When a Tennessee juvenile court receives a civil petition alleging child abuse based on a newborn testing positive for illegal drugs, can the court share it with the district attorney for criminal prosecution, and does sharing it satisfy the court's duty under § 39-15-401(d)(1)?

Subject

Opinion No. 10-124, Juvenile Court Official's Providing Copies of Civil Petitions Alleging Child Abuse to District Attorneys General, December 30, 2010

Plain-English summary

The District Attorney General for the 30th Judicial District (Memphis/Shelby County) asked the AG about the practice of juvenile courts forwarding civil child-abuse petitions, particularly those based on a newborn testing positive for illegal drugs at birth, to his office for evaluation for criminal prosecution.

The AG concluded that this practice was both permitted and, as a policy matter, encouraged. Three legs supported the answer:

1. Mandatory reporting reaches juvenile court officials too. Tenn. Code Ann. § 37-1-403 requires "any person" with knowledge of a child suffering from harm reasonably indicating brutality, abuse, or neglect to report it immediately. The plain meaning of "any person" includes officials of the juvenile court. So when a juvenile court official learns of a possible drug-exposed newborn through a civil petition, the mandatory reporting duty already covers the official.
2. Drug-exposed newborns trigger that reporting duty. Prior AG opinions had concluded that a newborn with illegal drugs in his body is suffering from injury due to abuse (Op. Tenn. Att'y Gen. 02-136), and that the mother of a child born addicted to an illegal drug may be criminally prosecuted for assault (Op. Tenn. Att'y Gen. 08-114).
3. Section 37-1-153 lets juvenile court records be shared with the DA. That statute allows juvenile court records to be shared with "officers and professional staff of the court" and with "any other person or agency or institution having a legitimate interest in the proceeding or in the work of the court" with the court's permission. District attorneys general fit both categories: they are officers of the court, and the State's interest in preventing and punishing child abuse rises to a "compelling need" that qualifies as a legitimate interest. Other states (the AG cited Cal. Welf. & Inst. Code § 827) similarly list DAs among those permitted to view juvenile court records.

Although the AG said § 37-1-403 does not require reporting to district attorneys general specifically (it lists other officials and entities), reporting to them voluntarily is appropriate and serves Tennessee's express public policy under § 37-1-402(a) of bringing protective services to bear "to prevent further abuses, to safeguard and enhance the welfare of children, and to preserve family life." The AG read § 37-1-402 as encompassing the deterrent and punitive role of state prosecutorial resources, not just the protective and rehabilitative role of child welfare agencies.

On the second question, the AG concluded that sharing a civil petition with a DA does not, by itself, discharge a juvenile court's duty under Tenn. Code Ann. § 39-15-401(d)(1), which provides that "[a]ny court having reasonable cause to believe that a person is guilty of violating this section shall have the person brought before the court, either by summons or warrant." The word "shall" is mandatory; the alternative-process structure (summons or warrant) suggests the legislature considered other options and limited them. Sharing a petition is a separate, lawful, and policy-favored act, but it does not substitute for the summons or warrant. Conversely, issuing the summons or warrant does not prevent the court from also sharing the petition with the DA, as long as the summons or warrant issues at some point.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can the juvenile court share a child-abuse petition with the DA without anyone's permission?

The statutory scheme has two pieces. Tenn. Code Ann. § 37-1-153(a)(1) allows sharing with "officers and professional staff of the court" without needing additional court permission. Tenn. Code Ann. § 37-1-153(a)(5) allows sharing with "any other person or agency or institution having a legitimate interest in the proceeding or in the work of the court" but conditions that route on the court's permission. The AG treated DAs as fitting both categories: they are officers of the court (so subsection (a)(1) applies) and they have a legitimate interest in the proceeding (so subsection (a)(5) also applies).

Was this opinion specific to drug-exposed newborn cases?

The question came up in the context of drug-exposed newborns, but the AG's reasoning is broader. The mandatory reporting duty under § 37-1-403 reaches any person with knowledge of abuse or neglect, and the records-sharing authority under § 37-1-153 is not limited by the nature of the alleged abuse. The practice of forwarding civil abuse petitions to the DA could appropriately extend to other categories of allegations within § 37-1-403.

