               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                         Assigned on Briefs October 21, 2015

                                     IN RE RAINEE M.

                Appeal from the Chancery Court for Washington County
                     No. 42606    John C. Rambo, Chancellor



              No. E2015-00491-COA-R3-PT – Filed December 30, 2015



In this action, a minor child’s foster parents petitioned to adopt the child and terminate
the parental rights of her biological father. A previous action seeking to terminate the
father’s parental rights had been filed by the Tennessee Department of Children’s
Services (“DCS”) in a different court. The prior case resulted in termination of the
father’s parental rights, but the ruling was reversed on appeal. The foster parents filed
the instant action during the pendency of the appeal in the first matter. The father filed a
motion to dismiss the instant petition, which the trial court denied, proceeding to conduct
a trial on the merits. Following the trial, the court took the matter under advisement and
subsequently entered an order terminating the father’s parental rights. The father has
appealed. Discerning no error, we affirm.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY and JOHN W. MCCLARTY, JJ., joined.

Nicholas A. Schaefer, Kingsport, Tennessee, for the appellant, Jon M.

Jerry J. Fabus, Jr., Johnson City, Tennessee, for the appellees, Gerald T. and Jenny T.
                                               OPINION

                               I. Factual and Procedural Background

       This case involves the adoption of Rainee M., the minor child (“the Child”) of Jon
M. (“Father”), whose parental rights were terminated by the trial court pursuant to
Tennessee Code Annotated § 36-1-113.                  The procedural posture of this
termination/adoption action is somewhat unusual. The parental rights of both the Child’s
biological parents, Father and the mother, Valissa G., were originally terminated by the
Sullivan County Juvenile Court on December 9, 2013, following a petition filed by DCS.
The Sullivan County Juvenile Court determined, inter alia, that DCS had proven the
statutory grounds of (1) abandonment by failure to provide a suitable home and (2)
persistence of the conditions that led to the Child’s removal. Father appealed that
determination to this Court; Valissa G. did not participate in the appeal.

        While Father’s appeal was pending, the foster parents, Gerald T. and Jenny T.
(“Foster Parents”), filed a petition in the Chancery Court for Washington County (“the
trial court”) seeking to terminate Father’s parental rights and adopt the Child. 1 Foster
Parents named DCS and Father as respondents. Foster Parents’ petition also alleged the
statutory grounds of (1) abandonment by failure to provide a suitable home and (2)
persistence of the conditions that led to the Child’s removal. Father filed a motion to
dismiss the petition, asserting that the trial court lacked subject matter jurisdiction over
the case because of the prior termination matter then pending on appeal. Father also
argued that (1) the petition was moot due to the earlier termination of his parental rights
by the Sullivan County Juvenile Court and (2) the second petition was barred by
application of res judicata.

       The trial court entered an order denying Father’s motion to dismiss. The bases for
the court’s ruling were: (1) Foster Parents filed a petition seeking to adopt the Child,
which was a different type of proceeding than the prior termination proceeding; (2)
Foster Parents were not parties to the prior proceeding; and (3) Foster Parents’ petition
was filed at a much later date than the earlier petition, such that Foster Parents would
have to prove a different set of facts in order to succeed in terminating Father’s parental
rights. The trial court subsequently proceeded to conduct a hearing on the merits of
Foster Parents’ petition on October 27, 2014. At the conclusion of the hearing, the court
took an adjudication of the joined issues under advisement.

        On January 29, 2015, this Court issued its opinion regarding Father’s appeal of the
first termination suit filed by DCS. See In re R.L.M., No. E2013-02723-COA-R3-PT,
1
 Foster Parents explain in their brief that they included the termination action with their adoption petition
because the DCS attorney had discovered a procedural error in the first termination action.
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2015 WL 389635 (Tenn. Ct. App. Jan. 29, 2015). This Court determined that the
termination of Father’s parental rights would have to be reversed because DCS had failed
to place a copy of the order adjudicating the Child dependent and neglected in the record,
which was a necessary element of the grounds utilized to terminate Father’s parental
rights. Id. at *4. This Court therefore reversed the termination of Father’s parental rights
and dismissed the petition filed by DCS. Id.

       On February 23, 2015, the trial court entered an order in this matter, terminating
Father’s parental rights and stating that Foster Parents could proceed with the adoption of
the Child once the termination order was final. The court terminated Father’s parental
rights based on its findings by clear and convincing evidence of the statutory grounds of
(1) abandonment by failure to provide a suitable home and (2) persistence of the
conditions leading to the Child’s removal. The trial court also found clear and
convincing evidence that termination of Father’s parental rights was in the Child’s best
interest. Father timely appealed.

