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In re Ethan R.

Court of Appeals of Tennessee, Jackson

March 10, 2017


          Assigned on Briefs April 4, 2016

         Appeal from the Circuit Court for Shelby County No. CT-003467-13 Jerry Stokes, Judge

         A mother, who was designated the primary residential parent of the parties' son when she and the father divorced, filed a dependent and neglect petition in juvenile court in Tennessee when the child was hospitalized in Arkansas after ingesting some of the father's methadone tablets. In the course of the juvenile court proceeding Father filed a petition opposing Mother's relocation to Kentucky and seeking a change in custody. The juvenile court dismissed both petitions, and Father appealed. The circuit court held a trial de novo and denied Father's petition. Mother appeals, contending that because she did not appeal the juvenile court's dismissal of the dependent and neglect proceeding, the circuit court did not have subject matter jurisdiction to consider the matter further and, alternatively, that the case should have been transferred to Kentucky. Finding no error in the disposition of the case, we affirm the judgment in all respects.

          Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Shiau-Jiuan Wang.

          W. Ray Glasgow, Memphis, Tennessee, for the appellee, Michael Eugene Rowland.

          Richard H. Dinkins, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Arnold B. Goldin, J., joined.



         This appeal arises out of a dependent and neglect proceeding initiated on December 27, 2011, by Shiau-Jiuan Wang, ("Mother"), the mother of Ethan R., in Shelby County Juvenile Court. Mother and Michael Rowland ("Father"), Ethan's father, were divorced in 2005 in Shelby County Circuit Court.

         The petition alleged that on December 23, 2011, Mother, who lived in Shelby County at the time, had been contacted by emergency room personnel at the Helena, Arkansas, Regional Medical Center and told that Ethan had been treated at the hospital for repeated vomiting and stomach pain caused by ingesting 8-15 methadone pills while he was in the custody of Father, and that Ethan would not be released to Father. The petition further alleged that Mother drove to Arkansas and brought Ethan to Shelby County, and that Father called her on December 26 advising that he was coming to pick Ethan up to exercise his scheduled parenting time. Mother prayed that Ethan be brought within the protective custody of the court pending an investigation and adjudication of Ethan's custody, that Father be required to submit to various drug screens, and that his parenting time be supervised. The temporary order was denied, and a hearing was held on the petition before a magistrate on February 3, 2012. On that day, the magistrate issued Findings and Recommendations that the petition be sustained; that Ethan be declared dependent and neglected as a result of having ingested methadone pills; that custody be awarded to Mother; and that Father be enjoined from having any contact with Ethan.[1] The Recommendations were adopted, ratified, and made the order of the court by the Juvenile Court Judge.

         Counsel was appointed for Father and on April 2, 2012, he filed a motion to set aside the February 3 order and to appoint a guardian ad litem for Ethan; on April 11 Father filed his Answer to Mother's petition. The magistrate held a hearing and on April 16 entered Findings and Recommendations granting Father's motion to set aside the February 3 order, setting the trial for July 26, appointing a guardian ad litem for Ethan, and granting Father supervised visitation; the Juvenile Court Judge ratified and adopted the Recommendations.

         On June 13 Father filed a Motion for Injunctive Relief asserting, inter alia, that Mother had advised him of her intent to relocate to Kentucky with Ethan, and seeking an order enjoining her from relocating with Ethan. On June 18 the Magistrate heard the motion and entered Findings and Recommendations, which were subsequently ratified and adopted by the Juvenile Court Judge in an order denying Father's motion. Father then filed a petition opposing Mother's relocation and seeking a change of custody.

         After proceedings relating to several motions not germane to the issues in this appeal, the Magistrate held a hearing on June 30, 2013, on Mother's petition to have Ethan declared dependent and neglected and Father's petition for custody. The Magistrate entered Findings and Recommendations on July 30, inter alia, dismissing both petitions; the Recommendations were ratified by the Juvenile Court Judge. Father appealed to the Circuit Court and, upon his motion, the case was assigned to Division VI, the court which heard the parties' divorce action.

         On January 23, 2015, Mother filed a motion to dismiss Father's appeal and for further relief asserting, inter alia, that the circuit court did not have subject matter jurisdiction.[2] Father responded and the court held a hearing on April 10 on both motions; the court heard argument on Mother's jurisdictional motion first and, after orally overruling the same, proceeded to hold an evidentiary hearing on the dependency and neglect petition, as well as Father's opposition to Mother's relocation and for a change of custody. On May 29 the court entered an order denying Mother's motion; the court also entered what was styled a "Final Order" on the appeal from Juvenile Court in which the court, inter alia: held that there was not sufficient evidence that Ethan was dependent and neglected; held that Mother had a reasonable purpose in relocating to Kentucky and that the relocation was not vindictive; denied Father's petition after holding that there were no bases to change custody of Ethan from Mother to Father; and set a new parenting schedule.

         Mother appeals, presenting two issues: (1) whether the trial court erred in failing to dismiss the case for lack of jurisdiction and, (2) if not, whether the trial court erred in failing to transfer ...

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