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In this case, we must determine whether a Georgia trial court had jurisdiction over a petition requesting custody of two minor children under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), OCGA § 19-9-61. While visiting family in Georgia from Michigan, Chelsey Bowman filed a complaint seeking custody of her minor children from her husband and the children's father, Luke Bowman. The trial court concluded that it had jurisdiction over the petition pursuant to the UCCJEA. Luke sought interlocutory review, which this Court granted. We now conclude that the trial court erred in finding that jurisdiction was proper here.
Accordingly, we reverse the trial court's order and remand for the trial court to dismiss the petition for lack of jurisdiction.
We review a question of subject-matter jurisdiction de novo. Kogel v. Kogel, 337 Ga.App. 137, 140 (786 S.E.2d 518) (2016). So viewed, we begin with a recounting of this case's complicated procedural history. Luke and Chelsey married in Georgia in 2009. Their son was born in Georgia in 2011. In 2012, the family moved to Michigan, and their daughter was born there in 2013. For approximately one year, the family moved around Michigan. They then moved to Wisconsin for Luke's job, and they remained there for a year. When Luke's job ended, he moved to Indiana, and Chelsey remained in Wisconsin until the lease on their home terminated. At that time, Chelsey and the children returned to Michigan in October 2015, where they stayed with different members of Luke's family for one month.
In November 2015, Luke and Chelsey brought the children to Georgia to visit Chelsey's family for Thanksgiving. The parties agree that the plan was for Chelsey and the children to return to the midwest after the holiday. However, after Luke left Georgia, Chelsey became concerned that he had engaged in an extra-marital affair, and she immediately filed an ex parte motion in Georgia for custody of the children. In December 2015, the trial court granted temporary custody to Chelsey.
Luke moved to vacate the ex parte order, arguing that the Georgia court lacked jurisdiction to enter the custody award because the children had no significant connection to Georgia. Chelsey opposed the motion, and both parties submitted numerous affidavits to show the ties the children had in Michigan and Georgia.
The trial court held a hearing in Georgia in January 2016 to address the issue of jurisdiction. Shortly before that hearing, Luke filed for divorce in Michigan.
In February 2016, a Michigan trial court also held a hearing to determine which state was the proper jurisdiction for the custody dispute. The Michigan court heard testimony from Luke and Chelsey, as well as Luke's mother. After considering the family ties in each state, the Michigan court concluded that there was no basis for that state to exercise jurisdiction. Luke filed an appeal of the Michigan court's decision and also moved to dismiss the Georgia trial court's order. When the case returned to the trial court in Georgia, the trial court held the case in abeyance pending the outcome of the Michigan appeal.
In October 2016, the Michigan Court of Appeals issued its decision upholding the determination that jurisdiction was proper in Georgia, but remanding because the trial court failed to communicate with the Georgia court before reaching its decision. The parties then returned to court in Georgia in December 2016, at which time the trial court spoke with the judge in Michigan and they agreed that jurisdiction was proper in Georgia. During that hearing, the parties stipulated that neither Michigan nor Georgia was the children's "home state, " under the UCCJEA, and both the Michigan and Georgia judges agreed that the children had a significant connection to both states. The Georgia trial court also considered whether Chelsey had improperly filed the ex parte motion for custody and found that she had not done so. The trial court then reinstated its ruling finding that it had jurisdiction under OCGA § 19-9-61 (a) (2) and (a) (4), and made a blanket statement that the children had a significant connection with the state that warranted the exercise of jurisdiction. This interlocutory appeal followed.
In three interrelated enumerations or error, Luke argues that the trial court erred in exercising jurisdiction over the custody dispute because (1) the ex parte order failed to meet the standard for conferring emergency jurisdiction; (2) the trial court ignored evidence of Chelsey's misconduct in filing the emergency petition; and (3) the trial court failed to consider which state had the more significant connection to the children. After a thorough review of the record, we find that the trial court failed to make the requisite factual findings before concluding that it had jurisdiction.
1. Luke first argues that the trial court erred in exercising emergency jurisdiction because there was no basis to grant such relief under OCGA § 19-9-64. We find no reversible error.
(a) Under OCGA § 19-9-64 (a), the trial court may exercise emergency jurisdiction when "the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse." Generally, to exercise jurisdiction under this statute, there must be an immediate danger of harm or abuse. See Prabnarong v. Oudomhack, 334 Ga.App. 723, 726 (780 S.E.2d 393) (2015).
Alternatively, under the UCCJEA, a trial court has jurisdiction to make an "initial custody determination" if certain jurisdictional requirements are met. OCGA § 19-9-61 (a). The term "initial determination" is defined as "the first child custody determination concerning a particular child." See OCGA § 19-9-41 (8).
Thus, even if there was no basis for emergency jurisdiction under § 19-9-64, given that no other state had a pending custody petition before it, the trial court properly considered whether it had jurisdiction under OCGA § 19-9-61. Any error in considering the emergency custody motion is rendered moot by the trial court's subsequent ruling on the jurisdictional question. Delgado v. Combs, 314 Ga.App. 419, 421 (1) (724 S.E.2d 436) (2012).
(b) Luke argues, however, that Chelsey's alleged misconduct in invoking emergency jurisdiction required the trial court to decline to exercise jurisdiction regardless of whether the jurisdictional prerequisites of the UCCJEA were met and that the trial court erred in failing to consider evidence of her misconduct.
Here, the trial court found that Chelsey did not engage in any misconduct, and we must defer to that factual finding. Parke v. Fant, 260 Ga.App. 84, 86 (2) (578 S.E.2d 896) (2003). Moreover, our conclusion in Division 1 (a) that the Georgia trial court could consider the initial custody determination regardless of the emergency petition essentially renders Chesley's conduct irrelevant, and we need not consider whether the trial court reviewed Luke's evidence of Chesley's alleged misconduct. Furthermore, even if there had been some misconduct, the UCCJEA does not require a court to decline to exercise jurisdiction where, as here, both the Michigan court and the Georgia court expressly determined that jurisdiction in Georgia was the more appropriate and convenient forum. Therefore, assuming that Georgia had jurisdiction, the trial court was not required to decline to exercise that jurisdiction.
2. We thus turn to whether the trial court properly exercised jurisdiction under the UCCJEA after finding that the children had more significant connections to Georgia than to Michigan. We now conclude that the trial court erred.


�130.1. Implementation of Texas Essential Knowledge and Skills for Agriculture, Food, and Natural Resources, Adopted 2015.
�130.2. Principles of Agriculture, Food, and Natural Resources (One Credit), Adopted 2015.
�130.3. Professional Standards in Agribusiness (One-Half Credit), Adopted 2015.
�130.4. Agribusiness Management and Marketing (One Credit), Adopted 2015.
