                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                         Assigned on Briefs January 18, 2012

                                      IN RE: A.W.

           Appeal from the Circuit Court for Knox County, Fourth Circuit
                         No. 120901     Bill Swann, Judge


             No. E2011-01427-COA-R3-JV-FILED-FEBRUARY 9, 2012




This case arises from juvenile proceedings concerning the then minor child A.W. The
Juvenile Court for Knox County (“the Juvenile Court”) found A.W. to be an unruly child.
A.W. filed a Petition to Vacate Orders and to Dismiss (“Petition to Vacate”) regarding the
order finding A.W. to be an unruly child. The Juvenile Court denied the Petition to Vacate.
A.W. appealed to the Circuit Court for Knox County, Fourth Circuit (“the Circuit Court”).
The State of Tennessee (“the State”) moved to dismiss the appeal arguing the appeal was
untimely. The Circuit Court granted the State’s motion to dismiss. A.W. appeals to this
Court, arguing that the Circuit Court should have heard A.W.’s appeal from Juvenile Court.
We hold that the Circuit Court erred in granting the State’s motion to dismiss A.W.’s appeal
of the Juvenile Court’s order denying A.W.’s Petition to Vacate. We reverse the judgment
of the Circuit Court.


  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                  Case Remanded


D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P . F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.

Dean Hill Rivkin and Brenda McGee; Emily Mack, practicum student attorney; and, Karina
Xart, practicum law student; Knoxville, Tennessee, for the appellant, A.W.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and, Alexander S. Rieger, Assistant Attorney General; for the appellee, the State of
Tennessee.
                                         OPINION

                                        Background

              This appeal presents a question of law, and our focus will be centered on the
pertinent procedural background. In February 2010, A.W. was found to be an unruly child
by the Juvenile Court and was placed on probation. In January 2011, A.W. filed the Petition
to Vacate in the Juvenile Court. A.W. argued, inter alia, that there were constitutional,
procedural, and jurisdictional defects in the original proceedings in which A.W. was found
to be an unruly child. On January 26, 2011, the Juvenile Court denied A.W.’s Petition to
Vacate.

               A.W. appealed the Juvenile Court’s denial of the Petition to Vacate to the
Circuit Court on February 3, 2011. The State moved to dismiss A.W.’s appeal, arguing that
the time to appeal a final judgment had expired. On June 10, 2011, the Circuit Court granted
the State’s motion to dismiss A.W.’s appeal. The Circuit Court subsequently dismissed
A.W.’s motion for reconsideration. A.W. appeals to this Court.

                                         Discussion

              Though not stated exactly as such, A.W. raises one issue on appeal: 1) whether
the Circuit Court erred in summarily dismissing A.W.’s appeal of the Juvenile Court’s order
denying A.W.’s Petition to Vacate. The sole issue on appeal being a legal one, our review
is conducted “under a pure de novo standard of review, according no deference to the
conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon
County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

              Initially, we observe that this appeal is somewhat unusual in that both parties
now agree that the Circuit Court’s judgment should be reversed. Despite the parties’ being
in agreement, we believe it is appropriate to explain why we agree with the parties.

              A.W. filed the Petition to Vacate pursuant to Tenn. Code Ann. § 37-1-139 and
Rule 34 of the Tennessee Rules of Juvenile Procedure. Tenn. Code Ann. § 37-1-139 states:

       (a) Except as provided in § 36-1-113(q), an order of the court shall be set aside
       if it appears that:

       (1) It was obtained by fraud or mistake sufficient to satisfy the legal
       requirements in any other civil action;



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      (2) The court lacked jurisdiction over a necessary party or of the subject
      matter; or

      (3) Newly discovered evidence so requires.

      (b) Except for an order terminating parental rights or an order of dismissal, an
      order of the court may also be changed, modified or vacated upon a finding of
      changed circumstances and that the change, modification or vacation is in the
      best interest of the child. An order granting probation to a child found to be
      delinquent or unruly may be revoked on the ground that the conditions of
      probation have not been observed.

      (c) Pursuant to Tenn. R. Juv. P. 22, in no event shall modification of an agreed
      order result in a child being placed into the custody of the department of
      children's services without the appropriate petition having been filed with the
      clerk of the court alleging the child to be dependent, neglected, abused, unruly,
      or delinquent. This subsection (c) shall not be construed as eliminating the
      judicial findings required for children in state custody by §§ 37-1-166 and
      37-2-409 or as otherwise required by case law and federal regulations.

      (d) Any party to the proceeding, the probation officer or other person having
      supervision or legal custody of or an interest in the child may petition the court
      for the relief provided in this section. The petition shall set forth in concise
      language the grounds upon which the relief is requested.

      (e) After the petition is filed, the court shall fix a time for hearing and cause
      notice to be served as a summons is served under § 37-1-123 on the parties to
      the proceeding or affected by the relief sought. After the hearing, which may
      be informal, the court shall deny or grant relief as the evidence warrants.

Tenn. Code Ann. § 37-1-139 (2010).

