In Re: Gabrielle W.

07/11/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 20, 2017 Session

IN RE GABRIELLE W.

Appeal from the Circuit Court for Greene County
No. 08A015 Beth Boniface, Judge
___________________________________

No. E2016-02064-COA-R3-PT
___________________________________

In this appeal the biological father to the child at issue sought to set aside the Final Order
of Adoption. Following a hearing, the trial court declared the Final Order of Adoption
void on its face, finding that the court did not have personal jurisdiction over the
biological father to terminate his parental rights. The guardian failed to sign his notice of
appeal pursuant to Tennessee Code Annotated section 36-1-124(d), requiring us to grant
the father’s motion to dismiss the guardian’s appeal and leave in place the trial court’s
decision to void the Final Order of Adoption.

Tenn. R. App. P. 3 Appeal as of Right; Motion to Dismiss Appeal Granted;
Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Linda Thomas Woolsey, Greeneville, Tennessee, for the appellant, James M.R., Jr.

Michael B. Menefee, Knoxville, Tennessee, for the appellee, Dusty A.W.

OPINION

I. BACKGROUND

This matter relates to the termination of the parental rights of Dusty A.W.
(“Father”) to Gabrielle W. (“the Child”) and the subsequent adoption of the Child by
James M.R. and Martha L.R. (“Guardian(s)”)1; therefore, the factual background will
1
The Child’s biological mother did not object to the termination of her parental rights and is not a
party in this appeal. Martha L.R. died of complications from cancer in 2014.
mostly contain information pertaining to Father, the Child, and Guardians.

The Child was born to Shawnoka D.W. (“Mother”) and Father on May 23, 2006,
as a result of a transient sexual encounter. Father and Mother were not in a relationship
at the time of the birth. When the Child was born, Mother tested positive for
Benzodiazepines and admitted to taking illicitly obtained Valium, Percocet and
Oxycontin during her pregnancy.

In June 2006, after the Tennessee Department of Children’s Services (“DCS”)
removed the Child from care of Mother as a result of her drug use, DCS placed the Child
with her maternal aunt and uncle (Mother’s sister and her partner), Amber R. and James
K. While the Child was in her custody, Amber R. utilized the babysitting services of
Guardians. After two to three months, the Child began to reside primarily with
Guardians, which was acknowledged in an order from the Juvenile Court in September
2006. A year later, in an order dated September 11, 2007, custody of the Child was
transferred from DCS to Guardians.

In the September 2006 hearing, the identity of the biological father of the Child
was discussed. Guardians were present at this hearing. Mother initially stated that she
did not know the identity of the Child’s father. At the insistence of the court, Mother
related the name of “Dustin W.,” a misspelling of Father’s first and last name, from
Galveston, Texas. Mother also revealed that the biological father is a crane operator who
travels for work. The court’s order reflected that “the Court is informed that Dustin W. . .
. in Texas, may be the Father of the child.”

Mother later testified that she told several people, including her sister Amber R.,
Martha L.R., and persons in the court system, that there were several possibilities of who
the father of the Child could be. Amber R. testified to Mother’s statement, including that
the father could be a man in Texas named Dustin. James M.R. testified to hearing the
name “Dustin W[.]” in the initial September 2006 proceeding but stated that he had no
other information beyond that. He has never spoken to Mother about Father or directly
with Father. It is also on record that Mother told Martha L.R. that either Father or Bill
H., a local paramour of Mother’s, could be the father of the Child and that Father was
coming to visit her after the Child’s birth.

Both Mother and Father agree that Mother contacted Father and told him that she
was pregnant and he was possibly the father. Mother also visited Father in Texas shortly
after her declaration, and they spent several days together. Upon the Child’s birth,
Mother called Father to tell him that the Child might be his. Father then traveled to
Greeneville, Tennessee where Mother lived in an effort to see the Child. However, after
picking him up at the bus station and dropping him off at a hotel, Mother never returned
to see Father. After two days alone at the hotel, Father left. He testified that Mother later

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called to inform him that according to DNA test, the Child was not his.2 On August 20,
2009, the Child was adopted by Guardians.

