State of Tennessee, ex rel., Deborah D. Willis v. Cecil Willis, Jr.

STATE OF TENNESSEE ex rel., ) Fentress Juvenile
DEBORAH D. WILLIS,
Petitioner/Appellee,
)
)
)
No. J-898
FILED
) Appeal No.
November 3, 1998
VS. ) 01A01-9804-JV-00175
)
Cecil W. Crowson
CECIL WILLIS, JR., )
Appellate Court Clerk
)
Respondent/Appellant. )
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
APPEAL FROM THE JUVENILE COURT OF FENTRESS COUNTY
AT JAMESTOWN, TENNESSEE
HONORABLE WILLIAM J. CAMPBELL, JUDGE
William B. Lawson
P.O. Box 16
112 Gay Street
Erwin, Tennessee 37650
ATTORNEY FOR DEFENDANTS/APPELLEES,
Kimberly M. Frayn
2nd Floor, Cordell Hull Bldg.
425 Fifth Avenue, North
Nashville, Tennessee 37243-0499
ATTORNEY FOR PLAINTIFF/APPELLANT
REVERSED AND VACATED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM B. CAIN, JUDGE
STATE OF TENNESSEE ex rel., ) Fentress Juvenile
DEBORAH D. WILLIS, ) No. J-898
)
Petitioner/Appellee, )
) Appeal No.
VS. ) 01A01-9804-JV-00175
)
CECIL WILLIS, JR., )
)
Respondent/Appellant. )
OPINION
This case involves the efforts of the State of Tennessee on relation of Deborah D. Willis,
former wife of Cecil Willis, Jr., to obtain the revocation of a surrender executed by him
surrendering his three children, Deborah May, Pamela R. and Andrew V. for adoption. The
Juvenile Judge, who witnessed the surrenders, later entertained the petition to revoke and ordered
the surrenders to be revoked. The respondent, Cecil Willis, Jr., has appealed to this Court,
presenting the following issue:
I. Whether a Trial Court has authority to revoke
a “surrender of Child” by the natural father directly to the
natural mother and stepfather almost four (4) years after its
execution. Furthermore, whether a surrender simply becomes
void after the passing of 120 days when an adoption has not
yet occurred.
It is obvious from the present record that a divorce preceded this proceeding, but the
divorce proceedings are not included in this record.
On August 9, 1993, the following document was executed, acknowledged and filed with
the Juvenile Clerk on August 11, 1993.
SURRENDER OF A CHILD BY THE NATURAL
FATHER DIRECTLY TO THE NATURAL
MOTHER AND STEPFATHER
I, the undersigned father, deeming it for the best interest of
my child, Pamela Rebecca Willis, female, born February 15,
1985, in Hardin County, Kentucky, in wedlock, hereby
execute the surrender of all parental rights and responsibilities
and consent for the child to be legally adopted by Charles
William Keeley, Jr.
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I have the legal right to surrender this child for
adoption as the child’s legal parent by birth of this child that
was born in wedlock.
I understand that by signing this surrender, all my
rights and responsibilities with respect to this child are
terminated.
I agree not to attempt to disrupt this child’s future
relationship by visiting, attempting to communicate with
Pamela Rebecca Willis, or attempting her removal either
physically or through legal proceedings.
SIGNATURE OF NATURAL FATHER
Father: Cecil Willis, Jr.; Race: White; Marital Status: Married
D.O.B.: 8-4-62; Permanent Address: 1537 Devil’s Fork Road,
Flag Pond, Tennessee 37657
Signed: Signature
Cecil Willis, Jr.
STATE OF TENNESSEE
COUNTY OF FENTRESS
Before me, the undersigned authority in and for the
state and county aforesaid, this day personally appeared Cecil
Willis, Jr., the bargainor, with whom I am personally
acquiainted and acknowledged the execution of the above
instrument for the purposes therein contained, as witness my
hand and official seal, this 09 day of August, 1993.
Frank Smith
Notary Public
My Commission expires:
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AGREEMENT OF NATURAL MOTHER AND
ADOPTING STEPFATHER
We, the natural mother and the prospective adopting
father, understand that by affixing our signatures to this
surrender, we hereby agree to assume responsibility for the
care, custody, financial support, medical care, education,
moral and spiritual training of Pamela Rebecca Willis.
SIGNATURE OF ADOPTING PARENT
Father: Charles William Keeley, Jr.; Race: White; Marital
Status: Married; D.O.B.: 7-21-59; Permanent Address: Route
1, Box 212, Jamestown, Tennessee 38556
Signature
Charles William Keeley, Jr.
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SIGNATURE OF NATURAL MOTHER
Mother: Deborah Deloris Keeley; Race: White; Marital
Status: Married; D.O. B.: 5-12-64; Permanent Address: Route
1, Box 212, Jamestown, Tennessee 38556
Signed: Signature
Deborah Deloris Keeley
WITNESS OF SURRENDER
Cecil Willis, Jr. personally appeared before me on the
9th day of August, 1993, at the courthouse in Fentress
County, Tennessee, for the purpose of surrendering to
Deborah Deloris Keeley and Charles William Keeley, Jr. for
adoption and stated that he is the father of Pamela Rebecca
Willis and accepts full responsibility for this free and
voluntary act.