                                    II. Issues Presented

       Father presents the following issues, which we have restated slightly:

       1.     Whether the trial court erred in determining that it had subject matter
              jurisdiction over the present action.

       2.     Whether the trial court erred in determining that the issues joined
              were ripe for adjudication, not moot, and therefore justiciable.

       3.     Whether the trial court erred in determining that the doctrine of res
              judicata did not bar this second termination action.

       4.     Whether the trial court erred in determining that the doctrine of
              collateral estoppel did not bar relitigation of the issue of termination
              of Father’s parental rights.

       5.     Whether the trial court erred by failing to enter its order within thirty
              days of the final hearing in accordance with the provisions of
              Tennessee Code Annotated § 36-1-113(k).

                              III. Standard of Review

      In a termination of parental rights case, this Court has a duty to determine
“whether the trial court’s findings, made under a clear and convincing standard, are
                                              3
supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. Tenn. R. App. P. 13(d); In re F.R.R., III, 193 S.W.3d at 530. Questions
of law, however, are reviewed de novo with no presumption of correctness. In re
Bernard T., 319 S.W.3d 586, 597 (Tenn. 2010). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall not be
disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002).

        “Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71
L.Ed.2d 599 (1982)). As our Supreme Court has instructed:

       In light of the constitutional dimension of the rights at stake in a
       termination proceeding under Tenn. Code Ann. § 36-1-113, the persons
       seeking to terminate these rights must prove all the elements of their case
       by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re
       Adoption of A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539,
       546 (Tenn. 2002). The purpose of this heightened burden of proof is to
       minimize the possibility of erroneous decisions that result in an
       unwarranted termination of or interference with these rights. In re Tiffany
       B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re M.A.R., 183 S.W.3d
       652, 660 (Tenn. Ct. App. 2005). Clear and convincing evidence enables
       the fact-finder to form a firm belief or conviction regarding the truth of the
       facts, In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005), and
       eliminates any serious or substantial doubt about the correctness of these
       factual findings. In re Valentine, 79 S.W.3d at 546; State, Dep’t of
       Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447 (Tenn. Ct.
       App. 2008).

In re Bernard T., 319 S.W.3d at 596.

                          IV. Subject Matter Jurisdiction

       Father argues that the trial court lacked subject matter jurisdiction with regard to
the petition to terminate Father’s parental rights filed by Foster Parents because the prior
                                             4
petition filed by DCS was pending in this Court. Father relies upon this Court’s opinion
in First Am. Trust Co. v. Franklin-Murray Dev. Co., L.P., 59 S.W.3d 135, 141 (Tenn. Ct.
App. 2001), wherein this Court stated: “once a party perfects an appeal from a trial
court’s final judgment, the trial court effectively loses its authority to act in the case
without leave of the appellate court. Perfecting an appeal vests jurisdiction over the case
in the appropriate appellate court.” In First Am. Trust Co., this Court therefore held that
the trial court could not appoint a post-judgment receiver in a case that had been appealed
to this Court because the trial court had lost jurisdiction to act. Id. at 142.

        We find First Am. Trust Co. to be distinguishable from the case at bar because in
this case, the action pending on appeal was not the instant termination action, but rather
the prior termination action filed by DCS in the Sullivan County Juvenile Court. The
Sullivan County Juvenile Court was without subject matter jurisdiction to act on the first
termination petition while the appeal of that action was pending in this Court. However,
the pendency of an appeal in the previous, separate termination action did not deprive the
trial court of subject matter jurisdiction in this subsequent action. The trial court in this
case had subject matter jurisdiction over Foster Parents’ petition to terminate Father’s
parental rights and adopt the Child pursuant to Tennessee Code Annotated § 36-1-115(a).
Until this appeal was filed, the trial court retained jurisdiction to act in the case at bar.
The filing of an appeal in a previous case pending in a different court has no bearing on
the trial court’s subject matter jurisdiction in this case. This issue is without merit.