�130.5. Mathematical Applications in Agriculture, Food, and Natural Resources (One Credit), Adopted 2015.
�130.6. Equine Science (One-Half Credit), Adopted 2015.
�130.7. Livestock Production (One Credit), Adopted 2015.
�130.8. Small Animal Management (One-Half Credit), Adopted 2015.
�130.9. Veterinary Medical Applications (One Credit), Adopted 2015.
�130.10. Advanced Animal Science (One Credit), Adopted 2015.
�130.11. Energy and Natural Resource Technology (One Credit), Adopted 2015.
�130.12. Advanced Energy and Natural Resource Technology (One Credit), Adopted 2015.
�130.13. Oil and Gas Production I (One Credit), Adopted 2015.
�130.14. Oil and Gas Production II (One Credit), Adopted 2015.
�130.15. Food Technology and Safety (One Credit), Adopted 2015.
�130.16. Food Processing (One Credit), Adopted 2015.
�130.17. Wildlife, Fisheries, and Ecology Management (One Credit), Adopted 2015.
�130.18. Forestry and Woodland Ecosystems (One Credit), Adopted 2015.
§130.19. Range Ecology and Management (One Credit), Adopted 2015.
§130.20. Floral Design (One Credit), Adopted 2015.
§130.21. Landscape Design and Management (One-Half Credit), Adopted 2015.
§130.22. Turf Grass Management (One-Half Credit), Adopted 2015.
§130.23. Horticultural Science (One Credit), Adopted 2015.
§130.24. Greenhouse Operation and Production (One Credit), Adopted 2015.
§130.25. Advanced Plant and Soil Science (One Credit), Adopted 2015.
�130.26. Agricultural Mechanics and Metal Technologies (One Credit), Adopted 2015.
�130.27. Agricultural Structures Design and Fabrication (One Credit), Adopted 2015.
�130.28. Agricultural Equipment Design and Fabrication (One Credit), Adopted 2015.
�130.29. Agricultural Power Systems (Two Credits), Adopted 2015.
�130.30. Agricultural Laboratory and Field Experience (One Credit), Adopted 2015.
�130.31. Practicum in Agriculture, Food, and Natural Resources (Two Credits), Adopted 2015.
�130.32. Extended Practicum in Agriculture, Food, and Natural Resources (One Credit), Adopted 2015.
�130.41. Implementation of Texas Essential Knowledge and Skills for Architecture and Construction, Adopted 2015.
�130.42. Principles of Architecture (One Credit), Adopted 2015.
�130.43. Principles of Construction (One Credit), Adopted 2015.
�130.44. Building Maintenance Technology I (Two Credits), Adopted 2015.
�130.45. Building Maintenance Technology II (Two Credits), Adopted 2015.
�130.46. Construction Management I (Two Credits), Adopted 2015.
�130.47. Construction Management II (Two Credits), Adopted 2015.
�130.48. Construction Technology I (Two Credits), Adopted 2015.
�130.49. Construction Technology II (Two Credits), Adopted 2015.
�130.50. Mill and Cabinetmaking Technology (Two Credits), Adopted 2015.
�130.51. Masonry Technology I (Two Credits), Adopted 2015.
�130.52. Masonry Technology II (Two Credits), Adopted 2015.
§130.53. Architectural Design I (One Credit), Adopted 2015.
§130.54. Architectural Design II (Two Credits), Adopted 2015.
§130.55. Interior Design I (One Credit), Adopted 2015.
§130.56. Interior Design II (Two Credits), Adopted 2015.
§130.57. Electrical Technology I (One Credit), Adopted 2015.
§130.58. Electrical Technology II (Two Credits), Adopted 2015.
§130.59. Heating, Ventilation, and Air Conditioning (HVAC) and Refrigeration Technology I (One Credit), Adopted 2015.
§130.60. Heating, Ventilation, and Air Conditioning (HVAC) and Refrigeration Technology II (Two Credits), Adopted 2015.
§130.61. Plumbing Technology I (One Credit), Adopted 2015.
§130.62. Plumbing Technology II (Two Credits), Adopted 2015.
�130.63. Practicum in Construction Management (Two Credits), Adopted 2015.
�130.64. Practicum in Construction Technology (Two Credits), Adopted 2015.
�130.65. Practicum in Masonry Technology (Two Credits), Adopted 2015.
�130.66. Practicum in Architectural Design (Two Credits), Adopted 2015.
�130.67. Practicum in Interior Design (Two Credits), Adopted 2015.
�130.68. Extended Practicum in Construction Management (One Credit), Adopted 2015.
�130.69. Extended Practicum in Construction Technology (One Credit), Adopted 2015.
�130.70. Extended Practicum in Masonry Technology (One Credit), Adopted 2015.
�130.71. Extended Practicum in Architectural Design (One Credit), Adopted 2015.
�130.72. Extended Practicum in Interior Design (One Credit), Adopted 2015.
§130.81. Implementation of Texas Essential Knowledge and Skills for Arts, Audio/Video Technology, and Communications, Adopted 2015.
§130.83. Animation I (One Credit), Adopted 2015.
§130.84. Animation I Lab (One Credit), Adopted 2015.
§130.85. Animation II (One Credit), Adopted 2015.
§130.86. Animation II Lab (One Credit), Adopted 2015.
§130.87. Audio/Video Production I (One Credit), Adopted 2015.
§130.88. Audio/Video Production I Lab (One Credit), Adopted 2015.
§130.89. Audio/Video Production II (One Credit), Adopted 2015.
§130.90. Audio/Video Production II Lab (One Credit), Adopted 2015.
§130.91. Digital Audio Technology I (One Credit), Adopted 2015.
§130.92. Digital Audio Technology II (One Credit), Adopted 2015.
§130.93. Video Game Design (One Credit), Adopted 2015.
§130.94. Printing and Imaging Technology I (One Credit), Adopted 2015.
§130.95. Printing and Imaging Technology I Lab (One Credit), Adopted 2015.
§130.96. Printing and Imaging Technology II (One Credit), Adopted 2015.
§130.97. Printing and Imaging Technology II Lab (One Credit), Adopted 2015.
§130.98. Commercial Photography I (One Credit), Adopted 2015.
§130.99. Commercial Photography I Lab (One Credit), Adopted 2015.
�130.100. Commercial Photography II (One Credit), Adopted 2015.
�130.101. Commercial Photography II Lab (One Credit), Adopted 2015.
�130.102. Fashion Design I (One Credit), Adopted 2015.
�130.103. Fashion Design I Lab (One Credit), Adopted 2015.
�130.104. Fashion Design II (One Credit), Adopted 2015.
�130.105. Fashion Design II Lab (One Credit), Adopted 2015.
�130.106. Graphic Design and Illustration I (One Credit), Adopted 2015.
�130.107. Graphic Design and Illustration I Lab (One Credit), Adopted 2015.
