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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
September 15, 2005 Session IN THE MATTER OF: T.M.C.
Appeal from the Juvenile Court for Williamson County No. 41561, 16496 Lonnie Hoover, Judge

No. M2004-02653-COA-R3-JV - Filed December 28, 2005

Mother appeals custody order of the Juvenile Court of Williamson County relative to her oldest child who had been previously determined by that Court to be a dependent and neglected child. The appeal is dismissed for lack of subject matter of jurisdiction and the case remanded to the Williamson County Juvenile Court. Tenn. R. App. P. 3 Appeal as of Right; Appeal is Dismissed and Case Remanded to Juvenile Court of Williamson County WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL and FRANK G. CLEMENT , JR., JJ., joined. D. Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the appellant, Michelle Terry. Paul G. Summers, Attorney General and Reporter; and Douglas Earl Dimond, Assistant Attorney General, for the State of Tennessee. Deana C. Hood, Franklin, Tennessee, for the appellee, Sonja and Michael Creighton. Robert Harry Plummer, Jr., Franklin, Tennessee, Guardian ad litem. OPINION While the proceedings in the trial court involved five children born to Michelle Terry with the four youngest of the children being the children of John and Michelle Terry, the case on appeal involves only T.M.C., she being the child of Michelle Terry, born of a previous relationship. The dispositive question is whether or not this court has subject matter jurisdiction of the appeal. T.M.C. was born February 23, 1994 to Michelle Creighton. John Terry and Michelle Creighton married in 1994 and two children, a son J.T. and a daughter, M.M.T. were born to this marriage. The parties were divorced on March 12, 1999, but continued an intimate relationship

thereafter during which a third child, J.A.T., was born. Then on July 11, 2002, the parties remarried and a fourth child, H.M.T. was born in February 2003. So it is that during the period starting with their first marriage in 1994 and continuing to the present time a family unit developed consisting of John and Michelle Terry along with T.M.C., J.T., M.T., J.A.T. and H.M.T. From near the beginning the relationship between John Terry and Michelle Terry was a troubled one with one divorce, one remarriage and various separations requiring court proceedings in both the chancery court of Williamson County and in the juvenile court of Williamson County. On November 4, 1999 while the family unit consisted of John and Michelle Terry together with T.M.C., J.T. and M.T., the Tennessee Department of Children's Services (TDCS) filed a dependent and neglect petition asking for the removal of the children. In the final hearing on this petition held on April 5, 2000, the children were found to be dependent and neglected when they were in the custody of their mother, and it was determined that their best interest required placement of custody with John Terry. This order was entered April 14, 2000, and no appeal was taken therefrom. The parties had been divorced on March 12, 1999, but continued their off-again, on-again relationship during which J.A.T. was born. John and Michelle Terry remarried, after which H.M.T. was born.

On May 13, 2003 the Department of Children's Services filed a petition to adjudicate the children dependent and neglected. On July 15, 2004, during the pendency of this petition the maternal grandparents, Sonja and Michael Creighton, filed an intervening petition seeking custody of T.M.C. All matters pending were set for trial on September 14, 2004, but at the beginning of the hearing the State of Tennessee Department of Children's Services dismissed its petition for dependency and neglect. The juvenile court of Williamson County entered its final order on October 27, 2004 holding in pertinent part:1 It is hereby ordered adjudged and decreed the petition for dependency and neglect filed by the State of Tennessee, Department of Children's Services on May 13, 2003 shall be dismissed. ... It is further ordered adjudged and decreed that by virtue of this court's order of April 14, 2000 John Terry has legal custody of [T.M.C.]. The court accepts John Terry's desire to place legal and physical custody of [T.C.] with intervening petitioners Michael and Sonja Creighton.

Since this appeal deals only with T.M.C. and his custody a synopsis of the proceedings below is substantially limited to matters that concern T.M.C. and are relevant to the determination by this court of subject matter jurisdiction of the appeal which involves only T.M.C.

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It is further ordered adjudged and decreed that legal and physical custody of [T.C.] shall be awarded to Michael and Sonja Creighton. Michelle Terry filed an appeal to this court from the final order of the Juvenile Court of October 27, 2004. The Department of Children's Services filed a brief in this court questioning the jurisdiction of this court which the court determines to be dispositive of this appeal. The Juvenile Court has exclusive original jurisdiction of all proceedings in which a child is alleged to be dependent and neglected and such jurisdiction continues until such person reaches the age of eighteen years. T.C.A. 37-1-103. T.C.A. 37-1-159(a) provides in pertinent part ". . . any appeal from any final order or judgment in an unruly child proceeding or dependent and neglect proceeding, filed under this chapter, may be made to the circuit court that shall hear the testimony of witnesses and try the case de novo." The juvenile court of Williamson County determined in its order of April 14, 2000 that T.M.C. was a dependent and neglected child and that order was not appealed to the circuit court. The unanswered question presented by this appeal is whether or not custody proceedings occurring subsequent to the dependent and neglect finding pursuant to the continuing jurisdiction of the juvenile court over the dependent and neglected child are governed by T.C.A. 37-1-159(a) and thus appealable to the circuit court rather than to the court of appeals. We answer in the affirmative. In construing the comprehensive juvenile court act as embodied in chapter 177 of the Public Acts of 1955 (previously codified as T.C.A. section 37, ch. 2), which contained continuing jurisdiction provisions upon the adjudication of dependency and neglect and also provisions providing for appeal and de novo hearing in the circuit court from such adjudications, this court held: Of course, any future order made by the Juvenile Court of Shelby County concerning the care, custody and support of these children or either of them will be subject to review by appeal to the Circuit Court of Shelby County as provided by T.C.A. section 37-273. Lokey v. Griffin, 322 S.W.2d 239, 250 (Tenn. Ct. App. 1958) (cert. denied Oct. 3, 1958). The rule in Lokey was reinforced by the Supreme Court in In re Houston, 428 S.W.2d 303 (Tenn. 1968). At the time of the decision in Lokey T.C.A 37-273 provided: The Juvenile Court shall be a court of record. When a Juvenile Court shall make any disposition of a child, either party dissatisfied with the judgment or order may appeal to the Circuit Court which shall hear the testimony of witnesses and try the case de novo. Said appeal shall be perfected within five (5) days thereafter,

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excluding Sundays. In its order the Circuit Court shall remand the case to the Juvenile Court for enforcement of the judgment entered by the Circuit Court. Section 37-273 had been amended by chapter 315 of the Public Acts of 1957 in order to make clear that the trial in circuit court on appeal from juvenile court was a trial de novo and further that the circuit court should after adjudicating the appeal remand the case to the juvenile court for enforcement of the circuit court judgment. Chapter 42 of the Public Acts of 1959 inserted a second paragraph effective February 23, 1959, which provided: When an appeal is perfected the juvenile court shall cause the child and the record in the case, including a written finding of fact upon which the judgment of the juvenile court was based to be taken forthwith before the circuit judge whose duty it shall be, either in term time or in vacation time to set the case for an early hearing. Pending the hearing the circuit court shall have authority to make the same temporary disposition of the child as is vested in juvenile courts, provided, however, that until the circuit court shall have entered an order for temporary disposition of the child, the order of the juvenile court shall be and remain in effect. [Acts 1955, ch. 177,

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