Tennessee Supreme Court Ain’t Got Time for All the Dismissed Termination-of-Parental-Rights Appeals: In re Bentley D.

Well, that didn’t take long.

A few weeks ago I wrote about the sudden avalanche of appellate decisions dismissing parental-rights-termination cases because the appellant’s lawyer signed the notice of appeal on behalf of the appellant.

Recently amended 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.”

Everything started on July 11 with In re Gabrielle W. In that case, the Eastern Section of the Court of Appeals held, as a matter of first impression, that an appellant’s failure to sign the notice of appeal in a termination-of-parental-rights case violates the statute and is a “jurisdictional default” requiring dismissal of the appeal.

Other parental-rights-termination appeals across the state quickly met the same fate. One month after the first dismissal, the first dissenting opinion arrived. Then another. Then another.

In my post on August 23, I wrote, “Supreme Court, here we come!”

Wasting no time, the Tennessee Supreme Court took an extraordinary action the very next day.

Here’s what happened.

In November 2016, the trial court in East Tennessee terminated Father’s parental rights. Father timely filed a notice of appeal signed by his attorney, but not by Father himself.

On July 13 — just two days after it issued its opinion in In re Gabrielle W. — the Eastern Section of the Court of Appeals ordered Father to show cause why his appeal should not be dismissed for lack of jurisdiction.

Father’s response included a constitutional challenge to Tennessee Code Annotated § 36-1-124(d). The Tennessee Attorney General’s office stated it would defend the constitutionality of the statute.

Before the Court of Appeals could say, “Hmmm, that’s interesting,” the Tennessee Supreme Court snatched the case right out from under them! The Supreme Court cited Tennessee Code Annotated § 16-3-201(d)(3), which allows the Court to assume jurisdiction over an undecided appeal pending in an intermediate court when there is a “compelling public interest.”

In other words, an undecided appeal pending before the Court of Appeals just skipped the Court of Appeals via a one-way ticket to the Supreme Court.

The Supreme Court ordered the parties to brief the following issues:

  • whether failure to comply with Tennessee Code Annotated § 36-1-124(d) is a jurisdictional defect, and
  • whether Tennessee Code Annotated § 36-1-124(d) it is unconstitutional based on separation of powers, due process, and/or equal protection grounds.

Emphasizing that time is of the essence, the Supreme Court ordered Father to file his brief within 15 days, the Attorney General’s office to respond 15 days thereafter, and scheduled oral argument for October 11 in Nashville.

K.O.’s Comment: (1) I applaud the Supreme Court’s action because, among other reasons, I’m tired of reading all the dismissals.

(2) What’s up with only giving Father’s lawyer 15 days to brief these broad issues of constitutional law?!? I hope Father’s counsel didn’t have any plans for the next few weeks and doesn’t need any sleep.

In re Bentley D. (Order of the Tennessee Supreme Court, August 24, 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 “Tennessee Supreme Court Ain’t Got Time for All the Dismissed Termination-of-Parental-Rights Appeals: In re Bentley D.

  1. Are there any other types of appeals that require an actual party’s signature? It seems that this is pretty limited to TPRs.

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