This August 9, 1993.
Signature
William J. Campbell
Juvenile Judge for Fentress
County, Tennessee
Identical documents were executed, acknowledged and filed in respect to Deborah and
Pamela.
The record contains no evidence that the proposed adoptions were ever properly
perfected.
The brief of the State asserts that the mother sought and obtained AFDC benefits for the
children, but these facts do not appear in the record before this Court.
On March 4, 1997, a motion was filed in the Juvenile Court reading as follows:
STATE OF TENNESSEE ex rel.,
DEBORAH D. WILLIS,
Petitioner
versus
CECIL WILLIS, JR.
Respondent
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MOTION TO REVOKE SURRENDER
AND NOTICE OF HEARING
The IV-D Division of the District Attorney General’s
Office on behalf of the STATE OF TENNESSEE ex rel.
DEBORAH D. WILLIS would show that:
1. On August 9, 1993, the Respondent appeared
before Juvenile Court Judge William J. Campbell and
surrendered his parental rights to the following children: (1)
Andrew V. Willis, born November 8, 1988. (2) Deborah Mae
Willis, born August 24, 1982, and (3) Pamela R. Willis, born
February 15, 1985.
2. The purpose of the surrender was to allow the
children to be adopted by their step-father Charles W. Keeley,
Jr., who at that time was married to Deborah Willis.
3. An adoption proceeding was never filed by
Deborah Willis and Charles W. Keeley, Jr., as they later
divorced.
4. The children have been wards of the State of
Tennessee since November 1, 1995, when AFDC benefits
resumed. It is in their best interest that the surrender of
parental rights of the Respondent be revoked.
THEREFORE, THE PETITIONER requests that:
A. The Respondent’s surrender of parental rights
as to the three (3) children be revoked effective the date of
filing of this motion;
B. The State be awarded any other relief which
the Court deems the State to be entitled;
C. Court costs, if any, be taxed to the Respondent.
NOTICE IS HEREBY GIVEN that this motion will be
heard by Judge William J. Campbell in the Juvenile
Courtroom of the Fentress County Courthouse in Jamestown,
TN at 2 p.m. on Monday, March 17, 1997.
(Signature)
PAMELA A. KISSEL
Assistant District Attorney
P.O. Box 310, Huntsville, AL
37756
(423) 663-2532
On May 22, 1997, the Juvenile Judge entered the following order:
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STATE OF TENNESSEE ex rel.
DEBORAH D. WILLIS, No. 909
Petitioner IV-D #2548640-01
versus
CECIL WILLIS, JR.
Respondent
ORDER REVOKING SURRENDER
OF PARENTAL RIGHTS
This cause came to be heard on May 5, 1997 before
Judge William J. Campbell on the MOTION TO REVOKE
SURRENDER, statements by the assistant district attorney
and counsel for respondent and the entire record, from all of
which the Court finds that:
1. On August 9, 1993, the respondent appeared
before the Juvenile Court Judge William J. Campbell and
surrendered his parental rights to the following children: (1)
Andrew V. Willis, born November 8, 1988, (2) Deborah May
Willis, born August 24, 1982, and (3) Pamela R. Willis, born
February 15, 1985.
2. The purpose of the surrender was to allow the
children to be adopted by their step-father, Charles W.
Keeley, Jr., who at the time was married to their mother,
Deborah Willis.
3. An adoption proceeding was never filed by
Deborah Willis and Charles W. Keeley, Jr. as they later
divorced.
4. The children have been wards of the State of
Tennessee since November 1, 1995, when AFDC benefits
resumed. It is in their best interest that the surrender of
parental rights of the respondent be revoked.
IT IS, THEREFORE, ORDERED, ADJUDGED and
DECREED that:
A. The surrender of parental rights of the
respondent, Cecil Willis, Jr., is revoked effective March 1997
when the State’s motion was filed.
B. Court costs are taxed to Cecil Willis, Jr., 2537
Devils Fork Rd., Flag Pond, TN 37657.
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ENTERED on this 14th day of May, 1997, NUNC
PRO TUNC TO May 5, 1997.
Signature
Judge William J. Campbell
APPROVED FOR ENTRY:
Signature
Pamela A. Kissel
Assistant District Attorney The undersigned hereby
(423) 663-2532 certifies that a true and
correct copy of this
pleading has been served
by delivery, or through
the U.S. Mail with
sufficient postage to
carry it to its destination,
upon all parties to this
action. May 7, 1997.
Signed: Pamela A. Kissel
To: (1) Deborah Willis
and (2) William Lawson,
attorney for Cecil Willis, Jr.,
P.O. Box 16, Erwin,TN 37650.
On appeal, the appellant, Mr. Willis, insists that the Juvenile Court had no authority
to revoke the surrenders. The resolution of this issue depends upon legislation in effect at
the time of the surrenders and at the time of the attempted judicial revocation.
