In the Matter of Deshundra Yvonne Hunt Shelly Bryant v. Juan Hunt ( 2006 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER 29, 2005 Session
IN THE MATTER OF DESHUNDRA YVONNE HUNT
SHELLY BRYANT v. JUAN HUNT
Direct Appeal from the Circuit Court for Madison County
No. C-04-445 Roy B. Morgan, Judge
No. W2005-00684-COA-R3-CV - Filed February 7, 2006
This appeal stems from a custody dispute between a mother and father over their minor daughter.
In this appeal, we are asked to determine whether the circuit court erred when it dismissed the appeal
of two juvenile court orders denying the mother’s petition for permanent custody and the mother’s
amended petition to reconsider. The mother argues that both orders were related to an original
dependency and neglect proceeding that transferred custody of her minor daughter from her to the
daughter’s father. The circuit court found that both orders were not related to the dependency and
neglect proceedings and dismissed the mother’s appeal. Also on appeal, the mother asserts that the
circuit court erred when it dismissed her appeal of the order regarding the original dependency and
neglect proceedings as not being timely filed. The mother has also requested that this Court vacate
the original order regarding the dependency and neglect proceedings because of several due process
violations that occurred during the hearing. We dismiss the appeal of the issue requesting that we
vacate the original order from the dependency and neglect proceedings and affirm the portion of the
circuit court’s order dismissing the appeal of the order stemming from the original dependency and
neglect proceedings. We vacate portion of the order dismissing the appeal of the two juvenile court
orders filed September 24, 2004 and remand to the trial court for the entry of an order transferring
the appeal of the two orders to the Court of Appeals for processing and disposition.
Tenn. R. App. P. 3; Appeal as of Right; Appeal of Juvenile Court Order from Original
Dependency and Neglect Proceeding Dismissed; Judgment of the Circuit Court Affirmed in
Part, Vacated in Part and Remanded
ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.
Jeanie M. Todd, Jackson, TN, for Appellant
Bob C. Hooper, Jackson, TN, for Appellee
OPINION
I. FACTS & PROCEDURAL HISTORY
On April 7, 1999, Juan Hunt (“Father” or “Appellee”) filed a petition for temporary custody
of his daughter, D.Y.H.1 (“Daughter”) in the juvenile court for Madison County. Father based this
petition on dependency and neglect. On May 18, 1999, the juvenile court for Madison County
granted Father’s petition. On August 12, 1999, the juvenile court relieved Father from paying any
more child support to the mother, Shelly Bryant (“Mother or “Appellant”).
In an attempt to regain custody of Daughter, Mother filed a petition for permanent custody
on July 22, 2002. On July 29, 2002, the juvenile court conducted a hearing on Mother’s petition for
permanent custody and rendered an oral judgment on the matter denying the petition. Thereafter,
Bryant filed a petition to reconsider and an amendment to the petition to reconsider. The juvenile
court denied this amended petition to reconsider as well. Both orders were not entered with the
juvenile court until September 24, 2004. The order denying Mother’s petition for permanent
custody, however, was entered nunc pro tunc for July 29, 2002.
Mother then sought an appeal of both judgments to the circuit court pursuant to section 37-1-
159 of the Tennessee Code. Mother also filed a motion for summary judgment and a motion to
appoint a guardian ad litem for her minor child. The circuit court dismissed Mother’s appeal stating
that the Court of Appeals was the proper court to appeal from the juvenile court’s denial of her
petition for permanent custody and her petition to reconsider. The circuit court also found that it
could not entertain an appeal on the original order awarding temporary custody to Father based on
dependency and neglect because the ten day statutory period for filing an appeal had expired. The
circuit court did not rule on the merits of Bryant’s motion for summary judgment and motion to
appoint a guardian ad litem.
II. ISSUES PRESENTED
Appellant has timely filed a notice of appeal and presents the following issues for review:
1. Whether the circuit court erred when it dismissed Appellant’s appeal of an order from
juvenile court from a dependency and neglect proceeding as not being timely filed;
2. Whether the circuit court erred when it dismissed Appellant’s appeal of an order from
juvenile court regarding Appellee’s petition for permanent custody because it was appealed
to the wrong court;
1
Consistent with this Court’s policy, we refer to children in sensitive cases by their initials.
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3. Whether the circuit court erred when it dismissed Appellant’s appeal of an order from
juvenile court regarding an amended petition to reconsider because it was appealed to the
wrong court; and
4. Whether the circuit court erred when it failed to rule on Appellant’s motion for summary
judgment and her motion for appointment of a Guardian Ad Litem.
For the following reasons, we dismiss the appeal of the issue requesting that we vacate the original
order from the dependency and neglect proceedings and affirm the portion of the circuit court’s order
dismissing the appeal of the order stemming from the original dependency and neglect proceedings.
