In Re Ashton B. ( 2018 )

07/03/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 6, 2018 Session
IN RE ASHTON B. ET AL.
Appeal from the Circuit Court for Williamson County
No. 2016-611 Deanna B. Johnson, Judge
No. M2017-00974-COA-R3-JV
The Department of Children’s Services filed a petition for temporary emergency custody
under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) after a
mother from Alabama who was travelling through Tennessee with her two minor children
was arrested on charges including reckless endangerment. The juvenile court determined
that the children were dependent and neglected, and the mother appealed for a de novo
hearing in circuit court. When an Alabama court entered an order granting custody to the
children’s father, the circuit court lost jurisdiction, and the circuit court’s subsequent
order finding the children dependent and neglected became null and void. We, therefore,
dismiss this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.
Sais Phillips Finney, Nashville, Tennessee, for the appellant, Tracy M. G.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; and Brian A. Pierce, Assistant Attorney General, Nashville, Tennessee, for the
appellee, Tennessee Department of Children’s Services.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Tracy M. G. (“Mother”) is the mother of Ashton B., born in March 2014, and
Carson B., born in August 2015. Mother and the two children lived in Alabama and were
travelling through Tennessee on April 25, 2016, when Mother was arrested in Williamson
County on eleven charges, including reckless endangerment and evading arrest, related to
driving recklessly in an interstate construction zone. The record contains conflicting
accounts concerning whether and when Mother provided the police with the names of
relatives or friends authorized to come take the children to care for them. The police
department made a referral to the Department of Children Services (“DCS” or “the
Department”).
The Department took the children into custody at 3:30 in the morning on April 25,
2016, and the juvenile court entered an ex parte protective custody order later the same
day. On April 27, 2016, DCS filed a petition for temporary emergency custody alleging
that the children were dependent and neglected. Counsel was appointed for both of the
children’s parents.1 At a preliminary hearing on May 2, 2016, the court ordered Father to
have unsupervised visitation with the children in Tennessee; Mother was to have
supervised visitation with the children. Mother remained incarcerated until May 13,
2016. The Department developed a permanency plan for Mother to complete with a goal
of returning the children to her custody.
On September 30, 2016, a new attorney for Mother filed a motion to dismiss
DCS’s petition for temporary emergency custody based on lack of jurisdiction. On
October 27, 2016, Mother filed a motion for dismissal of the petition and dissolution of
the ex parte custody order or, in the alternative, summary judgment, supported by
Mother’s affidavit. The juvenile court held an adjudicatory hearing on November 2,
2016, and denied Mother’s motion to dismiss. The court heard testimony from Sergeant
James Phillips, the officer who arrested Mother; Emily Kirby, DCS child protective
services worker; and Sara Fischer, DCS family services worker.
In an opinion entered on November 14, 2016, which included detailed findings as
to all of the evidence, the juvenile court found by clear and convincing evidence that “the
children were without a parent, guardian or legal custodian on April 25, 2016 due to
Mother’s arrest on felony warrants involving both children and placing the children in
such condition of want or suffering under improper control as to endanger the health of
the children.” The juvenile court further stated: “Mother agreed in her testimony the
children were without a proper guardian when she was arrested.” The juvenile court
further stated:
Specifically, Mother would not provide names of any caretakers to the
police to come get the children even after being told they would have to call
DCS. In other words, Mother could have prevented the entire custodial
episode in the state of Tennessee. Sgt. Phillips testified they would rather
1
Brandon B. (“Father”) is the children’s father. He was not named on their birth certificates. In July
2016, DCS filed a petition to establish paternity and, in October 2016, placed the children with Father in
Alabama.
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wait on relatives from Alabama to arrive than on the Department of
Children’s Services (who sometimes take longer).
The court also determined that it could not return the children to Mother because
“unknown and unresolved issues” remained. The juvenile court, therefore, ordered that
the children remain in DCS custody and continue in the current trial home placement
with Father in Alabama pursuant to the Tennessee Interstate Compact for the Placement
of Children. Mother filed a notice of appeal to the circuit court on November 10, 2016.
On November 29, 2016, the Circuit Court of Madison County, Alabama entered
an order awarding Father temporary custody of the children.