�130.108. Graphic Design and Illustration II (One Credit), Adopted 2015.
�130.109. Graphic Design and Illustration II Lab (One Credit), Adopted 2015.
�130.110. Professional Communications (One-Half Credit), Adopted 2015.
§130.111. Practicum in Animation (Two Credits), Adopted 2015.
�130.112. Practicum in Audio/Video Production (Two Credits), Adopted 2015.
�130.113. Practicum in Printing and Imaging Technology (Two Credits), Adopted 2015.
�130.114. Practicum in Commercial Photography (Two Credits), Adopted 2015.
�130.115. Practicum in Fashion Design (Two Credits), Adopted 2015.
�130.116. Practicum in Graphic Design and Illustration (Two Credits), Adopted 2015.
�130.117. Extended Practicum in Animation (One Credit), Adopted 2015.
§130.118. Extended Practicum in Audio/Video Production (One Credit), Adopted 2015.
§130.119. Extended Practicum in Printing and Imaging Technology (One Credit), Adopted 2015.
§130.120. Extended Practicum in Commercial Photography (One Credit), Adopted 2015.
§130.121. Extended Practicum in Fashion Design (One Credit), Adopted 2015.
�130.122. Extended Practicum in Graphic Design and Illustration (One Credit), Adopted 2015.
�130.131. Implementation of Texas Essential Knowledge and Skills for Business Management and Administration, Adopted 2015.
�130.132. Principles of Business, Marketing, and Finance (One Credit), Adopted 2015.
�130.133. Touch System Data Entry (One-Half Credit), Adopted 2015.
�130.134. Business Law (One Credit), Adopted 2015.
�130.135. Business English (One Credit), Adopted 2015.
�130.136. Business Information Management I (One Credit), Adopted 2015.
�130.137. Business Information Management II (One Credit), Adopted 2015.
�130.138. Business Lab (One Credit), Adopted 2015.
�130.139. Business Management (One Credit), Adopted 2015.
�130.140. Global Business (One-Half Credit), Adopted 2015.
§130.141. Virtual Business (One-Half Credit), Adopted 2015.
§130.142. Human Resources Management (One-Half Credit), Adopted 2015.
�130.143. Practicum in Business Management (Two Credits), Adopted 2015.
�130.144. Extended Practicum in Business Management (One Credit), Adopted 2015.
�130.161. Implementation of Texas Essential Knowledge and Skills for Education and Training, Adopted 2015.
�130.162. Principles of Education and Training (One Credit), Adopted 2015.
�130.163. Human Growth and Development (One Credit), Adopted 2015.
�130.164. Instructional Practices (Two Credits), Adopted 2015.
§130.165. Practicum in Education and Training (Two Credits), Adopted 2015.
�130.166. Extended Practicum in Education and Training (One Credit), Adopted 2015.
�130.180. Financial Mathematics (One Credit), Adopted 2015.
�130.181. Implementation of Texas Essential Knowledge and Skills for Finance, Adopted 2015.
�130.182. Money Matters (One Credit), Adopted 2015.
�130.184. Securities and Investments (One Credit), Adopted 2015.
�130.185. Insurance Operations (One Credit), Adopted 2015.
�130.186. Banking and Financial Services (One-Half Credit), Adopted 2015.
�130.187. Accounting I (One Credit), Adopted 2015.
�130.188. Accounting II (One Credit), Adopted 2015.
�130.189. Financial Analysis (One Credit), Adopted 2015.
�130.190. Statistics and Business Decision Making (One Credit), Adopted 2015.
�130.201. Implementation of Texas Essential Knowledge and Skills for Government and Public Administration, Adopted 2015.
�130.202. Principles of Government and Public Administration (One Credit), Adopted 2015.
�130.203. Political Science I (One Credit), Adopted 2015.
�130.204. Political Science II (One Credit), Adopted 2015.
�130.205. Foreign Service and Diplomacy (One Credit), Adopted 2015.
�130.206. Planning and Governance (One Credit), Adopted 2015.
�130.207. National Security (One Credit), Adopted 2015.
�130.208. Public Management and Administration (One Credit), Adopted 2015.
�130.209. Revenue, Taxation, and Regulation (One Credit), Adopted 2015.
§130.210. Practicum in Local, State, and Federal Government (Two Credits), Adopted 2015.
�130.211. Extended Practicum in Local, State, and Federal Government (One Credit), Adopted 2015.
�130.221. Implementation of Texas Essential Knowledge and Skills for Health Science, Adopted 2015.
�130.222. Principles of Health Science (One Credit), Adopted 2015.
�130.223. Medical Terminology (One Credit), Adopted 2015.
�130.224. Anatomy and Physiology (One Credit), Adopted 2015.
�130.225. Medical Microbiology (One Credit), Adopted 2015.
�130.226. World Health Research (One Credit), Adopted 2015.
�130.227. Pathophysiology (One Credit), Adopted 2015.
�130.228. Health Informatics (One Credit), Adopted 2015.
§130.229. Mathematics for Medical Professionals (One Credit), Adopted 2015.
§130.230. Pharmacology (One Credit), Adopted 2015.
§130.231. Health Science Theory (One Credit), Adopted 2015.
§130.232. Health Science Clinical (One Credit), Adopted 2015.
§130.233. Practicum in Health Science (Two Credits), Adopted 2015.
�130.234. Extended Practicum in Health Science (One Credit), Adopted 2015.
�130.251. Implementation of Texas Essential Knowledge and Skills for Hospitality and Tourism, Adopted 2015.
�130.252. Principles of Hospitality and Tourism (One Credit), Adopted 2015.
�130.253. Introduction to Culinary Arts (One Credit), Adopted 2015.
�130.254. Culinary Arts (Two Credits), Adopted 2015.
�130.255. Advanced Culinary Arts (Two Credits), Adopted 2015.
�130.256. Food Science (One Credit), Adopted 2015.
�130.257. Practicum in Culinary Arts (Two Credits), Adopted 2015.
�130.258. Travel and Tourism Management (One Credit), Adopted 2015.
�130.259. Hotel Management (One Credit), Adopted 2015.
§130.260. Hospitality Services (Two Credits), Adopted 2015.
§130.261. Practicum in Hospitality Services (Two Credits), Adopted 2015.
§130.262. Extended Practicum in Culinary Arts (One Credit), Adopted 2015.
§130.263. Extended Practicum in Hospitality Services (One Credit), Adopted 2015.
�130.271. Implementation of Texas Essential Knowledge and Skills for Human Services, Adopted 2015.
�130.272. Principles of Human Services (One Credit), Adopted 2015.
�130.273. Dollars and Sense (One-Half Credit), Adopted 2015.
�130.274. Lifetime Nutrition and Wellness (One-Half Credit), Adopted 2015.