In December of 2011, five years after the birth of the Child, Mother contacted
Father to tell him that she now believed the Child was his but that she no longer had
custody of the Child. However, given previous conversations, Father did not
automatically believe Mother and began an inquiry into any information about the Child.
Unable to receive any official information or documentation of the Child’s adoption,
Father hired his current attorney to help request access to the adoption records. No
records were found, due to Father having the incorrect birth date of the Child and a
misspelling of the Child’s name on her birth certificate.

When Father believed that there was no adoption on record, he filed a Petition to
Establish Paternity in March 2013 with the Greene County Juvenile Court. After
inspecting previous Juvenile Court files in relation to the Child, Father filed an Amended
Petition to Establish Paternity in April 2013, including the fact that Mother had identified
him as a possible father in the previous proceeding in September 2006. This petition
resulted in a hearing later that month where Guardians presented actual evidence of an
adoption. Subsequently, the case was transferred to the Circuit Court.

Following the transfer, Father filed several motions for access to the court file for
the Child, which were ultimately denied. After filing a Motion to Set Aside Final Order
of Adoption, Father was granted a hearing and access to the court files. At the hearing,
the court determined that because Guardians knew Father’s name and the state and city
where he lived, Father was entitled to notice of the adoption proceedings and service of
process. The trial court found that personal jurisdiction over Father had not been
obtained at the time of the Final Order of Adoption. Because Father was not properly
before the court, the final order was declared void on its face and the termination of
parental rights not applicable as to Father. The court also found that no exceptional
circumstances existed to bar Father’s requested relief. The court concluded, however,
that voiding the Final Order of Adoption did not automatically transfer custody of the
Child to Father. Thus, the Child remained in the custody of Guardian. A timely notice of
appeal was filed by Guardian’s counsel.

II. ISSUES

We restate the issues raised on appeal by Guardian as follows:

A. Whether the trial court erred in concluding that Father was
a putative father entitled to the notice and protections

2
Mother testified that she did not say this.
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 afforded pursuant to Tennessee Code Annotated section 36-1-
117(c).

B. Whether the trial court erred in finding that the Final Order
of Adoption is void as against Father for lack of personal
jurisdiction.

C. Whether the trial court erred in finding that exceptional
circumstances do not exist to bar Father’s requested relief in
voiding the Final Order of Adoption.

D. Whether the trial court erred by dismissing the Petition for
Adoption by Guardian after declaring the Final Order of
Adoption to be void on its face and vacated as to Father.

The additional issues raised on appeal by Father are restated as follows:

A. Whether the trial court erred in allowing testimony from
Dr. Heather Gow regarding the bond the Child may have
established with Guardian.

B. Whether the trial court erred by not transferring physical
and legal custody of the Child to Father after voiding the
Final Order of Adoption as against Father.

Additionally, in a motion to dismiss the appeal, Father argued the following:

C. Whether Guardian’s failure to sign the notice of appeal
deprives the court of jurisdiction and the appeal should be
dismissed.

III. STANDARD OF REVIEW

“[A] void judgment is one that is invalid on its face because the issuing court
either lacked subject matter or personal jurisdiction over the proceedings, or the judgment
itself was outside of the pleading.” See Hood v. Jenkins, 432 S.W.3d 814, 825 (Tenn.
2013). As our Supreme Court in Turner v. Turner, 473 S.W.3d 257, 268 (Tenn. 2015)
has observed:

[W]e review a trial court’s ruling on a request for relief from
a final judgment under Rule 60.02 of the Tennessee Rules of
Civil Procedure pursuant to the abuse of discretion standard .
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 . . . [W]e have previously held that “[w]hether a trial court has
subject matter jurisdiction over a case is a question of law that
we review de novo with no presumption of correctness.”
Moreover “[a] decision regarding the exercise of personal
jurisdiction over a defendant involves a question of law” to
which de novo review applies . . . .

Id. (internal citations omitted). We “apply de novo review, with no presumption of
correctness, when reviewing a trial court’s ruling on a Tennessee Rule 60.02(3) motion to
set aside a judgment as void. Any factual findings a trial court makes shall be reviewed
de novo, with a presumption of correctness, unless the evidence preponderates
otherwise.” Id. at 269 (citing Tenn. R. App. P. 13(d)).

