Tennessee Supreme Court Says Parent’s Signature Not Required on Notice of Appeal in Termination of Parental Rights Cases: In re Bentley D.

Facts: The Tennessee legislature amended Tennessee Code Annotated § 36-1-124(d) to require that “[a]ny notice of appeal filed in a termination of parental rights action shall be signed by the appellant.”

sign hereStarting with In re Gabrielle W. on July 11, 2017 and in many cases thereafter, the Court of Appeals dismissed termination of parental rights appeals for lack of jurisdiction because the notice of appeal was signed by the appellant’s lawyer rather than the appellant.

In this case, Father appealed the termination of his parental rights. His notice of appeal was signed by his lawyer. Relying on In re Gabrielle W., the Court of Appeals ordered Father to show cause why his appeal should not be dismissed for lack of jurisdiction.

Father responded with a constitutional challenge to Tennessee Code Annotated § 36-1-124(d).

The Tennessee Supreme Court then assumed jurisdiction over Father’s undecided appeal from the Court of Appeals so it could settle this issue.

On Appeal: The Supreme Court unanimously ruled there is no jurisdictional defect when the appellant’s lawyer signs the notice of appeal in a termination of parental rights case.

An appeal of right to the Court of Appeals is taken by timely filing a notice of appeal. In all civil cases, the 30-day time period for filing a notice of appeal is mandatory and jurisdictional.

The purpose of a notice of appeal is simply to declare in a formal way an intention to appeal. As long as this purpose is met, it is irrelevant that the notice is deficient in some other respect. Notably, the Rules of Appellate Procedure contain no signature requirement for the content of a notice of appeal.

The general signature requirement for civil proceedings requires a signature by at least one attorney of record or by a pro se party on every pleading, written motion, and other paper.

The Supreme Court began by concluding that Tennessee Code Annotated § 36-1-124(d) is ambiguous because the word “appellant” can be construed to mean the actual litigant or the legal agent-in-fact, acting on behalf of the litigant and, therefore, is susceptible of more than one meaning.

Then the Court determined the statute does not require that the appellant personally sign the notice of appeal:

Tennessee Code Annotated § 36-1-117(o) was enacted in the same legislation. When statutes are enacted together, the doctrine of in pari materia requires us to interpret them together. The construction of one such statute, if doubtful, mediated by considering the words and legislative intent indicated by the language of the other statute. Section 36-1-117(o) provides as follows: “The response or answer to a petition for termination of parental rights shall be signed by the respondent personally, sworn to and verified, and filed with the clerk of the court.” Thus, we note that although § 36-1-117(o) requires that the filing be signed by the litigant “personally,” Tennessee Code Annotated § 36-1-124(d) omits this modifier. We must presume that the General Assembly acted purposely in excluding the word “personally” from the signature requirement of § 36-1-124(d). . . . Significantly, in these two provisions adopted at the same time, the General Assembly distinguish between a filing that is signed and the one that is signed “personally.”

* * * * *

[Tennessee Code Annotated § 23-2-104] statutorily empowers an attorney to execute in a client’s name papers at any stage of a suit. . . . We assume that the General Assembly, when enacting a new statute, knows the state of the law and the existence of other statutes relating to the same subject matter.

* * * * *

[T]ennessee Code Annotated § 36-1-124(d) does not distinguish between the appellant and his or her attorney. If the General Assembly had intended to make such a distinction, then it could have done so by requiring both the appellant and the appellant’s attorney to sign the notice of appeal.

Because § 36-1-124(d) does not require the appellant to sign “personally” the notice of appeal and is not distinguish the appellant from his or her attorney, we conclude that the word “appellant” includes an attorney specifically authorized to file a notice of appeal on the appellant’s behalf. Emphasize that no appeal should be taken in a termination of parental rights proceeding without specific authorization from the client.

Thus, a notice of appeal signed by Father’s attorney satisfies the signature requirement and does not subject the termination of parental rights appeal to dismissal.

K.O.’s Comment: (1) The Supreme Court ordered the parties to brief whether Tennessee Code Annotated § 36-1-124(d) violated constitutional provisions regarding separation of powers, due process, and/or equal protection. The Court did not address the constitutional questions, although they suggested the statute is unconstitutional:

Given that we have resolved this appeal based upon the relevant statutory language, we need not address the very problematic constitutional issues implicated if the statute did require the signature of the party himself in addition to his attorney on the notice of appeal.

(2) The opinion lists nine other parental-termination cases that were dismissed because the appellant failed to personally sign the notice of appeal. Six of those have appeals pending before the Supreme Court, so the dismissals of those appeals on jurisdictional grounds will be reversed. Three of those never sought permission to appeal to the Supreme Court. On August 23, I wrote:

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.

(3) Congratulations to Scott Shults, Esq., a young lawyer admitted to the bar in 2016, on his impressive victory in the Supreme Court. Well done!

In re Bentley D. (Tennessee Supreme Court, November 22, 2017).

Posted by

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.

Leave a Comment