of:

• Aggravated rape, sexual battery, or sexual exploitation of a minor
• Criminal attempt for any of the offenses listed above
• Especially aggravated sexual exploitation of a minor
• Incest
• Rape, sexual battery, or sexual exploitation of a minor

The term ‘child sexual abuse’ also means one or more of the following acts:

• Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen
• Any contact between the genitals or anal opening of one person and the mouth or tongue of another person
• Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose
• Intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of either the child or the perpetrator
• Intentional exposure of the perpetrator’s genitals in the presence of a child, or any other sexual act intentionally perpetrated in the presence of a child if such exposure or sexual act is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose
• Sexual exploitation of a child, which includes allowing, encouraging, or forcing a child to solicit for or engage in prostitution or engage in sexual exploitation

Emotional Abuse

Citation: Ann. Code § 37-1-602‘Mental injury’ means an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the child’s ability to function within the child’s normal range of performance and behavior, with due regard to the child’s culture.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Ann. Code §§ 37-1-403; 37-1-605
A report is required when any person has knowledge of or is called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition if the harm is of such a nature as to reasonably indicate that it has been caused by brutality, abuse, or neglect or that, on the basis of available information, reasonably appears to have been caused by brutality, abuse, or neglect.

A report is required when any person knows or has reasonable cause to suspect that a child has been sexually abused.

Persons Responsible for the Child

Citation: Ann. Code §§ 37-1-102; 37-1-602Responsible persons include:

• The child’s parent or guardian
• A person with whom the child lives
• Any ‘other person responsible for a child’s care or welfare’ that includes, but is not limited to:
  • A legal custodian or foster parent
  • An employee of a public or private child care agency or public or private school
  • Any other person legally responsible for the child’s welfare in a residential setting

Exceptions

Citation: Ann. Code § 37-1-602Child sexual abuse does not include acts intended for a valid medical purpose or acts that may reasonably be construed to be normal caregiver responsibilities or interactions with or affection for a child.

Current Through August 2013

Defined in Domestic Violence Civil Laws

Citation: Ann. Code § 36-3-601‘Abuse’ means:

• Inflicting or attempting to inflict physical injury on an adult or minor by other than accidental means
• Placing an adult or minor in fear of physical harm
• Physical restraint
• Malicious damage to the personal property of the abused party, including inflicting or attempting to inflict physical injury on any animal owned, possessed, leased, kept, or held by an adult or minor
• Placing an adult or minor in fear of physical harm to any animal owned, possessed, leased, kept, or held by the adult or minor

‘Domestic abuse’ means committing abuse against a domestic abuse victim, as defined below.

Defined in Child Abuse Reporting and Child Protection Laws

Citation:This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

Citation: Ann. Code § 39-13-111A person commits ‘domestic assault’ who commits an assault, as defined in § 39-13-101, against a domestic abuse victim.

Persons Included in the Definition

Citation: Ann. Code §§ 36-3-601; 39-13-111In civil and criminal law: ‘Domestic abuse victim’ means any person who falls within the following categories:

• Adults or minors who are current or former spouses
• Adults or minors who live together or who have lived together
• Adults or minors who are dating or who have dated or who have or had a sexual relationship
• Adults or minors related by blood or adoption
• Adults or minors who are related or were formerly related by marriage
• Adult or minor children of a person in a relationship that is described above

‘Dating’ and ‘dated’ do not include fraternization between two individuals in a business or social context.

Current Through June 2013

Confidentiality of Records

Citation: Ann. Code §§ 37-1-409; 37-1-612Reports of harm and the identity of the reporter are confidential except when the juvenile court in which the investigation report is filed, in its discretion, determines the testimony of the person reporting to be material to an indictment or conviction.

All records concerning reports of child sexual abuse, including files, reports, records, communications, working papers related to investigations or providing services, videotapes, reports made to the abuse registry and to local offices of the department, and all records generated as a result of such processes and reports, shall be confidential.

Persons or Entities Allowed Access to Records

Citation: Ann. Code § 37-1-612Disclosure may be made to persons and entities having need for the information, including:

• Department employees, medical professionals, and contract or other agency employees who provide services, including those from child advocacy centers, to children and families
• The attorney or guardian ad litem for a child who is the subject of the records
• A law enforcement agency investigating a report of known or suspected child sexual abuse
• The district attorney general of the judicial district in which the child resides or in which the alleged abuse occurred
• A grand jury when it is necessary in the conduct of its official business
• Any person engaged in bona fide research or audit purposes
• A court official, probation and parole officer, designated employee of the Department of Correction, Board of Probation and Parole, or other similarly situated individual charged with the responsibility of preparing information to be presented in any administrative or judicial proceeding concerning any individual charged with or convicted of any offense involving child abuse or neglect or child sexual abuse
• An attorney or next friend who is authorized to act on behalf of the child in a civil cause of action against the perpetrator
• Members of the Tennessee Claims Commission and its staff and employees for the purpose of determining if a claim filed with the commission based on facts contained in the record constitutes a compensable criminal offense under the Criminal Injuries Compensation Act

When Public Disclosure of Records is Allowed

Citation: Ann. Code § 37-5-107The department shall provide for the public disclosure of information about any case that results in a child fatality or near fatality in compliance with 42 U.S.C. § 5106a(b)(2)(A)(x). The term ‘near fatality’ means a child had a serious or critical medical condition resulting from child abuse or child sexual abuse, as reported by a physician who has examined the child subsequent to the abuse.

Use of Records for Employment Screening

This issue is not addressed in the statutes reviewed.