                                     V. Justiciability

        Father asserts that Foster Parents’ petition seeking to terminate his parental rights
and adopt the Child was moot and presented no justiciable issue because his parental
rights had previously been terminated by the Sullivan County Juvenile Court at the time
the Foster Parents’ petition was filed. For the same reason, Father argues that this action
was not ripe for adjudication. As this Court has explained, “[t]he doctrine of justiciability
prompts courts to stay their hand in cases that do not involve a genuine and existing
controversy requiring the present adjudication of present rights.” McIntyre v. Traughber,
884 S.W.2d 134, 137 (Tenn. Ct. App. 1994). “Cases must be justiciable not only when
they are first filed but must also remain justiciable throughout the entire course of the
litigation, including the appeal.” Id. “A moot case is one that has lost its character as a
present, live controversy.” Id. By contrast, “[r]ipeness is a category of justiciability that
questions whether the dispute has matured to a point that warrants a judicial decision.
The central concern is whether the case involves uncertain or contingent future events
that may or may not occur as anticipated or, indeed, may not occur at all.” Window
Gallery of Knoxville v. Davis, No. 03A01-9906-CH-00225, 1999 WL 1068730 at *3
(Tenn. Ct. App. Nov. 24, 1999).


                                              5
       We find Father’s arguments regarding justiciability to be unavailing. As the trial
court noted, Foster Parents in their petition sought to adopt the Child in addition to
seeking termination of Father’s parental rights. Therefore, a justiciable issue existed with
regard to the adoption even if Father’s rights previously had been terminated. We also
note, however, that Father had timely appealed the order of the Sullivan County Juvenile
Court terminating his parental rights. That order had thus not become final at the time
Foster Parents’ petition was filed. See Creech v. Addington, 281 S.W.3d 363, 377 (Tenn.
2009) (“As a general rule, a trial court’s judgment becomes final thirty days after its entry
unless a party files a timely notice of appeal or specified post-trial motion.”).

                             VI. Res Judicata and Collateral Estoppel

      Father also contends that Foster Parents were barred from relitigating the issue of
whether his parental rights should be terminated based upon the doctrines of res judicata
and collateral estoppel. As our Supreme Court has explained:

               The party asserting a defense predicated on res judicata or claim
        preclusion must demonstrate (1) that the underlying judgment was rendered
        by a court of competent jurisdiction, (2) that the same parties or their
        privies were involved in both suits, (3) that the same claim or cause of
        action was asserted in both suits, and (4) that the underlying judgment was
        final and on the merits.

Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012). Clearly, here, there was no
underlying final judgment because Father had appealed the termination of his parental
rights to this Court. See Freeman v. Marco Transp. Co., 27 S.W.3d 909, 913 (Tenn.
2000) (“Because the dismissal was appealed to this Court, the final disposition of this
issue will not occur until this Court enters its judgment.”); McBurney v. Aldrich, 816
S.W.2d 30, 34 (Tenn. Ct. App. 1991) (“It is generally agreed that a judgment is not final
and res judicata where an appeal is pending.”).2 Therefore, the doctrine of res judicata
does not apply to this action.

      Similarly, the doctrine of collateral estoppel also requires a final underlying
judgment. As this Court has elucidated:



2
 We further note that the underlying judgment was not yet final at the time the trial court entered its order
of termination in this matter, even though this Court had issued its opinion in the prior case, because
mandate had not yet issued. See, e.g., Swift v. Campbell, 159 S.W.3d 565, 573 (Tenn. Ct. App. 2004); In
re Adison P., No. W2014-01901-COA-R3-CV, 2015 WL 3430004 at *3 (Tenn. Ct. App. May 29, 2015).

                                                     6
               “[A]s our courts have construed the collateral estoppel doctrine, it
        bars the same parties or their privies from relitigating in a second suit issues
        that were actually raised and determined in an earlier suit.” Beaty v.
        McGraw, 15 S.W.3d 819, 824 (Tenn. Ct. App. 1998). The party relying
        upon the doctrine of collateral estoppel has the burden of proving the
        following elements:

                [1.] that the issue sought to be precluded is identical to the
                issue decided in the earlier suit; [2.] that the issue sought to be
                precluded was actually litigated and decided on its merits in
                the earlier suit; [3.] that the judgment in the earlier suit has
                become final; [4.] that the party against whom collateral
                estoppel is asserted was a party or is in privity with a party to
                the earlier suit; and [5.] that the party against whom collateral
                estoppel is asserted had a full and fair opportunity in the
                earlier suit to litigate the issue now sought to be precluded.

        Id. at 824-25.

Patton v. Estate of Upchurch, 242 S.W.3d 781, 787 (Tenn. Ct. App. 2007) (emphasis
added). Because there was no final judgment terminating Father’s parental rights in the
earlier suit, the doctrine of collateral estoppel would also be inapplicable to this action.
See Creech, 281 S.W.3d at 377 (“As a general rule, a trial court’s judgment becomes
final thirty days after its entry unless a party files a timely notice of appeal or specified
post-trial motion.”).3

                                         VII. Entry of Order

       Finally, Father asserts that the trial court erred by failing to enter an order within
thirty days of the trial as required by Tennessee Code Annotated § 36-1-113(k). This
statutory section provides in pertinent part:

        The court shall enter an order that makes specific findings of fact and
        conclusions of law within thirty (30) days of the conclusion of the hearing.