IV. DISCUSSION

Failure to Sign Notice of Appeal

As a threshold issue, we must first address whether the failure to sign the notice of
appeal deprives this court of jurisdiction, thereby requiring dismissal of the appeal.
“Subject matter jurisdiction confines judicial power to the boundaries drawn in
constitutional and statutory provisions. As a result, ‘[a] party’s consent, silence, waiver .
. . is not sufficient to confer subject matter jurisdiction.’” Turner, 473 S.W.3d at 270
(internal citations omitted). See also Tenn. R. Civ. P. 12.08 (stating that subject matter
jurisdiction may not be waived).

As approved by the Governor on April 27, 2016, and taking effect July 1, 2016,
the recently added subsection (d) of Tennessee Code Annotated section 36-1-124
provides: “Any notice of appeal filed in a termination of parental rights action shall be
signed by the appellant.” In this case, Guardian’s notice of appeal filed on or about
October 11, 2016, while timely, was only signed by his attorney, Linda Thomas Woolsey.
Father argues that Guardian’s failure to sign the notice of appeal violates the direct
language of the statute, thereby requiring dismissal of the appeal.

This issue has been raised in other cases but has not been resolved by the courts of
this state.3 However, the issue has been considered and addressed in other states with

3
In In re Cannon B., No. E2016-01826-COA-R3-PT, 2016 WL 6994982, at *1 (Tenn. Ct. App.
Nov. 28, 2016), a memorandum opinion, the appeal was dismissed on other grounds and there
was no need to address the argument that the Notice of Appeal did not comply with section 36-1-
124(d). In In re: James V., No. M2016-01575-COA-R3-PT, 2017 WL 2365010 (Tenn. Ct. App.
May 31, 2017), although DCS noted in a footnote in its brief that “[t]he notice of appeal was not
signed by Mother as required by Tenn. Code Ann. § 36-1-124(d) . . . DCS did not present “any
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similar statutory requirements. In Utah, Utah Code Annotated section 78-3a-909(2)
(renumbered as § 78A-6-1109),4 sets forth the similar requirements of filing a notice of
appeal in child welfare cases:

Appeals of right from juvenile court orders related to abuse,
neglect, dependency, termination, and adoption proceedings .
. . must be signed by appellant’s counsel, if any, and by
appellant . . . . If an appellant fails to timely sign a notice of
appeal, the appeal shall be dismissed.

Rule 53(b) of the Utah Rules of Appellate Procedure echoes the corresponding Code
provision, while also giving the appellant a means of amending a Notice of Appeal within
fifteen days of the initial filing. The Court of Appeals of Utah has strictly interpreted the
statute, dismissing an appeal that was not signed by an appellant. J.R. v. State (In re State
ex rel. D.E.), 147 P.3d 462 (2006). While the appeal was timely and signed by
appellant’s counsel, the appellant herself, the mother appealing the termination of her
parental rights, did not sign the notice.

Similarly, South Dakota provides in South Dakota Codified Laws Annotated
section 15-26A-4(1) that “[a] notice of appeal . . . shall be signed by the appellant and his
or her attorney.” The statute also notes that “the failure of the appellant and his or her
attorney to sign a notice of appeal . . . deprives the Supreme Court of jurisdiction to
decide the appeal.” Id. In interpreting this statute, South Dakota’s appellate court strictly
interpreted the statute, finding that a notice of appeal without both the appellant’s and
attorney’s signatures “deprived [the] Court of jurisdiction to consider the appeal of a
judgment terminating parental rights . . . .” In re People ex rel. S.D. Dep’t of Soc. Servs.,
799 N.W.2d 408, 412 (S.D. 2011).

Our neighboring state, North Carolina, provides in Rule 3.1(a) of the North
Carolina Rules of Appellate Procedure as follows:

Any party entitled by law to appeal from a trial court
judgment or order rendered in a case involving termination of
parental rights, and issues of juvenile dependency or juvenile
abuse and/or neglect . . . may take appeal by filing notice of
appeal . . . in the time and manner required. If the appellant is
represented by counsel, both the trial counsel and appellant
must sign the notice of appeal . . . .

argument regarding this issue or suggest that the appeal should be dismissed on this basis.” This
court considered the appeal on its merits. Id. at *10, n. 3.
4
Laws 2008, c. 3, § 467, eff. Feb. 7, 2008.
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In re I.T.P-L., 670 S.E.2d 282, 285 (N.C. Ct. App. 2008) (noting notice of appeal by
respondent from order terminating parental rights was “incomplete” when it lacked
respondent’s signature; dismissal was required of timely but improper appeal that
violated requirement that parent sign notice of appeal”). See In re L.B., 653 S.E.2d 240,
242, 244 (N.C. Ct. App. 2007).

