                                                                                                          08/30/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                               Assigned on Briefs August 1, 2018

                                   IN RE BRIAN G., ET AL.

                    Appeal from the Juvenile Court for Stewart County
                   No. 81JC1-2015-DN-8      G. Andrew Brigham, Judge
                         ___________________________________

                               No. M2017-01586-COA-R3-JV
                           ___________________________________


Father appeals from an order of the juvenile court awarding permanent guardianship
following an adjudication of dependency and neglect. Father filed his notice of appeal to
this Court twenty-eight days following the trial court’s order. Because Father’s appeal
was to circuit court and his notice of appeal was not filed within ten days of the trial
court’s order, we dismiss this appeal.

                 Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.

J. STEVEN STAFFORD, P. J., W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S. and JOHN W. MCCLARTY, J., joined.

James R. Potter, Clarkville, Tennessee, for the appellant, Brian G., Sr.

Herbert H. Slatery, III, Attorney General and Reporter; Andreé S. Blumstein, Solicitor
General; Kathryn A. Baker, Assistant Attorney General, for the appellee, State of
Tennessee, Department of Children’s Services.

Crystal Morgan, Ashland City, Tennessee, Guardian ad Litem.

                                               OPINION

                                              Background

       This case involves the guardianship of one child, Brian G., Jr. (“Brian” or “the
child”), born in September 2007.1 The parents of Brian are Shauntell C. (“Mother”) and
Appellant Brian G., Sr. (“Father”). On October 9, 2015, the Stewart County Juvenile
        1
           This Court has a policy of protecting the identity of children in dependency and neglect cases by
initializing their last names and those of their parents.
Court (“the trial court”) entered an order finding clear and convincing evidence that the
child was dependent and neglected.2 As such, the trial court granted temporary legal and
physical custody of the child to the Tennessee Department of Children’s Services
(“DCS”).

        On June 15, 2016, DCS filed a motion in the dependency and neglect action to
award permanent guardianship of the child to his foster parents, Billy M. and Tonya M.
(together, “Foster Parents”). A hearing on the motion was held on June 26, 2017. Father
and his counsel were present for the hearing. After hearing the proof, the trial court
announced that it would take the matter under advisement. On July 12, 2017, the trial
court entered a detailed order awarding permanent guardianship of the child to Foster
Parents. Father filed a notice of appeal to this Court on August 9, 2017. On August 17,
2017, Father filed a motion in the trial court under the auspices of Rule 52.01 of the
Tennessee Rules of Civil Procedure; therein, Father requested that the trial court make
additional findings with regard to DCS’s duty of reasonable efforts. DCS responded in
opposition to the motion, arguing that it was procedurally improper. The trial court
eventually denied the motion. In particular, the trial court ruled that it retained
jurisdiction to consider Father’s motion, but that Father failed to show that he was
entitled to relief under Rule 310 of the Tennessee Rules of Juvenile Practice and
Procedure.

                                           Issues Presented

      Father raises a single issue in this appeal: whether the trial court erred in granting
permanent guardianship of the child to Foster Parents. DCS raises an additional issue:
whether this Court lacks jurisdiction to adjudicate this appeal. Based on the foregoing, we
conclude that this Court lacks subject matter jurisdiction over this matter; we therefore
dismiss Father’s appeal.

                                              Discussion

       Both Father and the guardian ad litem confine their arguments in this case to the
substantive merits of the award of permanent guardianship. DCS, however, raises an
additional argument: that this Court lacks subject matter jurisdiction over Father’s appeal.
A challenge to a court’s subject matter jurisdiction calls into question “the court’s ‘lawful
authority to adjudicate a controversy brought before it,’ and, therefore, should be viewed
as a threshold inquiry.” Redwing v. Catholic Bishop for Diocese of Memphis, 363
S.W.3d 436, 445 (Tenn. 2012) (internal citation omitted) (citing Northland Ins. Co. v.
State, 33 S.W.3d 727, 729 (Tenn. 2000); Schmidt v. Catholic Diocese of Biloxi, 2008-
CA-00416-SCT (¶ 13), 18 So.3d 814, 821 (Miss. 2009)). “Whenever subject matter

        2
          The child’s half-sibling was also declared dependent and neglected. That child is not at issue in
this appeal.
                                                   -2-
jurisdiction is challenged, the burden is on the plaintiff to demonstrate that the court has
jurisdiction to adjudicate the claim.” Id. (citing Staats v. McKinnon, 206 S.W.3d 532,
543 (Tenn. Ct. App. 2006)). “The lack of subject matter jurisdiction is so fundamental
that it requires dismissal whenever it is raised and demonstrated.” Dishmon v. Shelby
State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999) (citing Tenn. R. Civ. P.
12.08). “Subject matter jurisdiction depends on the nature of the cause of action and the
relief sought, and can only be conferred on a court by the constitution or a legislative
act.” Chapman v. DaVita, Inc., 380 S.W.3d 710, 712 (Tenn. 2012) (internal citation
omitted) (citing Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994); Kane v. Kane, 547
S.W.2d 559, 560 (Tenn. 1977)). The question of whether a court possesses subject matter
jurisdiction is an issue of law. Id. at 712–13.

