Bradley James Cox v. Laura Nicole Lucas

11/02/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 17, 2018 Session

BRADLEY JAMES COX v. LAURA NICOLE LUCAS

Appeal from the Circuit Court for Knox County
No. 110074 Gregory S. McMillan, Judge
___________________________________

No. E2017-02264-COA-R3-CV
___________________________________

This opinion is being filed contemporaneously with our opinion in Minyard v. Lucas,
No. E2017-02261-COA-R3-CV.1 Each case involves a post-divorce custody dispute
between Laura Nicole Lucas (mother) and one of her two ex-husbands. In the present
case, Bradley James Cox (father) filed a petition in the trial court for ex parte emergency
relief and modification of the permanent parenting plan. Nearly two years later, mother
filed a motion to dismiss all orders resulting from father’s petition as void for lack of
subject matter jurisdiction. Mother argued that father’s petition included allegations of
dependency and neglect, which implicated the exclusive original jurisdiction of the
juvenile court. After a hearing on the matter, the trial court denied mother’s motion.
Mother appeals. We reverse and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Austin Lucas, Brentwood, Tennessee, for the appellant, Laura Nicole Lucas.

R. Deno Cole, Knoxville, Tennessee, for the appellee, Lewis Alvin Minyard.

OPINION

I.

The child at the center of this custody dispute was born to mother and father on
December 26, 2003. Mother and father were married on May 5, 2005. After three years
1
The Court considered these cases together at oral argument. The attorneys in both cases are the
same.
of marriage, they were granted a final decree of divorce by the trial court. The court
established a permanent parenting plan and designated mother as the primary residential
parent.

On November 10, 2015, shortly before the child’s twelfth birthday, father filed a
petition in the trial court requesting ex parte emergency relief and modification of the
permanent parenting plan. The petition contained the following factual allegations:

A. Mother is living in conditions that are not healthy for the
minor child’s upbringing (see attached Exhibit 1). The child
is uncomfortable having friends over to the home, due to the
living conditions.2

B. The minor child is complaining about multiple men
coming to the residence, drinking in excess, and paying
money to Mother.

C. Minor child had indicated that Mother is “smoking pot”
outside of the vehicle with child in the vehicle, “smoking pot”
in the car with minor child in the residence. Mother leaves
her pipe and marijuana where the minor child has access to
same.

D. The minor child is often alone without any adult
supervision, and Mother is unavailable to tend to the minor
child’s needs. The minor child is left alone at night with
Mother returning in the early morning hours. Mother
routinely will tell the minor child that she is going to the store
and does not return for hours at a time.

E. The minor child has to get herself ready for school and on
the bus with no supervision by Mother. Mother also allows
child to stay home “sick” and then takes child with her on
trips to do odd jobs.

F. For Father’s co-parenting time, the minor child returns to
Father in unclean clothing and without proper undergarments.

G. The minor child complains of having little or no food in
the home. Mother sends the minor child to the neighbors to
ask for food or beverages.

2
Exhibit 1 contained photographs depicting mother’s home in a general state of disarray.
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 H. The utilities to the house have been cut off numerous
times.

I. The minor child complains of Mother sleeping in excess
and Mother is unable to be awakened.

K. Mother has anger issues and uses profanity towards the
minor child on a routine basis.

L. Mother has told the minor child to lie to school officials
about her tardiness or absences.

M. The minor child has come to Father for help, and desires
to live with him; however, she is terrified of Mother. Without
the Court’s protection, the minor child is in reasonable fear
that Mother may cause emotional or physical harm to her.

N. Subsequent to the child alarming Father of her concerns,
Father has investigated the above and other matters.

Based on the foregoing facts and circumstances, the
best interest of the minor child is to be placed in exclusive
care, custody and control of Father. The minor child is
without the proper care and supervision of Mother. Unless
the Court enters an immediate Order granting Father
temporary exclusive residential care and control of said child,
the minor child is in danger of immediate and irreparable
harm.

