Opinion
No. E2007-00949-COA-R3-PT.
December 3, 2007 Session.
Filed February 12, 2008.
Appeal from the Juvenile Court for Knox County; No. 46816; Timothy E. Irwin, Judge.
Judgment of the Juvenile Court Vacated; Case Dismissed.
Ben H. Houston II, Knoxville, Tennessee, for the Appellant, D.A.S.
Robert E. Cooper, Jr., Attorney General and Reporter; Amy T. McConnell, Assistant Attorney General, for the Appellee, State of Tennessee, Department of Children's Services.
Sharon G. Lee, J., delivered the opinion of the court, in which Herschel P. Franks, P.J., and Charles D. Susano, Jr., J., joined.
OPINION
The mother appeals the trial court's judgment terminating her parental rights. Upon our determination that the trial court did not have subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, Tenn. Code Ann. § 36-6-201 et seq., the judgment of the trial court is vacated and the termination petition is dismissed.
I. Background
The child at issue in this case, Z.T.S., was born to D.A.S. ("Mother") in California on May 1, 1996. The child's father is unknown and his parental rights were terminated by a prior judgment that has not been appealed. A petition for emergency removal of the child from Mother's custody was filed on March 8, 2004 in the Knox County Juvenile Court. On the same day, the juvenile court entered an order granting temporary custody to the Tennessee Department of Children's Services ("DCS") upon its finding that "the mother will not provide for the child in that she and the child are homeless and she will not provide for his medical needs." At a hearing on May 17, 2004, the juvenile court found Z.T.S. to be dependent and neglected "due to his mother's failure to meet his educational and medical needs, his continued truancy, [and] the mother's lack of suitable housing and general lack of stability for the child." The court's order noted that the child's aunt, who lived in Texas, had contacted DCS and might be interested in petitioning for custody.
On March 11, 2005, the Knox County Juvenile Court entered the following order transferring physical custody of Z.T.S. to the home of his aunt in Texas:
Upon oral motion of [DCS], and it appearing to the Court that the State of Texas, through the Interstate Compact on the Placement of Children, has approved placement of the child, [Z.T.S.] with his aunt . . . , that the child's mother is in agreement with this placement; that a Child Family Team Meeting was held and all participants, including the child's Guardian ad Litem, agreed that this placement is appropriate and that this is the time to implement it; and that the following is in the best interest of this child, IT IS ORDERED:
1. That [DCS] is authorized to place the child, [Z.T.S.], in the home of his aunt, [A.D.], in the State of Texas.
2. That [DCS] shall retain custody of this child and this Court and the State of Tennessee shall retain jurisdiction pending further order.
3. That the State of Texas shall supervise this placement and provide quarterly progress reports to [DCS] and this Court.
On September 20, 2006, some eighteen months after Z.T.S. was placed with his aunt in Texas, DCS filed its petition to terminate Mother's parental rights in Knox County Juvenile Court. The petition asserted, among other things, that "although [Mother] also lives in Texas, she has visited [Z.T.S.] only twice in this calendar year." The case was heard on January 16, 2007; Mother was not present at the hearing but was represented there by her appointed counsel. The trial court entered an order terminating Mother's parental rights on the following grounds: (1) failure of Mother to establish a suitable home and demonstration of a lack of concern for the child to such degree that it is unlikely Mother would be able to provide a suitable home at an early date, despite DCS's reasonable efforts to assist Mother in this regard; (2) persistence of the conditions that led to the child's removal and little likelihood these conditions would be remedied at an early date; and (3) failure of Mother to substantially comply with the reasonable responsibilities placed on Mother by the permanency plan.
II. Issue Presented
Mother appeals, raising several issues, one of which is determinative of this appeal and renders the other issues moot: whether the trial court had subject matter jurisdiction to enter an order terminating her parental rights under Tennessee's applicable statutory scheme when, at the time DCS filed its petition to terminate her parental rights, neither Mother, the child, nor any other parent or person acting as parent was residing in Tennessee.