�130.275. Interpersonal Studies (One-Half Credit), Adopted 2015.
�130.276. Counseling and Mental Health (One Credit), Adopted 2015.
�130.277. Child Development (One Credit), Adopted 2015.
�130.278. Child Guidance (Two Credits), Adopted 2015.
�130.279. Family and Community Services (One Credit), Adopted 2015.
�130.280. Practicum in Human Services (Two Credits), Adopted 2015.
�130.281. Principles of Cosmetology Design and Color Theory (One Credit), Adopted 2015.
�130.282. Introduction to Cosmetology (One Credit), Adopted 2015.
§130.283. Cosmetology I (Two Credits), Adopted 2015.
§130.284. Cosmetology II (Two Credits), Adopted 2015.
§130.285. Extended Practicum in Human Services (One Credit), Adopted 2015.
§130.286. Cosmetology I Lab (One Credit), Adopted 2018.
�130.287. Cosmetology II Lab (One Credit), Adopted 2018.
�130.301. Implementation of Texas Essential Knowledge and Skills for Information Technology, Adopted 2015.
�130.302. Principles of Information Technology (One Credit), Adopted 2015.
�130.303. Computer Maintenance (One Credit), Adopted 2015.
�130.304. Computer Maintenance Lab (One Credit), Adopted 2015.
�130.305. Networking (One Credit), Adopted 2015.
�130.306. Networking Lab (One Credit), Adopted 2015.
�130.307. Digital Media (One Credit), Adopted 2015.
�130.308. Web Technologies (One Credit), Adopted 2015.
�130.309. Computer Programming I (One Credit), Adopted 2015.
§130.310. Computer Programming II (One Credit), Adopted 2015.
§130.311. Computer Technician Practicum (Two Credits), Adopted 2015.
§130.312. Practicum in Information Technology (Two Credits), Adopted 2015.
§130.313. Extended Computer Technician Practicum (One Credit), Adopted 2015.
�130.314. Extended Practicum in Information Technology (One Credit), Adopted 2015.
�130.331. Implementation of Texas Essential Knowledge and Skills for Law, Public Safety, Corrections, and Security, Adopted 2015.
�130.332. Principles of Law, Public Safety, Corrections, and Security (One Credit), Adopted 2015.
�130.333. Correctional Services (One Credit), Adopted 2015.
�130.334. Firefighter I (Two Credits), Adopted 2015.
�130.335. Firefighter II (Three Credits), Adopted 2015.
�130.336. Law Enforcement I (One Credit), Adopted 2015.
�130.337. Law Enforcement II (One Credit), Adopted 2015.
�130.338. Criminal Investigation (One Credit), Adopted 2015.
�130.339. Forensic Science (One Credit), Adopted 2015.
§130.340. Court Systems and Practices (One Credit), Adopted 2015.
§130.341. Federal Law Enforcement and Protective Services (One Credit), Adopted 2015.
�130.342. Practicum in Law, Public Safety, Corrections, and Security (Two Credits), Adopted 2015.
�130.343. Extended Practicum in Law, Public Safety, Corrections, and Security (One Credit), Adopted 2015.
�130.351. Implementation of Texas Essential Knowledge and Skills for Manufacturing, Adopted 2015.
�130.352. Principles of Manufacturing (One Credit), Adopted 2015.
�130.353. Diversified Manufacturing I (One Credit), Adopted 2015.
�130.361. Precision Metal Manufacturing II Lab (One Credit), Adopted 2015.
�130.362. Introduction to Welding (One Credit), Adopted 2015.
�130.363. Welding I (Two Credits), Adopted 2015.
�130.364. Welding II (Two Credits), Adopted 2015.
�130.365. Welding II Lab (One Credit), Adopted 2015.
�130.366. Practicum in Manufacturing (Two Credits), Adopted 2015.
�130.367. Extended Practicum in Manufacturing (One Credit), Adopted 2015.
�130.381. Implementation of Texas Essential Knowledge and Skills for Marketing, Adopted 2015.
�130.382. Advertising (One-Half Credit), Adopted 2015.
�130.383. Fashion Marketing (One-Half Credit), Adopted 2015.
�130.384. Entrepreneurship (One Credit), Adopted 2015.
�130.385. Social Media Marketing (One-Half Credit), Adopted 2015.
�130.386. Sports and Entertainment Marketing (One-Half Credit), Adopted 2015.
�130.387. Practicum in Marketing (Two Credits), Adopted 2015.
§130.388. Extended Practicum in Marketing (One Credit), Adopted 2015.
�130.389. Advanced Marketing (Two Credits), Adopted 2015.
§130.401 Implementation of Texas Essential Knowledge and Skills for Science, Technology, Engineering, and Mathematics, Adopted 2015.
§130.402 Principles of Applied Engineering (One Credit), Adopted 2015.
§130.403 Principles of Biosciences (One Credit), Adopted 2015.
§130.404 Principles of Technology (One Credit), Adopted 2015.
§130.405 AC/DC Electronics (One Credit), Adopted 2015.
§130.406 Solid State Electronics (One Credit), Adopted 2015.
§130.407 Digital Electronics (One Credit), Adopted 2015.
§130.408 Robotics I (One Credit), Adopted 2015.
§130.409 Robotics II (One Credit), Adopted 2015.
§130.410 Engineering Design and Presentation I (One Credit), Adopted 2015.
§130.411 Engineering Design and Presentation II (Two Credits), Adopted 2015.
§130.412 Engineering Design and Problem Solving (One Credit), Adopted 2015.
§130.413 Engineering Mathematics (One Credit), Adopted 2015.
§130.414 Engineering Science (One Credit), Adopted 2015.
§130.415 Biotechnology I (One Credit), Adopted 2015.
§130.416 Biotechnology II (One Credit), Adopted 2015.
§130.417 Scientific Research and Design (One Credit), Adopted 2015.
§130.418 Practicum in Science, Technology, Engineering, and Mathematics (Two Credits), Adopted 2015.
§130.419 Extended Practicum in Science, Technology, Engineering, and Mathematics (One Credit), Adopted 2015.
§130.441 Implementation of Texas Essential Knowledge and Skills for Transportation, Distribution, and Logistics, Adopted 2015.
§130.442 Principles of Transportation Systems (One Credit), Adopted 2015.
§130.443 Principles of Distribution and Logistics (One Credit), Adopted 2015.
§130.444 Introduction to Transportation Technology (One-Half Credit), Adopted 2015.
§130.445 Small Engine Technology I (One Credit), Adopted 2015.
§130.446 Small Engine Technology II (Two Credits), Adopted 2015.
§130.447 Automotive Basics (One Credit), Adopted 2015.
§130.449 Automotive Technology I: Maintenance and Light Repair (Two Credits), Adopted 2015.