The Circuit Court for Williamson County, Tennessee held a de novo hearing on
November 30, 2016, and January 26, 2017. The circuit court entered an order on April
17, 2017, upholding the juvenile court order finding the children dependent and neglected
and remanding the case to the juvenile court “for disposition or other further
proceedings.”
Mother appeals from the circuit court’s decision. She argues that the Williamson
County juvenile court erred in assuming temporary emergency jurisdiction and that the
circuit court likewise erred in assuming jurisdiction in this case. Mother further asserts
that the circuit court’s decision finding the children dependent and neglected was
improper. The Department takes the position that the circuit court lacked jurisdiction to
enter the April 17, 2017 order because the child custody order had been entered in the
children’s home state of Alabama.
ANALYSIS
We begin with the question of whether the circuit court had jurisdiction to hear the
de novo appeal of the juvenile court decision based upon temporary emergency
jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”), Tenn. Code Ann. §§ 36-6-201—243.2 Issues of jurisdiction present
questions of law; thus our review is de novo with no presumption of correctness given to
the decision of the trial court. Button v. Waite, 208 S.W.3d 366, 369 (Tenn. 2006) (citing
State v. Cawood, 134 S.W.3d 159, 163 (Tenn. 2004)). Moreover, we review issues of
statutory construction de novo with no presumption of correctness. Id. (citing State v.
Collins, 166 S.W.3d 721, 725 (Tenn. 2005)).
2
There is no assertion by the Department that Tennessee was the home state of the children and had
jurisdiction to make an initial custody determination as the home state. See Tenn. Code Ann. §§ 36-6-
205(7), 36-6-216.
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Tennessee Code Annotated section 36-6-219(a) addresses temporary emergency
jurisdiction:
A court of this state has temporary emergency jurisdiction if the child is
present in this state and the child has been abandoned or it is necessary in
an emergency to protect the child because the child, or a sibling or parent of
the child, is subjected to or threatened with mistreatment or abuse.
In this case, DCS took custody of the children under the theory that the children had been
“abandoned” within the meaning of Tenn. Code Ann. § 36-6-219(a) because Mother was
in jail and refused to identify relatives or friends who could come and take custody of the
children. Mother asserts that she did, in fact, give the police names of relatives and
friends in Alabama who would come and take the children. As explained below,
however, this Court need not resolve the abandonment issue because it has become moot.
Even if a court has temporary emergency jurisdiction, that jurisdiction is limited in
duration. The following provision, found in Tenn. Code Ann. § 36-6-219(b), applies to
the circumstances of the present case, where there was no previous child custody
determination and no child custody proceeding commenced in the home state of
Alabama:
If there is no previous child custody determination that is entitled to be
enforced under this part and a child custody proceeding has not been
commenced in a court of a state having jurisdiction under §§ 36-6-216—
36-6-218 [provisions applicable to the home state], a child-custody
determination made under this section remains in effect until an order is
obtained from a court of a state having jurisdiction under §§ 36-6-216—36-
6-218.
There is no dispute in this case that the Circuit Court of Madison County, Alabama
entered an order giving Father temporary custody of the children on November 29, 2016.
At that point, the Williamson County circuit court lost jurisdiction and its subsequent
decision is, therefore, null and void. See Davis v. Davis, No. M2005-02620-COA-R3-
CV, 2006 WL 3751202, at *6 (Tenn. Ct. App. Dec. 20, 2006).
An appeal to circuit court from a juvenile court dependency and neglect
proceeding is de novo. Tenn. Code Ann. § 37-1-159(a). Thus, the juvenile court’s
dependency and neglect determination was being tried anew in the circuit court. The
circuit court lost jurisdiction when the state of Alabama assumed jurisdiction of the case
on November 29, 2016. Both the juvenile court decision, which was under de novo
appeal in the circuit court, and the post-November 29, 2016 circuit court decision are null
and void. The children are now under the jurisdiction of the Alabama courts, and the
questions presented in this appeal have become moot.
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CONCLUSION
The appeal is dismissed, and costs of appeal are assessed against the Department
of Children Services, for which execution may issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
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