STATE OF TENNESSEE ex rel.,           )    Fentress Juvenile
     DEBORAH D. WILLIS,

           Petitioner/Appellee,
                                           )
                                           )
                                           )
                                                 No. J-898
                                                              FILED
                                           )     Appeal No.
                                                              November 3, 1998
     VS.                                   )     01A01-9804-JV-00175
                                           )
                                                               Cecil W. Crowson
     CECIL WILLIS, JR.,                    )
                                                             Appellate Court Clerk
                                           )
           Respondent/Appellant.           )


                      IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE

            APPEAL FROM THE JUVENILE COURT OF FENTRESS COUNTY
                         AT JAMESTOWN, TENNESSEE

                     HONORABLE WILLIAM J. CAMPBELL, JUDGE


     William B. Lawson
     P.O. Box 16
     112 Gay Street
     Erwin, Tennessee 37650
     ATTORNEY FOR DEFENDANTS/APPELLEES,


     Kimberly M. Frayn
     2nd Floor, Cordell Hull Bldg.
     425 Fifth Avenue, North
     Nashville, Tennessee 37243-0499
     ATTORNEY FOR PLAINTIFF/APPELLANT



                                  REVERSED AND VACATED.



                                           HENRY F. TODD
                                           PRESIDING JUDGE, MIDDLE SECTION




     CONCUR:
     BEN H. CANTRELL, JUDGE
     WILLIAM B. CAIN, JUDGE
STATE OF TENNESSEE ex rel.,                    )       Fentress Juvenile
DEBORAH D. WILLIS,                             )       No. J-898
                                               )
       Petitioner/Appellee,                    )
                                               )       Appeal No.
VS.                                            )       01A01-9804-JV-00175
                                               )
CECIL WILLIS, JR.,                             )
                                               )
       Respondent/Appellant.                   )



                                     OPINION

       This case involves the efforts of the State of Tennessee on relation of Deborah D. Willis,

former wife of Cecil Willis, Jr., to obtain the revocation of a surrender executed by him

surrendering his three children, Deborah May, Pamela R. and Andrew V. for adoption. The

Juvenile Judge, who witnessed the surrenders, later entertained the petition to revoke and ordered

the surrenders to be revoked. The respondent, Cecil Willis, Jr., has appealed to this Court,

presenting the following issue:

                       I.      Whether a Trial Court has authority to revoke
               a “surrender of Child” by the natural father directly to the
               natural mother and stepfather almost four (4) years after its
               execution. Furthermore, whether a surrender simply becomes
               void after the passing of 120 days when an adoption has not
               yet occurred.


       It is obvious from the present record that a divorce preceded this proceeding, but the

divorce proceedings are not included in this record.



       On August 9, 1993, the following document was executed, acknowledged and filed with

the Juvenile Clerk on August 11, 1993.


                  SURRENDER OF A CHILD BY THE NATURAL
                    FATHER DIRECTLY TO THE NATURAL
                        MOTHER AND STEPFATHER

               I, the undersigned father, deeming it for the best interest of
               my child, Pamela Rebecca Willis, female, born February 15,
               1985, in Hardin County, Kentucky, in wedlock, hereby
               execute the surrender of all parental rights and responsibilities
               and consent for the child to be legally adopted by Charles
               William Keeley, Jr.

                                             -2-
       I have the legal right to surrender this child for
adoption as the child’s legal parent by birth of this child that
was born in wedlock.

       I understand that by signing this surrender, all my
rights and responsibilities with respect to this child are
terminated.

        I agree not to attempt to disrupt this child’s future
relationship by visiting, attempting to communicate with
Pamela Rebecca Willis, or attempting her removal either
physically or through legal proceedings.


         SIGNATURE OF NATURAL FATHER

Father: Cecil Willis, Jr.; Race: White; Marital Status: Married
D.O.B.: 8-4-62; Permanent Address: 1537 Devil’s Fork Road,
Flag Pond, Tennessee 37657

                               Signed:     Signature
                                         Cecil Willis, Jr.


STATE OF TENNESSEE
COUNTY OF FENTRESS

        Before me, the undersigned authority in and for the
state and county aforesaid, this day personally appeared Cecil
Willis, Jr., the bargainor, with whom I am personally
acquiainted and acknowledged the execution of the above
instrument for the purposes therein contained, as witness my
hand and official seal, this 09 day of August, 1993.