§130.450 Automotive Technology II: Automotive Service (Two Credits), Adopted 2015.
§130.451 Advanced Transportation Systems Laboratory (One Credit), Adopted 2015.
§130.452 Introduction to Aircraft Technology (One Credit), Adopted 2015.
§130.453 Aircraft Airframe Technology (Two Credits), Adopted 2015.
§130.454 Aircraft Powerplant Technology (Two Credits), Adopted 2015.
§130.455 Basic Collision Repair and Refinishing (One Credit), Adopted 2015.
§130.456 Collision Repair (Two Credits), Adopted 2015.
§130.457 Paint and Refinishing (Two Credits), Adopted 2015.
§130.458 Diesel Equipment Technology I (Two Credits), Adopted 2015.
§130.459 Diesel Equipment Technology II (Two Credits), Adopted 2015.
§130.460 Energy and Power of Transportation Systems (One Credit), Adopted 2015.
§130.461 Management of Transportation Systems (One Credit), Adopted 2015.
§130.462 Distribution and Logistics (One Credit), Adopted 2015.
§130.463 Practicum in Transportation Systems (Two Credits), Adopted 2015.
§130.464 Practicum in Distribution and Logistics (Two Credits), Adopted 2015.
§130.465 Extended Practicum in Transportation Systems (One Credit), Adopted 2015.
§130.466 Extended Practicum in Distribution and Logistics (One Credit), Adopted 2015.


UNITED STATES of America, Respondent-Appellee.
Docket Nos. 97-2747, 97-2848 and 97-2751.
Anthony R. Cueto, Pollack, Pollack, Isaac & DeCicco, New York, N.Y., for Petitioner-Appellant Antonio Rosario.
James Roth, New York, N.Y., for Petitioner-Appellant Jose Jeres.
Arza Rayches Feldman, Roslyn, N.Y., for Petitioner-Appellant Antonio Ramirez.
Alexandra A.E. Shapiro, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, Craig A. Stewart, Assistant United States Attorney, of counsel ), for Respondent-Appellee.
Before: McLAUGHLIN, JACOBS, and SACK, Circuit Judges.
In August 1992, agents of the United States Bureau of Alcohol, Tobacco, and Firearms ("ATF") learned that crack cocaine was being sold out of Apartment 4B at 54 West 174th Street in the Bronx, New York. The agents provided a confidential government informant ("CI") with pre-marked "buy money" to buy cocaine. The CI entered Apartment 4B and returned five minutes later with a small quantity of crack cocaine.
Three days later, at the behest of ATF officials, the CI made another purchase at the apartment. The agents then got a search warrant for Apartment 4B. As the agents approached, Antonio Ramirez was exiting the apartment. When the agents identified themselves, Ramirez fled back inside the apartment and slammed the door. Agents maintaining surveillance outside the apartment building spotted Ramirez, Antonio Rosario, and Jose Jeres running down the fire escape from Apartment 4B to Apartment 2B. ATF agents received permission to enter Apartment 2B where they arrested Ramirez, Rosario, and Jeres.
When ATF agents searched Apartment 2B, they discovered cocaine, a wad of currency (including the pre-marked ATF "buy money"), and an Iver Johnson revolver. A search of Apartment 4B uncovered additional narcotics, narcotics paraphernalia, and a Colt .45.
Ramirez, Rosario, and Jeres were indicted in the United States District Court for the Southern District of New York (Sand, J.), for, inter alia, using and carrying firearms in connection with narcotics trafficking, in violation of 18 U.S.C. § 924(c). On December 10, 1992, pursuant to written plea agreements, each defendant pled guilty to all counts of the indictment. Judge Sand later sentenced Jeres to a term of 106 months' imprisonment, Ramirez to a term of 111 months, and Rosario to a term of 106 months' incarceration.
Four years later, following the decision of the United States Supreme Court in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), that "use" of a firearm under 18 U.S.C. § 924(c) requires "active employment" of the firearm, Ramirez filed a motion pursuant to 28 U.S.C. § 2255 to vacate his conviction. Rosario and Jeres quickly followed suit. All three claimed that the record did not support their § 924(c) pleas under the new Bailey standard for criminal "use" of a firearm.
On May 28, 1997, Judge Sand held an evidentiary hearing on the § 2255 motions. Relying on his personal observations during the arrest, as well as information obtained from the CI, ATF agent Robert Cucinelli testified that Rosario and Ramirez had carried firearms during the August 27, 1992 crack cocaine sale. In addition, the government introduced several reports containing information provided by the CI to Cucinelli immediately after the cocaine sales on August 24, 1992 and August 27, 1992.
By Opinion and Order dated September 29, 1997, the court denied all three motions. Judge Sand initially determined that Agent Cucinelli's recitation of information obtained from the CI constituted hearsay evidence which was not admissible at a § 2255 hearing. Accordingly, Judge Sand expressly declined to consider the hearsay portions of Agent Cucinelli's testimony. However, Judge Sand believed that the information contained in the defendants' plea allocutions and Presentence Reports ("PSR"), coupled with Agent Cucinelli's non-hearsay testimony, provided an adequate factual basis to support each defendant's conviction. Judge Sand held that: (1) Rosario and Ramirez were "carrying" firearms while the sale of crack cocaine was taking place in violation of § 924(c); and (2) Rosario's and Ramirez' visible display of firearms during the narcotics sale was criminally attributable to Jeres, a participant in the criminal conspiracy.
Ramirez, Rosario, and Jeres now appeal, arguing that Judge Sand erred (a) by relying on the hearsay information contained in their PSRs and (b) by finding that there was an adequate factual basis for their § 924(c) convictions.
Significantly, neither Rosario, Ramirez, nor Jeres appealed their convictions following their pleas of guilty. "A motion under § 2255 is not a substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d Cir.1998) (citations omitted); see Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998) ("And even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review."). Where a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, the claim may be raised in a § 2255 motion only if the defendant can demonstrate either: (1) "cause for failing to raise the issue, and prejudice resulting therefrom," Douglas v. United States, 13 F.3d 43, 46 (2d Cir.1993); or (2) "actual innocence." Bousley, 118 S.Ct. at 1611.
The defendants, however, are not the only ones who have to hurdle the doctrine of forfeiture or waiver. Having failed to raise the issue of defendants' procedural default either before Judge Sand or in its briefs to this Court, the government too has forfeited or waived the argument. See, e.g., Trest v. Cain, 522 U.S. 87, 118 S.Ct. 478, 480, 139 L.Ed.2d 444 (1997); United States v. Canady, 126 F.3d 352, 359-60 (2d Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1092, 140 L.Ed.2d 148 (1998). We may, nevertheless, raise these issues sua sponte. See, e.g., United States v. Talk, 158 F.3d 1064, 1067 (10th Cir.1998); see also Washington v. James, 996 F.2d 1442, 1448 (2d Cir.1993) (raising defendant's procedural default sua sponte on state prisoner's § 2254 petition). We believe that consideration of these issues is appropriate here for three reasons.
