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02/26/88 STATE TENNESSEE v. JOHN S. WOLF


February 26, 1988

STATE OF TENNESSEE, EX REL. VICTOR S. JOHNSON, III DISTRICT ATTORNEY GENERAL, PETITIONER/APPELLEE,
v.
JOHN S. WOLF, JR., DEFENDANT/APPELLANT; IN THE MATTER OF ELIZABETH POLK WOLF, A CHILD UNDER THE AGE OF EIGHTEEN YEARS NO. 06-52-82

Davidson Circuit Appeal No. 88-28-II. APPEAL FROM THE FOURTH CIRCUIT COURT FOR DAVIDSON COUNTY, AT NASHVILLE, TENNESSEE, THE HONORABLE MURIEL ROBINSON, JUDGE.

Koch, Judge; Todd, P.j., Cantrell, J., concur.

The opinion of the court was delivered by: Koch

WILLIAM C. KOCH, JR., JUDGE

This interlocutory appeal involves the power of a circuit court to exercise control over the manner in which a juvenile court conducts a dependent and neglect hearing. We granted the appeal after the Fourth Circuit Court for Davidson County, at the request of the District Attorney General, issued an order preventing the Juvenile Court of Nashville and Davidson County from receiving the testimony of two children who were the subject of a hearing that was in its seventh week when it was halted. We have concluded that the Circuit Court exceeded its authority by countermanding the orders of the Juvenile Court and that the District Attorney General's petitions did not state a claim justifying the extraordinary relief awarded by the Circuit Court. *fn1

I.

Helen Elizabeth Polk Wolf and John Stewart Wolf, Jr. were married in 1970 while John Wolf was in medical school. They moved to Nashville in 1976 where Dr. Wolf established a practice in internal medicine. Their son, John Clopton Wolf, was born in 1980. Their second child, Elizabeth Polk Wolf, was born in 1982.

The parties' relationship had seriously deteriorated prior to the birth of their second child. Mrs. Wolf told her husband that he was not the child's father in order to induce him to agree to an abortion. Dr. Wolf did not agree and began to spend a great deal of time away from home in the company of young male friends. He also began to drink heavily and to abuse drugs.

In 1984 Mrs. Wolf instructed her lawyer to prepare a property settlement agreement giving her $400,000 in alimony, the equity in the parties' home, and fifty percent of Dr. Wolf's net income as child support. Dr. Wolf refused to sign the agreement, and Mrs. Wolf threatened to "destroy" him. She hired a private detective to help her blackmail Dr. Wolf into signing the agreement, but her plot ended unsuccessfully when the detective was arrested for impersonating a federal officer.

Mrs. Wolf filed for divorce in January, 1985. Dr. Wolf immediately counterclaimed for divorce. The Probate Court of Davidson County awarded Dr. Wolf a divorce on the grounds of cruel and inhuman treatment in January, 1986 and gave the parties joint custody of their two children with Mrs. Wolf retaining primary physical custody.

At the time the divorce was granted, the parties' son was scheduled to enter the hospital for psychiatric treatment of a severe emotional disorder. Accordingly, while their dispute concerning the division of the marital property remained unresolved, the parties agreed that Mrs. Wolf should have custody of their son and that he would be placed under the care of a psychiatrist. Dr. Wolf also agreed that his visitation with the child would be limited and supervised.

Mrs. Wolf appealed from the Probate Court's final order in the divorce proceeding. She took issue with the Probate Court's decision to grant Dr. Wolf the divorce. She also challenged the alimony and child support awards and the manner in which the marital property was divided. This Court affirmed the decision to grant Dr. Wolf the divorce but modified the alimony and child support awards as well as the manner in which the Probate Court divided the marital property. This Court also remanded the case to the Probate Court for further consideration of the custody of the parties' daughter. Wolf v. Wolf, No. 86-322-II (Tenn. Ct. App. filed May 20, 1987). *fn2

In July, 1987, before the Probate Court had a chance to consider the issue of Elizabeth's custody, the Department of Human Services ("Department") filed petitions in the Juvenile Court of Nashville and Davidson County seeking to have Elizabeth and her brother declared dependent and neglected children. *fn3 The Department also requested that Elizabeth be placed in protective custody immediately because it believed that Dr. Wolf was sexually abusing his daughter while he was exercising his visitation with her. Elizabeth was placed in the custody of the Department. Dr. Wolf alleges he has not been permitted to see his daughter since the Department's petition was filed.