Did the AG say juvenile court officials must report to the DA?

No. The mandatory reporting statute (§ 37-1-403(a)(2)) lists specific officials and entities to whom reports must be made; the DA is not on that list. So the duty to report does not run to the DA's office. The AG concluded, however, that reporting to the DA voluntarily is "appropriate" and serves the state's public policy.

Why was the AG strict about the summons or warrant requirement?

Because the statute says "shall," because "shall" is generally mandatory (JJ & TK Corp. v. Bd. of Comm'rs, 149 S.W.3d 628, 631 (Tenn. Ct. App. 2004), citing Gabel v. Lerman, 812 S.W.2d 580 (Tenn. Ct. App. 1990)), and because the alternative-process language ("either by summons or warrant") signals the legislature thought about how a court should bring a person before it and limited the answer to those two methods. A court that simply notified the DA of an alleged abuser and called it a day would not have discharged the duty.

Was there anything stopping the court from doing both?

No. The AG explicitly said the duty to issue summons or warrant does not bar the court from also sharing the petition with the DA. The two acts are independent. In practice, doing both is the cleanest approach: the court fulfills its own statutory duty under § 39-15-401(d)(1), and the DA gets the information needed to evaluate criminal prosecution.

What did the prior AG opinions add to the analysis?

• Op. Tenn. Att'y Gen. 02-136 (Dec. 23, 2002) concluded that a child showing the presence of illegal drugs in his body at birth is suffering from injury due to abuse and triggers the mandatory reporting requirement.
• Op. Tenn. Att'y Gen. 08-114 (May 21, 2008) concluded that the mother of a child born addicted to an illegal drug as a result of the mother's ingestion may be criminally prosecuted for assault.
• Op. Tenn. Att'y Gen. 00-128 (Aug. 10, 2000) was cited for the proposition that a "compelling need" may give rise to a legitimate interest.

Background and statutory framework

Tennessee's mandatory child-abuse reporting law, Tenn. Code Ann. § 37-1-403, requires "any person" with knowledge of a child suffering harm reasonably indicating brutality, abuse, or neglect to report immediately. The phrase "any person," construed under its normal and accepted use (Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003), citing State v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000)), encompasses juvenile court officials.

The state's overall public policy goal in this area is set out in Tenn. Code Ann. § 37-1-402, which directs the Title 37, Chapter 1, Part 4 framework to be "administered and interpreted to provide the greatest possible protection as promptly as possible for children." Section 37-1-402(a) specifies that the protective services of the state are to "prevent further abuses, to safeguard and enhance the welfare of children, and to preserve family life." The AG read that policy as encompassing the deterrent and punitive use of state prosecutorial resources, not just child welfare interventions.

The records-disclosure framework is in Tenn. Code Ann. § 37-1-153. It permits juvenile court records to be shared with:

• The judge, officers, and professional staff of the court (§ 37-1-153(a)(1)); and
• Any other person, agency, or institution having a legitimate interest in the proceeding or in the work of the court, with the permission of the court (§ 37-1-153(a)(5)).

District attorneys general fall within both categories. They are officers of the court, and their statutory role makes them persons with a legitimate interest in the proceeding or in the work of the court. The AG noted that "legitimate interest" is not defined by the legislature, and read the state's interest in preventing and punishing child abuse as rising to the level of a "compelling need." See Op. Tenn. Att'y Gen. 00-128 (Aug. 10, 2000). California's analogous statute, Cal. Welf. & Inst. Code § 827, lists district attorneys among those permitted to view juvenile court records.

The court's duty to bring suspected child abusers before the court is in Tenn. Code Ann. § 39-15-401(d)(1): "[a]ny court having reasonable cause to believe that a person is guilty of violating this section shall have the person brought before the court, either by summons or warrant." Under settled Tennessee construction principles, "shall" is mandatory (JJ & TK Corp. v. Bd. of Comm'rs, 149 S.W.3d 628, 631 (Tenn. Ct. App. 2004), citing Gabel v. Lerman, 812 S.W.2d 580, 582 (Tenn. Ct. App. 1990)). The statute's alternative-process language signaled the legislature considered the means of bringing a person before the court and expressly limited the methods to summons or warrant. So sharing a civil petition with the DA cannot substitute for the summons or warrant; it can run alongside it.