Current Through March 2015

Citation: Ann. Code § 37-1-410(a)(5)(B), (6)-(8)

Because of the overriding public policy to encourage all persons to report the neglect, harm, or abuse of children, any person upon whom good faith immunity is conferred shall be presumed to have acted in good faith in making a report of harm.

No immunity conferred pursuant to this subsection shall attach if the person reporting the harm perpetrated or inflicted the abuse or caused the neglect.

A person furnishing a report, information, or records as required, requested, or authorized under this part shall have the same immunity and the same scope of immunity with respect to testimony that person may be required to give or may give in any judicial or administrative proceeding or in any communications with the department or any law enforcement official as is otherwise conferred upon the person for making the report of harm by this subsection.

If the person furnishing a report, information, or records during the normal course of the person’s duties as required, authorized, or requested under this part is different from the person originally reporting the harm, then the person furnishing the report, information, or records shall have the same immunity with respect to testimony the person may be required to give or may give in any judicial or administrative proceeding or in any communications with the department or any law enforcement official as is otherwise conferred upon the person who made the original report of harm by this subsection.

Citation: Ann. Code § 37-1-410(a)(1), (4), (5)(A)

If a health-care provider makes a report of harm as required by § 37-1-403, and if the report arises from an examination of the child performed by the health-care provider in the course of rendering professional care or treatment of the child, or if the health-care provider, who is highly qualified by experience in the field of child abuse and neglect as evidenced by special training or credentialing, renders a second opinion at the request of the department or any law enforcement agency, whether or not the health-care provider has examined the child, rendered care or treatment, or made the report of harm, then the health-care provider shall not be liable in any civil or criminal action that is based solely upon:

• The health-care provider’s decision to report what the provider believed to be harm
• The health-care provider’s belief that reporting the harm was required by law
• The fact that a report of harm was made
• The fact that the second opinion was requested and provided

Nothing in this subsection shall be construed to confer any immunity upon a health-care provider for a criminal or civil action arising out of the treatment of the child about whom the report of harm was made.

If absolute immunity is not conferred upon a person pursuant to the subdivision above, and if, acting in good faith, the person makes a report of harm, as required by § 37-1-403, then the person shall not be liable in any civil or criminal action that is based solely upon:

• The person’s decision to report what the person believed to be harm
• The person’s belief that reporting the harm was required by law
• The fact that a report of harm was made

Current Through February 2013

Individual Responsibility to Report

Citation: Ann. Code § 37-1-403Any person who has knowledge of or is called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition shall report such harm immediately if the harm is of such a nature as to reasonably indicate that it has been caused by brutality, abuse, or neglect, or that, on the basis of available information, reasonably appears to have been caused by brutality, abuse, or neglect.

Any person who knows or has reasonable cause to suspect that a child has been sexually abused shall report such knowledge or suspicion to the department.

Content of Reports

Citation: Ann. Code § 37-1-403To the extent known by the reporter, the report shall include:

• The name, address, telephone number, and age of the child
• The name, address, and telephone number of the person responsible for the care of the child
• The facts requiring the report
• Any other pertinent information

Reporting Suspicious Deaths

Citation: Ann. Code §§ 37-1-403; 37-1-605A mandated reporter who has reasonable cause to suspect that a child has died as a result of child abuse or neglect or sexual abuse shall report such suspicion to the medical examiner. The medical examiner shall accept the report for investigation and shall report the medical examiner’s findings, in writing, to the local law enforcement agency, the appropriate district attorney general, and the department.

Reporting Substance-Exposed Infants

Citation:This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Citation: Ann. Code § 37-1-403Any person with knowledge of the type of harm described above shall report it, by telephone or otherwise, to:

• The judge having juvenile jurisdiction over the child
• The Department of Children’s Services, either by contacting a local representative of the department or by utilizing the department’s centralized intake procedure
• The sheriff of the county where the child resides
• The chief law enforcement official of the municipality where the child resides

Every physician who makes a diagnosis of any sexually transmitted disease in a child who is age 13 or younger shall report the case immediately, in writing, to the Department of Health. If sexual abuse is suspected, the Department of Health will report the case to the Department of Children’s Services.

Each report of known or suspected child sexual abuse shall be made immediately to the local office of the department responsible for the investigation of reports, the judge having juvenile jurisdiction, or to the office of the sheriff or the chief law enforcement official of the municipality where the child resides.

Initial Screening Decisions

Citation:This issue is not addressed in the statutes and regulations reviewed.

Agency Conducting the Assessment/Investigation

Citation: Ann. Code §§ 37-1-406; 37-1-607The county office of the department shall investigate an oral or written report of harm. If the report of child abuse alleges physical abuse, it shall be in the best interests of the child that the child be referred to a child advocacy center or that the investigation be conducted by a child protective services investigator who is adequately trained in investigating physical abuse reports. Under no circumstances shall the investigation be performed by a probation officer previously assigned to the child.

In cases involving child sexual abuse, the investigation shall be conducted by a child protective investigation team. Each team shall be composed of one person from the department, one representative from the office of the district attorney general, one juvenile court officer or investigator from a court of competent jurisdiction, and one properly trained law enforcement officer with countywide jurisdiction from the county where the child resides or where the alleged offense occurred. The team also may include a representative from one of the mental health disciplines. It is in the best interests of the child that, whenever possible, an initial investigation shall not be commenced unless all four disciplines are represented. An initial investigation may, however, be commenced if at least two of the team members are present at the initial investigation.

It is the intent of the general assembly that the child protective investigations be conducted by the team members in a manner that not only protects the child but that also preserves any evidence for future criminal prosecutions.

