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In re Bentley D.

Supreme Court of Tennessee, Knoxville

November 22, 2017

In re BENTLEY D.

          Session Heard at Nashville October 11, 2017

         Appeal from the Circuit Court for Washington County No. 34545 J. Eddie Lauderback, Judge

         The trial court terminated the father's parental rights. The father timely filed a notice of appeal signed by his attorney but not signed personally by the father. The Court of Appeals filed an order directing the father to show cause why his appeal should not be dismissed for lack of jurisdiction for failure to 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." The father's response to the show cause order included a challenge to the constitutionality of section 36-1-124(d). The Tennessee Attorney General filed a notice of intent to defend the constitutionality of the statute. This Court, upon its own motion, assumed jurisdiction over the case and directed the parties and the Attorney General to address the following issues: (1) whether failure to comply with Tennessee Code Annotated section 36-1-124(d) is a jurisdictional defect; and (2) whether Tennessee Code Annotated section 36-1-124(d) is unconstitutional based on separation of powers, due process, and/or equal protection grounds. We conclude that that the statute does not require a notice of appeal to be signed personally by the appellant. Because the timely notice of appeal signed by the father's attorney satisfies the signature requirement, we hold that the father's appeal is not subject to dismissal. This holding renders moot the other issues before us. We remand the case to the Court of Appeals for consideration of the merits of the father's appeal.

         Tenn. Code Ann. § 16-3-201(d)(3) Appeal; Remanded to the Court of Appeals

          Lawrence Scott Shults, Johnson City, Tennessee, for the appellant, David D.

          Melissa R. and Aurelio G., Johnson City, Tennessee, appellees, Pro Se. [1]

          Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Jonathan David Shaub, Assistant Solicitor General; and Sarah K. Campbell, Special Assistant to the Solicitor General and the Attorney General, for the State of Tennessee.

          East Tennessee Appellate Litigation, PLLC, Knoxville, Tennessee, Amicus Curiae.

          Mark N. Foster, Madisonville, Kentucky, for Amicus Curiae, Natosha D.

          Jeffrey S. Bivins, C.J., delivered the opinion of the court, in which, Cornelia A. Clark, and Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.

          OPINION

          JEFFREY S. BIVINS, CHIEF JUSTICE.

         Factual and Procedural Background

         On June 26, 2015, the appellees, Melissa R. ("Mother") and her husband Aurelio G. ("Stepfather"), filed a petition to terminate the parental rights of the appellant, David D. ("Father"), to Mother and Father's minor child, Bentley D., and for Stepfather to adopt the child.[2] The trial court determined Father to be indigent and appointed counsel for him. In October 2016, the trial court held a two-day hearing on the petition. On November 7, 2016, the trial court filed an order terminating Father's parental rights.

         On November 17, 2016, Father timely filed a notice of appeal signed by his attorney, but not signed personally by Father. On July 13, 2017, the Court of Appeals filed an order directing Father to show cause "why this appeal should not be dismissed for lack of jurisdiction." In re Bentley D., No. E2016-02299-COA-R3-PT (Tenn. Ct. App. July 13, 2017) (order to show cause) (citing In re Gabriella W., No. E2016-02064-COA-R3-PT, 2017 WL 2954684, at *4 (Tenn. Ct. App. July 11, 2017), perm. app. pending). In In re Gabrielle W., the Court of Appeals held, as a matter of first impression, that a timely notice of appeal signed only by an appellant's attorney fails to ...


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