Citations

• Tenn. Code Ann. § 37-1-153 (juvenile court records sharing)
• Tenn. Code Ann. § 37-1-153(a)(1) (sharing with judge, officers, and professional staff of court)
• Tenn. Code Ann. § 37-1-153(a)(5) (sharing with persons having legitimate interest, with court's permission)
• Tenn. Code Ann. § 37-1-402 (public policy of child welfare statutes)
• Tenn. Code Ann. § 37-1-402(a) (purpose: protect children, preserve family life)
• Tenn. Code Ann. § 37-1-403 (mandatory child-abuse reporting)
• Tenn. Code Ann. § 37-1-403(a)(2) (specific officials and entities for mandatory reports)
• Tenn. Code Ann. § 39-15-401 (child-abuse offense)
• Tenn. Code Ann. § 39-15-401(d)(1) (court duty to bring suspected abuser before court by summons or warrant)
• Cal. Welf. & Inst. Code § 827 (analogous California records-access statute)
• Boarman v. Jaynes, 109 S.W.3d 286 (Tenn. 2003)
• State v. Nelson, 23 S.W.3d 270 (Tenn. 2000)
• JJ & TK Corp. v. Bd. of Comm'rs, 149 S.W.3d 628 (Tenn. Ct. App. 2004)
• Gabel v. Lerman, 812 S.W.2d 580 (Tenn. Ct. App. 1990)
• Op. Tenn. Att'y Gen. 02-136 (Dec. 23, 2002) (drug-exposed newborn triggers mandatory reporting)
• Op. Tenn. Att'y Gen. 08-114 (May 21, 2008) (mother of drug-exposed newborn may be prosecuted for assault)
• Op. Tenn. Att'y Gen. 00-128 (Aug. 10, 2000) (compelling need may give rise to legitimate interest)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-124.pdf

Original opinion text

December 30, 2010

Opinion No. 10-124

Juvenile Court Official's Providing Copies of Civil Petitions Alleging Child Abuse to District Attorneys General

QUESTIONS

1. May a juvenile court official, upon receipt of a civil petition alleging child abuse or neglect based on the child's testing positive for illegal drugs at birth, provide a copy of the petition to the district attorney general for that county for evaluation for criminal prosecution?

2. If the answer to question one is yes, does this satisfy the obligation of the juvenile court, in Tenn. Code Ann. § 39-15-401(d)(1), to bring before the court, either by summons or warrant, any person suspected of abusing or neglecting a child?

OPINIONS

1. Yes. We have previously opined that the birth of a child with illegal drugs in his system triggers mandatory child-abuse reporting requirements. The mandatory reporting of child abuse serves the express public policy aim of safeguarding and enhancing the welfare of children. It is appropriate but not mandatory for juvenile court officials to provide district attorneys general with information, including civil petitions alleging child abuse or neglect based on a child's being born with drugs in his system, that would allow the district attorney general to evaluate the case for criminal prosecution.

2. No. The juvenile court only satisfies its obligation under the language of Tenn. Code Ann. § 39-15-401(d)(1) by either issuing a warrant or a summons for the person suspected of child abuse to appear before the court.

ANALYSIS

Tennessee law requires that "[a]ny person who has knowledge of 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." Tenn. Code Ann. § 37-1-403 (2010). We think that "any person," as used in Tenn. Code Ann. § 37-1-403, includes officials of juvenile court. When statutory language is clear and unambiguous, courts will apply the plain language in its normal and accepted use. Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000)). The normal and accepted use of the phrase "any person" would encompass juvenile court officials. Thus, any juvenile court official with the requisite knowledge specified in § 37-1-403 must report it to the appropriate authorities.