On May 22, 1997, the date of the revocation order, T.C.A. § 36-1-103(b) (1966)
provided:
Adoptions and terminations of parental rights pending
on January 1, 1996, and surrenders and consents executed
prior to January 1, 1996, shall be governed by prior existing
law.
“Prior existing law” included T.C.A. § 36-1-117 which provided:
36-1-117. Revocation of surrender - Form. - (a)(1)
No surrender shall be revoked after the time herein provided.
(2) No surrender shall be revoked after the
entering of an interlocutory decree or a final order of adoption
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when entering of an interlocutory decree has been waived in
accordance with the provisions in this part.
36-1-117 - Domestic Relations. (b) P r o v i d e d a
petition to adopt has not been filed, any parent(s) who has
surrendered a child for adoption shall have the absolute right
to revoke the surrender within fifteen (15) days from the date
of the execution of the surrender by appearing in chambers
before the chancellor or circuit judge before whom the
surrender was executed, or his successor in office, and
presenting to him the original and two (2) copies of the
revocation of the surrender.
Tennessee Code Ann. § 36-1-114 (Supp. 1993), provides the form, criteria for, and
inquiries to be made by the Court during a surrender. In relevant portion, said provision also
specifically provided that “...the child so surrendered shall become a ward of the court until
the filing of the petition for adoption. During this time, the court shall have jurisdiction of
all matters pertaining to the child.”
In the present case, on August 9, 1993, the three children were surrendered by a father
who lost the power to revoke the surrender 15 days later on August 24, 1993. At that time,
if the person to whom the children were surrendered, decided not to adopt the children, that
person was empowered to surrender the children to a licensed child-placing agency.
Apparently, this second surrender did not take place. Instead, application was made by
someone to the State to supply support to the children, and such support was granted
resulting in the present effort of the state to force the surrendering father to perform his
responsibilities to the children despite the above cited statutory provisions.
The record contains a brief narrative statement of the evidence containing the
following:
The respondent has had no contact with either the
minor children nor the petitioner herein nor with the
childrens’ prospective step-father since executing the
surrenders. On or about March 4, 1997, the State of
Tennessee, ex. rel., Deborah D. Willis-Keeley, filed a motion
in this Court alleging, inter alia, that the petitioner Charles W.
Keeley, Jr., were divorced and that Mr. Keeley, Jr., had never
adopted the children.
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The State further alleged that the petitioner, Deborah
D. Willis-Keeley had resumed receiving AFDC benefits and
moved the Court to revoke the surrenders alleging that the
revocation was in the best interests of the minor children.
It is obvious that, before the inception of this unfortunate situation, Mr. and Mrs.
Willis were divorced by a court which thereby acquired continuing jurisdiction of the minor
children of the parties. It is therefore surprising that the parties would go to a different court
to effectuate their plans for transfer of responsibility for the welfare of the children.
It is also surprising that the State agency did not appeal to the divorce court to enforce
its orders for support and custody of the children.
In Killion v. Tenn. Dept. Of Human Services, Tenn. 1992, 845 S.W.2d 212, the
question before the Supreme Court was whether a mother could revoke a surrender three
years after its execution by invoking T.R.C.P. Rule 60. The Court ruled that she could not
because T.C.A. § 36-1-117 limited the time for revocation to fifteen days. The Court also
held that Rule 60 does not authorize later revocation “because it is in the best interest of the
child.”
In two unpublished opinions, this Court has held that a surrender does not relieve the
surrendering parent of liability for child support until such liability is fully placed upon the
adoptive parent by adoption decree.
The Supreme Court has held that contract for adoption should not be enforced,
because the final decision as to the best interest of the child is for the adoption court. In re:
Petition to Adopt Glenda Sue Clements. 201 Tenn. 98, 296 S.W.2d 875 (1956).
The appellant contends that a court has no power to revoke a surrender which has not
been revoked by the surrendering parent within the time allowed by T.C.A. § 36-1-112
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(1996). We agree. We see nothing in the adoption statutes that gives the state the authority
to seek a revocation of the surrender. The statutes in effect in 1993 only gave the
surrendering parents a fifteen day period in which to revoke -- if a petition for adoption had
not been filed in the meantime. Tenn. Code Ann. § 36-1-117(b). If a petition had been filed,
the court had the power to determine what was for the best interest of the child. Tenn. Code
Ann. § 36-1-117(e)(1).
Under the circumstances, the Juvenile Court erred in revoking the surrender, and the
order of revocation is vacated. Since the question of the father’s liability for continuing
support has not been litigated, that question is not before us. It must first be decided by a
court having jurisdiction of the parties and the subject matter.
In its discretion, this Court taxes one-half of all costs, both trial and appellate to the
appellant, and the remainder of said costs to the appellee.
The judgment of the Juvenile Court, revoking the surrender of parental rights of Cecil
Willis, Jr., is reversed and vacated, and the motion or petition filed by the State of Tennessee
seeking revocation of said surrender is overruled/denied, without prejudice to any proper
application made to a court of competent jurisdiction to enforce the payment of child support
from the appellant.
REVERSED AND VACATED.
__________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
___________________________
BEN H. CANTRELL, JUDGE
___________________________
WILLIAM B. CAIN, JUDGE
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