Assessment/Investigation Procedures

Citation: Ann. Code § 37-1-406All representatives of the child protective services agency shall, at the initial time of contact with the individual who is subject to an investigation, advise the individual of the complaints or allegations made against the individual consistent with laws protecting the rights of the informant.

The investigation shall include:

• The nature, extent, and cause of the harm, including a determination of whether there exists a threat of harm, and the nature and extent of any present or prior injuries or abuse
• The identity of the person responsible for it
• The names and conditions of the other children in the home
• An evaluation of the parents or persons responsible for the care of the child, the home environment, and the relationship of each child to the parents or persons responsible for such child’s care
• The identity of any other persons in the same household
• The identity of any other children in the care of any adult residing in the household
• All other pertinent data

The investigation shall include a visit to the child’s home; an interview with and physical observation of the child; and interviews with the parents, other custodians of the child, and any other persons in the child’s home. If the investigator deems it necessary, the investigation also shall include medical, psychological, or psychiatric examinations of the child and any other children in the child’s home or under the care of any person alleged to have permitted or caused abuse, neglect, or sexual abuse to the child.

The investigator shall interview the child outside the presence of the parents or other persons allegedly responsible for the harm and, wherever possible, shall interview the child in a neutral setting other than the location where the alleged abuse occurred.

Timeframes for Completing Investigations

Citation: Ann. Code §§ 37-1-406; 37-1-607The department shall be capable of receiving and investigating reports of child abuse 24 hours a day, 7 days a week. The county office shall make a thorough investigation promptly after receiving either an oral or written report of harm.

If it appears that the immediate safety or well-being of a child is endangered, that the family may flee or the child will be unavailable, or that the facts otherwise warrant, the department shall commence an investigation immediately, regardless of the time of day or night.

For each child sexual abuse report it receives, the department shall immediately notify the child protection investigation team, which shall commence an on-site child protective investigation.

No later than 60 days after receiving the initial report, the department or team in cases of child sexual abuse or the department in all other cases shall determine whether the reported abuse was indicated or unfounded and report its findings to the department’s abuse registry.

Classification of Reports

Citation: Ann. Code §§ 37-1-406; Rules & Regs. §§ 0250-7-9-.01; 0250-7-9-.05The investigation shall determine whether the reported abuse was indicated or unfounded.

In regulation: ‘Indicated’ means the classification assigned to an individual found to be a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect as the result of an investigation of a report of abuse. A report made against an alleged perpetrator shall be classified as ‘indicated’ if the preponderance of the evidence, in light of the entire record, proves that the individual committed abuse, severe child abuse, child sexual abuse, or neglect.

Current Through August 2015

Professionals Required to Report

Citation: Ann. Code §§ 37-1-403; 37-1-605Persons required to report include:

• Physicians, osteopaths, medical examiners, chiropractors, nurses, hospital personnel, or other health or mental health professionals
• Teachers, other school officials or personnel, daycare center workers
• Other professional child care, foster care, residential, or institutional workers
• Social workers
• Practitioners who rely solely on spiritual means for healing
• Judges or law enforcement officers
• Neighbors, relatives, or friends
• Authority figures at community facilities, including any facility used for recreation or social assemblies or for educational, religious, social, health, or welfare purposes, including, but not limited to, facilities operated by schools, the Boy or Girl Scouts, the YMCA or YWCA, the Boys and Girls Club, or church or religious organizations
• Other persons

Reporting by Other Persons

Citation: Ann. Code §§ 37-1-403; 37-1-605Any person who has knowledge that a child has been harmed by abuse or neglect must report.

Institutional Responsibility to Report

Citation: Ann. Code § 37-1-403Nothing in this section shall be construed to prohibit any hospital, clinic, school, or other organization responsible for the care of children from developing a specific procedure for internally tracking, reporting, or otherwise monitoring a report made by a member of the organization’s staff, including requiring a member of the organization’s staff who makes a report to provide a copy of or notice concerning the report to the organization, so long as the procedure does not inhibit, interfere with, or otherwise affect the duty of a person to make a report as required by law.

Nothing in this section shall prevent staff of a hospital or clinic from gathering sufficient information, as determined by the hospital or clinic, in order to make an appropriate medical diagnosis or to provide and document care that is medically indicated and is needed to determine whether to report an incident as defined in this part. Those activities shall not interfere with nor serve as a substitute for any investigation by law enforcement officials or the department. However, if any hospital, clinic, school, or other organization responsible for the care of children develops a procedure for internally tracking, reporting, or otherwise monitoring a report, the identity of the person who made a report of harm shall be kept confidential.

Standards for Making a Report

Citation: Ann. Code §§ 37-1-403; 37-1-605A report is required when:

• A person has knowledge that a child has been harmed by abuse or neglect.
• A person is called upon to render aid to any child who is suffering from an injury that reasonably appears to have been caused by abuse.
• A person knows or has reasonable cause to suspect that a child has been sexually abused.
• A physician diagnoses or treats any sexually transmitted disease in a child age 13 or younger or diagnoses pregnancy in an unemancipated minor.

Any school official, personnel, employee, or member of the board of education who is aware of a report or investigation of employee misconduct on the part of any employee of the school system that in any way involves known or alleged child abuse, including, but not limited to, child physical or sexual abuse or neglect, shall immediately upon knowledge of such information notify the Department of Children’s Services or law enforcement official of the abuse or alleged abuse.

Privileged Communications

Citation: Ann. Code § 37-1-411The following privileges may not be claimed:

• Husband-wife
• Psychiatrist-patient or psychologist-patient

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

Citation: Ann. Code § 37-1-409Except as may be ordered by the juvenile court, the name of any person reporting child abuse or neglect shall not be released to any person, other than employees of the department or other child protection team members responsible for child protective services, the abuse registry, or the appropriate district attorney general upon subpoena of the Tennessee Bureau of Investigation, without the written consent of the person reporting.

