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In re David P.

Court of Appeals of Tennessee, Knoxville

August 17, 2017

In re DAVID P. et al.

          Session: August 1, 2017

         Appeal from the Juvenile Court for Claiborne County No. 2013-JV-1255 Robert M. Estep, Judge

         This is an appeal from an order terminating the parental rights of the appellant to his minor children. The only Notice of Appeal filed by the appellant within the time provided in Rule 4(a) of the Tennessee Rules of Appellate Procedure for the filing of a notice of appeal, did not comply with Tennessee Code Annotated section 36-1-124(d), which states: "Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant." Because this Notice of Appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

          Neal W. Stanifer, Tazewell, Tennessee, for the appellant.

          Herbert Slatery III, Attorney General and Reporter, and Ellison M. Berryhill, Assistant Attorney General, General Civil Division, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          Misty Kennedy, Tazewell, Tennessee, Guardian Ad Litem.

          D. Michael Swiney, C.J., Charles D. Susano, Jr., and John W. McClarty, JJ.

          MEMORANDUM OPINION [1]

          PER CURIAM

         Pursuant to Rule 13(b) of the Tennessee Rules of Appellate Procedure, and based upon the jurisdictional argument raised by the appellee in the responsive brief, this Court reviewed the record for this appeal after briefing was complete to determine whether we had subject matter jurisdiction to hear this matter. This Court had just decided In re Gabrielle W., No. E2016-02064-COA-R3-PT, 2017 WL 2954684, *3-4 (Tenn. Ct. App. July 11, 2017), in which it was made clear that an appellant's failure to sign the notice of appeal in a termination of parental rights appeal in accordance with Tennessee Code Annotated section 36-1-124(d) deprives this Court of jurisdiction. See also In re Mya V., No. M2016-02401-COA-R3-PT, 2017 WL 3209181, *3 (Tenn. Ct. App. July 28, 2017). Based upon the decision in In re Gabrielle W., the Court directed the appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Counsel for the appellant argues in his response that he promptly "cured" the defect in the Notice of Appeal, when alerted to it at the outset of this appeal, by filing an Amended Notice of Appeal in compliance with the statute. However, in the event the Court determines that the Amended Notice of Appeal did not remedy the defect in the initial Notice of Appeal, counsel asserts that this Court has the discretion to waive the defect in the initial Notice of Appeal in order to allow this appeal to proceed. Counsel's arguments are not well-taken.

         The order terminating the appellant's parental rights to his minor children was entered on January 5, 2017. We point out that the order included the following language in that portion of it which notified the appellant of his appeal rights:

         Pursuant to T.C.A. §36-1-124(d) Effective July 1, 2016, a Notice of Appeal must be signed by the Appellant.

         (Underlining in original.) The initial Notice of Appeal was filed by counsel for the appellant on February 2, 2017, without the appellant's signature despite notice of the statutory requirement having been given in the order on appeal. Upon being promptly notified by this Court of the statutory defect in the Notice of Appeal, counsel for the appellant filed an Amended Notice of Appeal on February 9, 2017, which was signed by the appellant.

         In In re Catherine J., No. W2017-00491-COA-R3-PT, 2017-3141825, *2-4 (Tenn. Ct. App. July 24, 2017), this Court held that any attempt to correct an appellant's failure to sign the notice of appeal in a termination of parental rights appeal in accordance with the statute must occur during the thirty-day time limit for filing a notice of appeal in order for the jurisdictional defect to be cured. In other words, "an untimely filed amended notice of appeal in compliance with [the statute] is not sufficient to confer jurisdiction on this Court." Id. at *3. As such, we reject ...


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