On the same day, the trial court entered an interim emergency order directing that
the child “be immediately placed in the exclusive care, custody and control of the Father
. . . pending a hearing within fifteen (15) days . . . .” After a preliminary hearing, the trial
court entered an order granting mother supervised visitation and telephone contact with
the child, reserving all other issues until the final hearing. On July 17, 2017, the trial
court established a permanent parenting plan that designated father as the primary
residential parent.

On September 15, 2017, mother, represented by new counsel, filed a motion to
dismiss father’s November 10, 2015 petition and all orders resulting therefrom for lack of
subject matter jurisdiction. Mother argued that father’s petition included allegations of
dependency and neglect, which implicated the exclusive original jurisdiction of the
juvenile court. On October 20, 2017, the trial court heard arguments from both sides on
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issue of subject matter jurisdiction. Ultimately, the court denied mother’s motion to
dismiss. Mother appealed.

II.

The sole issue in this appeal is whether the trial court erred by denying mother’s
motion to dismiss for lack of subject matter jurisdiction.

III.

Because “a determination of whether subject matter jurisdiction exists is a
question of law, our standard of review is de novo, without a presumption of
correctness.” Jackson v. Tenn. Dept. of Corr., 240 S.W.3d 241, 243 (Tenn. Ct. App.
2006) (quoting Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000)). In
Holley v. Holley, this Court discussed the significance of subject matter jurisdiction:

A court must have jurisdiction over the subject matter of the
proceeding as well as over the parties. State ex rel.
Whitehead v. Thompson, No. 01A01–9511–CH–00538, 1997
WL 749465 at *2 (Tenn. Ct. App. Dec. 5, 1997). The
question of subject matter jurisdiction relates to a court’s
power to adjudicate a particular type of controversy. Toms v.
Toms, 98 S.W.3d 140, 143 (Tenn. 2003); Northland Ins. Co.
v. State, 33 S.W.3d 727, 729 (Tenn. 2000). . . . A court
cannot enter a valid, enforceable order without subject matter
jurisdiction. Brown v. Brown, 198 Tenn. 600, 610, 281
S.W.2d 492, 497 (1955); SunTrust Bank v. Johnson, 46
S.W.3d 216, 221 (Tenn. Ct. App. 2000). Accordingly, when
subject matter jurisdiction is questioned the court must first
determine the nature of the case and then ascertain whether
the Tennessee Constitution, the General Assembly, or the
common law have conferred on it the power to adjudicate its
cases. Staats v. McKinnon, 206 S.W.3d 541 [532] at 542
(Tenn. Ct. App. 2006). Subject matter jurisdiction may be
raised at any time by the parties or by the appellate court sua
sponte on appeal. County of Shelby v. City of Memphis, 211
Tenn. 410, 365 S.W.2d 291 (Tenn. 1963).

420 S.W.3d 756, 759 (Tenn. Ct. App. 2013) (quoting Graham v. Graham, No. E2008–
00180–COA–R3–CV, 2009 WL 167071, at *6 (Tenn. Ct. App., filed Jan. 26, 2009)).

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 IV.

Because a party can raise the issue of subject matter jurisdiction at any time, it is
inconsequential that mother waited over two and a half years to file her motion to
dismiss. See id. Rather, the heart of this controversy is a dispute about the “nature of the
case.” Id. Father characterizes the case as a post-divorce child custody dispute; mother,
on the other hand, characterizes the case as a dependency and neglect action. That
distinction is important in light of the following statutes.