Although it is true that the trial court herein did not enter its order within thirty days
following the hearing, Father does not request any particular relief for this delay, and we
do not determine that relief is appropriate. As this Court has previously explained:

3
  Furthermore, because Foster Parents filed their petition over one year later than the termination petition
filed by DCS, evidence presented regarding events occurring during the intervening year would be
different than the evidence presented in the first termination hearing.
                                                     7
       Tenn. Code Ann. § 36-1-113(k) (2014) does indeed require in a parental
       termination case that the court “shall enter an order that makes specific
       findings of fact and conclusions of law within thirty (30) days of the
       conclusion of the hearing.” The pertinent question is what is to be done
       when that directive is not adhered to by a trial court.

             We addressed this scenario in In re: M.R.W., No. M2005-02329-
       COA-R3-PT, 2006 WL 1184010 (Tenn. Ct. App. May 3, 2006), no appl.
       perm. appeal filed. There, we stated:

              [T]he trial court’s failure to comply with the portion of the
              section that directs it to enter an order within thirty days of
              the hearing does not divest the trial court of its jurisdiction.
              Moreover, in the case now before us, where the trial court has
              made definite and detailed findings of fact and conclusions of
              law, remand on appeal as requested by Mother would serve
              no purpose.

       In re: M.R.W., at *4.

               Thus, even though the Juvenile Court apparently did not adhere to
       the statute, the requested remand is not appropriate. The Juvenile Court
       already has made sufficient findings of fact and conclusions of law. To
       remand would be pointless. See, e.g., In re: Isobel V.O., No. M2012-
       00150-COA-R3-PT, 2012 WL 5471423, at *4 (Tenn. Ct. App. Nov. 8,
       2012), no appl. perm. appeal filed; In re: Ella M.I., No. M2013-01543-
       COA-R3-PT, 2014 WL 1778275, at *4 (Tenn. Ct. App. Apr. 30, 2014), no
       appl. perm. appeal filed. We, therefore, hold that, while the Juvenile Court
       did not comply with statute in the timeliness of entering its order, there is
       no specified remedy such as remand required. We do, however, admonish
       trial courts and parties to adhere to the statutes enacted by our General
       Assembly.

In re Autumn L., No. E2014-01240-COA-R3-PT, 2015 WL 3378869 at *6 (Tenn. Ct.
App. May 26, 2015). Similarly, here, the trial court made appropriate and sufficient
findings of fact and conclusions of law in its written order. Although the trial court failed
to comply with the statute by entering a written order within thirty days of the hearing,
we do not find that Father is entitled to relief due to such delay.



                                             8
              VIII. Statutory Grounds and Best Interest of the Child

       Father has not appealed the trial court’s determination that clear and convincing
evidence existed to support the statutory grounds applied by the court for termination of
his parental rights, namely (1) abandonment by failure to provide a suitable home and (2)
persistence of the conditions leading to the Child’s removal. See Tenn. Code Ann. § 36-
1-113(g)(1) and (3). Father has also not appealed the court’s determination that there was
clear and convincing evidence that termination was in the Child’s best interest. See Tenn.
Code Ann. § 36-1-113(i). However, due to the constitutional interests involved in a
parental termination action, we have undertaken review of these issues. See, e.g., In re
Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010); Keisling, 92 S.W.3d at 378; In re
Arteria H., 326 S.W.3d 167, 184 (Tenn. Ct. App. 2010), overruled on other grounds by
In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015).

       Having thoroughly reviewed the evidence adduced at trial, including proof of
events occurring since the first termination hearing, we conclude that there is clear and
convincing evidence to support the trial court’s finding that statutory grounds for
termination of Father’s parental rights exist, such grounds being (1) abandonment by
failure to provide a suitable home and (2) persistence of the conditions leading to the
Child’s removal. We further conclude that the record contains clear and convincing
evidence to support the determination that termination of Father’s parental rights was in
the Child’s best interest. We therefore affirm the trial court’s termination of Father’s
parental rights.

                                     IX. Conclusion

       For the foregoing reasons, we affirm the trial court’s judgment in all respects.
Costs on appeal are taxed to the appellant, Jon M. This case is remanded to the trial court
for collection of costs assessed below.




                                                 _________________________________
                                                 THOMAS R. FRIERSON, II, JUDGE




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