First, it is necessary to protect the finality of federal criminal judgments. See United States v. Allen, 16 F.3d 377, 379 n. 2 (10th Cir.1994) ("the important interests served by the principle of finality [of criminal judgments] cannot always be foreclosed by waiver"); see also United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Raising the issue of defendants' procedural default is particularly appropriate where, as here, the movants pled guilty. We recognize that "the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas." United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); see Bousley, 118 S.Ct. at 1610. "The impact of inroads on finality is greatest in the context of guilty pleas because the vast majority of criminal convictions result from such pleas and because the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea." Lucas v. United States, 963 F.2d 8, 14 (2d Cir.1992) (internal quotation omitted).
In addition, the unique circumstances of this case compel the conclusion that the government was not blameworthy in failing to raise this issue. Because dictum in Triestman v. United States, 124 F.3d 361, 369 n. 8 (2d Cir.1997), indicated that a § 2255 movant's Bailey claim could easily hurdle a procedural bar challenge, the government may well have concluded that it would be subject to criticism for raising a frivolous argument. It was only in May 1998--one month after the government submitted its brief in this appeal--that the Supreme Court suggested in Bousley that the Triestman dictum might be incorrect. See De Jesus v. United States, 161 F.3d 99, 102-03 (2d Cir.1998).
Finally, the procedural default is manifest from the record and, hence, resolution of this defense does not require further fact-finding. Thus, additional scarce judicial resources need not be expended by remanding this case to the district court. See Washington, 996 F.2d at 1449.
Granted, appellate courts should not lightly raise the issue of a defendant's procedural default sua sponte. We are aware that prisoners seeking habeas corpus relief lack the resources available to the government. We should hesitate to lend the weight of the judiciary to this already uneven fight, lest we be cast in the role of a second line of defense, protecting government prosecutors from their errors. We are satisfied, however, that this appeal warrants the exercise of our inherent power to raise the previously unaddressed issue.1 We now turn to it.
Ramirez, Rosario, and Jeres cannot now show "cause" for their failure to raise their claims on direct appeal. True it is that in Triestman, 124 F.3d at 369 n. 8, we indicated in dictum that a § 2255 movant could be forgiven for his failure to challenge on appeal the loose pre-Bailey definition of "use" under § 924(c). This was because "the broad definition of 'use' that was subsequently rejected by the Supreme Court in Bailey was well-established in this circuit" and an appeal would have been doomed. Id. As we recently noted in De Jesus, however, the Supreme Court's decision in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), rejects the Triestman dictum. See De Jesus, 161 F.3d at 102-03. In Bousley, the § 2255 movant made the same argument that Ramirez, Rosario, and Jeres now urge, i.e., the guilty plea to "using" a firearm was not knowing and voluntary because at the plea allocution the district court did not provide correct information about what constituted "use." 118 S.Ct. at 1608, 1611. The Bousley defendant contended that: (1) "the legal basis for his claim was not reasonably available to counsel at the time his plea was entered," and (2) "before Bailey, any attempt to attack [his] guilty plea would have been futile." Id. at 1611 (quotations omitted).
The Supreme Court was not impressed by the argument that his claim regarding "use" was novel. The Court noted that "at the time of [movant's] plea, the Federal Reporters were replete with cases involving challenges to the notion that 'use' is synonymous with mere 'possession.' " Id. The Court also rejected the fundamental premise that it would have been futile to raise the claim before Bailey, reasoning that " 'futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time.' " Id. (quoting Engle v. Isaac, 456 U.S. 107, 130 n. 35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)); see De Jesus, 161 F.3d at 102-03.
Section 924(c) is violated if the defendant either used or carried a firearm during and in relation to drug trafficking or a crime of violence. See 18 U.S.C. § 924(c). A defendant "carries" a firearm under § 924(c) if "during and in relation to the drug trafficking crime, [the defendant] either (1) had physical possession of the firearm, ... or (2) moved the firearm from one place to another." Canady, 126 F.3d at 358 (citations omitted). Similarly, a conviction under the "use" prong requires the government to establish "active employment of the firearm." Bailey, 516 U.S. at 144, 116 S.Ct. 501. "Active employment" includes, inter alia, "brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire" the weapon. Id. at 148, 116 S.Ct. 501. However, a "defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds," or for "placement of a firearm to provide a sense of security or to embolden." Id. at 149, 116 S.Ct. 501.
Rosario and Ramirez clearly cannot show that they are "actually innocent" of their § 924 convictions. Rosario admitted during his plea allocution that he "carr[ied]" a firearm "[i]n connection with selling crack." Similarly, Ramirez, in response to Judge Sand's questioning during his plea allocution, stated that he "use[d] and carr[ied]" a Colt .45 in connection with the sale of drugs. In the glaring light of these inculpatory statements, any reasonable juror could only conclude that both Rosario and Ramirez "carried" firearms in violation of § 924(c). See Salas v. United States, 139 F.3d 322, 325 (2d Cir.1998), cert. denied, --- U.S. ----, 118 S.Ct. 2377, 141 L.Ed.2d 744 (1998); see also Muscarello v. United States, 524 U.S. 125, ----, 118 S.Ct. 1911, 1915, 141 L.Ed.2d 111 (1998)("[n]o one doubts that one who bears arms on his person 'carries a weapon' ").
Jeres' case is somewhat different but he too cannot show that he is actually innocent of his § 924(c) conviction. A reasonable jury would find that, under a Pinkerton theory of liability, the facts admitted by the movants at their plea allocutions support the criminal liability of all three defendants for using or carrying a firearm in violation of § 924(c).
Under the test for co-conspirator liability announced in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), "a coconspirator who does not directly commit a substantive offense may be liable for that offense if it was committed by another coconspirator in furtherance of the conspiracy and was a reasonably foreseeable consequence of the conspiratorial agreement." United States v. Pimentel, 83 F.3d 55, 58 (2d Cir.1996) (citations omitted). If a firearm "was carried by, or was within reach of, one defendant but not another, that other defendant may be found liable for carrying the gun ... on a Pinkerton theory." United States v. Giraldo, 80 F.3d 667, 676 (2d Cir.1996) (citations omitted). Thus, a defendant may be guilty of a § 924(c) violation under a Pinkerton theory if: (1) the defendant conspired to commit a crime involving violence or drug trafficking; (2) the § 924(c) offense was committed in furtherance of the conspiracy; and (3) the offense was a reasonably foreseeable consequence of an act furthering the unlawful agreement. See United States v. Masotto, 73 F.3d 1233, 1241 (2d Cir.1996); United States v. Romero, 897 F.2d 47, 51 (2d Cir.1990). Jeres' statements during his plea allocution, as well as the plea allocutions of his co-conspirators and the non-hearsay testimony of Agent Cucinelli at the § 2255 evidentiary hearing, provide an ample basis under Pinkerton to conclude that Jeres cannot show that he is "actually innocent."