In Tennessee, both circuit courts and chancery courts are statutorily authorized to
grant divorces and to make child custody determinations in connection with divorce
proceedings. Tenn. Code Ann. § 16-10-108 (2009); Tenn. Code Ann. § 36-6-101(a)(1)
(2017). Significantly, Tenn. Code Ann. § 36-6-101(a)(1) provides that a final decree of
divorce “shall remain within the control of the court and be subject to such changes or
modification as the exigencies of the case may require.” Id.; see also Tenn. Code Ann. §
36-6-217 (providing for “exclusive, continuing jurisdiction” over child custody
determinations). For example, if there has been “a material change in circumstances,” a
parent may file a petition to modify a court-ordered permanent parenting plan. Tenn.
Code Ann. § 36-6-101(a)(2)(B)(i). In addition, a parent may petition the court for an
emergency, temporary modification of the parenting plan; if “the court finds that the child
will be subject to a likelihood of substantial harm absent the temporary modification,” the
court can modify the residential schedule before a final hearing on the matter. Tenn.
Code Ann. § 36-6-405(b) (2017). If the court enters such an order ex parte, “the
respondent parent shall be entitled to an expedited hearing within fifteen (15) days of the
entry of the temporary modification order.” Id.; see also Tenn. R. Civ. P. 65.07 (“The
provisions of this Rule shall be subject to any contrary statutory provisions governing
restraining orders or injunctions. In domestic relations cases, restraining orders or
injunctions may be issued upon such terms and conditions and remain in force for such
time as shall seem just and proper to the judge to whom application therefor is made[.]”).

Nevertheless, the subject matter jurisdiction of circuit and chancery courts over
divorce proceedings and subsequent child custody matters must be considered in
conjunction with the jurisdiction allocated to juvenile courts. See Tenn. Code Ann. § 36-
6-101(c) (“Nothing in this chapter shall be construed to alter, modify or restrict the
exclusive jurisdiction of the juvenile court pursuant to § 37-1-103.”); Tenn. Code Ann. §
36-6-411(a) (“Nothing in this part shall be construed to alter, modify or restrict the
exclusive jurisdiction of the juvenile court pursuant to § 37-1-103.”). The General
Assembly has granted juvenile courts “exclusive original jurisdiction” over
“[p]roceedings in which a child is alleged to be delinquent, unruly or dependent and
neglected . . . .” Tenn. Code Ann. § 37-1-103(a)(1) (2014). Once a juvenile court
acquires exclusive jurisdiction over a case,

such jurisdiction shall continue until the case has been
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 dismissed, or until the custody determination is transferred to
another juvenile, circuit, chancery or general sessions court
exercising domestic relations jurisdiction, or until a petition
for adoption is filed . . . . This subsection (c) does not
establish concurrent jurisdiction for any other court to hear
juvenile cases, but permits courts exercising domestic
relations jurisdiction to make custody determinations in
accordance with this part.

Tenn. Code Ann. § 37-1-103(c).

At first blush, the aforementioned statutes appear to be in tension with one
another; one statute gives juvenile courts “exclusive original jurisdiction” over
dependency and neglect actions and other statutes authorize circuit courts and chancery
courts to grant divorces and to exercise jurisdiction over subsequent child custody
determinations “as the exigencies of the case may require.” Tenn. Code Ann. § 36-6-
101(a)(1); see also Tenn. Code Ann. § 36-6-217 (providing for “exclusive, continuing
jurisdiction” over child custody determinations). Yet, the statutes purport to be congruent
and not contradictory. See Tenn. Code Ann. §§ 36-6-101(c), -411(a); Tenn. Code Ann. §
37-1-103(c). In attempt to effectuate each statutory provision, our courts have
consistently held to the following interpretation:

the Chancery Court [and circuit court] never loses jurisdiction
of the question of custody, that is, the subject matter as part of
a divorce proceeding, but the right and power to exercise that
jurisdiction upon the person of the minor may be suspended
temporarily or permanently either prior to or after the
inception of the divorce case by reason of the exercise by the
Juvenile Court of the special, exclusive jurisdiction conferred
on it to determine whether the minor is ‘dependent’ or
‘delinquent’, as defined by the Statute and hence necessarily
to determine custody.

