Can a Tennessee juvenile court judge release a delinquent child the court committed to the Department of Children's Services and placed in a youth development center?

Plain-English summary

Juvenile Court Judge Paul Wohlford of Bristol asked whether a juvenile court judge had the authority to release a delinquent child the court had previously committed to the Department of Children's Services and placed in a youth development center. The AG said the court could change, modify, or vacate the commitment order upon findings of changed circumstances and the child's best interest.

The reasoning was a statutory comparison. Before July 1, 2007, Tenn. Code Ann. § 37-1-139(b) generally allowed juvenile courts to change, modify, or vacate orders on changed circumstances, but excepted commitments of delinquent children to DCS or an institution for delinquent children, orders terminating parental rights, and orders of dismissal. The AG's 1991 opinion had applied that earlier version to conclude that a juvenile court judge could not initiate the release of a committed juvenile.

Chap. 199 of the Public Acts of 2007 rewrote that subsection. The new (b) preserved the exceptions for parental termination orders and orders of dismissal, but dropped the exceptions for delinquent-child commitments to DCS and to institutions for delinquent children. The new language permits change, modification, or vacation on a finding of changed circumstances and that the change is in the best interest of the child.

Under § 37-1-139(d), "[a]ny party to the proceeding, the probation officer or other person having supervision or legal custody of or an interest in the child may petition the court for the relief provided in this section." The opinion says subsection (e) sets out procedures after a petition is filed. A footnote notes that Tenn. R. Juv. P. 34(c) had not yet been changed to conform to those procedures.

The AG concluded that its earlier opinion, Tenn. Op. Atty. Gen. No. 91-53 (May 29, 1991), "no longer correctly states the law" because one of the statutes on which it relied had changed.

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.

Background and statutory framework

The question concerned a delinquent child committed to DCS and placed in a youth development center. Judge Wohlford asked whether the juvenile court could release the child from custody.

The statutory hinge is the list of exceptions in § 37-1-139(b). Before 2007 it included DCS commitments. The 2007 amendment removed that exception while retaining exceptions for orders terminating parental rights and orders of dismissal.

Tenn. Code Ann. § 37-1-139(d) permits any party to the proceeding, the probation officer, or a person with supervision, legal custody, or an interest in the child to petition for relief. The opinion refers to subsection (e) for procedures after a petition is filed without describing them.

Common questions

Q: Could a juvenile court change its order committing a delinquent child to DCS?
A: The AG concluded that, under the statute effective July 1, 2007, the court could change, modify, or vacate the order upon findings of changed circumstances and that the change was in the child's best interest. The opinion did not address whether DCS consent was required.

Q: Who could file the petition?
A: § 37-1-139(d) lists any party to the proceeding, the probation officer, or any other person having supervision, legal custody, or an interest in the child.

Q: What circumstances would justify changing the commitment order?
A: The opinion states the statutory requirements of changed circumstances and the child's best interest. It does not identify examples or explain how a court weighs them.

Q: Did the AG opinion change practice immediately?
A: The statute had already been amended in 2007. The AG concluded that its prior opinion, which relied in part on the older statute, no longer correctly stated the law.

Q: What about the Rules of Juvenile Procedure?
A: A footnote states that Tenn. R. Juv. P. 34(c) had not yet been changed to conform to the new statutory procedures. The opinion does not analyze a conflict between the rule and the statute.

Citations and references

Statutes and session laws:

• Tenn. Code Ann. § 37-1-139(b) (modification of orders; post-2007 version)
• Tenn. Code Ann. § 37-1-139(d) (2009 Supp.) (who may petition)
• Tenn. Code Ann. § 37-1-139(e) (2009 Supp.) (procedure on petition)
• Chap. 199 of the Public Acts of 2007 (the amendment)

Rules:

• Tenn. R. Juv. P. 34(c) (juvenile-court procedure; not yet conformed at the time of opinion)

Superseded AG opinions:

• Op. Tenn. Att'y Gen. 91-53 (May 29, 1991) (no longer correctly states the law)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-020.pdf

Original opinion text

Juvenile Court's Authority to Release Delinquent Child from DCS Custody

QUESTIONS

Does a juvenile court judge have the authority to release from custody a delinquent child committed to the Department of Children's Services and placed in a youth development center?

OPINIONS

Yes, pursuant to Tenn. Code Ann. § 37-1-139(b) a juvenile court judge has the authority to change, modify or vacate an order of commitment of a delinquent child to the Department of Children's Services upon a finding of changed circumstances and that the change, modification or vacation is in the best interest of the child.

ANALYSIS

As of July 1, 2007, a juvenile court judge has the authority to change, modify or vacate an order of commitment of a delinquent child to the Department of Children's Services upon a finding of changed circumstances and that the change, modification or vacation is in the best interest of the child. Prior to July 1, 2007, Tenn. Code Ann. § 37-1-139(b)(2005) read in pertinent part as follows:

An order of the [juvenile] court may also be changed, modified or vacated on the ground that changed circumstances so require in the best interest of the child, except an order committing a delinquent child to the state department of children's services, or an institution for delinquent children, an order terminating parental rights or an order of dismissal.

(emphasis added). That Code section was amended, effective July 1, 2007, to eliminate the restriction on the court's initiation of the release of delinquent children, and now provides in pertinent part:

Except for an order terminating parental rights or an order of dismissal, an order of the court may also be changed, modified or vacated upon a finding of changed circumstances and that the change, modification or vacation is in the best interest of the child.

Chap. 199 of the Public Acts of 2007. The statute provides that "[a]ny party to the proceeding, the probation officer or other person having supervision or legal custody of or an interest in the child may petition the court for the relief provided in this section." Tenn. Code Ann. § 37-1-139(d)(2009 Supp.). It also sets out the procedures to be followed after such a petition is filed. Tenn. Code Ann. § 37-1-139(e)(2009 Supp.).

1 No change has been made as yet to the Rules of Juvenile Procedure to conform them to the new statutory procedures. See TENN. R. JUV. P. 34(c).

Tenn. Op. Atty. Gen. No. 91-53 (May 29, 1991), opined, based in part on the prior version of Tenn. Code Ann. § 37-1-139(b), that a juvenile court judge could not initiate the release of a juvenile committed to the then Department of Youth Development. Inasmuch as one of the statutes on which the opinion was based was changed subsequent to the issuance of the opinion, Tenn. Op. Atty. Gen. No. 91-53 (May 29, 1991) no longer correctly states the law.

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

KIMBERLY J. DEAN
Deputy Attorney General

Requested by:
The Honorable Paul R. Wohlford
Juvenile Court Judge
Bristol Tennessee Juvenile Court
104 Eighth Street
Bristol, Tennessee 37620