The existence of a conspiracy is obvious. When Judge Sand asked Jeres whether "[i]n connection with your sale of drugs, were there other people with whom you were engaged in drug sales?", Jeres said that both Rosario and Ramirez were involved in the drug transactions. Ramirez and Rosario also admitted during their plea allocutions that they were participants, along with Jeres, in a plan to sell crack cocaine. This evidence clearly demonstrates "a tacit understanding [between the conspirators] to carry out the prohibited conduct." United States v. Wardy, 777 F.2d 101, 107 (2d Cir.1985).
Similarly, it cannot fairly be doubted that Rosario and Ramirez committed the § 924(c) violations in furtherance of the drug conspiracy. Rosario and Ramirez admitted during their plea allocutions that they carried guns during the cocaine sales. Jeres himself admitted that a gun was present during the drug transactions. Carrying a firearm during the drug sale easily suffices to establish that the firearm violation was committed in furtherance of the drug conspiracy. See Salas, 139 F.3d at 325; Pimentel, 83 F.3d at 58-59.
Finally, Ramirez' and Rosario's carrying of firearms during the crack cocaine sales was reasonably foreseeable. Indeed, as already noted, Jeres acknowledged at his plea allocution that there "was a gun" present at the August 27th sale. Agent Cucinelli recovered a loaded Iver Johnson revolver in the apartment where Rosario, Ramirez, and Jeres were apprehended after their futile attempt to evade arrest. A loaded Colt .45 was discovered in the apartment where the drug deals occurred. Recognizing that in the drug culture, "firearms are the tools of the trade," United States v. Wilson, 105 F.3d 219, 221 (5th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 133, 139 L.Ed.2d 82 (1997), any reasonable juror would conclude that the § 924(c) violations were a reasonably foreseeable concomitant to the drug sales. See Romero, 897 F.2d at 51-52; United States v. Bruno, 873 F.2d 555, 560 (2d Cir.1989).
Upon an appeal from the denial of a § 2255 motion, we review the district court's factual findings for clear error and its legal conclusions de novo. See Scanio v. United States, 37 F.3d 858, 859-60 (2d Cir.1994).
Judge Sand found sufficient evidence for Ramirez' and Rosario's pleas in that: (1) the PSRs indicated that both Rosario and Ramirez were carrying firearms during the August 27, 1992 cocaine sale; (2) Rosario stated during his plea allocution that he "carr[ied]" a firearm "[i]n connection with selling crack"; and (3) Ramirez, in response to Judge Sand's questioning during the plea allocution, stated that he "use[d] and carr[ied]" a Colt .45 in connection with the sale of drugs. Ramirez and Rosario contend that Judge Sand's reliance on their plea allocutions and the PSRs was misplaced.
Rosario and Ramirez contend that their admissions during their plea allocutions that they "carried" firearms do not establish that they "carried" firearms within the meaning of § 924(c). They assert that, at the time of their pleas, the word "carry" was synonymous with "use" under this Circuit's pre-Bailey interpretation of § 924(c). We are not convinced by their linguistic legerdemain.
First, the meaning of "carry" under § 924(c) was, at the time of Rosario's and Ramirez' pleas, consistent with the common-sense meaning of the word and was not synonymous with "use." The common-sense meaning of carry is "1. to take or support from one place to another; convey; transport ... 2. to wear, hold, or have around one." The Random House Dictionary of the English Language (2d ed.1987); see Canady, 126 F.3d at 358 (common-sense and dictionary definitions of "carry" suggest that object is held on one's person or transported from one place to another); see also Muscarello, 118 S.Ct. at 1914-16 (discussing "ordinary English" meaning of "carry" under § 924(c)). In 1993, the year that Ramirez and Rosario entered their pleas, this Court defined "carry" under § 924(c) to require "at least a showing that the gun is within reach during the commission of the drug offense." United States v. Feliz-Cordero, 859 F.2d 250, 253 (2d Cir.1988). Rosario's and Ramirez' statements during their plea allocutions that they "carried" firearms should be given the common-sense meaning of the term, a meaning sufficient to justify Judge Sand's denial of their motions. See Salas, 139 F.3d at 324; see also United States v. Muscarello, 106 F.3d 636, 639 (5th Cir.1997) (per curiam) (rejecting identical argument as a "legal non sequitur"), aff'd, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998).
Judge Sand, relying on the PSRs and Jeres' plea allocution, held that the evidence supported his conviction under § 924(c) as a coconspirator. Jeres contends that the statements in his plea allocution do not establish criminal liability. We disagree.
The information adduced during the plea allocutions is sufficient to sustain Jeres' conviction under a Pinkerton theory. During Jeres' allocution, Judge Sand asked him: "Tell me in your own words, Mr. Jeres, what you did that leads you to believe that you are guilty of [using and carrying firearms in relation to a drug trafficking crime]." Jeres responded that he "sold crack and there was a gun and there was a witness." He also admitted that there were both a Colt .45 and an Iver Johnson revolver involved in the drug transaction. Jeres' admissions, in light of Ramirez' and Rosario's admissions that they were carrying guns during the crack sales, are sufficient on a Pinkerton theory of liability to establish that Jeres too was guilty of carrying a firearm under § 924(c). See, e.g., Pimentel, 83 F.3d at 58-59.
All three defendants contend that Judge Sand improperly relied on hearsay statements contained in the PSRs about the CI's observations of the guns carried by Rosario and Ramirez. They argue that the Due Process Clause and the rules governing proceedings under § 2255 prohibit reliance on hearsay to sustain their convictions. We need not reach this issue because the movants' plea allocutions, in and of themselves, provide an adequate factual basis to support their guilty pleas.
We have considered all the arguments raised by movants and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.


(a) Scope of Hearing. The adjudicatory hearing is the proceeding at which the court determines whether the evidence supports a finding that a child is delinquent or unruly, and whether the child is in need of treatment and rehabilitation. The adjudicatory hearing shall be held in accordance with T.C.A. § 37-1-129.
(b) Time Limits on Scheduling Adjudicatory Hearings. In all cases, except violations of valid court orders, in which a child is in detention or otherwise has been placed out of the home by court order shall be heard within 30 days of the date the child was placed outside of the home. For good cause shown, the adjudicatory hearing may be continued beyond the 30 day time limit to a date certain as the court may direct.All other cases shall be heard within 30 days of the date of the filing of the petition if such scheduling appears to the court to be reasonable and possible considering the circumstances of the case, including without limitation, whether service on all parties has been achieved. Every case shall be heard within 90 daysof the date of the filing of the petition. For good cause shown, the adjudicatory hearing may be continued beyond the 90 day time limit to a date certain as the court may direct.