The allegations giving rise to the proceeding in Juvenile Court also resulted in Dr. Wolf's being charged with committing a series of aggravated sexual batteries and aggravated rapes on both his children. Dr. Wolf denied that he had sexually abused his children. The trial of these charges was scheduled to begin in the Criminal Court for Davidson County on February 1, 1988. It was the parties' procedural posturing on the eve of the criminal trial that gave rise to the present appeal.

The Department decided to proceed in the Juvenile Court with its petitions before Dr. Wolf's criminal trial began. At some point in the proceeding, and for reasons not apparent in the record, the District Attorney General for the Twentieth Judicial District who was prosecuting Dr. Wolf in criminal court, requested to intervene in the Juvenile Court proceeding as a party. The Juvenile Court permitted the District Attorney General to do so.

The proceeding in Juvenile Court on the Department's petitions began on December 2, 1987. The hearing was substantially complete after seven weeks of testimony when, on January 26, 1988, Dr. Wolf's attorneys requested permission to call the Wolf children as their final witnesses. The Department and the District Attorney General opposed this motion ostensibly because it was not in the children's best interests to be exposed to the rigors of testifying in Juvenile Court when they might also be required to testify against their father in the pending criminal proceeding. *fn4

The Juvenile Court decided that the children would be examined in chambers on January 27, 1988. The Juvenile Court informed the parties that it intended to interview the children to determine whether they were competent witnesses and to answer their questions about the proceedings. The Juvenile Court also admonished all the parties, including the District Attorney General, to refrain from contentious behavior in the children's presence and to refrain from discussing the substance of the children's testimony with them prior to his meeting with the children in chambers.

On the morning of January 27, 1988, the District Attorney General requested the Juvenile Court to delay examining the children until after the criminal trial was completed. The Juvenile Court denied this request because it planned to conclude the hearing on the Department's petitions that day. Thereupon, the District Attorney General filed a sworn petition in the Fourth Circuit Court for Davidson County requesting the Circuit Court to prevent the Juvenile Court from hearing the children because requiring them to testify would be "detrimental to the well being and mental health of the children and could interrupt their ability to testify in Criminal Court." The Circuit Court entered an order on January 27, 1988 staying the Juvenile Court's decision to hear the children in chambers. The Circuit Court also gave Dr. Wolf permission to seek an interlocutory appeal from its stay order. *fn5

Dr. Wolf also applied to this Court for an interlocutory appeal seeking an order immediately vacating the Circuit Court's order. On January 28, 1988, this Court declined to vacate the Circuit Court's order but set the matter for hearing on February 8, 1988.

The Juvenile Court issued a second order on January 27, 1988 after the Circuit Court had stopped the examination of the children. In order to protect the integrity of the children's testimony, the Juvenile Court prohibited the parties from "interviewing, questioning or discussing, in any manner, the subject of whether petitioner or any other person committed any act of sexual or other abuse, with John Clopton Wolf and Elizabeth Polk Wolf, until such time as this Court had heard their testimony or vacates this order in view of a pending criminal case against Dr. John Wolf."

The District Attorney General filed a second petition on January 29, 1988, requesting the Circuit Court to vacate the Juvenile Court's order prohibiting him from discussing the alleged acts of sexual abuse with the children. The Circuit Court again stayed the Juvenile Court's order and expressly permitted the District Attorney General and his agents to discuss the allegations of Dr. Wolf's alleged sexual abuse with his children and to otherwise prepare the State's case for trial.

