In Re: Adoption of Samuel Downey, et.al. v. Catherine Downey ( 2003 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 2, 2003 Session
IN RE: ADOPTION OF: SAMUEL JUSTIN DOWNEY, a/k/a JUSTIN
SAMUEL DOWNEY, JESSICA LEE DOWNEY SHERBAN, a/k/a JESSICA
LEE DOWNEY, AND TAYLOR MARIE SHERBHAN, a/k/a TAYLOR
MARIE DOWNEY, minors, by JULIA MARSHALL DOWNEY, v.
CATHERINE DOWNEY
Direct Appeal from the Chancery Court for Hamilton County
No. 01-A-062 Hon. W. Frank Brown, III, Chancellor, Part 1
FILED APRIL 30, 2003
No. E2002-01972-COA-R3-CV
The Trial Court approved adoption of three minor children by sister of biological mother. Mother
appealed, insisting Georgia Court decree terminating her parental rights to the children was
defective. We affirm.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.
HERSCHEL PICKENS FRANKS , J. delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and CHARLES D. SUSANO, JR., J., joined.
David W. Wallace, Bryan H. Hoos, and C. Leland Davis, Chattanooga, Tennessee, for Appellant.
Leah M. Gerbitz and Esther R. DeCambra, Chattanooga, Tennessee, for Appellee.
OPINION
The Trial Court approved petitioner, Julia Downey’s adoption of the three minor
children of her sister and appellant herein, Catherine Downey. The Trial Court determined that
Catherine Downey’s parental rights had been terminated under a Georgia court’s decree, but due to
the wording of the decree, ordered that Catherine Downey be given notice of the adoption
proceedings. She then participated in the proceedings.
On appeal, Catherine essentially argues that the Georgia judgment terminating her
parental rights was defective, in that it provided for her continuing visitation with the children, and
their right to inherit from her, and therefore she retained the constitutional right to visit her children
as a natural mother. She also raises issues of the failure of the Trial Court to appoint a guardian-ad-
litem and failing to grant her motion for a continuance.
In the termination proceeding, the Georgia Court ordered all parental rights were
being terminated in accordance with law, and granted the sole, legal and physical custody of the
children to Julia Downey. The Court stated that Catherine would have visitation with the children
one weekend per month under certain conditions, and then recited that Catherine and the father had
acknowledged that the termination of parental rights was “without limit as to duration and terminates
all of their rights and obligations with respect to the children”, and Catherine and Greg were no
longer entitled to notice of adoption proceedings nor did they have the right to object to same or
participate in the proceedings, and they made their decision freely, voluntarily, without duress or
promise of anything, and that they had discussed the matter with their attorneys.
The Court then again stated that all parental rights were terminated, except the
children would still be allowed to inherit from Catherine. The Court stated that the children would
be placed in the permanent custody of their Aunt Julia, and the six months waiting period for
adoption would be waived.
The Trial Court in this case found that the adoption was in the children’s best
interests, and that Catherine’s parental rights were terminated by the Georgia Order. The Chancellor
said he “may have overreacted” by requiring notice of the adoption proceedings be given to
Catherine, since the Georgia order waived the same. A Final Order of Adoption was entered on July
17, 2002, which resulted in this Appeal.
Catherine argues that the Trial Court erred in granting the adoption petitions because
her rights were not terminated by the Georgia termination order. That order was not appealed, and
the mother is essentially mounting a collateral attack on the Georgia termination order. As this Court
has previously explained:
The final judgments of sister states are presumed conclusive and valid. A party
seeking to undermine the validity of a foreign judgment carries "a stern and heavy
burden" to show that it should be denied the full faith and credit afforded by Article
4, Section 1 of the United States Constitution. Two limited exceptions to the full
faith and credit principle are where it can be shown that the rendering court lacked
personal or subject matter jurisdiction.
Frazier v. Frazier, 72 S.W.3d 333, 335(Tenn. Ct. App. 2001). In this case, there is no proof that the
Georgia court lacked jurisdiction over either the mother or the subject matter when it ordered the
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termination. Georgia case law makes clear that the Juvenile Courts in Georgia have subject matter
jurisdiction over termination actions pursuant to Ga. Code Ann. §15-11-28(a)(2)(c). See In the
Interest of B.A.S., 563 S.E.2d 141 (Ga. Ct. App. 2002).
The mother further argues that the termination order was invalid because it left her
visitation rights intact and left the children’s inheritance rights intact, which conflicts with the
Georgia statute applicable to terminations. Ga. Code Ann. §15-11-93 states that an order terminating
the rights of a parent “terminates all the parent’s rights and obligations with respect to the child and
all rights and obligations of the child to the parent arising from the parental relationship, including
rights of inheritance. The parent is not thereafter entitled to notice of proceedings for the adoption
of the child by another, nor has the parent any right to object to the adoption or otherwise to
participate in the proceedings.” The Georgia Code expressly deals with how judgments may be
attacked in that state. Ga. Code Ann. §9-11-60 provides that only a judgment which is “void on its
face” may be attacked collaterally. In all other instances, the judgment must be attacked by a direct
proceeding brought for that purpose by one of the methods described in the code section, and brought
within the allotted time frame.1 The Georgia Supreme Court has explained that a judgment is “void
on its face” when the judgment lacks either personal or subject matter jurisdiction. Murphy v.
Murphy, 430 S.E.2d 749 (Ga. 1993). As we have noted, the Court had jurisdiction of both mother
and the subject matter. Tennessee law is in accord with Georgia on this issue. See Cumberland Bank
v. Smith, 43 S.W.3d 908 (Tenn. Ct. App. 2000).
Next, Catherine insists the Trial Court erred in refusing to appoint a guardian-ad-litem
for the children. In this regard, the Trial Court found the children loved their aunt, were happy and
doing well in her care, and that she loved them in return - the evidence supports these findings. The
Court also noted the motion regarding a guardian-ad-litem came very late in the proceedings, and
that he had interviewed the children himself. Thus, the Court felt there was no need for a guardian-
ad-litem in this case, and we find there was not an abuse of discretion in his refusal to appoint a
guardian-ad-litem.
Finally, Catherine argues that the Trial Court erred in failing to grant her a
continuance. His decision is reviewed under an abuse of discretion standard, with the additional
requirement that prejudice be shown. The Supreme Court has said, "An appellate court cannot
interfere with the trial court's decision [regarding a continuance] unless such decision constitutes an
abuse of discretion and causes prejudice to the party seeking the stay or continuance." Sanjines v.
Ortwein and Assoc., P.C., 984 S.W.2d 907, 909 (Tenn.1998).
Catherine argues she was prejudiced because she was unable to fully develop her
case, as her attorneys did not have time to conduct the necessary discovery. This ignores the fact,
1
Georgia law indicates that had there been a timely appeal, the anomalous provisions would
have been stricken and the termination upheld. See Sponce v. Levi, 211 S.E.2d 622 (Ga. Ct. App.
1974).
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however, that the hearing was originally set for April and was continued until July, but Catherine did
not retain counsel until late June. Moreover, the Trial Court had allowed the mother to participate
in the hearing, although her rights had already been terminated, and the termination order specifically
stated that she was not entitled to notice of adoption proceedings nor did she have the right to
participate in same. We find no abuse of discretion by the Trial Judge in denying the continuance.
The Judgment of the Trial Court is affirmed and the cause remanded, with the cost
of the appeal assessed to Catherine Downey.
_______________________
HERSCHEL PICKENS FRANKS , J.
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