On Petition to Rehear
We have for consideration a petition to rehear filed by the Department of Public Welfare. The substance of the petition is first, that we have erroneously held that the petition showed on its face that the Juvenile Court of Knox County had found that the child with whom we are concerned was an abandoned child; that under T.C.A. sec. 37-219 (we should have said 37-260, since the former section has been repealed), the parents have lost all right to the custody of said child; and that said court had committed its care to the Department of Public Welfare. It is then stated that said child has been adjudged to be dependent and neglected but that there is nothing in the record to indicate that said child has been found to be abandoned by the proceedings in the Juvenile Court. Next, it is stated that the former law having been repealed by Ch. 177, of the Public Acts of 1955, the parents have not lost all rights under the law as it now stands, because under T.C.A. sec. 37-242(3) the granting *170of custody by the Juvenile Court shall not be construed as the termination of parental rights as provided in subsection (3) of Section 37-243 and that custody shall not exist by virtue of mere physical possession of a child.
It is then asserted that under subsection (3) of Section 37-243 the juvenile court shall have original exclusive jurisdiction of all cases to terminate parental rights when a child is found to have been abandoned, etc. (counsel only quotes a part of this section and attention will be called to same hereinafter).
Counsel next calls attention to Section 37-263 which provides for continuing jurisdiction for the purposes of this chapter until the child shall have attained its majority. From that it is argued that the juvenile court having retained jurisdiction, the chancery court has no jurisdiction to entertain a petition for adoption. The inapplicability of this principle will be pointed out hereinafter.
In response to the above insistences, we should first state that we erroneously cited T.C.A. secs. 37-219 and 37-220, which have been repealed, whereas we should have cited 37-260 in both places.
As we shall endeavor to point out, however, that error makes no difference in the result on the basis on which the original opinion was written and, taking the opposite view of the pleadings, it will still make no difference.
The writer of the opinion construed the petition for adoption in the manner which appears in said opinion and it is long established practice that in deciding a motion to dismiss, the court will look alone to the petition in connection with the record. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 7 S.W. 640.
*171If we were correct in that construction of the petition, then under T.C.A. sec. 37-260 we would reach the same result as heretofore because said section provides:
“When any child shall be found to be abandoned and the parental rights terminated as provided in subsection (3) of sec. 37-243, the court shall award the complete custody, control and guardianship of the child to the department of public welfare or a licensed child placing agency with the right to place the child for adoption and to consent to the adoption in loco parentis.”
On the other hand, let us assume arguendo that we misconstrued the petition and that the juvenile court did not find that this was an abandoned child under the statute but that only the bare custody of the child was placed in the department of public welfare. Of course, we do not know exactly what the juvenile court ordered because the order is not exhibited to the petition. Therefore, the statement on page 2 of the Petition to Rehear that the Juvenile Court held said child to be “dependent and neglected” can not be considered for the purpose of the motion to dismiss.
So construed, therefore, we have an allegation in the petition that Allen Eugene Matthews is an abandoned child within the meaning of the statute and a prayer for service of process on the parents and for an order of adoption of the children and pursuant thereto process was served personally on the mother and by publication on the father as provided by T.C.A. sec. 36-108, as it appears in the 1957 Supplement to the Code, and process was served on the Department of Public Welfare.
*172The only courts having jurisdiction of adoption proceedings are the circuit and chancery courts under T.C.A. sections 36-102 (3) and 36-105. Under T.C.A. sec. 36-110, the circuit and chancery courts have jurisdiction to adjudicate an abandonment as follows:
“In all cases where a court of competent jurisdiction has not heretofore terminated the parental rights and placed the child with the state department of public welfare or a licensed child-placing agency for adoption, then on written notice of not less than ten (10) days to the parent, parents, or guardian of the person, if the address be known, or if unknown, then by publication, as provided by law, the court in the adoption proceeding is hereby authorized to determine that an abandonment has taken place."
Then recognizing the jurisdiction of the circuit and chancery courts to adjudicate an abandonment, the Juvenile Court Act T.C.A. sec. 37-243 provides as follows:
“Jurisdiction of juvenile courts. — The Juvenile courts shall have original, exclusive jurisdiction of:
“[1] All cases to adjudicate a child dependent and neglected, delinquent and/or abandoned as defined in sec. 37-242, subsections (4) through (6) and to enter all proper orders and decrees, except that this does not deprive circuit and chancery courts of the right to adjudicate an abandonment, where abandonment has been alleged in a petition to adopt as is provided in chapter 1 of title 36.
“[2] All cases to appoint a guardian of the person of a child in accordance with sec. 34-201, except that fin *173any county where there is or may hereafter be created a special juvenile court, the county court in such county shall have concurrent jurisdiction with such special juvenile court to appoint a guardian of the person of a child where such county court has assumed jurisdiction to appoint the guardian of the estate of such child.
“[3] All cases to terminate parental rights when a child is found to have been abandoned for four (4) consecutive months immediately preceeding institution of an. action or proceeding to declare the child to be an abandoned child. Except that this does not deprive circuit and chancery courts of the right to adjudicate an abandonment where abandonment has been alleged in a petition to adopt as is provided in chapter 1 of title 36.
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Therefore, it is perfectly clear under the express wording of the statutes that if it does not appear from the petition for adoption that the juvenile court has adjudicated this child to be an abandoned child, the chancery court, in this instance where the petition is pending, has jurisdiction to adjudicate that question in the adoption proceedings in accordance with the above cited section of the adoption statute and the Juvenile Court Act, supra.
There is no need to discuss the question of the continuing jurisdiction under T.C.A. sec. 37-263 for the reason that if the chancery court shall permit the adoption by these petitioners of this child on a finding that it has been abandoned in the sense of the statute, then the jurisdiction of the juvenile court is at an end until a new *174set of facts arises that'would give the juvenile court jurisdiction of the child because it had, since its adoption, become a dependent and neglected, or an abandoned or a delinquent child as defined by the statute.
It becomes perfectly clear then that there is no question in this case of interference by the chancery court with the jurisdiction of the juvenile court and, therefore, the cases cited by counsel in the petition to rehear, that is, Marmino v. Marmino, 34 Tenn.App. 352, 238 S.W.2d 105; Cantrell v. State, 190 Tenn. 64, 68, 227 S.W.2d 772; Henderson v. Henderson, 156 Tenn. 430, 434, 1 S.W.2d 526, have nothing to do with the situation involved in this case.
Therefore, the original opinion will stand except in one respect and that is the Code Sections 37-219 and 37-220 will be corrected to read 37-260, and both opinions will be published for the information of the bar. Otherwise the Petition to Rehear is overruled.