Kidd v. State ex rel. Moore, 338 S.W.2d 621, 624 (Tenn. 1960) (quoting Marmino v.
Marmino, 238 S.W.2d 105, 108 (Tenn. Ct. App. 1950)); see also State of Tenn. Dept. of
Human Servs. v. Gouvitsa, 735 S.W.2d 452, 456 (Tenn. Ct. App. 1987) (“This issue was
decided in Tennessee in [Marmino] and subsequently has been followed by all appellate
courts of this state.”).

In most cases, this jurisdictional quandary arises after a parent has filed a petition
for dependency and neglect in the juvenile court. E.g., Branch v. Thompson, No.
M1998-00511-COA-R3-CV, 2000 WL 898759, at *1 (Tenn. Ct. App., filed July 7,
2000); Hicks v. Hicks, No. 01A01-9309-CH-00417, 1994 WL 108896, at *1 (Tenn. Ct.
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App., filed Mar. 30, 1994); George v. George, No. 02A01-9711-CH-00279, 1999 WL
252710, at *1 (Tenn. Ct. App., filed Apr. 28, 1999); Gouvitsa, 735 S.W.2d at 453;
Marmino, 238 S.W.2d at 107. In those cases, we held that the circuit or chancery court
lacked subject matter jurisdiction because the juvenile court’s exclusive original
jurisdiction attached upon the filing of a dependency and neglect petition in the juvenile
court. Branch 2000 WL 898759, at *4; Hicks, 1994 WL 108896, at *2; George, 1999
WL 252710, at *4; Gouvitsa, 735 S.W.2d at 457; Marmino, 238 S.W.2d at 108-09. In
contrast, we have held that a juvenile court’s exclusive original jurisdiction does not
attach when a juvenile court dismisses a petition alleging dependency and neglect.
Farley v. Farley, No. W2000-01987-COA-R9-CV, 2001 WL 846075, at *3 (Tenn. Ct.
App. July 20, 2001); P.E.K. v. J.M. & C.Y.M., No. M2000-02737-COA-R10-CV, 2001
WL 356673, at *5 (Tenn. Ct. App., filed Apr. 11, 2001)).

On a few occasions we have held that a juvenile court’s exclusive original
jurisdiction attaches even when the petition filed in the juvenile court does not expressly
include the words “dependency and neglect” – so long as the “substance” of the petition
contains allegations of dependency and neglect. E.g., J.W.G. v. T.L.H.G., No. M2002-
02656-COA-R3JV, 2003 WL 22794537, at *4 (Tenn. Ct. App., filed Nov. 25, 2003);
Fletcher v. Fletcher, No. E2001-01223-COA-R3JV, 2002 WL 459012, at *3 (Tenn. Ct.
App., filed Mar. 26, 2002); State o/b/o Whitehead v. Mattie, No. 01A01-9511-CH-
00538, 1997 WL 749465, at *1 n.1 (Tenn. Ct. App., filed Dec. 5, 1997).

This case is different from the cases cited above because neither party has filed a
petition alleging dependency and neglect in the juvenile court. Instead, mother argues
that the juvenile court’s exclusive original jurisdiction attached when father filed his
petition to modify the parenting plan in the circuit court. We have identified at least
three post-divorce cases in which other parents have made the same argument. We will
briefly discuss each of those cases.

In Munday v. Munday, No. E1999-02605-COA-R3-CV, 2000 WL 1154500
(Tenn. Ct. App., filed Aug. 15, 2000), the parties were granted a divorce in chancery
court. Several years later, father filed a petition in the chancery court to modify the
permanent parenting plan based on the following allegations:

[Mother’s] mental and emotional status has changed so as to
render her disabled from employment and from managing the
emotional, physical and financial burdens associated with the
responsibility of being a primary residential custodian of
minor children. [Mother’s] emotional or psychological
disability results in a significant degree of lethargy which, in
turn, causes the minor children to be called upon to maintain
the home and care for the mother, essentially reversing the
roles of mother and children. Also, [Mother] has separated
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 from current husband and, upon information and belief,
[Father] alleges that during the period of separation from her
current husband [Mother] has exposed the minor children to
inappropriate influences in her household.

