Tenn. R. Juv. P. 306
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.