                 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.




         1
           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.

                                                          -2-
               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,



                                                 -3-
         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, § 32;
         1957, ch. 315. § 1; 1959, ch. 42, § 1.]

       Chapter 600 of the Public Acts of 1970 was a comprehensive act concerning juvenile court
proceedings which simultaneously with its enactments repealed Title 37 chapter 2 of Tenn. Code
Ann. Section 58 of Chapter 600 of the Public Acts of 1970 codified as T.C.A. 37-1-159(a) carried
forward in the code the provision that appeals from dependent and neglect proceedings would be
made directly to the circuit court for trial de novo.

        So it is that the continuing jurisdiction of the juvenile court over a dependent and neglected
child as provided in former T.C.A. section 37-263 continues with even more emphasis in T.C.A. 37-
1-103.2 Also, the provision previously contained in T.C.A. 37-273 and construed in the Lokey
decision survives in T.C.A. 37-1-159(a).

       The reasoning in Lokey v. Griffin appears to have survived statutory changes made
subsequent to 1958 including the simultaneous repeal and essential reenactment occasioned by
chapter 600 of the Public Acts of 1970.

                 Where a statute is repealed by a new statute which relates to the same subject
         matter, and which reenacts substantially the provisions of the earlier statute, and the
         repeal and reenactment occur simultaneously, the provisions of the original statute
         which are reenacted in the new statute are not interrupted in their operation by the so-


         2
          By former T.C.A. section 37-263, continued retention of jurisdiction after an adjudication of dependency and
neglect could be waived at the discretion of the juvenile judge.

                                                         -4-
       called repeal; they are regarded as having been continuously in force from the date
       they were originally enacted. Thus, the simultaneous repeal and reenactment of
       substantially the same statutory provision is to be construed, not as an true repeal, but
       as an affirmation and continuation of the original provision.

73 Am. Jur. 2d Statutes § 278.

       The Supreme Court of the United States reasoned:

               Upon comparing the two acts of 1888 and 1890 together, it is seen that they
       both legislate upon the same subject, and in many cases the provisions of the two
       statutes are similar, and almost identical. Although there is a formal repeal of the old
       by the new statute, still there never has been a moment of time since the passage of
       the act of 1888 when these similar provisions have not been in force.
       Notwithstanding, therefore, this formal repeal, it is, as we think, entirely correct to
       say that the new act should be construed as a continuation of the old with the
       modification contained in the new act. This is the same principle that is recognized
       and asserted in Steamship Co. v. Joliffe, 2 Wall. 459. In that case there was a repeal
       in terms of the former statute, and yet it was held that it was not the intention of the
       legislature to thereby impair the right to fees which had arisen under the act which
       was repealed. As the provisions of the new act took effect simultaneously with the
       repeal of the old one, the court held that the new one might more properly be said to
       be substituted in the place of the old one, and to continue in force, with
       modifications, the provisions of the old act, instead of abrogating or annulling them,
       and re-enacting the same as a new and original act.

Bear Lake and River Waterworks and Irrigation Co. v. Garland, 164 U.S. 1, 11-12, 17 Sup. Ct. 9,
41 L. Ed. 327 (1896).

This holding in Bear Lake was picked up again in Bingaman et al. v. Golden Eagle Western Lines,
Inc., a case concerning the imposition of an excise tax pursuant to state statute.

       The new Mexico decisions dealt with an earlier act, the terms of which, however,
       without material change, were carried forward into the act of 1933, with the result
       that the new act became a continuation of the earlier one. Bear Lake & River
       Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 11-14, 17 S.Ct.7, 41 L. Ed.
       327. Compare Posadas v. National City Bank of New York, 296 U.S. 497, 56 Sup.
       Ct. 349, 80 L. Ed. 351 (Jan. 6, 1936).

Bingaman et al. v. Golden Eagle Western Lines, Inc., 297 U.S. 626, 628, 80 L. Ed. 928 (1936).

