1, 2017 Session
from the Chancery Court for Loudon County No. 12338 Frank V.
an appeal from a final decree of adoption following the entry
of an order terminating the parental rights of the appellant
to her minor child. The only notice of appeal filed by the
appellant within the time provided by Tennessee Rule of
Appellate Procedure 4(a) for the filing of a notice of appeal
did not comply with Tennessee Code Annotated §
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.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
Allison M. Rehn, Harriman, Tennessee, for the appellant,
Dawn Coppock, Strawberry Plains, Tennessee, for the
appellees, Patrick and Kris T.
P. Jarret, Powell, Tennessee, Guardian Ad Litem.
R. Frierson, II, J., D. Michael Swiney, C.J., and Charles D.
Susano, Jr., J.
MEMORANDUM OPINION 
Pursuant to Tennessee Rule of Appellate Procedure 13(b) and
based upon the jurisdictional question acknowledged by the
appellees in their responsive brief, this Court reviewed the
record for this appeal after briefing was complete to
determine whether subject matter jurisdiction existed to hear
this appeal. In In re Gabrielle W., No.
E2016-02064-COA-R3-PT, 2017 WL 2954684, at *3-4 (Tenn. Ct.
App. July 11, 2017), this Court recently clarified that an
appellant's failure to sign the notice of appeal in a
termination of parental rights case in accordance with
Tennessee Code Annotated § 36-1-124(d) deprives this
Court of jurisdiction. See also In re Nevaeh B., No.
W2016-01769-COA-R3-PT, slip op. at 2-3 (Tenn. Ct. App. Aug.
14, 2017); In re Jayden R., No.
M2016-02336-COA-R3-PT, 2017 WL 3469708, at *3-4 (Tenn. Ct.
App. Aug. 11, 2017); In re Mya V., No.
M2016-02401-COA-R3-PT, 2017 WL 3209181, at *3 (Tenn. Ct. App.
July 28, 2017).
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. In her response to
the show cause order, counsel for the appellant requests that
this Court consider the amended notice of appeal filed on
February 17, 2017, as having been sufficient to invoke this
Court's jurisdiction. While acknowledging that this Court
recently held in In re Catherine J., No.
W2017-00491-COA-R3-PT, 2017 WL 3141825, at *3 (Tenn. Ct. App.
July 24, 2017), that "an untimely filed amended notice
of appeal in compliance with [the statute] is not sufficient
to confer jurisdiction on this Court, " counsel
nevertheless asks this Court to consider and adopt the
rationale of the decision in In re Adoption of O.R.,
16 N.E.3d 965 (Ind. 2014), in order to allow this case to
proceed. Counsel further argues that the dismissal of this
appeal based upon the defect in the initial notice of appeal
would be the "result of ineffective assistance of
counsel" and would interfere with a fundamental right
otherwise provided for by law, namely, a parent's
fundamental liberty interest in the care, custody, and
control of his or her children. See generally In re
Carrington H., 483 S.W.3d 507, 522 (Tenn. 2016). We find
counsel's arguments unavailing.
final decree of adoption in this case was entered on December
21, 2016. The initial notice of appeal was filed by counsel
for the appellant on January 3, 2017, without the
appellant's signature. Upon being promptly notified by
this Court of the statutory defect in the notice of appeal,
counsel for the appellant did not file an amended notice of
appeal signed by the appellant until February 17, 2017.
Notwithstanding counsel's request that we adopt the
reasoning of the Supreme Court of Indiana in In re
Adoption of O.R., we determine In re Catherine
J. to be directly on point and are persuaded by the
rationale set forth by this Court in that decision. See
Ottinger v. Stooksbury, 206 S.W.3d 73, 79 (Tenn. Ct.
App. 2006) (stating that Tennessee courts can consider
out-of-state case law only "in the absence of Tennessee
case law directly on point").
to the extent counsel for the appellant is arguing that this
appeal should be allowed to proceed because the
jurisdictional defect in the initial notice of appeal
resulted from the provision of ineffective assistance by
court-appointed trial counsel, we note that we must have
jurisdiction over this appeal as of right in the first
instance in order to entertain any claim based upon the
ineffective assistance of appointed trial counsel. See In
re Carrington H., 483 S.W.3d at 535 ("[W]e decline
to hold that securing the constitutional right of parents to
fundamentally fair procedures requires adoption of an
additional procedure, subsequent to or separate from an
appeal as of right, by which parents may attack the judgment
terminating parental rights based upon ineffective assistance
of appointed counsel."). In other words, if a notice of
appeal is not timely, this Court is not at liberty to waive
the procedural defect. See Tenn. R. App. P. 2;
Arfken & Assocs., P.A. v. Simpson Bridge Co.,
Inc., 85 S.W.3d 789, 791 (Tenn. Ct. App. 2002); Am.
Steinwinter Investor Grp. v. Am. Steinwinter, Inc., 964
S.W.2d 569, 571 (Tenn. Ct. App. 1997); Jefferson v.
Pneumo Servs. Corp., 699 S.W.2d 181, 184 (Tenn. Ct. App.
1985). This is true even in a termination of parental rights
case where there are fundamental constitutional rights at
stake. See, e.g., In re Jayden B.-H., No.
E2013-00873-COA-R3-PT; 2013 WL 4505389, at * 1 (Tenn. Ct.
App. Aug. 21, 2013).
neither the initial notice of appeal nor the amended notice
of appeal in this case was sufficient to invoke this
Court's jurisdiction within the time provided in
Tennessee Rule of Appellate Procedure 4(a), we lack
jurisdiction to consider this appeal.This case is dismissed. Costs