In these cases, dealing with termination of parental rights, the courts strictly
followed the language of the statutes and rules. This state’s statute is just as unforgiving.
Neither in the Tennessee Code Annotated nor in the Tennessee Rules of Appellate
Procedure is there a safety valve or means of waiver for the requirement of the
appellant’s signature. Therefore, based on the language of the statute, the absence of
Guardian’s signature on the notice of appeal is a jurisdictional default, and the appeal
must be dismissed.5

As the issue regarding the statute has not been previously ruled upon, in the event
our holding is overturned on appeal, we note that even if the notice of appeal had been
signed by Guardian in this case and the court had jurisdiction over the appeal and
considered it on its merits, the evidence before us would not allow us to overrule the
Circuit Court’s ruling.

Putative Father Entitled to Notice

First, Guardian argues that Father should not be considered a putative father who
is entitled to notice in such proceedings as those in issue here and therefore did not need
to be named as a defendant to the proceedings under Tennessee Code Annotated section
36-1-113(d)(3)(B). Guardian asserts that Father falls under Tennessee Code Annotated
section 36-1-117(c), as a father who has not filed a petition to establish paternity and had
not established paternity of the child before the adoption proceeding. Further, Guardian
contends that, under the statute, Father’s parental rights have been terminated given the
specific circumstances. The relevant statutory provision provides, in pertinent part,

(c) The parental rights of the putative father of a child who
has not filed a petition to establish paternity of the child or
who has not established paternity of the child who is the
subject of an adoption proceeding and who meets any of the
following criteria shall be terminated by surrender, parental

5
The statute at issue is procedural in nature. “Such statutes apply retrospectively, not
only to causes of action arising before such acts become law, but also to all suits pending when
the legislation takes effect, unless the legislature indicates a contrary intention or immediate
application would produce an unjust result.” Kee v. Shelter Ins., 852 S.W.2d 226, 228 (Tenn.
1993) (citing Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn. 1976)).
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 consent, termination of parental rights . . . or by waiver of
interest, before the court may enter an order of adoption
concerning that child: . . .

Tenn. Code Ann. § 36-1-117(c). The only criteria that is of issue between the parties is
Tennessee Code Annotated section 36-1-117(c)(2): “The biological father has been
specifically identified to the petitioners or their attorney . . . by the child’s biological
mother in a sworn, written statement or by other information that the court determines to
be credible and reliable[.]”

The burden of diligent inquiry into the identity of Father and other potential
fathers rested on Guardians. The potential for more than one putative father does not
automatically dispose of the requirement for actual notice of service. The Code
specifically allows for that possibility in section 36-1-113(d)(3)(B), which provides that
“any person or persons entitled to notice pursuant to § 36-1-117 shall be named as
defendants in the petition to terminate parental rights or in the adoption petition and shall
be served with a copy of the petition as provided by law.” Tennessee Code Annotated
section 36-1-117(m)(3) requires “[a]ny motion for an order for publication in these
proceedings shall be accompanied by an affidavit of the petitioners or their legal counsel
attesting, in detail, to all efforts to determine the identity and whereabouts of the parties
against whom substituted service is sought.” Courts have found that constructive service
by publication should only be a means of last resort, especially in situations where the
identity of the defendant is known. Turner, 473 S.W.3d at 273.

While Guardian argues that Mother’s naming of Father in the Juvenile Court
proceedings, including the misspelling of Father’s name, does not rise to the level of the
biological father being “specifically identified” per the statute, the trial court properly
found that there was enough information present pertaining to the identity of Father to
qualify. Even though Mother was unsure of the exact identity of the father of the Child,
she specifically named Father in a previous court proceeding with Guardians present, as
well as gave the city and state where he lived. Guardian argues that Mother only gave
Father’s name in the Juvenile Court proceeding after being threatened by the judge, and
therefore, the naming should be disregarded. However, in the same proceeding, as well
as in later proceedings, Mother repeatedly reassured the court of the truth of her
statement. Mother also stated that Father could be the biological father of the Child to
several people outside of court, including Guardian Martha L.R. Mother further testified
at a later hearing that Guardians were aware of Father’s travel to Greeneville after the
Child’s birth.

