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In re Gabrielle W.

Court of Appeals of Tennessee, Knoxville

July 11, 2017

IN RE GABRIELLE W.

          Session April 20, 2017

         Appeal from the Circuit Court for Greene County No. 08A015 Beth Boniface, Judge

         In this 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 Adoption.

         Tenn. R. App. P. 3 Appeal as of Right; Motion to Dismiss Appeal Granted; Case Remanded

          Linda Thomas Woolsey, Greeneville, Tennessee, for the appellant, James M.R., Jr.

          Michael B. Menefee, Knoxville, Tennessee, for the appellee, Dusty A.W.

          John W. McClarty, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Thomas R. Frierson, II, J., joined.

          OPINION

          JOHN W. MCCLARTY, JUDGE

         I. BACKGROUND

         This 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)")[1]; therefore, the factual background will mostly contain information pertaining to Father, the Child, and Guardians.

         The 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.

         In June 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.

         In the 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 child."

         Mother 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.

         Both 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.[2] On August 20, 2009, the Child was adopted by Guardians.

         In 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.

         When 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.

         Following 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 Guardian's counsel.

         II. ISSUES

         We 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 36-1-117(c).
B. Whether the trial court erred in finding that the Final Order of Adoption is void as against Father for lack of personal jurisdiction.
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 ...

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