We have opined previously that a child showing the presence of illegal drugs in his body at birth is suffering from injury due to abuse, and such abuse triggers the mandatory reporting requirement of Tenn. Code Ann. § 37-1-403. See Op. Tenn. Att'y Gen. 02-136 (Dec. 23, 2002); see also Op. Tenn. Att'y Gen. 08-114 (May 21, 2008) (opining that when a child is born addicted to an illegal drug as a result of the mother's ingestion of the drug, the mother may be criminally prosecuted for assault). While persons with knowledge of abuse are required to report to one of the officials or entities listed in Tenn. Code Ann. § 37-1-403(a)(2), they are not required to report to district attorneys general. We think, however, it would be appropriate for them to do so voluntarily.

Tennessee public policy, as set forth in Tenn. Code Ann. § 37-1-402, favors this conclusion. Tenn. Code Ann. § 37-1-402 states that the purpose of the mandatory child abuse reporting requirement is to "protect children whose physical or mental health and welfare are adversely affected by brutality, abuse or neglect." The express intention of this statute is for "the protective services of the state [to] be brought to bear on the situation to prevent further abuses, to safeguard and enhance the welfare of children, and to preserve family life." Tenn. Code Ann. § 37-1-402(a) (2010). This code section is to be "administered and interpreted to provide the greatest possible protection as promptly as possible for children." Id.

It is appropriate to read Tenn. Code Ann. § 37-1-402 as providing for the deterrent and punitive effects of state prosecutorial resources to be brought to bear speedily upon any case of alleged child abuse. To the extent that a juvenile court official's turning over a civil petition alleging abuse facilitates this aim, the law not only permits but encourages this practice.

In your letter, you discussed Tenn. Code Ann. § 37-1-153 and its provisions regarding persons who may inspect files and records of a juvenile court proceeding. This statute does not present any barriers to the sharing of civil petitions alleging abuse. This statute allows juvenile court records to be shared with the "judge, officers and professional staff of the court," as well as with "any other person or agency or institution having a legitimate interest in the proceeding or in the work of the court," with the permission of the court. Tenn. Code Ann. § 37-1-153(a)(1), (5) (2010). District attorneys general are both officers of the court as well as persons having a legitimate interest in the proceeding or the work of the court. While the Tennessee legislature has not defined "legitimate interest" in the context of this statute, we think the State's interest in the prevention and punishment of child abuse rises to the level of a "compelling need" giving rise to a legitimate interest. See Op. Tenn. Att'y Gen. 00-128 (Aug. 10, 2000) (opining that "compelling need" may give rise to a legitimate interest). Other states list district attorneys general among select persons permitted to view juvenile court records. See, e.g., Cal. Welf. & Inst. Code § 827 (2010).

You have also inquired whether the juvenile court official's sharing of a civil petition alleging child abuse with a district attorney general discharges the duty imposed upon courts in Tenn. Code Ann. § 39-15-401(d)(1), which provides that "[a]ny court having reasonable cause to believe that a person is guilty of violating this section shall have the person brought before the court, either by summons or warrant." We think that the sharing of a civil petition alleging abuse, taken by itself, would not discharge this duty. Where a statute contains the word "shall," it is generally construed as being mandatory, not discretionary. See JJ & TK Corp. v. Bd. of Comm'rs, 149 S.W.3d 628, 631 (Tenn. Ct. App. 2004) (citing Gabel v. Lerman, 812 S.W.2d 580, 582 (Tenn. Ct. App. 1990)). Tenn. Code Ann. § 39-15-401(d)(1), by its plain and unambiguous language, requires courts to issue a summons or warrant to bring before them persons suspected of child abuse. The fact that Tenn. Code Ann. § 39-15-401(d)(1) provides for alternative process, either summons or warrant, suggests that the legislature considered alternative means by which a court may discharge its duty under this section, and expressly limited them. We think, however, that this section does not prevent the court from also sharing with the district attorney general a civil petition alleging child abuse, so long as a summons or a warrant issues at some point to fulfill the duty in Tenn. Code Ann. § 39-15-401(d)(1).

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

AMY L. TARKINGTON
Deputy Attorney General

Requested by:
The Honorable William L. Gibbons
District Attorney General
30th Judicial District
201 Poplar Ave., Third Floor
Memphis, TN 38103-1947