The reporter’s identity shall be irrelevant to any civil proceeding and shall, therefore, not be subject to disclosure by order of any court. This shall not prohibit the issuance of a subpoena to a person reporting child abuse when deemed necessary by the district attorney general or the department to protect a child who is the subject of a report, provided that the fact that the person made the report is not disclosed.

Current Through April 2015

Citation: Ann. Code § 37-1-102(23)(D)‘Severe child abuse’ means knowingly allowing a child to be present within a structure where the act of creating methamphetamine is occurring.

Current Through August 2014

Making The Appointment

Citation: Ann. Code §§ 37-1-149; 37-1-610In any proceeding resulting from a report of harm or an investigation report under §§ 37-1-401 to 37-1-411, the court shall appoint a guardian ad litem (GAL) for the child who was the subject of the report. A party to the proceeding or the party’s employee or representative shall not be appointed. A court-appointed special advocate (CASA) may also be appointed.

A GAL shall be appointed to represent the child in any child sexual abuse proceeding.

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Ann. Code § 37-1-149The court may also appoint a nonlawyer special advocate trained in accordance with that role and in accordance with the standards of the Tennessee Court Appointed Special Advocates Association to act in the best interests of a child before, during, and after court proceedings.

The CASA shall conduct such investigation and make such reports and recommendations pertaining to the welfare of a child as the court may order or direct.

Qualifications/Training

Citation: Ann. Code § 37-1-149Any GAL appointed by the court shall receive training appropriate to that role prior to such appointment. The training shall include, but is not limited to, training in early childhood, child, and adolescent development provided by a qualified professional.

Specific Duties

Citation: Ann. Code § 37-1-602; TN Sup. Ct. Rule 40A GAL is a responsible adult who is appointed by the court to represent the best interests of a child in a proceeding as provided for by law, who shall be a party to any judicial proceeding as a representative of the child, and who shall serve until discharged by the court.

In court rules: The GAL must investigate fully all of the circumstances relevant to the child’s position, marshal every reasonable argument that could be made in favor of the child’s position, identify all the factual support for the child’s position, discuss fully with the child and make sure that the child understands the different options or positions that might be available, including the potential benefits and risks of each option or position, and the likelihood of prevailing on each option or position. In the event that the GAL disagrees with the position the child urges the GAL to take, the GAL may request that the court appoint another lawyer to serve as the GAL or advocate for both positions simultaneously.

How the Representative Is Compensated

Citation: Ann. Code § 37-1-610The court shall order the perpetrator in all cases, whether such person is a parent or other person, to fully reimburse the court for the cost of provision of GAL services. Reimbursement to the individual providing such services shall not be contingent upon successful collection by the court from the parent or parents.

Current Through April 2014

When Case Plans Are Required

Citation: Ann. Code § 37-2-403Within 30 days of the date of foster care placement, an agency shall prepare a plan of care or a permanency plan for each child in its foster care.

Who May Participate in the Case Planning Process

Citation: Ann. Code § 37-2-403The agency shall prepare the plan. The plan shall be presented to the parent or guardian and approved by the court.

Contents of a Case Plan

Ann. Code § 37-2-403The plan shall include a goal for each child of:

• Return of the child to his or her parent
• Permanent placement of the child with a fit and willing relative or relatives of the child
• Adoption, giving appropriate consideration to § 36-1-115(g), when applicable
• Permanent guardianship
• A planned permanent living arrangement

The permanency plan for any child in foster care shall include a statement of responsibilities between the parents, the agency, and the caseworker of such agency. Such statements shall include the responsibilities of each party in specific terms and shall be reasonably related to the achievement of the goal.

In cases involving child abuse or child neglect, with such child being placed in foster care, the statement of responsibilities shall stipulate that the abusing or neglecting parent shall receive appropriate rehabilitative assistance through mental health consultation if so ordered by the court.

The plan for a child who remains in foster care for 1 year may be modified to a long-term agreement between a foster parent and the agency charged with the care and custody of the child. Such agreements with foster parents shall include:

• Appropriate arrangements for the child
• Procedures for the termination of the agreement by either party when in the best interests of the child

The statement of responsibilities on a permanency plan that is ordered by the court shall empower the State agency to select any specific residential or treatment placement or programs for the child according to the determination made by the agency, its employees, agents, or contractors.

Current Through November 2012

Citation: Tenn. Code Ann. § 37-1-166(g)(6) (LexisNexis through 2012 Reg. Sess.)Reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts [to preserve and reunify the family].

Current Through January 2016

Schedule of Hearings

Citation: Ann. Code §§ 37-1-166; 37-2-404; 37-3-409A review hearing shall be held within 90 days of placement and every 6 months thereafter.

A permanency hearing shall be held:

• Within 12 months of placement and every 12 months thereafter
• Within 30 days of a finding that reasonable efforts to reunify are not required
• For a child who is age 17 or older, 3 months prior to his or her planned release to independent living

Persons Entitled to Attend Hearings

Citation: Ann. Code §§ 37-2-404; 37-2-409Notice of the review hearing and the right to attend and participate in the review shall be provided to:

• The child’s parent(s) whose rights have not been terminated or surrendered
• The parent’s attorney
• The guardian ad litem and/or attorney for the child
• Foster parents, prospective adoptive parents, or relative providing care for the child
• The child who is a party to the proceeding

The child shall be present for the permanency hearing. The only exceptions to the child’s mandatory attendance shall be a child who is either under a doctor’s care preventing the child from attending or is placed outside the State. In such event, the court shall require the guardian ad litem, case manager for the Department of Children’s Services, or other case manager of the child to attest that the child, if age appropriate, participated in the development of the permanency plan or has been counseled on the provisions of the permanency plan.