III. Analysis A. Standard of Review
Mother did not raise the issue of subject matter jurisdiction at the trial level. Generally speaking, the failure to raise an issue at trial ordinarily results in a finding of waiver of the issue upon appeal. However, subject matter jurisdiction, which relates to a court's power or authority to adjudicate a particular controversy, is "an essential requirement for the granting of judicial relief both at trial and on appeal," and not subject to waiver. Tenn. R. Civ. P. 12.08; Tenn. R. App. P. 13(b); State v. Wright , 736 S.W.2d 84, 85 (Tenn. 1987). "Issues concerning subject matter jurisdiction are so important that appellate courts must address them even if they were not raised in the trial court." First American Trust Co. v. Franklin-Murray Dev. Co., 59 S.W.3d 135, 140 (Tenn.Ct.App. 2001). The absence of subject matter jurisdiction is of such fundamental importance that it requires dismissal whenever it is raised and demonstrated. Id. ; Lee v. Lee , No. W2003-01053-COA-R3-CV, 2004 WL 3021107, at *7 (Tenn.Ct.App. M.S., filed Dec. 29, 2004). "Thus, when an appellate court determines that a trial court lacked subject matter jurisdiction, it must vacate the judgment and dismiss the case without reaching the merits of the appeal." First American Trust Co. , 59 S.W.3d at 141.
"The question of whether a court has authority to modify a custody order is a matter of subject matter jurisdiction." Lee , 2004 WL 3021107, at *7 ( citing Gutzke v. Gutzke , 908 S.W.2d 198, 201 (Tenn.Ct.App. 1995)). The issue of whether a court has jurisdiction is one of law, generally subject to de novo review. Button v. Waite , 208 S.W.3d 366, 369 (Tenn. 2006).
B. Subject Matter Jurisdiction Under the Uniform Child Custody Jurisdiction and Enforcement Act
The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), codified at Tenn. Code Ann. § 36-2-201 et seq., governs jurisdiction between Tennessee and other states regarding child custody proceedings. Button , 208 S.W.3d at 369; Staats v. McKinnon , 206 S.W.2d 532 (Tenn.Ct.App. 2006). Mother, while conceding that the Knox County Juvenile Court had jurisdiction to enter its orders granting DCS temporary legal custody and finding Z.T.S. dependent and neglected, argues that Tennessee had lost its "exclusive, continuing jurisdiction" by the time the termination petition was filed and both Mother and child were residing in Texas. We conclude that, pursuant to the UCCJEA, the Tennessee trial court did not have subject matter jurisdiction at the time DCS filed the termination petition.
Under the circumstances presented here, the threshold question we address under the UCCJEA is whether Tennessee retained its "exclusive, continuing jurisdiction," as defined as follows at Tenn. Code Ann. § 36-6-217, at the time the termination petition was filed:
(a) Except as otherwise provided in § 36-6-219, a court of this state which has made a child-custody determination consistent with this part has exclusive, continuing jurisdiction over the determination until:
Tenn. Code Ann. § 36-6-219 pertains to the exercise of temporary emergency jurisdiction.
(1) A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
(2) A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.
(b) A court of this state which has made a child-custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under § 36-6-216.
Tenn. Code Ann. § 36-6-217. The official Advisory Commission comments to this section provide further guidance on the determination of exclusive, continuing jurisdiction as follows:
The continuing jurisdiction of the original decree state is exclusive. It continues until one of two events occurs:
1. If a parent or a person acting as a parent remains in the original decree state, continuing jurisdiction is lost when neither the child, the child and a parent, nor the child and a person acting as a parent continue to have a significant connection with the original decree state and there is no longer substantial evidence concerning the child's care, protection, training and personal relations in that state.
2. Continuing jurisdiction is lost when the child, the child's parents, and any person acting as a parent no longer reside in the original decree state. . . . It is the intention of this act that paragraph (a)(2) of this section means that the named persons no longer continue to actually live within the state. Thus, unless a modification proceeding has been commenced, when the child, the parents, and all persons acting as parents physically leave the state to live elsewhere, the exclusive, continuing jurisdiction ceases.
