In re Marcell W. Concur

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 20, 2015
IN RE MARCELL W.
Appeal from the Circuit Court for Shelby County
No. CT00521313 Robert Samual Weiss, Judge
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No. W2014-02120-COA-R3-CV – Filed July 16, 2015
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ARNOLD B. GOLDIN, J., concurring.
I concur in the majority‟s conclusion that clear and convincing evidence exists to
support the trial court‟s finding that Mother committed severe abuse. I write separately,
however, to respond to the relevance of my good friend and colleague‟s discussion of
Mother‟s waiver of her challenge to the Special Judge‟s appointment in the juvenile
court. The opinion states that because Mother did not raise her objection to the
appointment of the Special Judge in the juvenile court, the issue is deemed waived. In
support of this position, the opinion relies, in part, on this Court‟s decision in State
Department of Children’s Services v. A.M.H., 198 S.W.3d 757 (Tenn. Ct. App. 2006). In
the A.M.H. decision, this Court held that the failure to object to the appointment of a
special judge results in a waiver of the issue on appeal. Id. at 764. I believe, to avoid
confusion, the relevance of A.M.H. to the facts of this case requires clarification.
Unlike the A.M.H. case, which involved an appeal of a termination of parental
rights proceeding conducted by a juvenile court directly to this Court, this case involves
an appeal of a dependency and neglect case. Dependency and neglect cases are initially
heard in the juvenile court and their appeal, as in this case, is conducted in the circuit
court. In dependency and neglect cases such as the present one where a party appeals
from juvenile court to circuit court, “the circuit court is to „hear the testimony of
witnesses and try the case de novo.‟” Cornelius v. State, Dep’t of Children’s Servs., 314
S.W.3d 902, 906 (Tenn. Ct. App. 2009) (citing Tenn. Code Ann. § 37-1-159(a)). The
circuit court conducts a new proceeding as though the dependency and neglect petition
was originally filed in circuit court. Id. In light of the de novo nature of the circuit court
proceeding in this case, I conclude that Mother‟s waiver in the juvenile court ultimately
has no relevance. In that regard, the old but still wise Tennessee Supreme Court decision
in Wroe v. Greer, 32 Tenn. 172 (1852), is particularly instructive. Although the Wroe
court held that an objection to the incompetency of a justice of the peace 1 was waived
because the objection was not raised before the justice, it noted that the issue of waiver
was of no effect when the case was subsequently appealed to circuit court for a de novo
hearing:
But here the objection, if it were not waived, had ceased to have any
application to the case. The appeal to the circuit court had the effect to
supersede the judgment of the justices, and the case was now to be tried de
novo, upon its merits, before a competent court. It was the same as if the
case had been originally instituted . . . in the circuit court. The question
whether the competency of the justice had been waived while the case was
before him had ceased to be of any utility or effect in the case, now that it
was no longer before him, and was again to be tried upon its original facts,
in the same manner as if there had been no former trial.
Id. at 173˗74.
Although I agree that juvenile court was the proper forum in which Mother should
have raised any challenges she had to the Special Judge‟s appointment, any waiver of the
issue is of no relevance once a de novo appeal is taken to circuit court. Obviously, the
question of whether a waiver exists is of extreme importance in Rule 3 appeals from
termination of parental rights cases heard by juvenile courts which are appealed directly
to this Court. Here, however, because we are dealing with a dependency and neglect case
whose appeal is de novo to the circuit court and not a termination of parental rights case,
the question is of no tangible or meaningful significance in this case. As a result, I
believe its inclusion in the analysis of this case causes confusion.
I am authorized to state that Judge Gibson joins in this concurring opinion.
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ARNOLD B. GOLDIN, JUDGE
1
Justices of the peace were the predecessors to today‟s general sessions courts. Crowley v. Thomas, No.
M2009-01336-COA-R3-CV, 2010 WL 323082, at *2 n.3 (Tenn. Ct. App. 2010).
2