Id. at *1. Mother filed a motion to dismiss for lack of subject matter jurisdiction, arguing
that father’s petition “raises issues of dependency and neglect, which . . . placed Father’s
petition within the exclusive jurisdiction of the juvenile court.” Id. The trial court denied
mother’s motion. Id. This Court affirmed:

We find [mother’s] argument wholly without merit.
Although Mother is correct in asserting that, pursuant to
T.C.A. § 37-1-103(a)(1), the juvenile court has exclusive
jurisdiction over proceedings in which a party seeks to have a
child declared dependent and neglected, Mother
mischaracterizes the nature of the instant proceeding. This is
not a proceeding to have a child declared dependent and
neglected; this is a post-divorce proceeding seeking a change
in a custodial arrangement. As such, it was properly brought
in chancery court. Therefore, the chancery court, the site of
the original divorce proceedings, properly exercised
jurisdiction over Father’s petition.

Id. at *7.

We confronted a similar situation in Holley v. Holley, 420 S.W.3d 756 (Tenn. Ct.
App. 2013). In Holley, the parties were divorced in circuit court. Id. at 757. Two years
later, the father filed a petition in the circuit court seeking a change of custody based on
allegations that the mother failed to follow the recommendations of medical experts who
diagnosed the parties’ children with various intellectual and emotional disorders. Id. at
757-58. Specifically, father’s petition alleged that “the minor children will suffer
immediate and irreparable injury if the recommendations of the experts are ignored and
the minor children’s educational, psychological and behavioral needs continue to be
ignored by Mother.” Id. at 758.

The mother in Holley filed a motion to dismiss for lack of subject matter
jurisdiction, arguing that the substance of father’s petition alleged dependency and
neglect, which implicated the juvenile court’s exclusive original jurisdiction. Id. at 759.
The trial court granted mother’s motion to dismiss. Id. According to the trial court, the
substance of father’s petition alleged that the parties’ children were dependent and
neglected as defined by Tenn. Code Ann. § 37-1-102(b)(13)(D), which includes children
“[w]hose parent . . . neglects or refuses to provide necessary medical, surgical,

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institutional, or hospital care for such child.”3 Id. Accordingly, the court concluded that
the petition triggered the juvenile court’s exclusive original jurisdiction. Id.

On appeal, this Court accepted the premise that “[a] petition [filed in circuit court]
alleging dependency and neglect, either expressly or in substance, implicates the
exclusive original jurisdiction of the juvenile court.” Id. at 760 (citing J.W.G., 2003 WL
22794537, at *4). Nevertheless, we reversed the decision of the trial court because

[i]n spite of the tone of urgency and severe language, we
believe the allegations in the Petition are not tantamount to
allegations of dependency and neglect under the statute. The
allegations are more in the nature of a disagreement over the
long-term manner of addressing the Children’s psychological,
behavioral, and educational issues. . . . We find nothing in
the statutes to support a determination that our General
Assembly intended by enacting Tenn. Code Ann. § 37-1-
103(a)(1) to strip jurisdiction from a court that has handled a
divorce and post-divorce matters solely because the parents
disagree on how to address their child’s medical needs. Such
an intention by our General Assembly would have resulted in
a wholesale shifting of custody cases to the juvenile court . . .
.

Id. We therefore reversed the trial court’s decision that it lacked subject matter
jurisdiction over the case.