The clear implication of the Bingaman decision is that cases applying those provisions in the
reenacted statute retain their authority. The same reasoning of Bear Lake was used, albeit in


                                                 -5-
footnote, by the Supreme Court in County of Oneida, New York et al. v. Oneida Indian Nation of
New York State, 470 U.S. 226, 84 L. Ed. 2d 169 (1985) (reh’g denied, 471 U.S. 1062, 105 S. Ct.
2173.) In determining the continued force of the restraint on the alienation of Indian lands pursuant
to the Nonintercourse Act originally passed in 1790, the Supreme Court made the following
statement:

        The reasoning of Bear Lake and River Water Works and Irrigation Co. v. Garland,
        164 U. S. 1, 11-12, 17 S. Ct. 7, 9, 41 L. Ed. 327 (1896), is directly on point:

               Although there is a formal repeal of the old by the new statute, still
               there never has been a moment of time since the passage of the [old]
               act . . . when these similar provisions have not been in force.
               Notwithstanding, therefore, this formal repeal, it is . . . entirely correct
               to say that the new act should be construed as a continuation of the
               old . . . .
        Accord, Steamship Co. v. Joliffe, 2 Wall. 450, 458, 17 L. Ed. 805 (1865); Great
        Northern R. Co. v. United States, 155 Fed. 945, 948 (CA8 1907), aff’d, 208 U.S. 452,
        28 S. Ct. 313, 52 L. Ed. 567 (1908).

County of Oneida, New York et al. v. Oneida Indian Nation of New York State et al., 470 U.S. 226,
246 n. 18, 105 Sup. Ct. 1245, 1257, 84 L. Ed. 2d 169.

        While the comprehensive act embodied in Chapter 600 of the Public Acts of 1970 and
subsequent legislative enactments have made many changes in juvenile courts and proceedings all
such acts are consistent with a reassertion of the original jurisdiction of the juvenile court of matters
involving dependent and neglected children (T.C.A. 37-1-103) and as to such proceedings
jurisdiction on appeal is to the circuit court (T.C.A. 37-1-159)(a).

        It is the exclusive province of the legislature subject only to the inhibitions provided in the
constitution to determine how many and what kind of courts are required for the administration of
justice and to determine the character and limits of the jurisdictions of such courts. Moore v. State
37 Tenn. 510 (Tenn. 1858). In the exercise of its power to establish courts under Article 6, section
1 of the Constitution of Tennessee, the legislature may create courts of general, special or limited
jurisdiction and may determine the limits of such jurisdiction. State v. Murrell, 90 S.W.2d 945, 946
(Tenn. 1936).

       When it comes to the disposition of a dependent and neglected child the juvenile court must
exercise its original jurisdiction and cannot transfer that jurisdiction to another court. This court has
held:
       We think, however, that the dictum in Kidd v. State, cannot be taken as authority for
       the proposition that a juvenile court can confer jurisdiction on another court simply
       by entering an order of transfer. It is clear that the parties cannot confer subject
       matter jurisdiction on the court by consent. See Curtis v. Garrison, 211 Tenn. 339,


                                                  -6-
       346, 364 S.W.2d 933, 936 (1963); James v. Kennedy, 174 Tenn. 591, 595, 129
       S.W.2d 215, 216 (1939). We think it is equally clear that a court cannot confer
       subject matter jurisdiction on another court. Tenn. Const. art. 6, § 1 grants the
       legislature the power to determine how many and what kinds of courts are required
       for the administration of justice and the power to fix the limits of each court’s
       jurisdiction. See State ex rel. Ward v. Murrell, 169 Tenn. 688, 692, 90 S.W.2d 945,
       946 (1936). Courts possess “only such jurisdictional powers as are directly, or
       indirectly, expressly or by implication, conferred upon [them] by the constitution or
       legislation of the sovereignty on behalf of which [they] function.” 20 Am. Jur.2d
       Courts § 91 (2d ed. 1965); see also Coonradt v. Sailors, 186 Tenn. 294, 305, 209
       S.W.2d 859, 863 (1948); McHenry’s Lessee v. Wallen, 10 Tenn. 441, 444 (1830).

