Posted by: koherston | August 7, 2017

New Procedural Requirement Results in Dismissal of Termination of Parental Rights Appeal in Memphis, Tennessee: In re Catherine J.

Facts: Child was removed from the parents’ custody and determined to be dependent and neglected. Five months later, the Department of Children’s Services (DCS) petitioned to terminate Father’s parental rights. After a trial, the trial court entered a judgment terminating Father’s parental rights to Child.

Father filed a notice of appeal. Notably, Father did not personally sign the notice of appeal. Once alerted to the error, Father filed an amended notice of appeal containing his signature.

DCS argued that the Court of Appeals lacked subject-matter jurisdiction because of Father’s failure to sign the initial notice of appeal.

On Appeal: The Court of Appeals dismissed Father’s appeal.

As of July 21, 2016, Tennessee Code Annotated § 36-1-124(d) requires that “[a]ny notice of appeal filed in a termination of parental rights action shall be signed by the appellant.”

Rule 4A of the Tennessee Rules of Appellate Procedure requires that the notice of appeal be filed with the appellate court clerk “within 30 days after the date of entry from the judgment appealed from . . . .”

If the notice of appeal is untimely, the Court of Appeals lacks subject-matter jurisdiction over the appeal.

The Court agreed that Father’s failure to personally sign the notice of appeal within 30 days of the trial court’s judgment required that his appeal be dismissed as untimely:

In the action before us, Father did not sign his initial notice of appeal. The record reflects that the initial notice of appeal incorporated a form that had been completed and signed by Father’s attorney. Accordingly, we conclude that Father’s initial notice of appeal in this matter is deficient because it lacks the appellant’s signature. As such, the initial notice of appeal did not confer jurisdiction on this Court. We note that Father subsequently filed an amended notice of appeal . . . attempting to comply with Tennessee Code Annotated § 36-1-124(d). Father’s amended notice of appeal was filed . . . more than 30 days following entry of the trial court’s final judgment.

*     *     *     *     *

We have determined that the initial notice of appeal failed to invoke this Court’s jurisdiction due to its lack of compliance with Tennessee Code Annotated § 36-1-124(d). The final judgment was filed on February 13, 2017, and the amended notice of appeal was subsequently filed on April 7, 2017, well beyond the 30-day time limit following entry of the final judgment. Because a timely notice of appeal is mandatory and jurisdictional in all civil cases to confer jurisdiction on the appellate court, we therefore determined that an untimely filed amended notice of appeal in compliance with Tennessee Code Annotated § 36-1-124(d) is not sufficient to confer jurisdiction on this Court.

Accordingly, Father’s appeal was dismissed for lack of subject-matter jurisdiction.

K.O.’s Comment: (1) Tennessee family-law attorneys need to be aware of this procedural quirk that is unique to termination of parental rights cases. In another opinion issued shortly before this one, In re Gabrielle W., the Court describes the new statutory requirement as “unforgiving” and it notes that it fails to provide any “safety valve.” The Court says the failure of the appellant in a termination of parental rights case to personally sign the notice of appeal is a “jurisdictional default” requiring the dismissal of the appeal.

(2) If anyone can explain the rationale for requiring that appealing parties only in termination of parental rights cases personally sign the notice of appeal, instead of the lawyer signing it as is permitted in every other scenario, please do so in the comments below.

In re Catherine J. (Tennessee Court of Appeals, Western Section, July 24, 2017).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.


  1. The Supremes need to take this one up. This is crazy. I see no reason for it other than to punish indigent parents.

    • The courts are following what the statute says. The issue is the statute. There must have been some reason for the statute, but I can’t figure out what it was.

  2. My guess is that because there is an automatic right of appeal for TPR cases, court appointed attorneys for parents in TPR cases felt that if they lost contact with their clients after the TPR hearing, they were concerned about the ethical implications of not filing appeals for their clients. Ultimately, this was slowing down permanency for children, so the legislature thought this was a good solution to expedite adoption timelines. At least that’s what I think.

    • Sounds plausible to me. Thanks for explaining.

  3. 23-2-104. Power of attorney to execute papers.

    An attorney or solicitor has power to execute, in the name of the attorney’s or solicitor’s client, all bonds or other papers necessary and proper for the prosecution of the suit at any stage of its progress.

    I wonder why TCA 23-2-104 would not apply in this situation?

    • Good question. Perhaps no one thought of it yet.

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