IN RE: CONNER C. ( 2017 )

03/20/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Brief March 1, 2017
IN RE CONNER C., ET AL.
Appeal from the Circuit Court for Franklin County
No. 2016-CV-36 Justin C. Angel, Judge
No. M2016-01669-COA-R3-JV
Mother appeals the circuit court’s dismissal of her de novo appeal of the juvenile court’s
dependency and neglect order. We agree with the circuit court that the juvenile court’s
adjudicatory order was not a final order subject to appeal to the circuit court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,
JR., and KENNY W. ARMSTRONG, JJ., joined.
Glen A. Isbell, Winchester, Tennessee, for the appellant, Rachel M.C.
Robert F. Davis, Winchester, Tennessee, for the appellees, Jodi M.E. and Jerry W.C.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Rachel M.C. (“Mother”) and Jerry W.C. (“Father”) are the biological parents of
Conner J.C., Elanina M.C., and Mary E.C.1 On November 10, 2015, Jodi M.E., Father’s
girlfriend, filed a petition for emergency temporary custody in juvenile court against
Mother and Father regarding their three minor children. In the petition, Jodi M.E. alleged
as follows:
The children are neglected and dependent by their mother. I am filing for
emergency custody of the children due to the father being shot in the chest
at child swap by the mother’s husband. We fear the mother will attempt to
1
This court has a policy of protecting the identity of children in dependency and neglect cases by
initializing the last names of the parties.
take the children to her residence in Shelbyville where the children would
be around their step-father that shot their father in front of them.
On November 11, 2015, the juvenile court entered an order granting temporary custody
to Jodi M.E. and set a hearing for November 18, 2015.
After the preliminary hearing on November 18, the juvenile court entered an order
on November 25, finding that there was “probable cause of dependency and neglect
against the mother.” The court placed temporary custody with Jodi M.E. and granted
Mother visitation every other Saturday supervised by the maternal grandmother.2 The
court also appointed a guardian ad litem and set the case for an adjudicatory hearing on
December 16, 2015.
On December 16, the parties agreed to continue the case and reset the adjudicatory
hearing for February 10, 2016. The parties further agreed that temporary custody remain
with Jodi M.E., that the maternal grandmother be granted the parenting time allotted to
Mother in the parenting plan (entered by the juvenile court prior to the dependency and
neglect petition), and that Mother have 24-hour supervised visitation during the maternal
grandmother’s weekend visitation.
A hearing was held on February 10, 2016.3 The juvenile court found that Jodi
M.E. and Father had met their burden of proof against Mother by clear and convincing
evidence of dependency and neglect of the three minor children. The court awarded
temporary custody to Father and Jodi M.E. and awarded the maternal grandmother
visitation on the weekends allocated to Mother in the parenting plan. Mother was given
supervised visitation of one 24-hour period each weekend when the maternal
grandmother had the children. The court further ordered:
4. . . . [M]aternal grandmother shall not allow[ ] smoking at her residence in
the children’s presence. She shall follow the doctor’s recommendations
regarding dust mite covers for the children’s pillows and mattresses,
weekly washing their bedding in hot water, and weekly changing their
mattress pads.
5. There shall be no discussion of the case with the children.
6. There shall be no contact with the minor children by [Mother’s
husband].
2
On November 24, 2015, the maternal grandmother filed a petition to intervene and for temporary
custody.
3
The record contains no transcript or statement of the evidence of this hearing or any other hearing in this
case.
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7. The oldest child, Mary [E.C.], shall receive individual counseling and
follow the recommendations thereof. The parents shall attend and complete
family counseling and follow the recommendations thereof.
8. This matter shall be reviewed by the Court on April 13, 2016 at 8:00
a.m.
Mother appealed this order to the circuit court for a de novo review. The circuit
court held a de novo hearing on May 3, 2016. On June 6, 2016, the circuit court entered
an order in which it made the following findings:
The Court makes a specific finding of fact that there is not a Final Order
from the Juvenile Court of Franklin County, Tennessee. Appearing to the
Court, that an Appeal from Juvenile Court is only proper regarding a Final
Order. It further
Appearing unto the Court that the Juvenile Court has set a review for the
case and this De Novo Appeal is not ripe at [its] present time. It is
therefore,
ORDERED ADJUDGED and DECREED that the Appeal from the
Juvenile Court of Franklin County, Tennessee is hereby dismissed.
Mother filed a motion to alter or amend the circuit court’s order, which the court denied
on August 2, 2016.
On appeal, Mother argues that the circuit court erred in dismissing her de novo
appeal of the juvenile court order.
ANALYSIS
The basis for the circuit court’s dismissal of Mother’s appeal was its conclusion
that there was no final order from the juvenile court. Dependency and neglect
proceedings, over which juvenile courts have exclusive original jurisdiction, are
conducted in two phases: the adjudicatory hearing and the dispositional hearing. Tenn.
Code Ann. §§ 37-1-103(a)(1), 37-1-129(b); In re Hannah S., 324 S.W.3d 520, 525 (Tenn.
