In Re David S. - Concurring in Part and Dissenting in Part

03/18/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 3, 2020
IN RE DAVID S. ET AL.
Appeal from the Juvenile Court for Campbell County
No. 2018-JC-213 Amanda Sammons, Judge
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No. E2019-01190-COA-R3-PT
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W. NEAL MCBRAYER, J., concurring in part and dissenting in part.
I concur in the affirmance of the decision to terminate the parental rights of David
S. (“Father”). I write separately to address the majority’s decision to vacate the judgment
terminating the parental rights of Cecilia S. (“Mother”) despite the fact that no party to
the appeal has raised an issue with respect to the judgment against Mother. The issue not
being raised is perhaps understandable. As the majority points out, the one person most
likely to raise an issue with the termination of the Mother’s parental rights, Mother, may
not have been served with process and may be completely unaware that her parental
rights were being terminated.
Generally speaking, courts only address the issues raised by the parties. Tenn. R.
App. P. 13(b); Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012). This rule arises from
our recognition that party control over issue presentation is a defining characteristic of
the American legal system. See United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia,
J., concurring in judgment); see also Hodge, 382 S.W.3d at 334 (noting that an
effectively crafted issue statement helps to define the questions to be considered by the
court). So where a party fails to raise an issue on appeal, that issue is generally waived,
see Childress v. Union Realty Co., Ltd., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002), and
the trial court’s determination on that issue is final. See Duracap Asphalt Paving Co. Inc.
v. City of Oak Ridge, 574 S.W.3d 859, 863-64 (Tenn. Ct. App. 2018).
But there are a limited, and growing, number of situations where courts will
address an issue that is not properly raised by either party on appeal. For example, courts
will consider issues of justiciability even where the parties have not presented them for
review. See, e.g., Hooker v. Haslam, 437 S.W.3d 409, 433 (Tenn. 2014) (mootness);
Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004) (standing); Scales v. Winston, 760
S.W.2d 952, 953 (Tenn. Ct. App. 1988) (subject-matter jurisdiction). In addition to
questions of justiciability, Tennessee Rule of Appellate Procedure 13(b) recognizes that
appellate courts may review issues not raised by the parties for, “among other reasons:
(1) to prevent needless litigation; (2) to prevent injury to the interests of the public; and
(3) to prevent prejudice to the judicial process. Tenn. R. App. P. 13(b). While this rule
grants us discretion in reviewing an issue not raised by the parties on appeal, “this
discretion [should] be sparingly exercised.” Tenn. R.App. P. 13(b) cmt.
In its 2015 decision of In re Kaliyah S., the Tennessee Supreme Court held that
“Rules 13(b) and 36(a) of the Tennessee Rules of Appellate Procedure, considered
together, give appellate courts considerable discretion to consider issues that have not
been properly presented in order to achieve fairness and justice.” 455 S.W.3d 533, 540
(Tenn. 2015). One year later, in In re Carrington H., the supreme court followed with
the instruction that “in an appeal from an order terminating parental rights the Court of
Appeals must review the trial court’s findings as to each ground for termination and as to
whether termination is in the child’s best interests, regardless of whether the parent
challenges these findings on appeal.” 483 S.W.3d 507, 525-26 (Tenn. 2016).
What the majority does here, reviewing the question of personal jurisdiction over
Mother, goes beyond what the supreme court mandated in In re Carrington H. But their
action is not without pre-In re Carrington H. precedent. See In re Z.J.S., No. M2002-
02235-COA-R3-JV, 2003 WL 21266854, at *5-*7 (Tenn. Ct. App. June 3, 2003). And
without question, when there are procedural defects in a parental termination case and
those defects go unremedied for some length of time, the consequences can be severe.
See, e.g., In re Sonya M., No. M2015-00064-COA-R3-PT, 2015 WL 4381567 (Tenn. Ct.
App. July 16, 2015) (holding that former adoptive parents of child lacked standing to
terminate parental rights of biological father whose rights were previously improperly
terminated on a statutory ground not alleged in the petition or tried by consent).
I share the majority’s concern over service of process on Mother, her lack of
notice of the proceedings, and her appointed counsel’s efforts to contact his client.
Mother seems to have been deprived of the fundamentally fair procedures. Still, I dissent
from the decision to vacate the judgment terminating Mother’s parental rights because we
have not given the Tennessee Department of Children’s Service “fair notice and an
opportunity to be heard on the dispositive issues” as they relate to Mother. In re Kaliyah
S., 455 S.W.3d at 540 (quoting Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d
911, 916 (Tenn. Ct. App. 2000)). I would have notified the parties of our concerns and
invited briefing on the issue before acting. Such a step would not long delay permanency
for the children in this case, and it would give the court the benefit of the parties’
perspectives.
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W. NEAL MCBRAYER, JUDGE
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