Dr. Wolf filed a second application for an interlocutory appeal on January 29, 1988. Two members of this panel heard the parties on the evening of January 29, 1988. The Court again declined to stay the Circuit Court's order but directed that the second application be consolidated with the first and that argument be scheduled for February 8, 1988.

II.

The Circuit Court's Jurisdiction

Dr. Wolf's primary complaint is that the Circuit Court did not have the authority to exercise appellate jurisdiction over the Juvenile Court's interlocutory orders concerning the children's testimony. We disagree. A circuit court has the authority to conduct a limited review of a juvenile court's interlocutory decisions through the common law writ of certiorari procedure.

Tenn. Code Ann. § 37-1-103(a)(1) gives juvenile courts "exclusive original jurisdiction" over proceedings in which a child is alleged to be dependent and neglected. Thus, when a juvenile court exerts its jurisdiction over children who are alleged to be dependent and neglected, all other courts, including those where questions involving the children's custody are already pending, must refrain from taking any further action affecting the children's custody without the approval of the juvenile court. Kidd v. State ex rel. Moore, 207 Tenn. 244, 251-52, 338 S.W.2d 621, 624-25 (1960); Tennessee Dep't of Human Servs. v. Gouvitsa, 735 S.W.2d 452, 455-57 (Tenn. Ct. App. 1987); State ex rel. Baker v. Turner, 562 S.W.2d 435, 438 (Tenn. Ct. App. 1977).

The Department has alleged that the Wolf children are dependent and neglected. The Juvenile Court has asserted its jurisdiction over the children based on the Department's allegations. Neither the Department nor the District Attorney General have argued that the Juvenile Court has not properly acquired jurisdiction over the children. Indeed, they have no basis to do so. Thus, having acquired jurisdiction properly, the Juvenile Court's authority over the case and the children continues until the case is completely disposed of. However, it does not necessarily follow that the Juvenile Court's actions are shielded from appellate review until a final order or judgment has been entered. See Haley v. Doochin, 186 Tenn. 137, 139, 208 S.W.2d 756, 757 (1948).

Juvenile courts have special and limited jurisdiction. Juvenile Court of Shelby County v. State ex rel. Humphry, 139 Tenn. 549, 555, 201 S.W. 771, 772 (1918). In certain instances they are considered to be inferior to circuit courts for the purposes of appellate review. Doster v. State, 195 Tenn. 535, 536-37, 260 S.W.2d 279, 279 (1953); State v. Bockman, 139 Tenn. 422, 426, 201 S.W. 741, 742 (1918).

The circuit court's jurisdiction to review a juvenile court's decisions is controlled by two statutes. The first statute, Tenn. Code Ann. § 37-1-159, governs appeals from final orders and judgments. Even though Dr. Wolf insists that Tenn. Code Ann. § 37-1-159(g) *fn6 requires that appeals from non-final or interlocutory orders be taken directly to this Court in accordance with the Tennessee Rules of Appellate Procedure, we do not deem this provision to be applicable in this case. It relates to the subject matter of the case, not the nature of the order sought to be appealed, and provides for appeals directly to this Court only in civil actions not enumerated in Tenn. Code Ann. § 37-1-159(a).

The second statute relating to the review of juvenile court decisions is Tenn. Code Ann. § 16-10-112. *fn7 Read in conjunction with Tenn. Code Ann. § 27-8-101, *fn8 it gives the circuit court the authority to issue common law writs of certiorari to review the interlocutory orders of a juvenile court. See State v. Womack, 591 S.W.2d 437, 441 (Tenn. Ct. App. 1979). However, in recognition of the juvenile court's prerogative to deal with matters within its special jurisdiction, the scope of this type of review is narrower than that available pursuant to Tenn. Code Ann. § 37-1-159.

