Dockery v. State ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
IN THE MATTER OF: ) C/A NO. 03A01-9704-CV-00135
SARAH NICHOLE DOCKERY, )
d.o.b. 9-25-91, A Child )
Under Eighteen (18)
Years of Age,
)
)
FILED
)
) August 28, 1997
)
) Cecil Crowson, Jr.
RONNEL and RENATE HENSLEY, ) Appellate C ourt Clerk
) APPEAL AS OF RIGHT FROM THE
Petitioners-Appellants, ) ANDERSON COUNTY CIRCUIT COURT
)
)
v. )
)
)
)
STATE OF TENNESSEE, )
DEPARTMENT OF CHILDREN’S )
SERVICES, )
) HONORABLE JAMES B. SCOTT, JR.,
Respondent-Appellee. ) JUDGE
For Appellants For Appellee
RONNEL AND RENATE HENSLEY, Pro Se JOHN KNOX WALKUP
Attorney General & Reporter
Nashville, Tennessee
DOUGLAS EARL DIMOND
Assistant Attorney General
Nashville, Tennessee
OPINION
AFFIRMED AND REMANDED Susano, J.
1
Ronnel Hensley and his wife, Renate Hensley, filed a
petition in the Anderson County Juvenile Court seeking custody of
their granddaughter, Sarah Nichole Dockery, who was then in the
temporary legal custody of the State of Tennessee, Department of
Children Services (Department). By order entered June 19, 1996,
the Juvenile Court dismissed their petition, and they appealed to
the Anderson County Circuit Court. That appeal was likewise
dismissed, whereupon the Hensleys sought further review in this
court. We affirm.
In its January 30, 1997, order dismissing their appeal,
the Circuit Court stated the following:
. . . the Court finds that the child, Sarah
Nichole Dockery, is now in the full and
complete guardianship of the State of
Tennessee, Department of Children’s Services,
as defined by T.C.A. 36-1-102(23)(B) and (C),
as the result of the mother’s surrender of
parental rights and the involuntary
termination of the parental rights of both
the mother’s husband and the alleged
biological father; that the duly entered
guardianship orders were not appealed and
have become final; that such orders supersede
all prior orders of custody of any Court,
including the order from which Ronnel and
Renate Hensley currently appeal [T.C.A. 36-1-
113(m)]; that their appeal has been rendered
moot by the subsequent guardianship orders
and this Court is without jurisdiction to
make any further determinations; . . .
While the appellants have raised many issues in their present
appeal to us, see Appendix, the only pertinent issue before us is
whether the award of guardianship to the Department renders moot
the Hensleys’ petition seeking custody. Even if we were inclined
to address any of the Hensleys’ factually-driven issues, which we
2
are not, we would be precluded from doing so because they failed
to furnish us with a transcript or statement of the evidence of
the proceedings in the Circuit Court. This brings into play the
well established rule that we presume that a lower court’s
decisions are correct in the absence of a transcript reflecting
to the contrary. Findley v. Monroe, 270 S.W.2d 325, 327 (Tenn.
1954); Dispeker v. New Southern Hotel Company, 373 S.W.2d 904,
908 (Tenn. 1963).
Moving to the sole issue before us, we note that T.C.A.
§ 36-1-113(m) provides, in pertinent part, as follows:
An order of guardianship or partial
guardianship entered by the court pursuant to
this section shall supersede prior orders of
custody or guardianship of that court and of
other courts,
. . .
The Circuit Court’s order of January 30, 1997, from which this
appeal was taken, clearly recites that “Sarah Nichole Dockery is
now in the full and complete guardianship of the [Department]” by
virtue of “duly entered guardianship orders [that] were not
appealed and have become final.” Under T.C.A. § 36-1-113(m), the
entry of the orders awarding permanent guardianship to the
Department “supersed[ed]” the June 19, 1996, order of the
Juvenile Court touching on the subject of the child’s custody.
This means that the Circuit Court was being asked by the Hensleys
to address and correct a superseded order; but there was nothing
left to be addressed and/or corrected. We find that the trial
court was correct in its determination that the issue raised by
the Hensleys was rendered moot when the Department was awarded
3
the guardianship of their granddaughter.
The judgment of the trial court is affirmed with costs
on appeal being taxed to the appellants and their surety. This
matter is remanded to the trial court for the collection of costs
assessed there, pursuant to applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Don T. McMurray, J.
4
APPENDIX
Issues Presented for Review by
Ronnel and Renate Hensley
1. Whether the Court of Appeals will find that Sarah
Nichole Dockery and Ronnel and Renate Hensley deserve the ethical
and moral right to be together since their bond was as parents
and child since the age of 3 (three) months and not as maternal
grandparents and granddaughter.
2. Whether the Department of Human Services has
wrongfully kept Sarah Nichole Dockery away from her Grandparents
by bringing up an issue from 1983 that never carried any charges
with it and the custody issue never allowed the issue to be
discussed in the courtroom.
3. Whether the Department of Human Services violated
the due process rights of the Grandparents when said child, Sarah
Nichole Dockery was released by the maternal mother, Marion Marie
Qualls, to the State of Tennessee without due notice to the
Grandparents who had the child since the age of 3 (three) months,
considered as the legal guardians of the child since abandonment
by the maternal mother along with her two half-brothers.
4. Whether the Circuit Court only has part of the
information available because there was never any testimony from
the witnesses of Ronnel and Renate Hensley to give view to the
other side.
5. Whether the Court of Appeals of Tennessee will find
that Ronnel and Renate Hensley (Grandparents) deserve another
trial for the mere purpose of further fact-finding information
not heard in the Circuit Court of Anderson County. The Hensleys
would prefer a trial with jury so that a group of unbiased people
may help make a decision on an important complicated case which
does and will affect several lives.
6. Whether the hearing in the Circuit Court of
Anderson County was a fair and just hearing due to the negligence
of their attorney at the time who did not bother to discuss the
plan of action with his clients, made no arrangements for a court
reporter or prepared to question their witnesses at the hearing.
7. Whether or not the Department of Human Services has
actually proven the real biological father (there were 2 default
papers signed) of Sarah Nichole Dockery in order for the real
biological father to give up the real paternal rights to said
child to the State of Tennessee.