(6) Explain to the parties their rights as set forth in Rule 205.
(b) Evidence Admissible. The court shall consider only evidence which has been formally admitted at the adjudicatory hearing. All testimony shall be under oath and may be in narrative form. Evidence shall be admitted as provided by the Tennessee Rules of Evidence. Evidence illegally seized or obtained shall not be received over objection to establish the allegations in the petition. In addition, no statement made by a child to the youth services officer or designated intake officer shall be admissible against the child prior to the dispositional hearing.
(1) If the court finds that the delinquent offense has not been proved beyond a reasonable doubt, it shall dismiss the petition.
(A) If the court does not find that the child is in need of treatment or rehabilitation, no further proceedings shall be held and the court shall discharge the child from any detention or other restriction previously ordered. In such event, the court shall enter an order finding that the child is not in need of treatment or rehabilitation. The child shall not be adjudicated delinquent.
(B) If the court finds the child is in need of treatment and rehabilitation, it shall enter an order finding that the child is in need of treatment or rehabilitation and that the child is adjudicated delinquent. The court shall immediately proceed to a dispositional hearing or schedule it to be heard on a later date.
(1) If the court finds that the unruly offense has not been proved by clear and convincing evidence, it shall dismiss the petition.
(A) If the court does not find that the child is in need of treatment or rehabilitation, no further proceedings shall be held and the court shall discharge the child from any detention or other restriction previously ordered. In such event, the court shall enter an order finding that the child is not in need of treatment or rehabilitation. The child shall not be adjudicated unruly.
(B) If the court finds the child is in need of treatment and rehabilitation, it shall enter an order finding that the child is in need of treatment or rehabilitation and that the child is adjudicated unruly. The court shall immediately proceed to a dispositional hearing or schedule it to be heard on a later date.
(e) Transfer to Home County. The case of an out-of-county resident may be transferred to the child’s county of residence for disposition.
It is the Commission’s intent that the court consider only evidence which has been properly admitted during the adjudicatory hearing. The Commission recognizes that the court may have held one or more hearings prior to the adjudicatory hearing which may have resulted in the admission of evidence. Furthermore, the Commission recognizes that the court’s file may contain reports and other items submitted by the Department, CASA, law enforcement, or service providers. Such reports and items may not be considered by the court unless properly admitted during the adjudicatory hearing.
This rule combines previous Rule 17 regarding Time Limits on Scheduling Adjudicatory Hearings and Rule 28 Adjudicatory Hearings. The Commission felt this to be logically consistent and would aid practitioners’ use of the rule. This rule highlights the statutory framework of a delinquent or unruly case with regard to the adjudicatory hearing.
This rule does not apply to a violation of a Valid Court Order.
During the adjudicatory hearing and prior to disposition, the court makes two distinct findings with regard to each child charged as a delinquent or unruly child: whether the evidence is sufficient to sustain the allegations in the petition, and, if so, whether the child is in need of treatment or rehabilitation. Upon making these findings, the court then proceeds to the dispositional hearing. T.C.A. § 37-1-129(b) states that upon a finding of guilt the court must “proceed immediately or at a postponed hearing” to determine whether the child is “in need of treatment or rehabilitation.” This is consistent with the definition of “delinquent child” under T.C.A. § 37-1-102(b) (“delinquent child means a child who has committed a delinquent act and is in need of treatment and rehabilitation”), and T.C.A. § 37-1-129(f), which allows the court to continue the adjudicatory hearing to receive evidence bearing upon the issue of treatment and rehabilitation. Similarly, the definition of “unruly child” under T.C.A. § 37-1-102(b) also requires a finding of “in need of treatment and rehabilitation” in order to adjudicate the child to be an unruly child.
The Commission understands that many courts may, in an effort to achieve judicial economy, and absent contrary circumstances, elect to conduct both the “treatment and rehabilitation” phase of the adjudicatory hearing and the dispositional hearing immediately after the guilt phase of the adjudicatory hearing. In the event the court continues the adjudicatory hearing to receive evidence bearing upon the issue of treatment and rehabilitation, the court has the authority pursuant to T.C.A. § 37-1-129(f) to issue orders regarding the child pending the resumption of the hearing.
The Commission notes that T.C.A. § 37-1-129(b) states that the commission of acts which constitute a felony or that reflect recidivistic delinquency is sufficient to sustain a finding that the child is in need of treatment or rehabilitation.
The Commission notes that the Juvenile Offender Act, T.C.A. § 55-10-701 et. seq., also known as the Drug Free Youth Act, requires the adjudicatory court to send to the Department of Safety an order of denial of driving privileges when the child is “convicted of the offense.” As explained above, a conviction does not necessarily lead to an adjudication of delinquency due to the added requirement that the court find that the child is in need of treatment and rehabilitation. All parties must be aware of the court’s duty under the Act.
The varying time limits in these rules for children in custody or detention and children not in custody indicate the Commission’s strong intent that cases involving children in custody, and especially in secure detention, be given priority on the docket. Of course, all hearings should be scheduled and held as speedily as possible in the interest of providing timely treatment for children. The Commission recognizes the fact that a child's perception of time is quite different from that of an adult, with shorter periods of time being felt as being much extended, so that it is important that whatever action is taken be taken expeditiously, within the limits of practicability.
There are instances, however, where it will be quite appropriate to allow for a relatively longer period of time prior to disposition, in particular, for the child to prove to the court that a less restrictive disposition may be desirable in the case, for example. This is the purpose of the longer 90-day limit in cases in which children are not being held in custody, and of the provisions allowing for extensions of the time limits. Another valid reason for extensions of the limits would be to obtain psychological evaluations and testing which could not be obtained within the specified time limits.
In any case in which the time limits prescribed are not complied with, or in which the provisions for continuances are not complied with, the court may dismiss the charges with prejudice where it determines that failure to comply with the time limits constitutes a violation of the child's right to a speedy trial. In any case in which the time limits prescribed are not complied with, or in which the provisions for extensions are not complied with, the court may discharge the child from the jurisdiction of the juvenile court if the court determines that the interests of justice so require.
These rules do not require a pretrial conference; however, the Commission encourages courts to schedule a pretrial conference or settlement date during which negotiations may occur with the parties and counsel, law enforcement, victims, and the district attorney.
The last sentence of the third paragraph of the Advisory Commission Comments rule is deleted. That sentence (which provided "See the Appendix to these rules regarding Valid Court Orders") should have been deleted in the comprehensive revision of the Rules of Juvenile Procedure effective July 1, 2016, because the appendix to which it referred was deleted at that time.