Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Homer D.

Court of Appeals of Tennessee, Nashville

August 22, 2017

IN RE HOMER D., ET AL.

          Assigned on Briefs August 1, 2017

         Appeal from the Juvenile Court for Overton County No. 16-JV-74 Daryl A. Colson, Judge

         This is a termination of parental rights case. Upon the trial court's entry of an order terminating her parental rights, Appellant filed a timely notice of appeal. However, Appellant did not comply with Tennessee Code Annotated Section 36-1-124(d) (Supp. 2016) in that she failed to sign the notice of appeal. Although Appellant attempted to correct the error by filing an amended notice of appeal, the amended notice was filed after the thirty day time period for perfecting appeals had expired. As such, this Court lacks subject-matter jurisdiction to adjudicate the appeal, and it is dismissed with prejudice.

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

          Matthew S. Bailey, Sparta, Tennessee, for the appellant, Sarah R. P. B.

          Herbert H. Slatery, III, Attorney General and Reporter; and Brian A. Pierce, Assistant Attorney General, for appellees, Bryan C. D. and Tennessee Department of Children's Services.

          Arnold B. Goldin, J., delivered the opinion of the court, in which John W. McClarty, J., joined. Frank G. Clement, Jr., P.J., M.S., filed a dissent.

          OPINION

          ARNOLD B. GOLDIN, JUDGE.

         On July 15, 2016, Appellee Tennessee Department of Children's Services ("DCS") filed a petition to terminate Appellant Sarah R. P. B.'s parental rights to Homer D. (d/o/b May 2014) and Cheyenne D. (d/o/b November 2012).[1] On December 20, 2016, the trial court heard the petition to terminate Appellant's parental rights. By order of January 4, 2017, the trial court terminated Appellant's parental rights on the grounds of abandonment by willful failure to support, failure to substantially comply with the reasonable requirements of the permanency plan, and persistence of the conditions that led to the children's removal from Appellant's custody. The trial court also found that termination of Appellant's rights was in the children's best interests. Appellant filed a timely notice of appeal on February 3, 2017. Appellant filed an amended notice of appeal on February 27, 2017. As discussed below, Appellant did not sign the February 3, or February 27 notice of appeal as required under Tennessee Code Annotated Section 36-1-124(d). On March 20, 2017, Appellant filed a second amended notice of appeal, which she signed. As an initial issue, DCS asserts that Appellant's failure to sign a timely notice of appeal denies this Court subject-matter jurisdiction to hear the appeal. We will first address this issue.

         Effective July 1, 2016, the Tennessee Legislature amended Tennessee Code Annotated § 36-1-124 to add subsection (d), which states: "Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant." Accordingly, the requirements of Tennessee Code Annotated Section 36-1-124(d) are applicable to the case at bar.

         In In re Gabrielle W., this Court held, as a matter of first impression, that an appellant's failure to sign the notice of appeal in compliance with Tennessee Code Annotated § 36-1-124(d) "is a jurisdictional default, and the appeal must be dismissed." In re Gabrielle W., No. E2016-02064-COA-R3-PT, 2017 WL 2954684, at *4 (Tenn. Ct. App. July 11, 2017). After analyzing several out-of-state cases considering similar statutes, the Gabrielle W. Court explained:

In these cases, dealing with termination of parental rights, the courts strictly followed the language of the statutes and rules. This state's statute is just as unforgiving. Neither in the Tennessee Code Annotated nor in the Tennessee Rules of Appellate Procedure is there a safety valve or means of waiver for the requirement of the appellant's signature. Therefore, based on the language of the statute, the absence of [the appellant's] signature on the notice of appeal is a jurisdictional default, and the appeal must be dismissed.

Id. (footnote omitted). Relying on the reasoning in Gabrielle W., in subsequent cases, this Court has strictly interpreted Tennessee Code Annotated Section 36-1-124(d) to require dismissal of termination of parental rights appeals, for lack of subject-matter jurisdiction, when the appellant has not signed the notice of appeal. See In re Catherine J., No. W2017-00491-COA-R3-PT, 2017 WL 3141825 (Tenn. Ct. App. July 24, 2017); In re Mya V., No. M2016-02401-COA-R3-PT, 2017 WL 3209181 (Tenn. Ct. App. July 28, 2017); In re Jayden R., No. M2016-02336-COA-R3-PT, 2017 WL 3469708 (Tenn. Ct. App. Aug. 11, 2017).

         Here, Appellant filed a timely notice of appeal, which was signed by her attorney. However, the initial notice of appeal was not signed by Appellant. In view of the foregoing authority, we conclude that Appellant's first notice of appeal, i.e., the February 3, 2017 notice of appeal, is deficient because it lacks Appellant's signature. As such, the initial notice of appeal did not confer jurisdiction on this Court. Appellant's second amended notice of appeal was filed on March 20, 2017. Although the March 20, 2017 amended notice of appeal contains Appellant's signature, it was not filed within the 30 day time period set out in Tennessee Rule of Appellate Procedure 4(a). This Court has previously held ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.