Determinations Made at Hearings

Citation: Ann. Code §§ 37-2-404; 37-3-409At the review hearing, the court or board shall review the safety, permanency, and well-being of the child by assessing the necessity and appropriateness of continued foster care placement, the appropriateness of services for the child, the compliance of all parties to the statement of responsibilities, and the extent of progress in alleviating or mitigating the causes necessitating placement in foster care and in achieving the goals contained in the permanency plan. After this assessment, the court or board will project a likely date on which the goal of the plan will be achieved.

At the permanency hearing, the court shall confer with the child in an age-appropriate manner regarding the child’s views on the provisions of the permanency plan. For all children, absent or present, evidence shall be presented as to the child’s progress and needed services.

The purpose of the permanency hearings shall be to:

• Review the permanency plan and goals for the child
• Address which goals continue to be appropriate for the child in order to achieve permanent placement and include a timeline for achieving each goal
• Determine the extent of compliance of all parties with the terms of the permanency plan and the extent of progress in achieving the goals of the plan

In the case of a child who has reached age 16, the court shall review and ratify an independent living plan for the child. At the hearing for a child who has reached age 17, the court shall ensure that the child has notice of and understands the child’s opportunity to receive, if eligible, all available voluntary postcustody services from the department by having the department present evidence regarding services that are available to the child beginning at age 18.

Permanency Options

Citation: Ann. Code §§ 37-2-403; 37-2-409Possible permanency goals include:

• Return of the child to his or her parent
• Permanent placement with a fit and willing relative
• Adoption
• Permanent guardianship
• Another planned permanent living arrangement

The permanency plan shall not require the parent to obtain employment if the parent has sufficient resources from other means to care for the child, and the plan shall not require the parent to provide the child with the child’s own bedroom unless specific safety or medical reasons exist that would make bedroom placement of the child with another child unsafe.

Placement in another planned permanent living arrangement shall be appropriate only in cases where the State agency has documented a compelling reason for determining that the other goals would not be in the best interests of the child because of the child’s special needs or circumstances.

Current Through March 2016

Citation: Ann. Code § 36-1-101(d)In all cases, when the best interests of the child and those of the adults are in conflict, such conflict shall always be resolved to favor the rights and the best interests of the child, which interests are hereby recognized as constitutionally protected, and, to that end, this part shall be liberally construed.

Citation: Ann. Code § 36-1-113(i)In determining whether termination of parental or guardianship rights is in the best interests of the child pursuant to this part, the court shall consider, but is not limited to, the following:

• Whether the parent or guardian has made such adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best interests to be in the home of the parent or guardian
• Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible
• Whether the parent or guardian has maintained regular visitation or other contact with the child
• Whether a meaningful relationship has otherwise been established between the parent or guardian and the child
• The effect a change of caregivers and physical environment is likely to have on the child’s emotional, psychological, and medical condition
• Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality; physical, sexual, emotional, or psychological abuse; or neglect toward the child or another child or adult in the family or household
• Whether the physical environment of the parent’s or guardian’s home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol or controlled substances as may render the parent or guardian consistently unable to care for the child in a safe and stable manner
• Whether the parent’s or guardian’s mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing safe and stable care and supervision for the child
• Whether the parent or guardian has paid child support consistent with the child support guidelines

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Ann. Code § 36-1-113Termination of parental rights must be based upon:

• A finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established.
• The termination of the parent’s rights is in the best interests of the child.

Initiation of termination of parental rights may be based upon any of the following grounds:

• Abandonment by the parent has occurred.
• There has been substantial noncompliance by the parent with the permanency plan or a plan of care.
• The child has been removed from the home of the parent for 6 months and:
  • The conditions that led to the child’s removal, that in all reasonable probability would cause the child to be subjected to further abuse or neglect, still persist.
  • There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned home in the near future.
  • The continuation of the parent-child relationship greatly diminishes the child’s chances of early integration into a safe, stable, and permanent home.
• The parent has been found to have committed severe child abuse against the child who is the subject of the petition or against any sibling, half-sibling, or any other child residing temporarily or permanently in the home of the parent.
• The parent has been sentenced to more than 2 years’ imprisonment for conduct against the child who is the subject of the petition, or for conduct against any sibling, half-sibling, or any other child residing temporarily or permanently in the home of the parent.
• The parent has been incarcerated for 10 or more years, and the child is under age 8 at the time.
• The parent has been convicted of the intentional and wrongful death of the child’s other parent or legal guardian.
• The parent has been found to be mentally incompetent to provide for the further care and supervision of the child.
• The parent has failed, without good cause or excuse, to pay a reasonable share of prenatal, natal, and postnatal expenses involving the birth of the child.
• The parent has failed, without good cause or excuse, to support the child in accordance with the child support guidelines.
• The parent has failed to seek reasonable visitation with the child, and if visitation has been granted, has failed to visit altogether, or has engaged in only token visitation.
• The parent has failed to manifest an ability and willingness to assume legal and physical custody of the child.
• Placing custody of the child in the parent’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child.
• A birth father has failed to file a petition to establish paternity of the child within 30 days after notice of alleged paternity by the child’s mother.
• The parent has been found to have committed severe child sexual abuse.
• The parent was convicted of rape from which the child was conceived.