In the case at bar, both Bill H. and Father were named as potential putative fathers.
Mother even stated a general residence of Father. Once the DNA test ruled out the
possibility of Bill H. as the father of the Child, Guardians were left with one distinct
possibility into which to inquire. The evidence supports the trial court findings that
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Guardians were provided with enough information, both within and outside of court, to
qualify Father as a putative father under Tennessee Code Annotated section 36-1-117(c).
Guardians then made no further attempt to diligently inquire into Father’s whereabouts so
as to provide him with service and include him as a defendant in the adoption proceeding.

Lack of Personal Jurisdiction

Second, Guardian argues that the trial court erred in voiding the Final Judgment of
Adoption as against Father for lack of personal jurisdiction. In order for a court to
adjudicate a matter brought before it, that court must have both subject matter and
personal jurisdiction over the parties involved. Turner, 473 S.W.3d at 269 (citations
omitted). “A judgment rendered by a court lacking either personal or subject matter
jurisdiction is void.” Id. at 270 (citations omitted). In order to obtain personal
jurisdiction over a defendant, the party must be notified by service of process, either
directly or constructively when constitutionally allowable. Id. at 271 (citations omitted).
The trial court found that because Father, undisputedly a resident of the State of Texas,
was not properly served and made a defendant to the adoption, the court lacked personal
jurisdiction over him. A court without personal jurisdiction of the defendant is “without
power to proceed to an adjudication” binding on that defendant. Employers Reinsurance
Corp. v. Bryant, 299 U.S. 374, 381 (1937).

Guardian submits that Father waived his right to the court obtaining personal
jurisdiction over him, as allowed by Landers v. Jones, 872 S.W.2d 674, 675 (Tenn.
1994). He also claims that the Petition for Adoption is a sufficient affidavit of the efforts
made to determine the identity and location of Father and other potential fathers under
Tennessee Code Annotated section 36-1-117(m)(1)-(3). We must agree with the trial
court that these arguments lack merit.

In the order voiding the adoption as to Father, the trial court did not even address
the need for Father to be served directly. Instead, the court found that Guardians did not
make a Motion for Publication or a separate Affidavit detailing what they did to
determine the identity and whereabouts of Father, which is an even lower bar than the
requirement for personal service of process. Tennessee Code Annotated section 36-1-
117(m)(3) specifically requires a motion for an order for publication with an
accompanying affidavit, which, as even Guardian admits, was not made. Because service
of process is not “a mere perfunctory act” but has “constitutional dimensions,” a party
who resorts to constructive service by publication must comply meticulously with the
governing statutes. Turner, 473 S.W.3d at 274 (quoting In re Z. J. S., No. M2002-02235-
COA-R3-JV, 2003 WL 21266854, at *6 (Tenn. Ct. App. June 3, 2003) (citing In re Baby
Girl B., 224 Conn. 263, 618 A.2d 1, 17 (Conn. 1992)). By failing to follow the statutory
requirements of constructive service by publication, Guardians failed to properly serve
Father, therefore depriving the court of personal jurisdiction over Father.
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 Exceptional Circumstances to Bar Relief

Third, Guardian asserts that exceptional circumstances exist that would bar
Father’s requested relief of voiding the Final Order of Adoption. Under the Restatement
(Second) of Judgments section 66,

Relief from a default judgment on the ground that the
judgment is invalid will be denied if:

(1) The party seeking relief, after having had actual notice of
the judgment, manifested an intention to treat the judgment as
valid; and

(2) Granting the relief would impair another person’s
substantial interest of reliance on the judgment.