       In order to determine this Court’s jurisdiction, we must first consider the nature of
the case in the trial court. The motion for permanent guardianship in this case was filed
pursuant to Tennessee Code Annotated section 37-1-801, which provides that “[t]he
juvenile courts of Tennessee are empowered to appoint an individual a permanent
guardian[.]” The statute further provides that an order of permanent guardianship may be
entered “in a child protection proceeding or a delinquency proceeding.” Id. Indeed,
Tennessee Code Annotated section 37-1-802(b) provides that permanent guardianship of
a child may be awarded only if certain conditions are met, including that “[t]he child has
been previously adjudicated dependent and neglected, unruly or delinquent[.]” Tenn.
Code Ann. § 37-1-802(b)(1). Accordingly, the request in this case for permanent
guardianship was filed in the same proceeding and under the same docket number as the
dependency and neglect action.

       This procedure was, of course, required because a juvenile court that obtains
subject matter jurisdiction by virtue of a dependency and neglect action retains exclusive,
continuing jurisdiction over matters involving the child until one or more of certain
conditions are met. See generally Tenn. Code Ann. § 37-1-103(c). “Essentially, once
jurisdiction is acquired in a dependency and neglect proceeding, the juvenile court’s
jurisdiction continues over the child until one of the following four events occurs: (1) the
petition is dismissed, (2) the case is transferred, (3) an adoption petition is filed, or (4) the
child reaches [eighteen].” In re Lillian F.W., No. M2012-01450-COA-R3-CV, 2013 WL
5498111, at *5 (Tenn. Ct. App. Sept. 30, 2013) (citing In re D.Y.H., 226 S.W.3d 327,
330 (Tenn. 2007)). The record on appeal does not indicate that any of the four events
specified in section 37-1-103(c) have occurred in this case. As such, the juvenile court
presiding over the dependency and neglect action had continuing, exclusive jurisdiction
over matters involving the child.

       Appeals from dependency and neglect proceedings are not directed to this Court.
Rather, Tennessee law provides that “[a]n appeal from a juvenile court’s dependency and
neglect determination, which is a de novo appeal, shall be made to the circuit court within
ten days following the entry of the juvenile court’s dispositional order.” In re Conner C.,
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No. M2016-01669-COA-R3-JV, 2017 WL 1049669, at *2 (Tenn. Ct. App. Mar. 20,
2017) (citing Tenn. Code Ann. § 37-1-159(a)); see also Tenn. R. Juv. Prac. & Proc. 118
(“Appeals shall be taken pursuant to T.C.A. § 37-1-159.”).

        We concede that the appeal in this case is not related to the “juvenile court’s
dependency and neglect determination,” which occurred months before this appeal was
initiated. Rather, the appeal in this case involves the trial court’s decision to grant DCS’s
motion to award permanent guardianship to Foster Parents. The statute makes clear,
however, that the above rule regarding perfecting an appeal applies “from any final order
or judgment in a delinquency proceeding, filed under this chapter[.]” Tenn. Code Ann. §
37-1-159(a) (emphasis added) (noting an exception not applicable in this case). As such,
we have previously held that “[a]ny ‘final order or judgment’ in a dependency and
neglect proceeding may be appealed to the circuit court for a de novo hearing.” In re
Ravyn R., No. E2017-01001-COA-R3-JV, 2018 WL 1956488, at *3 (Tenn. Ct. App. Apr.
25, 2018). Moreover, the Tennessee Supreme Court has made clear that “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.” In re D.Y.H., 226
S.W.3d 327, 331 (Tenn. 2007). “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.” Id. (citing Tenn. Code Ann. § 37-1-159(a)); see also In re T.M.C.,
No. M2004-02653-COA-R3-JV, 2005 WL 3555542, at *2 (Tenn. Ct. App. Dec. 28,
2005) (holding that a custody proceeding in juvenile court occurring subsequent to a
dependency and neglect finding was properly appealable to circuit court); Lokey v.
Griffin, 45 Tenn. App. 236, 322 S.W.2d 239, 250 (Tenn. Ct. App. 1958) (holding that
after the court acquires dependency and neglect jurisdiction, “any future order made by
the Juvenile Court . . . concerning the care, custody and support of these children . . . will
be subject to review by appeal to the Circuit Court”).