The Department of Children’s Services shall file a petition to terminate the parental rights of the child’s parents under the following circumstances:

• The child has been in foster care for 15 of the most recent 22 months.
• A court of competent jurisdiction has determined a child to be an abandoned infant.
• The parent has:
  • Committed murder or manslaughter of any sibling or half-sibling of the child
  • Aided, abetted, attempted, conspired, or solicited to commit such murder or a voluntary manslaughter
  • Committed a felony assault that has resulted in serious bodily injury or severe child abuse to the child or any sibling or half-sibling
• A juvenile court has made a finding of severe child abuse.

Circumstances That Are Exceptions to Termination of Parental Rights

Citation: Ann. Code § 36-1-113At the option of the department, the department may determine that a petition to terminate the parental rights of the child’s parents shall not be filed if one of the following exists:

• The child is being cared for by a relative.
• The department has documented in the permanency plan a compelling reason for determining that filing such a petition would not be in the best interests of the child.
• The department has not made reasonable efforts to provide to the family of the child, consistent with the time period in the department permanency plan, such services as the department deems necessary for the safe return of the child to the child’s home.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Current Through December 2014

Definitions

Citation: Ann. Code §§ 34-1-101; 37-1-102; Pol. & Proc. Man. § 16.39The term ‘guardian’ or ‘coguardian’ means a person or persons appointed by the court to provide partial or full supervision, protection, and assistance of the person or property, or both, of a minor.

A ‘custodian’ is a person, other than a parent or legal guardian, who stands in loco parentis to the child or a person to whom temporary legal custody of the child has been given by order of a court.

The term ‘custody’ means control of the actual physical care of the child and includes the right and responsibility to provide for the physical, mental, moral, and emotional well-being of the child. ‘Custody,’ as herein defined, relates to those rights and responsibilities as exercised either by the parents or by a person or organization granted custody by a court of competent jurisdiction. ‘Custody’ shall not be construed as the termination of parental rights and does not exist by virtue of mere physical possession of the child.

In policy: For purposes of the subsidized guardianship program, a guardian must meet the definition for ‘relative.’ A ‘relative’ is the legal guardian of a child with whom the child is related to by blood, marriage, or adoption or with whom the child had a significant relationship that pre-existed placement, such as a godparent, friend, neighbor, church member, or teacher.

Purpose of Guardianship

Citation: Ann. Code § 37-1-802The court may issue a permanent guardianship order only if the court finds that:

• The child has been previously adjudicated dependent and neglected.
• The child has been living with the proposed permanent guardian for at least 6 months.
• The permanent guardianship is in the child’s best interests.
• Reunification of the parent and child is not in the child’s best interests.

A Guardian’s Rights and Responsibilities

Citation: Ann. Code § 37-1-804The permanent guardian shall maintain physical custody of the child and shall have the following rights and responsibilities concerning the child:

• To protect, nurture, discipline, and educate the child
• To provide food, clothing, shelter, and education as required by law, and necessary health care, including medical, dental, and mental health, for the child
• To consent to health care, without liability by reason of the consent for injury to the child resulting from the negligence or acts of third persons, unless a parent would have been liable in the circumstances
• To authorize a release of health care and educational information
• To authorize a release of information when consent of a parent is required by law, regulation, or policy
• To consent to social and school activities of the child
• To consent to military enlistment or marriage
• To obtain representation for the child in legal actions
• To determine the nature and extent of the child’s contact with other persons
• To make decisions regarding travel
• To manage the child’s income and assets

The permanent guardian is not liable to third persons by reason of the relationship for acts of the child.

Qualifying the Guardian

Citation: Ann. Code § 37-1-802The court may consider any adult, including a relative, foster parent, or another adult with a significant relationship with the child as a permanent guardian. If the child is in the custody of the Department of Children’s Services, the court shall seek the department’s opinion on both the proposed permanent guardianship and the proposed permanent guardian. An agency or institution may not be a permanent guardian.

The court may issue a permanent guardianship order only if the court finds that the proposed permanent guardian:

• Is emotionally, mentally, physically, and financially suitable to become the permanent guardian
• Is suitable and able to provide a safe and permanent home for the child
• Has expressly committed to remain the permanent guardian for the duration of the child’s minority
• Has expressly demonstrated a clear understanding of the financial implications of becoming a permanent guardian, including an understanding of any potential resulting loss of State or Federal benefits or other assistance
• Will comply with all terms of any court order to provide the child’s parent with visitation, contact, or information

Procedures for Establishing Guardianship

Citation: Ann. Code §§ 37-1-801; 37-1-802The juvenile courts of Tennessee are empowered to appoint an individual as permanent guardian; provided, that the individual qualifies under the provisions of this part. The court may establish a permanent guardianship at a permanency planning hearing or at any other hearing in which a permanent legal disposition of the child can be made, including a child protection proceeding or a delinquency proceeding.

If the child is age 12 or older, the court shall consider the reasonable preference of the child. The court may hear the preference of a younger child. The preferences of older children should normally be given greater weight than those of younger children.

The parent may voluntarily consent to the permanent guardianship and shall demonstrate an understanding of the implications and obligations of such consent prior to the court entering an order establishing a permanent guardianship in accordance with the provisions of this part.