We addressed this issue most recently in Tavino v. Tavino, No. E2013-02587-
COA-R3CV, 2014 WL 5430014 (Tenn. Ct. App., filed Oct. 27, 2014). In Tavino, the
parties were divorced in chancery court. Id. at *2. The father filed a petition in chancery
court for modification of the permanent parenting plan and termination of father’s child
support obligation. Id. The trial court entered an order that modified the parenting plan
by designating father the primary residential parent and terminating his wage assignment.
Id. The court also ordered mother to pay father child support. Id. at *3. Several months
later, mother filed a Tenn. R. Civ. P. 60.02 motion to alter or amend the judgment. Id. at
*5. Mother’s motion included an allegation that “[t]he minor child of these parties
remains in severe danger, from himself and others, and the Father has refused to arrange
critical evaluation of his mental condition or arrange other help for this child.” Id. The
trial court determined that it lacked subject matter jurisdiction because mother’s petition
“constituted a dependency and neglect claim rather than a petition to modify a permanent

3
In Holley, we emphasized that “[t]he Trial Court invoked this definition of dependency and
neglect in its oral ruling, and, although the law contains several other definitions, this is the most relevant
for the instant appeal.” 420 S.W.3d at 760 n. 1.
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parenting plan.” Id. This Court affirmed. Id. at *12. We agreed with the trial court’s
conclusion “that Mother’s allegations against Father’s parenting of the Child constituted
a dependency and neglect claim over which the juvenile court would have sole
jurisdiction.” Id. at *11.

Returning to the present case, mother argues that the trial court lacked subject
matter jurisdiction because father’s November 10, 2015 petition included allegations that
implicated the exclusive original jurisdiction of the juvenile court. Specifically, mother
claims that all of the allegations in father’s petition are “tantamount to alleging
dependency and neglect” as defined in sections (B), (C), (F), and (G) of Tenn. Code Ann.
§ 37-1-102(b)(13) (Supp. 2018).4 Those sections of the statute define a “dependent and
neglected” child to include a child:

(B) Whose parent, guardian or person with whom the child
lives, by reason of cruelty, mental incapacity, immorality or
depravity is unfit to properly care for such child;

(C) Who is under unlawful or improper care, supervision,
custody or restraint by any person, corporation, agency,
association, institution, society or other organization or who
is unlawfully kept out of school;

* * *

(F) Who is in such condition of want or suffering or is under
such improper guardianship or control as to injure or
endanger the morals or health of such child or others;

(G) Who is suffering from abuse or neglect;

Tenn. Code Ann. § 37-1-102(b)(13).

We are not persuaded that all statements in father’s petition are tantamount to
allegations of dependency and neglect under the portions of the statutory definition
quoted above. For instance, the petition alleged that “Mother is living in conditions that
are not healthy for the minor child’s upbringing.” That allegation was supported by an

4
Specifically, mother’s brief asserts that: paragraphs (B), (D), (E), (F), (H), and (I) of father’s
petition fit within section (C) of the statutory definition; paragraphs (A), (B), (C), (G), (K), and (L) of
father’s petition fit within section (F); paragraph (M) fits within section (G); and that paragraph (B) fits
within section (B).
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attached exhibit depicting mother’s home in a general state of disarray. According to the
petition, “[t]he child is uncomfortable having friends over, due to the living conditions.”
We cannot say that this constitutes an allegation that the child is “in such condition of
want or suffering . . . as to injure or endanger the morals or health of such child . . . .”
The petition also alleged that mother has had male guests who “drink[ ] in excess” and
“pay[ ] money to Mother.” It is unclear from the petition how often this allegedly occurs
and for what reason individuals are paying money to mother. This is not an allegation
that mother is unfit to properly care for the child or that the child is in danger. The same
can be said of the allegation that mother “sleep[s] in excess” and that mother “is unable to
be awakened.” Father’s allegation that “[t]he utilities to the house have been cut off
numerous times” is concerning, but the petition did not allege that the utilities were
currently cut off or that the health of the child was presently in danger. Finally, mother’s
alleged use of profanity, although not commendable, does not seem to rise to the level of
“immorality or depravity” that makes a parent “unfit” to properly care for a child.