             Rule 34 of the Tennessee Rules of Juvenile Procedure states, in part:

      (b) Extraordinary Relief. An order of the court shall be vacated if it appears
      that it was obtained by fraud or mistake sufficient therefor in a civil action, or
      the court lacked jurisdiction over a necessary party or of the subject matter, or
      newly discovered evidence so requires.

      (c) Modification for Best Interest of Child. An order of the court may also be

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modified or vacated on the ground that changed circumstances so require in
the best interest of the child, except an order committing a delinquent child to
the Department of Correction, or an institution for delinquent children, an
order terminating parental rights or an order of dismissal. An order granting
probation to a child found to be delinquent or unruly may be revoked,
according to the provisions of Rule 35, on the ground that the conditions of
probation have not been observed. Placements after a child has been
committed to the Department of Correction shall be reviewed as provided in
Tenn. Code Ann. § 37-1-137, and, in the case of termination of home
placement, Rule 35.

(d) Petitions to Modify or Vacate Orders. Any party to the proceeding, the
probation officer, or any other person having supervision or legal custody of
or an interest in the child may petition the court for the relief provided in
subsections (b) and (c) of this rule. The petition shall be styled “Petition to
Vacate Order” or “Petition to Modify Order,” as the case may be, shall set
forth in concise language the grounds upon which the relief is requested, and
shall include:

(1) The name of the court to which the application is addressed;

(2) The title and action number of the original proceeding;

(3) The name, age, and address, if any, of the child upon whose behalf the
application is brought;

(4) The name and residence address, if known, of the parent, guardian or legal
custodian or, if not known or if there is no parent, guardian or legal custodian
residing within the state, the name and residence address, if known, of any
adult relative residing within the county, or if there is none, the name and
residence address of the adult relative residing nearest the court;

(5) The date and general nature of the order sought to be modified or vacated;

(6) A concise statement as to the grounds alleged to require the modification
or vacation of the order, including any change of circumstance or new
evidence;

(7) A concise statement as to relief requested; and



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        (8) A statement as to the petitioner's relationship or interest in the child, if the
        petition is brought by a person other than the child. A petition to modify or
        vacate an order under this section shall be liberally construed in favor of its
        sufficiency.

Tenn. R. Juv. P. 34 (b) - (d).1

                As pointed out by A.W., our Supreme Court addressed a somewhat analogous
matter in In re D. Y. H., 226 S.W.3d 327 (Tenn. 2007). In In Re D. Y. H., the juvenile court
made a custody determination regarding the child. Id. at 328. Approximately three years
later, the child’s mother filed a petition in the juvenile court requesting a change of custody,
which the court denied. Id. The mother appealed to circuit court, which dismissed her
appeal on the basis that her petition for change of custody was unrelated to the original
dependency and neglect proceeding. Id. at 328-29. On appeal, the Tennessee Court of
Appeals affirmed the circuit court. Id. at 329. The Supreme Court reversed, stating, inter
alia:

                 We hold that in these circumstances without an interrupting event under
        section 37–1–103(c), a subsequent decision by the juvenile court on whether
        to modify an initial custody order will also arise from and be a part of the
        dependency and neglect proceeding. This is true even if a petition for a change
        of custody does not reference the dependency and neglect hearing and even if
        it is filed years after the final order is entered. Accordingly, any appeal from
        such a custody decision is to be made to circuit court.

226 S.W.3d at 331.

               The juvenile court has exclusive original jurisdiction over “[p]roceedings in
which a child is alleged to be delinquent, unruly or dependent and neglected, or to have
committed a juvenile traffic offense . . . .” Tenn. Code Ann. § 37-1-103(a)(1) (2010).
“[A]ny 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.” Tenn. Code Ann. § 37-1-159(a)
(2010).

             A.W. argues that the Circuit Court should have heard the appeal of the Juvenile
Court’s denial of A.W.’s Petition to Vacate. We agree. The State, though not invoking


       1
         Rule 34 has been amended since the relevant actions in this case. The amendments are not as yet
effective and, in any case, they would not be applicable in this appeal.

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precisely the same law or arguments, also now agrees that the Circuit Court’s judgment
should be reversed. When the Juvenile Court denied A.W.’s Petition to Vacate, the Juvenile
Court’s order constituted an appealable order under Tenn. Code Ann. § 37-1-159. A.W.
timely appealed to the Circuit Court the decision of the Juvenile Court to deny the Petition
to Vacate. The Circuit Court had jurisdiction to hear the appeal.

              In accordance with the controlling law, A.W.’s appeal of the Juvenile Court’s
order denying A.W.’s Petition to Vacate should have been heard by the Circuit Court.
Accordingly, we reverse the judgment of the Circuit Court, and remand this cause to be heard
before the Circuit Court on its merits.

                                       Conclusion

              The judgment of the Circuit Court is reversed, and this cause is remanded to
the Circuit Court for further proceedings consistent with this Opinion. The costs on appeal
are assessed against the Appellee, the State of Tennessee.

                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




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