We vacate the portion of the circuit court’s order dismissing the appeal of the two orders filed
September 24, 2004 and remand for the entry of an order to provide that the appeal of the orders filed
September 24, 2004 by the juvenile court be transferred to the Court of Appeals for processing and
disposition.
III. STANDARD OF REVIEW
This Court reviews findings of fact by a trial court sitting without a jury under a de novo
standard of review with a presumption of correctness for the findings. Tenn. R. App. P. 13(d). We
review a trial court’s conclusions of law de novo with no presumption of correctness. Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White
Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).
IV. DISCUSSION
A. Original Order on Dependency and Neglect Proceedings
Appellant has argued that the circuit court erred when it found that Appellant had not
properly perfected her appeal of the order from the original delinquency and neglect proceeding.
Specifically, Appellant contends that a second hearing occurred on July 29, 2002 regarding the
original dependency and neglect proceedings, which an order was entered nunc pro tunc on
September 24, 2004, and that she properly perfected an appeal of that order to the circuit court on
August 1, 2002 and September 30, 2004.2
However, this assertion is in error. The hearing on July 29, 2002 dealt with Appellant’s
petition for permanent custody. Appellant has attempted to construe her petition for permanent
custody as a petition for relief from judgment based on due process violations that occurred in the
2
In this case, the juvenile court filed its order disposing of Appellant’s petition for permanent custody nunc
pro tunc for July 29, 2002 on September 24, 2004. For purposes of appeal of a nunc pro tunc order, a litigant’s time
for filing an appeal begins to run from the date the nunc pro tunc order is filed with the court clerk rather than the date
of the prior verbal order. Tevis v. Proctor & Gam ble Distrib. Co., 113 S.W .2d 64, 67 (Tenn. Ct. App. 1937), overruled
on other grounds by N.J. Zinc Co. v. Cole, 532 S.W .2d 246, 254 (Tenn. 1975); see also Neely v. State, 356 S.W .2d 401,
403 (Tenn. Crim. App. 1962) (finding that a judgment “cannot be entered nunc pro tunc so as to cut off the right of
appeal” (citing Jackson v. Jarratt, 52 S.W .2d 137 (Tenn. 1932))).
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original hearing. However, after reviewing her petition, it is not a petition for relief from judgment.
Rather, it is a petition for change of custody based on changed circumstances and in the best interests
of the child. Nowhere in the petition does Appellant request relief from the earlier judgment or
address any alleged procedural due process violations of the juvenile court. Appellant’s petition for
permanent custody was a new action and wholly separate from the original delinquency and neglect
proceeding. Thus, we affirm the decision of the circuit court as to this issue.3
B. Petitions Filed after 1999
On appeal, Appellant asserts that the circuit court erred when it dismissed her appeal finding
that all petitions and amended petitions after 1999 were properly appealable to the Court of Appeals.
Specifically, Appellant contends that her petitions were related to the original dependency and
neglect proceedings so that an appeal was properly before the circuit court.
In her brief on appeal, Appellant relies on State of Tennessee Department of Children’s
Services v. Owens, 129 S.W.3d 50 (Tenn. 2004), to support her proposition. However, Appellant’s
reliance on this case is misplaced.
In Owens, the Tennessee Department of Children’s Services (“TDCS”) filed a petition to
declare an adopted child a dependent and neglected child. Owens, 129 S.W.3d at 52. While this
petition was pending, the adopted child’s aunt and uncle filed a petition to intervene and for
temporary custody. Id. Subsequent to that filing, the TDCS filed a petition to terminate the adoptive
parents’ parental rights as to the adopted child. Id. Before considering the aunt’s and uncle’s
petition to intervene and for temporary custody, the juvenile court considered the TDCS’ petition
to terminate the adoptive parents’ parental rights. Id. at 52-53. In its order, the juvenile court
terminated the adoptive parents’ parental rights and awarded guardianship of the adopted child to
the TDCS. Id. at 53. Over one month later, the juvenile court entered an order declaring the aunt’s
and uncle’s petition to intervene and for temporary custody moot because its earlier termination
order deprived the juvenile court of jurisdiction. Id. Thereafter, the aunt and uncle filed a notice of
appeal to the circuit court. Id. The TDCS filed a motion to dismiss basing its motion on mootness
grounds and that the termination order superseded the aunt’s and uncle’s petition. Id. The circuit
court granted the TDCS’ motion to dismiss. Id.
3
Appellant has also argued on appeal that the original order from the dependency and neglect proceeding
changing custody of Daughter from Mother to Father should be vacated because of the due process violations that she
alleges occurred at the dependency and neglect proceedings.