Common law writs of certiorari provide relief only when the lower tribunal has exceeded its jurisdiction or has acted illegally and when there is no other adequate remedy reasonably available. Pack v. Royal-Globe Ins. Cos., 224 Tenn. 452, 460, 457 S.W.2d 19, 22 (1970). Illegal actions subject to correction using a common law writ of certiorari must rise to the level of a fundamental illegality, State ex rel. McMorrow v. Hunt, 137 Tenn. 243, 249, 192 S.W. 931, 933 (1917), or a failure to proceed according to the essential requirements of the law. Taylor v. Continental Tenn. Lines, Inc., 204 Tenn. 556, 560, 322 S.W.2d 425, 426-27 (1959); Gatlinburg Beer Regulation Comm. v. Ogle, 185 Tenn. 482, 486, 206 S.W.2d 891, 893 (1947).

The propriety and validity of the Circuit Court's actions in this case must be determined in light of procedural requirements for common law writs of certiorari and the strict standards for their issuance.

III.

The Basis for the Circuit Court's Action

The petitions filed by the District Attorney General and the procedure used by the Circuit Court to consider them bear little resemblance to those normally associated with a common law writ of certiorari. They do not begin to comply with even the most rudimentary requirements of Tenn. Code Ann. § 27-8-101 et seq. No writ of certiorari was issued. No return was filed in the Circuit Court bringing up the entire record of the Juvenile Court proceedings. No writ of supersedeas was issued to maintain the status quo while the certiorari proceeding was pending. Accordingly, the Circuit Court's actions are void because they failed to meet the statutory requirements with regard to the issuance of common law writs of certiorari.

This Court is aware that we should, when possible, go behind the form of the pleadings and consider their substance. Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct. App. 1977). However, even if we were to ignore the blatant procedural shortcomings in the record, we cannot ignore the fact that the grounds upon which the District Attorney General sought extraordinary relief were factually and legally inadequate.

The District Attorney General's petition to stay the proceedings filed on January 27, 1988 alleged, among other things, that

(1) after the Juvenile Court decided to hear the children's testimony, it instructed the parties that "no one . . . could discuss the allegations of sexual abuse with the children and no one could advise the children that they were to be delivered by the D.H.S. to the Juvenile Court at 9:00 A.M. on January 27, 1988";

(2) abruptly requiring the children to testify before a room full of strangers without explanation "would be detrimental to the well being and mental health of these children, and could interrupt their ability to testify in criminal court";

(3) the hearing in Juvenile Court will not be concluded prior to the beginning of the criminal trial and that delaying the children's testimony in Juvenile Court will not interfere with the Juvenile Court's Disposition of the case; and

(4) requiring the children to give testimony in two successive proceedings within a two week period "would not be in the best interest of the welfare of the children or the pursuit of Justice."

These assertions lack factual support and are contradicted by the Judge of the Juvenile Court.

Contrary to the District Attorney General's assertions, the Juvenile Court intended to conclude the testimony on January 27, 1988 after the children testified. The Juvenile Court advised all the parties, including the District Attorney General, that it intended to interview the children privately before they testified "to insure that they understood what was taking place and to answer any questions they might have." The Juvenile Court warned the parties against "contentious" behavior in front of the children and admonished them "to refrain from any Discussion of the substance of their testimony." The Court also advised the parties "that the children could be told that they were coming to see the Judge and any questions they might ask could be answered by their chaperone."

The psychiatrist who examined the Wolfs' daughter testified without contradiction that she was "very capable" of being interviewed in the Juvenile Court "without any undue trauma." The Juvenile Court's statements make it clear that it intended to conduct the children's interviews in the manner suggested by the psychiatrist. Thus, there was never any real danger that the children would be required to testify before a room full of strangers without being prepared to do so or that permitting them to testify in the Juvenile Court would interrupt their ability to testify in the criminal trial or otherwise frustrate the "pursuit of Justice."