Simpkins v. Greer, No. 01-A-01-9202-CH-0060, 1993 WL 18311 *3 (Tenn. Ct. App. Jan. 29, 1993).
See also Hicks v. Hicks, No. 01-A-01-9309-CH-00417,1994 WL 108896 (Tenn. Ct. App. March 30,
1994).

        In State v. George, 968 S.W.2d 896 (Tenn. Crim. App. 1997) a petition alleging dependency
and neglect had been filed in the juvenile court and a child had been determined by that court to be
dependent and neglected. The aggrieved father then sought by petition to the chancery court to
change custody and in furtherance of that petition received a temporary restraining order from the
chancellor. Defendants violated the restraining order and were indicted for custodial interference.
Defendants pled guilty to the charge in circuit court, reserving their right to appeal the jurisdiction
of the chancery court to issue such a restraining order. In reversing the circuit court and dismissing
the prosecution of the defendants, the court of criminal appeals held:

               A juvenile court has exclusive original jurisdiction of proceedings “in which
       a child is alleged to be . . . dependent and neglected.” Tenn. Code Ann. § 37-1-
       103(a)(1). Once the juvenile court has assumed jurisdiction in such matters, the
       juvenile court’s “jurisdiction [in dependent and neglect cases] shall continue until
       [the child] reaches the age of eighteen (18).” Tenn. Code Ann. § 37-1-103(c). Thus,
       the appellate courts have held that neither a chancery court nor a circuit court has
       jurisdiction to enter a decree or judgment regarding custody of a minor child after a
       petition to declare the child in question dependent and neglected has been filed in the
       juvenile court or after the juvenile court has found the child to be dependent and
       neglected and awarded custody of the child. See Kidd v. State ex rel. Moore, 207
       Tenn. 244, 338 S. W. 2d 621 (1960); Arnold v. Gouvitsa, 735 S.W.2d 458 (Tenn. Ct.
       App.), per. app. denied (Tenn. 1987); Department of Human Serv. v. Gouvitsa, 735
       S.W.2d 452 (Tenn. Ct. App.) per. app. denied (Tenn. 1987); Marmino v. Marmino.
       34 Tenn. App. 352, 238 S.W.2d 105 (1950), cert. denied (Tenn. 1951).

               The juvenile court attempted to transfer the proceedings to the chancery court
       after adjudicating the child was dependent and neglected. The appellate courts have
       held jurisdiction cannot be conferred to a chancery court or circuit court sua sponte


                                                 -7-
       or by consent of the parties. Hicks v. Hicks, Sumner County No. 01-A-01-9309-CH-
       00417, 1994 WL 108896 (Tenn. Ct. App., Nashville, March 30, 1994); Simpkins v.
       Greer, Cheatham County No. 01-A-01-9202-CH-00060, 1993 WL 18311 (Tenn. Ct.
       App., Nashville, January 29, 1993).

               In the context of this case, the chancellor did not have jurisdiction to
       adjudicate the merits of the petition for a change of custody since this issue had been
       adjudicated by the juvenile court in the dependent and neglect proceedings.
       Consequently, the TRO which was issued based on the strength of the petition for
       change of custody was void. Department of Human Serv. v. Gouvitsa, 735 S.W.2d
       at 457. It follows the defendants could not be convicted of custodial interference of
       the TRO issued by the chancellor.

State v. George, 968 S.W.2d at 898.