Pursuant to section 37-1-103 of the Tennessee Code, the juvenile court has exclusive jurisdiction over
dependency and neglect proceedings. Tenn. Code Ann. § 37-1-103(a)(1) (1999). Section 37-1-159 of the Tennessee
Code states that “any appeal from any final order or judgment in an unruly child proceeding or dependent and neglect
proceeding, filed under this chapter, may be made to the circuit court that shall hear the testimony of witnesses and try
the case de novo.” Tenn. Code Ann. § 37-1-159 (1999). Thus, the proper venue for appealing a juvenile court judgment
from a dependency and neglect proceeding is to the circuit court. Accordingly, the appeal of this issue is dismissed.
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On appeal, this Court affirmed the decision but for a different reason. Id. This Court found
that the proceeding became a termination of parental rights proceeding once the TDCS filed its
petition to terminate parental rights. Id. Further, this Court found that the petition to intervene
became part of that proceeding because it was still pending when the TDCS filed its petition to
terminate parental rights. Id. This Court also found that the circuit court had the authority to transfer
the case to this Court, and we modified the order to transfer the appeal to us for processing and
disposition. Id.
The Tennessee Supreme Court reversed and remanded because it found that the order
appealed was connected to the dependency and neglect proceeding because (1) “[t]he nature and
substance of the proceeding cannot be transformed simply by the filing of a petition with a different
caption” and (2) the intervening petition was properly before the juvenile court in the dependency
and neglect proceeding. Id. at 54-55.
In this case, Father filed his petition for custody based on dependency and neglect on April
7, 1999. The juvenile court conducted a hearing on this motion and entered a final order on May 18,
1999. The juvenile court entered another order on August 12, 1999 relieving Father from paying
child support to Mother. When the juvenile court rendered its order, the record reflects that there
were no other petitions brought in the dependency and neglect proceedings. Over 3 years after a
final order was entered in the dependency and neglect proceedings in which a final order was issued
changing custody of Daughter from Mother to Father, Mother initiated a new action when she filed
a petition for permanent custody in juvenile court. Although Appellant has claimed on appeal that
this petition was in substance a petition for relief from judgment, Appellant’s petition made no
reference to any alleged errors in the dependency and neglect proceedings. This petition requested
a change of custody based on changed circumstances and in the best interests of the child. Thus, the
circuit court properly acted when it found that it lacked jurisdiction to hear the appeal of Appellant’s
petition for permanent custody because this Court was the proper venue for an appeal from this
order. See Tenn. Code Ann. § 37-1-159 (2004).
Likewise, the circuit court acted properly when it found that it lacked jurisdiction to entertain
an appeal of the juvenile court’s order denying Appellant’s amended petition to rehear. Although
this amended petition makes some references to alleged due process violations that occurred in the
delinquency and neglect proceedings, it asked for a rehearing of the order disposing of Appellant’s
petition for permanent custody only. Like the original petition for permanent custody, this amended
petition was not related to the delinquency and neglect proceedings. Rather, it was related to the
petition for permanent custody. Accordingly, we affirm the circuit court’s decision finding that it
lacked jurisdiction to entertain an appeal of the juvenile court’s order denying Appellant’s amended
petition to rehear. Thus, the issue regarding Appellant’s motion for summary judgment and motion
for the appointment of a Guardian Ad Litem are pretermitted.
However, the circuit court erred when it dismissed the appeal of the order denying
Appellant’s petition for permanent custody and the order denying Appellant’s amended petition to
rehear. “When a case has been appealed to the wrong appellate court, Tenn. Code Ann. § 16-4-
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108(a)(2) provides that it should be ‘transferred to the court having jurisdiction thereof.’” In re
Estate of White, 77 S.W.3d 765, 769 (Tenn. Ct. App. 2001) (quoting Tenn. Code Ann. § 16-4-
108(a)(2)) (requiring chancery court to enter an order transferring an appeal petitioned to chancery
court to the Court of Appeals). Accordingly, we vacate the circuit court’s order to dismissing the
appeal of both of the orders filed September 24, 2004 and remand for the entry of an order
transferring the appeal of both orders filed September 24, 2004 to the Court of Appeals for
processing and disposition.
V. CONCLUSION
For the foregoing reasons, we dismiss the appeal of the order stemming from the original
dependency and neglect proceedings and affirm the portion of the circuit court’s order dismissing
the appeal from the original order stemming from the dependency and neglect proceedings. Further,
we vacate the portion of the circuit court’s order dismissing the appeals from the orders filed
September 24, 2004 by the juvenile court. We remand to the circuit court for the entry of an order
providing that the appeal of the orders filed September 24, 2004 be transferred to the Court of
Appeals for processing and disposition. The date of the filing of this order shall be considered the
date of the filing of an amended Notice of Appeal and the appeal, including all time requirements,
will be governed by the Rules of Appellate Procedure. Costs of this appeal are taxed to Appellant,
Shelly Bryant, and her surety, for which execution may issue if necessary.
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ALAN E. HIGHERS, JUDGE
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