In Re: Dylan P.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 19, 2012 Session
IN RE: DYLAN P. (d.o.b. 05/18/05)
Direct Appeal from the Circuit Court for Putnam County
No. 10N0345 Amy V. Hollars, Judge
No. M2012-00639-COA-R3-JV - Filed November 21, 2012
The trial court determined that the minor children in this case were dependent and neglected
upon finding that one of the children was the victim of severe child abuse. Mother appeals.
We dismiss for lack of jurisdiction.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, joined.
Samuel J. Harris, Cookeville, Tennessee, for the appellant.
Robert E. Cooper, Jr., Attorney General and Reporter, Shanta J. Murray, Assistant Attorney
General, for the appellee, State of Tennessee, Department of Children’s Services.
MEMORANDUM OPINION 1
This appeal arises from a dependency and neglect action originally filed by the
Department of Children’s Services (“DCS”) in the Juvenile Court for Putnam County on July
27, 2009. Mother is the mother of Dylan P. (born 5/18/05); Benjamyn W. (born 3/12/03);
and Mackenzie W. (born 11/16/95). Father is the father of Dylan P. and Katelyn P. (born
10/31/93). In its petition, DCS sought a declaration that the children were dependent and
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.
neglected and sought a restraining order or, in the alternative, temporary legal custody. DCS
asserted that it had received a referral from Father on July 23, 2009, alleging sexual abuse
of four-year old Dylan by his half-brother, six-year old Benjamyn. DCS further asserted that
a forensic interview of Benjamyn conducted on July 24, 2009, disclosed sexual abuse of
Benjamyn by Mother. DCS stated that Mackenzie had been living with her father in Indiana
since August 2008, and alleged that the children were subject to an immediate threat of harm
by Mother. DCS averred that it was in the children’s best interest to remain in the home with
Father under a stringent protective supervision plan and a no contact/restraining order against
Mother. On July 27, 2009, the juvenile court issued an ex parte emergency restraining order
against Mother, forbidding her to have any contract with the children. The juvenile court
placed the children in the physical custody of their respective fathers. The juvenile court also
ordered the children’s fathers to not allow Mother to have any contact with the children, and
to report any contact or attempted contact by Mother to DCS. Benjamyn and Mackenzie
have since remained in the custody of their father in Indiana.
On August 25, 2010, DCS filed a motion for emergency temporary legal custody after
a welfare check of the family home by the Putnam County Sheriff’s Department revealed
Mother was present in the home in violation of the juvenile court’s no contact/restraining
order. The juvenile court granted the motion the same day. An adjudicatory and
dispositional hearing was held in the juvenile court on November 30, 2010. Mother and
Father were represented in the juvenile court by separate appointed legal counsel. On
December 15, 2010, the juvenile court entered an order finding the children dependent and
neglected and granting the State temporary custody of Dylan and Katelyn. In its order, the
juvenile court stated that, in accordance with Rule 36(e) of the Tennessee Rules of Juvenile
Procedure, the order was final as to Mother and Father, and that any appeal to the circuit
court must be made within ten days.
Following a hearing de novo on January 10, 2012, the Circuit Court for Putnam
County found by clear and convincing evidence that Benjamyn is the victim of severe child
abuse perpetrated by Mother and that the children were dependent and neglected as defined
by Tennessee Code Annotated § 37-1-102(b)(12). The circuit court entered its judgment on
March 23, 2012. Mother filed a premature notice of appeal to this Court on February 17,
2012.2 Father did not appeal the circuit court’s judgment.
On appeal, Mother raises three evidentiary issues for our review. Before turning to
the issues presented, however, we first must determine whether we have subject matter
jurisdiction to adjudicate this matter. Subject matter jurisdiction concerns the court’s
2
Katelyn attained the age of majority during the pendency of this matter and is no longer in State
custody.
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authority to adjudicate a matter. In re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn. 2012).
It is conferred by statute and by the constitution, and cannot be waived or conferred by the
parties by silence, consent, or plea. Id. An order of a court acting without subject matter
jurisdiction is void. Id. The question of subject matter jurisdiction may be raised at any time
in any court. Freeman v. CSX Transp., Inc., 359 S.W.3d 171, 176 (Tenn. Ct. App.
2010)(citations omitted). The issue may be raised sua sponte by the courts. Tenn. R. App.
P. 13(b); Ruff v. State, 978 S.W.2d 95, 98 (Tenn. 1998). Appellate courts, moreover, are
required to consider whether it and the trial court have subject matter jurisdiction whether
or not the issue is raised by the parties. Tenn. R. App. P. 13(b).
It appears from the record that, on December 8, 2010, Father filed a notice of appeal
of the juvenile court’s judgment to the circuit court. Upon review of the record, however,
we find no notice of appeal of the juvenile court’s judgment to the circuit court filed by
Mother. In the statement of the case contained in Mother’s brief to this Court, Mother
asserts, “[t]he [P’s] appealed the ruling [of the juvenile court] to the Circuit Court of Putnam
County, Tennessee[,]” but does not state where her notice of appeal may be found in the
record. The notice of appeal cited by DCS in its brief is Father’s notice of appeal to the
circuit court.
Upon review of the record, it appears that Mother simply failed to appeal the juvenile
court’s judgment. Absent a timely-filed notice of appeal by Mother to the circuit court
pursuant to Tennessee Code Annotated § 37–1–159(a), the circuit court lacked subject matter
jurisdiction to adjudicate Mother’s appeal. The juvenile court’s judgment became final with
respect to Mother ten days after entry of the juvenile court’s December 15, 2010, order. We
accordingly do not have jurisdiction to adjudicate this matter.
Holding
In light of the foregoing, we dismiss this matter for lack of subject matter jurisdiction.
Costs of this appeal are taxed to the Appellant.
_________________________________
DAVID R. FARMER, JUDGE
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