Ct. App. 2010). At the adjudicatory hearing, the court determines if clear and convincing
evidence establishes that the child is dependent and neglected. Tenn. Code Ann. § 37-1-
129(b); TENN. R. JUV. P. 307(a), (e). At the dispositional hearing, the court determines
the custody arrangement “best suited to the protection and physical, mental and moral
welfare of the child.” Tenn. Code Ann. § 37-1-130(a). The dispositional hearing is
“separate and distinct from the adjudicatory hearing to which it relates.” TENN. R. JUV.
P. 308(b). It may, however, “be held immediately following the adjudicatory hearing or
at a later date.” Id. An appeal from a juvenile court’s dependency and neglect
determination, which is a de novo appeal, shall be made to the circuit court within ten
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days following the entry of the juvenile court’s dispositional order. Tenn. Code Ann. §
37-1-159(a).
The juvenile court’s order in this case is entitled “Adjudicatory Hearing Order.”
After finding the children to be dependent and neglected, the court included provisions
for temporary custody (an option listed in Tenn. Code Ann. § 37-1-130(a)(2) for
dispositional orders), parenting time with the maternal grandmother, supervised visitation
with Mother, conditions on the grandmother’s parenting time, and counseling for the
oldest child and both parents. Rule 308(d) of the Rules of Juvenile Procedure states that,
“Where a continuance of the dispositional hearing is ordered, the court may enter a
temporary order that is in the best interest of the child.” Thus, the custody provisions the
juvenile court included in its “adjudicatory” order can be interpreted as temporary or as
dispositional.
The reason the circuit court gave for finding that the juvenile court’s order was not
final is the juvenile court’s setting of the case for review on April 13, 2016. Mother
argues that this review hearing is consistent with the juvenile court’s jurisdiction under
Tenn. Code Ann. § 37-1-103(c), which states, in pertinent part:
Except as provided in subsection (d), when jurisdiction has been acquired
under this part, such jurisdiction shall continue until the case has been
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 regarding the
child in question as set out in § 36-1-116(f). A juvenile court shall retain
jurisdiction to the extent needed to complete any reviews or permanency
hearings for children in foster care as may be mandated by federal or state
law.
(Emphasis added). Mother relies upon the highlighted language to argue that, regardless
of the de novo appeal, the juvenile court retained jurisdiction to hold continuing review
hearings in this case. We disagree. The sentence cited by Mother is limited to “reviews
or permanency hearings for children in foster care as mandated by federal or state law.”
(Emphasis added).
The limitation of these reviews to children in foster care is further clarified in
Tenn. R. Juv. P. 402, which governs periodic progress reviews. Rule 402(a) states: “A
periodic progress review hearing shall occur when the court has not established a foster
care review board or has elected to review certain cases instead of assigning the cases to
the board.” TENN. R. JUV. P. 402(a). Thus, periodic progress review hearings are held in
cases involving children in foster care. Rule 402(b), cited by Mother, states:
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The court shall explain on the record the purpose of the hearing and review
the following:
(1) The continued appropriateness of the permanency goals, and if a
concurrent goal is needed;
(2) Whether the child’s placement is safe and appropriate;
(3) Whether the child’s well-being is being appropriately addressed through
health, education, and independent living skills if applicable;
(4) Whether the visitation schedule continues to be sufficient to maintain
the bond between the child and parent, and the child and siblings, who are
not residing in the same placement;
(5) The reasonableness of the Department of Children’s Services’ efforts to
identify or locate the parent or child whose identity or whereabouts are
unknown;
(6) The reasonableness of the Department’s efforts based on the
prioritization of the outcomes and corresponding action steps in the
statement of responsibilities; and
(7) The compliance of the parents or child with the statement of
responsibilities in the plan.
TENN. R. JUV. P. 402(b). Again, these purposes apply to children in the custody of the
Department of Children’s Services, which is not the situation in the present case.
We reject Mother’s assertion that the juvenile court had continuing jurisdiction to
review this case under the authority of Tenn. Code Ann. § 37-1-103(c) and Tenn. R. Juv.
P. 402(b).4 The juvenile court’s setting of an additional hearing, therefore, suggests that
the matter was not final and that the court intended to make additional rulings concerning
the disposition at the later hearing.5
The circuit court made a de novo determination that the juvenile court’s order was
not a final order, citing the court’s setting of the matter for review. An order that does
not adjudicate all of the claims between all of the parties is “subject to revision at any
time before entry of a final judgment” and is not appealable as of right. See TENN. R.
APP. P. 3(a); see also In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003) (“A
final judgment is one that resolves all the issues in the case, ‘leaving nothing else for the
trial court to do.’”) (quoting State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840
(Tenn. Ct. App. 1997)). We find no error in the circuit court’s conclusion.
4
The juvenile court does, of course, retain jurisdiction under the first sentence of Tenn. Code Ann. § 37-
1-103(c) to hear future petitions connected to its dependency and neglect jurisdiction. See In re D.Y.H.,
226 S.W.3d 327, 331 (Tenn. 2007).
5
We emphasize that, had there been a dispositional hearing in this case, no further review hearing would
have been proper.
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CONCLUSION
The judgment of the trial court is affirmed, and the costs of appeal are assessed
against the appellant, Rachel M.C.
________________________________
ANDY D. BENNETT, JUDGE
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