(Emphasis added). The Restatement further explains that a manifestation of intent may
come by either an express intention or from an “acceptance of benefits” of the judgment,
“wherein the defaulting party conducts his own affairs on the basis of rights accorded him
by the terms of the judgment.” Turner, 473 S.W.3d at 281 (citing Restatement (Second)
of Judgment § 66 cmt. b). Whether Father made an express intention to accept the final
order is not in question. Guardian argues that Father had actual notice of the judgment
since 2011 but failed to officially dispute the final order until the Motion to Set Aside the
Adoption in 2015, which is a long enough period of time to be treated as manifesting an
intention to accept the final order as valid. The trial court found that Father never
manifested an intention to treat the judgment of adoption as valid and that exceptional
circumstances do not exist to bar Father’s requested relief.

While Father was first presented with the possibility of an adoption by Mother in
2011, it was not until the hearing in 2013 in Juvenile Court on Father’s Amended Petition
to Establish Paternity that Father definitively learned of the adoption. Both before and
after this revelation, Father made documented efforts to oppose the Final Order of
Adoption, with and without the assistance of counsel. These initial efforts included
searching the Internet for information about the Child and filing motions to receive
information about the Child and any proceedings involving her through the court. In
contrast to Guardian’s suggestion that Father sat idly by for almost four years, Father
filed several motions with the court to obtain more access to any documents relating to
the Child. While Father did not ultimately succeed on such motions until the hearing on
the Motion to Set Aside Final Order of Adoption, his lack of success does not
automatically mean acceptance of the judgment.

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 Despite Guardian addressing the injustice to both Guardian and the Child, the trial
court properly found that since Father did not manifest an intention to treat the judgment
as valid, Guardian’s argument regarding exceptional circumstances lacks merit.

Original Petition for Adoption

Lastly, Guardian argues that, should we uphold the trial court’s ruling, he should
be allowed to proceed with his original Petition for Adoption now that the Father is a
party to the conflict. However, since Guardian did not raise this argument in the trial
court, he may not raise it for the first time in this appeal.

Testimony of Dr. Heather Gow

Next, Father contends that the testimony by Dr. Heather Gow as to the personality
of the Child and her relationship with Guardian should not have been allowed, objecting
as to the relevance of the testimony.

The standard for reviewing a trial court’s judgment on the admission of evidence
is based on an abuse of discretion by the trial judge. Dickey v. McCord, 63 S.W.3d 714,
723 (Tenn. Ct. App. 2001). It occurs only when the trial court “applies an incorrect legal
standard or reaches a conclusion that is ‘illogical or unreasonable and causes an injustice
to the party complaining.’” State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007) (quoting
State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)).

In this case, the trial court made a discretionary decision to allow Dr. Gow to
testify over the objection of Father. Even with this evidence that Father argues is
damaging, the trial court found in his favor, making the error (if any) harmless.

Transfer of Custody To Father

Finally, Father argues that the trial court erred in not immediately transferring
physical and legal custody of the Child after voiding the Final Order of Adoption. The
trial court found that simply by voiding the Final Order of Adoption, custody did not
automatically transfer to Father. Instead, the court looked to the last order from the
Juvenile Court to return the custody of the Child to Guardian until further proceedings
could determine the rights of Father.

Father argues that as the trial court has determined that he is the legal and

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biological father of the Child,6 he has a presumption of superior rights to custody because
it has not been shown that doing so would cause substantial harm to the Child’s welfare.
Guardian counters that the right of a biological parent is not absolute, and that the court
was correct to allow further inquiry regarding possible harm to the Child’s welfare,
considering the bond established with Guardian.

In our view, the decision of awarding custody of the Child to Father is an issue
that is separate from the rest of the arguments put forth in this appeal. While parents do
have a “fundamental right to the care, custody, and control of their children,” Stanley v.
Illinois, 405 U.S. 645 (1972), the trial court did not abuse its discretion by finding that a
full hearing with a complete presentation of evidence by both parties is necessary to
properly address the custody issue. Therefore, the judgment of the trial court to remand
this decision back to the Juvenile Court was proper.

V. CONCLUSION

The motion to dismiss the appeal is granted, and the case is remanded for such
further proceedings as may be necessary. Costs of the appeal are taxed to the appellant,
James M.R.

_________________________________
JOHN W. MCCLARTY, JUDGE

6
DNA testing Report of Tri-Cities Diagnostic filed with court on Dec. 4, 2015.
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