More Termination of Parental Rights Cases Dismissed on New Procedural Quirk, but Now There Are Dissents: In re Jayden R.

As I wrote about a few weeks ago, the legislature enacted a statute last year that requires parents appealing the termination of their parental rights to personally sign the notice of appeal, instead of the customary practice of the attorney signing the notice of appeal.

Because of this new procedural requirement, appeals in termination of parental rights cases are being dismissed left and right because the attorney signed the notice instead of the parent.

It started on July 11 with In re Gabrielle W., where the Court held that the failure of the parent to personally assign the notice of appeal deprived of the appellate courts of jurisdiction, thereby requiring that the appeal be dismissed.

Since that time many other appeals were summarily dismissed for the same reason. See, e.g., In re Catherine J., In re Mya V., In re Kendall H., In re Audrina E., In re David P., In re Dae’Jrien T.In re Nevaeh B., In re Homer D., and In re Jayden R. The list seems to grow daily.

In In re Jayden R., the Court dismisses the parent’s appeal for the same reasons as the cases listed above. In that respect, it’s no different from all the other cases. What makes In re Jayden R. noteworthy is that there is — for the first time — a dissenting opinion. Judge Bennett writes:

Tennessee Rule of Appellate Procedure 3(f) specifies the content of the notice of appeal [but also requires that] “a notice of appeal and a termination of parental rights proceedings shall indicate that the appeal involves a termination of parental rights case.”

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[Tennessee Rule of Appellate Procedure 3] does not require the appellant’s signature on the notice of appeal in a parental rights termination case.

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The language of Tennessee Code Annotated § 36-1-124(d) is simple and direct: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” [The statute] does not say the signature is a jurisdictional requirement . . . . Our statute does not say that absent the signature on the notice of appeal it must be dismissed . . . .

Reading the words in their natural and ordinary sense and without reading in any words not used, it appears that the legislature left the effect of Tennessee Code Annotated § 36-1-124(d), if any, up to the courts.

Judge Bennett then notes that if the new signature requirement is interpreted to require dismissal or deny jurisdiction, as the Court did in this case and the ones that preceded it, then constitutional requirements like the right to appointed counsel or to due process might be implicated depending on the circumstances.

After acknowledging that a statute enacted by the legislature can have the effect of amending rules promulgated by the Tennessee Supreme Court, Judge Bennett continues:

The existence of Tennessee Code Annotated § 36-1-124(d) does create some practical difficulties. Having rules of appellate procedure in statutes as well as in appellate rules makes it more difficult for appellate practitioners to locate all the rules they are expected to follow. A principal purpose of the Rules of Appellate Procedure is to bring together in one place a simplified, coherent, and modern body of law. The statute also destroys the uniform nature of notices of appeal, which could create confusion. Furthermore, Tennessee Rule of Appellate Procedure 8A, which specifically addresses appeals of termination of parental rights cases, makes no mention of Tennessee Code Annotated § 36-1-124(d) in the text or comments. In addition, Form 1 in Appendix A to the Tennessee Rules of Appellate Procedure, a sample notice of appeal, does not reflect the existence of Tennessee Code Annotated § 36-1-124(d) and neither does the sample notice of appeal form on the website of the Administrative Office of the Courts. Thus, it appears that our rules and forms may be misleading as to notices of appeal in parental rights termination cases.

Based upon the language of Tennessee Code Annotated § 36-1-124(d) and the absence of change or comment in Tennessee’s court rules, I conclude that the statute is not jurisdictional. Therefore, I respectfully dissent. Noncompliance with Tennessee Code Annotated § 36-1-124(d) should not lead to an automatic dismissal for lack of jurisdiction. Rather, the appellate courts should look at the entire circumstances regarding the failure to sign to determine the appropriate court action, if any.

Now that we have our first dissenting opinion, I am convinced the Tennessee Supreme Court will weigh in on this issue. I don’t know if it’ll happen with this particular case, however, because the Court also analyzed the substantive issues and ended up affirming the termination of parental rights.

UPDATE: After I wrote this post and scheduled it for publication, the opinion in In re Nevaeh B. was released. Just yesterday, the opinion in In re Homer D. was released. Same issues, same analysis, same results. However, Judge Clement wrote dissenting opinions in both Nevaeh B. and Homer D. that are consistent with the dissent written by Judge Bennett. So now we have three dissenting opinions on this interesting issue! Supreme Court, here we come!

K.O.’s Comment: (1) When I first wrote about this subject, Memphis attorney Linley Richter Jr., Esq., commented to ask why Tennessee Code Annotated § 23-2-104 wouldn’t control this issue. That statute provides that an attorney has the power to execute, on behalf of the attorney’s client, all “papers necessary and proper for the prosecution of the suit at any stage of its progress.” He raises a good question. An appealing party should consider that argument along with those discussed in the dissents. Maybe the next dissenting opinion will throw that into the mix.

(2) I also asked someone to explain the rationale for requiring that appealing parties only in parental rights termination cases be required to personally sign the notice of appeal. Nashville attorney Matt Muenzen, Esq., suggested the following:

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.

That sounds like a plausible explanation to me. If anyone knows more about the reason for the statutory change, please share your knowledge by commenting below.

(3) If you represent one of the parties who had their case summarily dismissed on this basis, you need to request permission to appeal to the Supreme Court. The Supreme Court must address this issue, and you don’t want your client to be without a remedy if the Supreme Court agrees with the dissenters.

(4) This is my 1,000th post!!!

In re Jayden R. Dissenting Opinion (Tennessee Court of Appeals, Middle Section, August 11, 2017).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

One thought on “More Termination of Parental Rights Cases Dismissed on New Procedural Quirk, but Now There Are Dissents: In re Jayden R.

  1. Matt’s right. There was an atmosphere of fear in some bars (particularly Davidson Co) that if the attorney did not file an appeal, there would be an ethical complaint. This was even the case when the client has either vanished, as these clients often do, or did not express a specific desire to appeal (the old, “but I thought you were….”)

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