       The motion for permanent guardianship at issue in this case involves a nearly
identical situation. Here, the trial court retained exclusive subject matter jurisdiction over
the child at issue. DCS therefore properly filed its motion in the trial court asking that
Foster Parents be awarded permanent guardianship. This motion essentially sought to
modify the trial court’s initial custody decision. See In re D.Y.H., 226 S.W.3d at 331.
The trial court’s order awarding permanent guardianship was therefore properly appealed
to circuit court, rather than this Court. Id. As such, this Court has no jurisdiction to
consider this appeal.3


        3
          This Court’s jurisdiction attaches when a notice of appeal is filed following a final judgment in
circuit court. See, e.g., In re Ethan W., No. M2016-02313-COA-R3-JV, 2018 WL 2447046, at *2 (Tenn.
Ct. App. May 31, 2018) (involving an appeal to this Court from the circuit court’s judgment in a de novo
appeal from juvenile court).
                                                   -4-
        Generally, the appropriate remedy when a party files an appeal to the incorrect
court is transfer to the appropriate court. See Tenn. Code Ann. § 16-4-108(a)(2) (“Any
case removed by mistake to the wrong court shall by that court be transferred to the court
having jurisdiction of the case, direct.”); see also In re Estate of White, 77 S.W.3d 765,
769 (Tenn. Ct. App. 2001) (“When a case has been appealed to the wrong appellate court,
[section] 16-4-108(a)(2) provides that it should be ‘transferred to the court having
jurisdiction thereof.’”). In the context of appeals to this Court that are correctly directed
to the circuit court, however, transfer is only appropriate where the notice of appeal at
issue was filed within ten days of the juvenile court’s final order. See State ex rel. Smith
v. Thorne, No. M2016-01966-COA-R3-JV, 2017 WL 1855172, at *5 (Tenn. Ct. App.
May 8, 2017) (noting that the appeal could be transferred to circuit court because “the
State’s notice of appeal was timely filed within the ten-day period provided by [section]
37-1-159(a) for appeals from juvenile court to circuit court”). Where the notice of appeal
was not filed within ten days of the entry of the juvenile court’s final order, the appeal
must be dismissed. See Bowden v. Newcomb, No. 1, 1987 WL 17873, at *1 (Tenn. Ct.
App. Oct. 5, 1987) (“It should be noted that if the notice of appeal had not been filed
within ten days from the juvenile court judgment, our disposition of the case would have
been limited to dismissal of the appeal instead of dismissal of the appeal with directions
for perfection of the appeal in the circuit court.”). Here, Father’s notice of appeal was
filed twenty-eight days after the entry of the trial court’s final order awarding permanent
guardianship to Foster Parents. Father’s appeal was therefore not timely filed and this
appeal must be dismissed. Id.4

                                               Conclusion

      Based on the foregoing, this appeal is dismissed. Costs are assessed against
Appellant Brian G., Sr., for which execution may issue if necessary.


        4
          Although not argued by Father, we note that Father’s post-trial motion makes no difference to
our disposition. Here, Father filed his motion under the auspices of Rule 52.01 of the Tennessee Rules of
Civil Procedure. The Rules of Civil Procedure, however, are not applicable in dependency and neglect
actions. See generally Tenn. R. Juv. Prac. & Proc. 101(b) (providing that the rules apply in dependent and
neglect proceedings). Under our juvenile rules, Rule 310 provides for modification or relief from
judgments or orders in certain limited circumstances, none of which was raised in Father’s motion.
Indeed, Father does not raise the denial of his post-trial motion in this appeal. Moreover, Father’s post-
trial motion was filed more than thirty days following the entry of the trial court’s final order of
guardianship, well after the time for appealing had expired, and indeed past the time for filing a post-trial
motion to alter or amend even if this case had been governed by the Tennessee Rules of Civil Procedure.
See generally Tenn. R. Civ. P. 59.04 (stating that a motion to alter or amend must be filed within thirty
days of the trial court’s judgment). In this situation, we conclude that Father’s motion had no effect on
the time for filing an appeal under section 37-1-159(a). In reaching this result, we express no opinion as to
whether Father’s motion, if it had been filed within ten days of the trial court’s order and correctly
addressed matters allowed under Rule 310, would have tolled the time for taking a de novo appeal to
circuit court.
                                                   -5-
      _________________________________
      J. STEVEN STAFFORD, JUDGE




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