        Finally, and we think depositive of the issue, just as the juvenile court cannot transfer
jurisdiction to either the circuit or chancery court so the juvenile court cannot vest the court of
appeals with appellate jurisdiction over its findings in an adjudication of dependency and neglect.
This is made clear in State Dept. of Children’s Services v. Owens, 129 S.W.3d 50 (Tenn. 2004). In
that case the juvenile court of Haywood County had considered a petition alleging dependency and
neglect. While that petition was pending, the child’s aunt and her husband filed an intervening
petition seeking custody. Tennessee Department of Children’s Services then filed a petition to
terminate parental rights to the child. The juvenile court first terminated the parental rights of the
parents and then took up the intervening petition for custody. The court then dismissed the
intervening petition on the basis that the issues were moot because the termination order deprived
the court of jurisdiction to hear the intervening petition for custody. In its final order the juvenile
court in addition to holding that it no longer had jurisdiction went on further to state that it would
not be in the child’s best interest to grant the intervening petition.

        The intervening petitioners then appealed to the circuit court of Haywood County only to be
met by a motion to dismiss filed by the Tennessee Department of Children’s Services asserting lack
of jurisdiction in the circuit court. The circuit court granted the motion to dismiss for lack of
jurisdiction and the intervening petitioners appealed to the court of appeals.

        The court of appeals then faced the issue of whether or not the juvenile court’s termination
of parental rights order deprived the juvenile court and the circuit court on appeal of jurisdiction to
hear the intervening petition for custody. Tennessee Department of Children’s Services sought and
was granted an immediate application to appeal to the supreme court. See Tenn. R. App. P. 11. The
supreme court held:




                                                 -8-
               In its brief to this Court, TDCS contends that the circuit court did not have
       jurisdiction to hear the appeal of this case. Consistent with that conclusion, TDCS
       asserts that the circuit court did not have the authority to transfer this case to the
       Court of Appeals.

                Tennessee Code Annotated section 37-1-159 governs the appeal of judgments
       of the juvenile court. That statute, in pertinent parts, provides that “any appeal from
       any final order or judgment in . . . [a] dependent and neglect proceeding . . . may be
       made to the circuit court” to be reviewed de novo. Tenn. Code Ann. § 37-1-159(a)
       (2001). In contrast, “all other civil matters heard by the juvenile court shall be
       governed by the Tennessee Rules of Appellate Procedure.” Id. § 37-1-159(g).

               After having recognized that this case began as a dependency and neglect
       case, the Court of Appeals concluded, nevertheless, that it had been converted into
       a termination of parental rights case. Thus, the Court of Appeals held that the circuit
       court had no jurisdiction – a conclusion accompanied neither by reasoning nor
       analysis.

                We conclude that the order that the Maddoxes attempted to appeal de novo
       to the Circuit Court was connected to the dependency and neglect proceeding. The
       nature and substance of a proceeding cannot be transformed simply by the filing of
       a petition with a different caption. Here, despite TDCS’s later-filed petition and the
       subsequent order terminating parental rights, the Maddoxes’ intervening petition for
       custody was properly before the juvenile court in S.L.O.’s dependency and neglect
       hearing. Although TDCS correctly notes that “custody decisions arising from
       juvenile court terminations of parental rights are appealed directly to the Court of
       Appeals,” we conclude that the order appealed in this case arose out of a dependency
       and neglect proceeding, rather than from a termination proceeding. Thus, the
       Maddoxes’ appeal was properly perfected to the circuit court pursuant to section 37-
       1-159(a).

State Dept. of Children’s Services v. Owens, 129 S.W.3d 54-55.

        The supreme court remanded the case to the circuit court with instructions to regard the cause
as involving dependency and neglect and to decide the case within that context.




                                                 -9-
        We hold that this court is without jurisdiction of the appeal in this case and that such
jurisdiction is vested in the circuit court of Williamson County pursuant to T.C.A. 37-1-159(a). The
appeal is dismissed and the case remanded to the Juvenile Court of Williamson County for such
further proceedings as may be necessary. Costs of appeal are assessed to Appellant.



                                                            _______________________________
                                                            WILLIAM B. CAIN, JUDGE




                                               -10-