In determining whether it is in the child’s best interests that a permanent guardian be designated, in addition to any other evidence the court finds relevant, the court shall consider each of the following factors:

• The child’s need for continuity of care and caregivers, and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages
• The physical, mental, and emotional health of all individuals involved to the degree that each affects the welfare of the child, the decisive consideration being the physical, mental, and emotional needs of the child
• The quality of the interaction and interrelationship of the child with the child’s parent, siblings, relatives, and caregivers, including the proposed permanent guardian

Contents of a Guardianship Order

Citation: Ann. Code §§ 37-1-803; 37-1-805Entry of a permanent guardianship order does not terminate the parent and child relationship, including:

• The right of the child to inherit from the child’s parents
• The parents’ right to visit or contact the child, as defined by the court
• The parents’ right to consent to the child’s adoption
• The parents’ responsibility to provide financial, medical, and other support for the child

The permanent guardianship order shall specify the frequency and nature of visitation or contact or the sharing of information with parents and the child. The court shall issue an order regarding visitation, contact, and the sharing of information based on the best interests of the child. The order may restrict or prohibit visitation, contact, and the sharing of information. The order may incorporate an agreement reached among the parties.

The court shall retain jurisdiction to enforce, modify, or terminate a permanent guardianship order until the child reaches age 18, or age 19 for children adjudicated delinquent.

Modification/Revocation of Guardianship

Citation: Ann. Code § 37-1-806A modification or termination of the permanent guardianship may be requested by the permanent guardian, by the child if the child is age 16 or older, by the parent, or by the State. When the permanent guardianship is terminated by a court order, the court shall make further provisions for the permanent guardianship or custody of the child, based upon the best interests of the child.

An order for modification or termination of the permanent guardianship shall be based on a finding, by a preponderance of evidence, that there has been a substantial change in material circumstances. In making this determination, the court may consider whether the child’s parent is currently able and willing to care for the child or that the permanent guardian is unable to continue to care for the child.

In determining whether it is in the child’s best interests that the permanent guardianship be modified or terminated, the court shall consider the following factors:

• The child’s need for continuity of care and caregivers
• The physical, mental, and emotional health of all individuals involved, especially the physical, mental, and emotional needs of the child
• The quality of the interaction and interrelationship of the child with the child’s parent, siblings, relatives, and caregivers, including the proposed permanent guardian

In the event that it is necessary to appoint a successor permanent guardian, appropriate parties may be considered by the court, with the parent having no greater priority than a third party. The court may also consider, where appropriate, return of custody to the parent.

Eligibility for Guardianship Subsidy

Citation: Pol. & Proc. Man. § 16.39For a child to be eligible for subsidized guardianship, the child must meet all of the following criteria:

• The department has determined that that the child was in custody and/or guardianship of the department immediately prior to the initiation of permanent guardianship proceedings.
• The custody and/or guardianship court order must reflect that the child has been removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination.
• The child must be younger than age 18.
• The department has determined that the guardian has met the definition for ‘relative’ for the subsidized permanent guardianship program.
• The prospective guardian must complete all requirements for approval as a resource home and be fully approved for 6 months.
• The child must be placed in the prospective guardian’s home for 6 consecutive months at the time that the prospective guardian’s home is fully approved.
• The department has determined that being returned home or adopted are not appropriate permanency options for the child.
• The child demonstrates a strong attachment to the prospective guardian.
• The guardian has a strong commitment to caring permanently for the child.
• A child who is age 12 or older must be consulted regarding the permanent subsidized guardianship arrangement.

Note: A ‘strong attachment’ is defined as a relationship that existed between the potential guardian and the child or family prior to placement.

If a child is eligible for title IV-E-funded guardianship assistance but has a sibling who is not eligible, the child and any of the child’s siblings may be placed in the same relative guardianship arrangement if the department and the relative agree that the arrangement is appropriate for the sibling, and title IV-E-funded relative guardianship assistance may be paid on behalf of each sibling.

Links to Agency Policies

Tennessee Department of Children’s Services, Administrative Policies and Procedures, § 16.39:

• Subsidized Permanent Guardianship (PDF – 329 KB)
• Protocol for Court Exit of Child to Permanent Guardianship (PDF – 141 KB)
• Subsidy Manual for Adoption Assistance and Subsidized Permanent Guardianship (PDF – 940 KB)

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Citation: Ann. Code §§ 37-2-403; 37-2-414Whenever a child is removed from his or her home and placed in the custody of the Department of Children’s Services, the department shall seek to place the child with a fit and willing relative if such placement provides for the safety and best interests of the child. Whenever a return of a child to his or her parent is determined not to be in the best interests of the child, then the relative with whom the child has been placed shall be given priority for permanent placement or adoption of the child prior to pursuing adoptive placement of such child with a nonrelative.

When a child has been removed from his or her home and is in the care, custody, or guardianship of the department, the department shall attempt to place the child with a relative for kinship foster care.

Relatives within the first, second, or third degree to the parent or stepparent of the child through blood, marriage, or adoption may be eligible for approval.

Requirements for Placement with Relatives

Citation: Ann. Code § 37-2-414If the relative is approved to provide foster care services, he or she may receive payment for the full foster care rate for the care of the child and any other benefits that might be available to foster parents, whether in money or in services.

The department shall establish, in accordance with the provisions of this section, eligibility standards for becoming a kinship foster parent. These standards include:

• The kinship foster parent must be age 21 or older, except that if the spouse or partner of the relative is age 21 or older and living in the home, and the relative is between age 18 and 21, the department may waive the age requirement.
• A person may become a kinship foster parent only upon the completion of an investigation to ascertain if there is a State or Federal record of criminal history for the prospective kinship foster parent or any other adult residing in the prospective parent’s home.
• A prospective kinship foster parent shall supply fingerprint samples and submit to a criminal history records check to be conducted by the Tennessee Bureau of Investigation and the Federal Bureau of Investigation.

Requirements for Placement of Siblings

This issue is not addressed in the statutes and regulations reviewed.

