Session April 20, 2017
from the Circuit Court for Greene County No. 08A015 Beth
appeal the biological father to the child at issue sought to
set aside the Final Order of Adoption. Following a hearing,
the trial court declared the Final Order of Adoption void on
its face, finding that the court did not have personal
jurisdiction over the biological father to terminate his
parental rights. The guardian failed to sign his notice of
appeal pursuant to Tennessee Code Annotated section
36-1-124(d), requiring us to grant the father's motion to
dismiss the guardian's appeal and leave in place the
trial court's decision to void the Final Order of
R. App. P. 3 Appeal as of Right; Motion to Dismiss Appeal
Granted; Case Remanded
Thomas Woolsey, Greeneville, Tennessee, for the appellant,
James M.R., Jr.
Michael B. Menefee, Knoxville, Tennessee, for the appellee,
W. McClarty, J., delivered the opinion of the court, in which
D. Michael Swiney, C.J., and Thomas R. Frierson, II, J.,
W. MCCLARTY, JUDGE
matter relates to the termination of the parental rights of
Dusty A.W. ("Father") to Gabrielle W. ("the
Child") and the subsequent adoption of the Child by
James M.R. and Martha L.R.
("Guardian(s)"); therefore, the factual background will
mostly contain information pertaining to Father, the Child,
Child was born to Shawnoka D.W. ("Mother") and
Father on May 23, 2006, as a result of a transient sexual
encounter. Father and Mother were not in a relationship at
the time of the birth. When the Child was born, Mother tested
positive for Benzodiazepines and admitted to taking illicitly
obtained Valium, Percocet and Oxycontin during her pregnancy.
2006, after the Tennessee Department of Children's
Services ("DCS") removed the Child from care of
Mother as a result of her drug use, DCS placed the Child with
her maternal aunt and uncle (Mother's sister and her
partner), Amber R. and James K. While the Child was in her
custody, Amber R. utilized the babysitting services of
Guardians. After two to three months, the Child began to
reside primarily with Guardians, which was acknowledged in an
order from the Juvenile Court in September 2006. A year
later, in an order dated September 11, 2007, custody of the
Child was transferred from DCS to Guardians.
September 2006 hearing, the identity of the biological father
of the Child was discussed. Guardians were present at this
hearing. Mother initially stated that she did not know the
identity of the Child's father. At the insistence of the
court, Mother related the name of "Dustin W., " a
misspelling of Father's first and last name, from
Galveston, Texas. Mother also revealed that the biological
father is a crane operator who travels for work. The
court's order reflected that "the Court is informed
that Dustin W. . . . in Texas, may be the Father of the
later testified that she told several people, including her
sister Amber R., Martha L.R., and persons in the court
system, that there were several possibilities of who the
father of the Child could be. Amber R. testified to
Mother's statement, including that the father could be a
man in Texas named Dustin. James M.R. testified to hearing
the name "Dustin W[.]" in the initial September
2006 proceeding but stated that he had no other information
beyond that. He has never spoken to Mother about Father or
directly with Father. It is also on record that Mother told
Martha L.R. that either Father or Bill H., a local paramour
of Mother's, could be the father of the Child and that
Father was coming to visit her after the Child's birth.
Mother and Father agree that Mother contacted Father and told
him that she was pregnant and he was possibly the father.
Mother also visited Father in Texas shortly after her
declaration, and they spent several days together. Upon the
Child's birth, Mother called Father to tell him that the
Child might be his. Father then traveled to Greeneville,
Tennessee where Mother lived in an effort to see the Child.
However, after picking him up at the bus station and dropping
him off at a hotel, Mother never returned to see Father.
After two days alone at the hotel, Father left. He testified
that Mother later called to inform him that according to DNA
test, the Child was not his. On August 20, 2009, the Child was
adopted by Guardians.
December of 2011, five years after the birth of the Child,
Mother contacted Father to tell him that she now believed the
Child was his but that she no longer had custody of the
Child. However, given previous conversations, Father did not
automatically believe Mother and began an inquiry into any
information about the Child. Unable to receive any official
information or documentation of the Child's adoption,
Father hired his current attorney to help request access to
the adoption records. No records were found, due to Father
having the incorrect birth date of the Child and a
misspelling of the Child's name on her birth certificate.
Father believed that there was no adoption on record, he
filed a Petition to Establish Paternity in March 2013 with
the Greene County Juvenile Court. After inspecting previous
Juvenile Court files in relation to the Child, Father filed
an Amended Petition to Establish Paternity in April 2013,
including the fact that Mother had identified him as a
possible father in the previous proceeding in September 2006.
This petition resulted in a hearing later that month where
Guardians presented actual evidence of an adoption.
Subsequently, the case was transferred to the Circuit Court.
the transfer, Father filed several motions for access to the
court file for the Child, which were ultimately denied. After
filing a Motion to Set Aside Final Order of Adoption, Father
was granted a hearing and access to the court files. At the
hearing, the court determined that because Guardians knew
Father's name and the state and city where he lived,
Father was entitled to notice of the adoption proceedings and
service of process. The trial court found that personal
jurisdiction over Father had not been obtained at the time of
the Final Order of Adoption. Because Father was not properly
before the court, the final order was declared void on its
face and the termination of parental rights not applicable as
to Father. The court also found that no exceptional
circumstances existed to bar Father's requested relief.
The court concluded, however, that voiding the Final Order of
Adoption did not automatically transfer custody of the Child
to Father. Thus, the Child remained in the custody of
Guardian. A timely notice of appeal was filed by
restate the issues raised on appeal by Guardian as follows:
A. Whether the trial court erred in concluding that Father
was a putative father entitled to the notice and protections
afforded pursuant to Tennessee Code Annotated section
B. Whether the trial court erred in finding that the Final
Order of Adoption is void as against Father for lack of
C. Whether the trial court erred in finding that exceptional
circumstances do not exist to bar Father's requested
relief in voiding the Final Order of Adoption.
D. Whether the trial court erred by dismissing the Petition
for Adoption by Guardian after declaring the Final Order of
Adoption to be void ...