State of Tennessee, Department of Human Services v. Sylvia Fetterolf Ford, and Stanley Fetterolf ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION
AT NASHVILLE
FILED
February 6, 1998
STATE OF TENNESSEE, DEPARTMENT )
Cecil W. Crowson
OF HUMAN SERVICES, )
Appellate Court Clerk
)
Petitioner/Appellee, )
) Appeal No.
v. ) 01-A-01-9704-JV-00171
)
SYLVIA FETTEROLF FORD, ) Putnam Juvenile
) No. 215
Respondent/Appellant, )
and )
STANLEY FETTEROLF, )
)
Respondent/Appellant, )
In the Matter of: )
Stanley James Fetterolf, DOB 07/17/81 )
Teresa Diane Fetterolf, DOB 07/26/82 )
David Michael Fetterolf, DOB 09/20/84 )
Daniel Wayne Fetterolf, DOB 11/06/85 )
John Mark Wayne Fetterolf, DOB 05/28/88 )
Samuel Swayne Fetterolf, DOB 04/05/90 )
Daniela Jordan Fetterolf, DOB 04/15/92 )
ORDER
The State of Tennessee filed a petition to rehear in the above styled case on November
24, 1997. The State contends this court should rehear the case pursuant to Rule 39 of the Tennessee
Rules of Appellate Procedure. Specifically, it contends our decision 1) conflicts with existing case
law, 2) conflicts with a principle of law, and 3) overlooks a material fact upon which the parties were
not heard. It is the opinion of this court that the motion is not well taken and, therefore, should be
denied.
1.
The State argues the holding in State Dep’t of Human Servs. v. Tate, No. 01-A-01-9409-
CV-00444, 1995 WL 138858 (Tenn. Ct. App. 1995), conflicts with our decision in the present case.
This argument is without merit. In Tate, the juvenile court determined the children were dependent
and neglected, and the circuit court of the same county terminated the parental rights. On appeal,
the defendant argued the circuit court lacked subject matter jurisdiction because the juvenile court
issued a decision in the dependancy and neglect case. This court held that the circuit court had
jurisdiction and stated: “To preclude the circuit court from exercising jurisdiction over termination
of parental rights proceedings on the basis of a previous finding of dependency and neglect would
frustrate the clear legislative intent of Tennessee Code Annotated section 37-1-104(c).” Tate, 1995
WL 138858, at *3. This reasoning does not, however, apply to the facts of the instant case. To
explain, Tennessee Code Annotated section 37-1-104(c) provides that circuit, chancery, and juvenile
courts shall have concurrent jurisdiction to terminate parental rights. Tenn. Code Ann. § 37-1-
104(c)(1996). This court noted in Tate that the defendant’s position would, in essence, abolish the
circuit court’s concurrent jurisdiction. Our holding here in no way affects the jurisdiction of either
the circuit or chancery courts since the case here involves two juvenile courts, not a juvenile and
circuit or chancery court. Moreover, our decision conforms to the holding in State Dep’t of Human
Servs. v. Gouvitsa, 735 S.W.2d 452, 455-56 (Tenn. Ct. App. 1987) as discussed in our opinion.
Finally, we note that in deciding this case we have addressed an issue very different from that
addressed by the court in Tate.
2. and 3.
Our decision in this case rests on the jurisdictional issue, not venue. That portion of the
opinion relating to venue simply stated that the court could not determine the venue issue given the
conflicting testimony and that due process rights favor a petitioner bringing a termination proceeding
in the county in which the parents and the children made a home before the petitioner instituted the
court proceedings. As to the jurisdictional issue, this court held that the Putnam County Juvenile
Court lacked jurisdiction because the Overton County Juvenile Court’s jurisdiction had attached and
continued. Because the State’s second and third arguments apply to the venue issue it is not
necessary for the court to address them.
Therefore, it follows that the petition to rehear is denied and the costs are taxed to the
petitioner/appellee, State of Tennessee, Department of Human Services.
ENTER:_______________________
_______________________________________
BEN H. CANTRELL, JUDGE
_______________________________________
WILLIAM C. KOCH, JR., JUDGE
________________________________________
WALTER W. BUSSART, JUDGE