Relatives Who May Adopt

Citation: Ann. Code §§ 36-1-102(42); 36-1-115A person may seek to adopt a child who is related to him or her. The term ‘related’ means grandparents or any degree of great-grandparents, aunts or uncles or any degree of great-aunts or great-uncles, stepparent, cousins of the first degree, any siblings of the whole or half degree, or any spouse of the above listed relatives.

If the child becomes available for adoption while in foster care, the foster parents shall be given first preference to adopt the child if the child has resided in the foster home for 12 or more consecutive months immediately preceding the filing of an adoption petition.

Requirements for Adoption by Relatives

Citation: Ann. Code §§ 36-1-115; 36-1-116In the case of an adoption by relatives, the requirement to have been a resident of the State for at least 6 months shall not apply if the petitioner is an actual resident of this State at the time the petition is filed.

In becoming adoptive parents, the foster parents shall meet all requirements otherwise imposed on persons seeking to adopt children in the custody of the department.

The court may waive the requirement for postplacement supervision when the child is to be adopted by related persons.

Current Through March 2016

What Are Reasonable Efforts

Citation: Ann. Code § 37-1-166The term ‘reasonable efforts’ means the exercise of reasonable care and diligence by the Department of Children’s Services to provide services related to meeting the needs of the child and the family.

When Reasonable Efforts Are Required

Citation: Ann. Code § 37-1-166Reasonable efforts must be made:

• To prevent the need for removal of the child from the child’s family
• To make it possible for the child to return home
• To place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child if continuation of reasonable efforts is determined to be inconsistent with the permanency plan for the child

When Reasonable Efforts Are NOT Required

Citation: Ann. Code §§ 36-1-102(9); 37-1-166Reasonable efforts shall not be required if a court has determined that:

• The parent has subjected the child or any child in the household to aggravated circumstances, including:
  • Abandonment or abandonment of an infant
  • Aggravated assault
  • Aggravated kidnapping or especially aggravated kidnapping
  • Aggravated child abuse and neglect
  • Aggravated sexual exploitation of a minor or especially aggravated sexual exploitation of a minor
  • Aggravated rape, rape, rape of a child, or incest
  • Severe child abuse, as defined in § 37-1-102
• The parent has committed murder or manslaughter of any sibling or other child residing in the household, or aided, abetted, or attempted such crime.
• The parent has committed a felony assault that resulted in serious bodily injury to any child residing in the household.
• The parental rights of the parent to another child have been terminated involuntarily.

Current Through February 2015

Who Can Nominate a Standby Guardian

Citation: Ann. Code § 34-6-302The parent or parents of a minor child may delegate to any adult person residing in this State temporary care giving authority regarding the child when hardship prevents the parent or parents from caring for the child.

How to Establish a Standby Guardian

Citation: Ann. Code §§ 34-6-302; 34-6-303This authority may be delegated without the approval of a court by executing in writing a power of attorney for care of a minor child on a form provided by the Department of Children’s Services. Hardships may include but are not limited to:

• The serious illness or incarceration of a parent or legal guardian
• The physical or mental condition of the parent or legal guardian or the child is such that care and supervision of the child cannot be provided
• The loss or uninhabitability of the child’s home as the result of a natural disaster

The power of attorney for care of the minor child shall be signed by the parent and acknowledged before a notary public or two witnesses who shall sign and date their signatures in each other’s presence.

The instrument providing for the power of attorney shall be executed by both parents, if both parents are living and have legal custody of the minor child, and shall state with specificity the details of the hardship preventing the parent from caring for the child.

How Standby Authority is Activated

Citation:This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

Citation: Ann. Code § 34-6-303
If only one parent has legal custody of the minor child, then that parent shall execute the instrument. The other parent must consent in writing to the appointment in the instrument, or the executing parent shall explain in the instrument why the consent cannot be obtained. If both parents do not execute the affidavit, then the executing parent shall send a copy of the instrument to the other parent by certified mail, return receipt requested, at the last known address of the other parent.

Authority Relationship of the Parent and the Standby

Citation: Ann. Code §§ 34-6-304; 34-6-305; 34-6-307Through the power of attorney for care of a minor child, the parent may authorize the caregiver to perform the following functions without limitation:

• Enroll the child in school and extracurricular activities
• Obtain medical, dental, and mental health treatment for the child
• Provide for the child’s food, lodging, housing, recreation, and travel

Nothing in this section shall be construed to limit the power of the parent to grant additional powers to the caregiver.

Except where limited by Federal law, the caregiver shall be assigned the rights, duties, and responsibilities that would otherwise be assigned to the parent, legal guardian, or legal custodian.

The power of attorney does not provide legal custody to the caregiver. If at any time the parent or legal guardian disagrees with the decision of the caregiver or chooses to make any health-care or educational decisions for the child, the parent must revoke the power of attorney and provide the health-care provider and local education agency either written documentation of the revocation or a court order appointing a legal guardian or legal custodian.

The decision of a caregiver to consent to or to refuse medical, dental, or mental health care for a child shall be superseded by any contravening decision of the parent having legal custody of the child as long as the decision of the parent does not jeopardize the life, health, or safety of the child. If at any time the parent or legal guardian disagrees with the decision of the caregiver or chooses to make any health-care decisions for the child, then the parent must revoke the power of attorney for care of a minor child and provide the health-care provider written documentation of the revocation.

Withdrawing Guardianship

Citation: Ann. Code § 34-6-306The power of attorney for care of a minor child may be terminated by an instrument in writing signed by either parent with legal custody. The power of attorney for care of a minor child may also be terminated by any order of a court of competent jurisdiction that appoints a legal guardian or legal custodian.