Other allegations in the petition are more serious. For example, the petition
alleged that

[t]he minor child is often alone without any adult supervision,
and Mother is unavailable to tend to the minor child’s needs.
The minor child is left alone at night with Mother returning in
the early morning hours. Mother routinely will tell the minor
child that she is going to the store and does not return for
hours at a time.

The petition also claimed that the child “has to get herself ready for school and on the bus
with no supervision by Mother.” According to the website of the Juvenile and Family
Courts:

There is no legal age for children to stay at home alone.
Parents are advised to use their best judgment, keeping the
child’s maturity level and safety issues in mind. Younger
children have a greater need for supervision and care than
older children. Obviously, young children under age 10
should not be left without supervision at any time. In most
cases, older teenage children may be left alone for short
periods of time.

Tennessee Administrative Office of the Courts, Juvenile & Family Courts, FAQS,
http://www.tncourts.gov/courts/juvenile-family-courts/faqs. The child in the present case
was eleven years old at the time of father’s petition. It is probably unfair to say that an
eleven-year-old child cannot be left home alone at any time or that such a child cannot be
trusted to get on the school bus without supervision. However, father’s petition alleged
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that the child was “often” left home alone, even in the middle of the night. If these
allegations do not fit squarely within section (C) of the statutory definition, they are very
close.

The most serious allegations in father’s petition concern mother’s alleged use of
marijuana in the presence of the child, the child’s access to mother’s marijuana and pipe,
the child’s complaints of “little or no food in the home,” and mother’s alleged habit of
“allow[ing] [the] child to stay home ‘sick’ and then tak[ing] [the] child with her on trips
to do odd jobs.”

In In re K.A.P., this Court held that evidence of a mother’s weekly marijuana use
“d[id] not amount to clear and convincing evidence that Mother is ‘unfit to properly care
for [Son]’ or that Son is dependent and neglected under any subsection in Section 37–1–
102(b)(12).” In so holding, however, we specifically observed that there was no evidence
that mother used marijuana in the presence of the child. In the case at bar, father’s
petition alleged that mother’s drug use occurred in the presence of the child. Moreover,
the petition alleged that the child had access to both marijuana and mother’s pipe. We
think these allegations fit within Tenn. Code Ann. § 37-1-102(b)(13)(F).

Assertions that there is “little or no food in the home” and that the child returns to
father without clean clothes or even proper undergarments raise serious questions about
the child’s health and hygiene. We think these allegations fit within Tenn. Code Ann. §
37-1-102(b)(13)(F).

Finally, father’s petition alleged that mother “allows child to stay home ‘sick’ and
then takes child with her on trips to do odd jobs.” The petition also alleged that mother
has instructed the child to lie “to school officials about her tardiness or absences.”
Parents have a legal obligation to “cause the[ir] child or children to attend public or
nonpublic school . . . .” Tenn. Code Ann. § 49-6-3001(c)(1) (2016). A parent who fails
to do so “commits educational neglect, which is a Class C misdemeanor.” Tenn. Code
Ann. § 49-6-3009(a) (Supp. 2018). Because father’s petition alleged that mother permits
the child to skip school without justification and encourages the child to lie about doing
so, the petition alleged that the child was “unlawfully kept out of school” by mother. See
Tenn. Code Ann. § 37-1-102(b)(13)(C).

In light of the foregoing analysis, we conclude that father’s petition contained
assertions that were tantamount to allegations of dependency and neglect. Accordingly,
the trial court lacked subject matter jurisdiction and all actions taken by the court are void
for lack of subject matter jurisdiction.

V.

The judgment of the trial court denying mother’s motion to dismiss for lack of
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subject matter jurisdiction is hereby reversed. We vacate all orders of the trial court that
resulted from father’s November 10, 2015 petition, and we remand the case for further
proceedings. Costs on appeal are taxed against the appellee, Bradley James Cox.

_______________________________
CHARLES D. SUSANO, JR., JUDGE

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