Contrary to the District Attorney General's assertions, it is also clear that the Juvenile Court intended to conclude hearing proof prior to the commencement of the criminal trial. It is likewise evident that the effect of preventing the Juvenile Court from hearing the children's testimony impeded and interfered with its Disposition of the Department's petitions.

The District Attorney General's second petition, filed on January 29, 1988, also lacks support. It claimed that

(1) requiring the children to testify before a room full of strangers without preparation "would be detrimental to the well being and mental health of these children, and could interfere with their ability to testify in Criminal Court";

(2) the decision about whether the children would be required to testify in the Juvenile Court "may not be made until several days, or weeks, after February 1, 1988";

(3) the Juvenile Court did not have the jurisdiction to restrain the District Attorney General from preparing its case or from presenting proof in the pending criminal proceeding against Dr. Wolf; and

(4) the best interests of the children require a modification of the Juvenile Court's order to permit the doctors treating the children to "discuss courtroom procedure and testimony" with them.

The assertion that the Juvenile Court did not have jurisdiction over the District Attorney General is patently erroneous because he had been permitted to intervene as a party in the proceeding in Juvenile Court. A party who enters an appearance voluntarily waives its right to complain that a court lacks personal jurisdiction. Felty v. Chillicothe Realty Co., 175 Tenn. 315, 318, 134 S.W.2d 153, 154 (1939). An intervenor is treated as if it were an original party and thus subjects itself to the personal jurisdiction of the court. See 3B J. Moore & J. Kennedy, Moore's Federal Practice P 24.16[6] (2d ed. 1987); 7C C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1920, at 490 (2d ed. 1986).

The District Attorney General's assertion that the children will be harmed by being required to testify without adequate preparation is contradicted by the statements of the Juvenile Court, which intended to conduct the children's interviews precisely as recommended by their psychiatrist. There is no evidence in the record that requiring them to testify in the manner envisioned by the Juvenile Court was going to be injurious to them or their ability to testify in the criminal trial.

Had the District Attorney General not interfered with the Juvenile Court's plans to finish taking its proof on January 27, 1988, the juvenile proceeding would not have interfered with the trial of the criminal case. The District Attorney General's interest in preventing Dr. Wolf from discovering more information than he would have been entitled to under Tenn. R. Crim. P. 16 pales in comparison with the Juvenile Court's perogative to conduct its business in an orderly manner. See State v. Womack, 591 S.W.2d 437, 444 (Tenn. Ct. App. 1979). Accordingly, we find the District Attorney General's arguments concerning the effects of the juvenile proceeding on the pending criminal case unpersuasive. The problems confronting the District Attorney General after it convinced the Circuit Court to interrupt the Juvenile Court's proceedings are of his own making. They should not be used as a basis for justifying the Circuit Court's action which was erroneous from the beginning.

The Juvenile Court's actions to which the District Attorney General objected involved the introduction of evidence in the pending dependent and neglect hearing. Neither the District Attorney General nor the Department claim that the evidence was irrelevant, cumulative, or otherwise inadmissible. Like any other court, the Juvenile Court has the prerogative to control its proceedings and the parties who are within its jurisdiction. It has broad discretion in controlling the conduct of the trial and the manner in which evidence is presented. See Supreme Lodge Knights of Honor v. Dickson, 102 Tenn. 255, 259, 52 S.W. 862, 863 (1899); Cordell v. Ward School Bus Mfg., Inc., 597 S.W.2d 323, 328 (Tenn. Ct. App. 1980). Thus, the Juvenile Court's decision to hear the children's testimony and to prescribe the manner in which it would be presented did not amount to a failure to proceed according to the essential requirements of the law and did not justify the issuance of a common law writ of certiorari.

IV.

The orders of the Circuit Court are vacated, and the case is remanded to the Circuit Court with directions that the petitions be dismissed. The costs of this appeal are taxed to the State of Tennessee.

WILLIAM C. KOCH, JR., JUDGE

CONCURS: HENRY F. TODD, P.J., BEN H. CANTRELL, J.


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