Exclusive, continuing jurisdiction is not reestablished if, after the child, the parents, and all persons acting as parents leave the state, the non-custodial parent returns. As subsection (b) provides, once a state has lost exclusive, continuing jurisdiction, it can modify its own determination only if it has jurisdiction under the standards of Section 17 [ § 36-6-216].
Tenn. Code Ann. § 36-6-217 cmt (brackets in original); see also Button , 208 S.W.3d at 372-73 (applying Tenn. Code Ann. § 36-6-217 and citing comment in concluding that Hawaii had lost exclusive, continuing jurisdiction); Staats , 206 S.W.2d at 548-49 (applying same section to hold Florida had lost exclusive, continuing jurisdiction); Lee , 2004 WL 3021107, at *4-5 (reaching same conclusion regarding Tennessee court); Thrapp v. Thrapp , No. E2006-00088-COA-R3-CV, 2007 WL 700963, at *7 (Tenn.Ct.App. E.S., filed Mar. 8, 2007) (noting that "[u]nder both Tennessee and Colorado law, a state loses `exclusive, continuing' jurisdiction if `the child, the child's parents, and any person acting as a parent do not presently reside in the other state.'"). Although the trial court stated that it would retain jurisdiction in its order transferring custody of Z.T.S. to Texas, this statement is insufficient to provide subject matter jurisdiction in the absence of statutory authority provided by the UCCJEA.
Turning to the facts of the present case, it is undisputed that the child has resided in Texas in the physical custody of his aunt and uncle since March of 2005. It is not clear exactly when Mother moved to Texas, but DCS's own pleadings support the inference that she resided in Texas for at least several months prior to DCS's petition to terminate filed in September of 2006. It is undisputed that Mother was living in Texas at the time the petition was filed. There is no evidence that Z.T.S.'s father has ever had any connection with the state of Tennessee. Although DCS retained legal custody of Z.T.S., it does not fall under the statutory definition of a "person acting as a parent" because that definition requires a showing, among other things, that the person "[h]as physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) year immediately before the commencement of a child custody proceeding." Tenn. Code Ann. § 36-6-205(13)(A). Thus, at the time of the commencement of the proceeding, "the child, the child's parents, and any person acting as a parent [did] not presently reside in this state," Tenn. Code Ann. § 36-6-217(a)(2), and thus, Tennessee had lost exclusive, continuing jurisdiction.
In such a situation, Tenn. Code Ann. § 36-6-217(b) provides that "[a] court of this state which has made a child-custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under § 36-6-216." Therefore, our next inquiry is whether a Tennessee court has jurisdiction to make an initial custody determination, a question controlled by Tenn. Code Ann. § 36-6-216, providing as follows:
(a) Except as otherwise provided in § 36-6-219, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) A court of another state does not have jurisdiction under subdivision (a)(1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under §§ 36-6-221 or 36-6-222, and:
(A) The child and the child's parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
(3) All courts having jurisdiction under subdivision (a)(1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under §§ 36-6-221 or 36-6-222; or
(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (a)(1), (2), or (3).
(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.
Applying this statute to the facts of the present case, it is apparent that none of the criteria required to bestow "initial custody determination" jurisdiction on Tennessee has been met here. Tennessee was not Z.T.S.'s home state at the time of the filing of the petition to terminate Mother's parental rights. Because the child had lived in Texas approximately eighteen months at that time, it appears that Texas was his home state. At the time of filing of the petition, no parent, nor anyone else of relevance to the issues in this case, resided in or had any significant connection to Tennessee. Finally, there has been no showing that a Texas court has ever declined to exercise jurisdiction in this case.
"Home state" is defined by the UCCJEA in relevant part as "the state in which a child lived with a parent or 2 a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding." Tenn. Code Ann. § 36-6-205(7).
IV. Conclusion
Pursuant to the UCCJEA, the Tennessee trial court did not have subject matter jurisdiction to adjudicate DCS's petition to terminate Mother's parental rights. The judgment of the trial court is therefore vacated and the petition to terminate Mother's parental rights is dismissed. Costs on appeal are assessed to the Appellee, State of Tennessee, Department of Children's Services.