                                        Frank Smith
                                       Notary Public
My Commission expires:
   9 - 94

    AGREEMENT OF NATURAL MOTHER AND
          ADOPTING STEPFATHER

        We, the natural mother and the prospective adopting
father, understand that by affixing our signatures to this
surrender, we hereby agree to assume responsibility for the
care, custody, financial support, medical care, education,
moral and spiritual training of Pamela Rebecca Willis.

        SIGNATURE OF ADOPTING PARENT

Father: Charles William Keeley, Jr.; Race: White; Marital
Status: Married; D.O.B.: 7-21-59; Permanent Address: Route
1, Box 212, Jamestown, Tennessee 38556

                                       Signature
                               Charles William Keeley, Jr.

                              -3-
                        SIGNATURE OF NATURAL MOTHER

               Mother: Deborah Deloris Keeley; Race: White; Marital
               Status: Married; D.O. B.: 5-12-64; Permanent Address: Route
               1, Box 212, Jamestown, Tennessee 38556

                                      Signed:         Signature
                                                Deborah Deloris Keeley

                              WITNESS OF SURRENDER

                      Cecil Willis, Jr. personally appeared before me on the
               9th day of August, 1993, at the courthouse in Fentress
               County, Tennessee, for the purpose of surrendering to
               Deborah Deloris Keeley and Charles William Keeley, Jr. for
               adoption and stated that he is the father of Pamela Rebecca
               Willis and accepts full responsibility for this free and
               voluntary act.

                        This August 9, 1993.

                                                       Signature
                                               William J. Campbell
                                               Juvenile Judge for Fentress
                                               County, Tennessee


       Identical documents were executed, acknowledged and filed in respect to Deborah and

Pamela.



       The record contains no evidence that the proposed adoptions were ever properly

perfected.



       The brief of the State asserts that the mother sought and obtained AFDC benefits for the

children, but these facts do not appear in the record before this Court.



       On March 4, 1997, a motion was filed in the Juvenile Court reading as follows:


               STATE OF TENNESSEE ex rel.,
               DEBORAH D. WILLIS,
               Petitioner

               versus

               CECIL WILLIS, JR.
               Respondent

                                             -4-
                   MOTION TO REVOKE SURRENDER
                     AND NOTICE OF HEARING

              The IV-D Division of the District Attorney General’s
       Office on behalf of the STATE OF TENNESSEE ex rel.
       DEBORAH D. WILLIS would show that:

               1.     On August 9, 1993, the Respondent appeared
       before Juvenile Court Judge William J. Campbell and
       surrendered his parental rights to the following children: (1)
       Andrew V. Willis, born November 8, 1988. (2) Deborah Mae
       Willis, born August 24, 1982, and (3) Pamela R. Willis, born
       February 15, 1985.

               2.      The purpose of the surrender was to allow the
       children to be adopted by their step-father Charles W. Keeley,
       Jr., who at that time was married to Deborah Willis.

              3.    An adoption proceeding was never filed by
       Deborah Willis and Charles W. Keeley, Jr., as they later
       divorced.

              4.       The children have been wards of the State of
       Tennessee since November 1, 1995, when AFDC benefits
       resumed. It is in their best interest that the surrender of
       parental rights of the Respondent be revoked.

              THEREFORE, THE PETITIONER requests that:

               A.      The Respondent’s surrender of parental rights
       as to the three (3) children be revoked effective the date of
       filing of this motion;

              B.     The State be awarded any other relief which
       the Court deems the State to be entitled;

              C.      Court costs, if any, be taxed to the Respondent.

              NOTICE IS HEREBY GIVEN that this motion will be
       heard by Judge William J. Campbell in the Juvenile
       Courtroom of the Fentress County Courthouse in Jamestown,
       TN at 2 p.m. on Monday, March 17, 1997.


                                             (Signature)
                                     PAMELA A. KISSEL
                                     Assistant District Attorney
                                     P.O. Box 310, Huntsville, AL
                                     37756
                                     (423) 663-2532



On May 22, 1997, the Juvenile Judge entered the following order:




                                    -5-
STATE OF TENNESSEE ex rel.
DEBORAH D. WILLIS,                    No. 909
Petitioner                            IV-D #2548640-01

versus

CECIL WILLIS, JR.
Respondent


          ORDER REVOKING SURRENDER
             OF PARENTAL RIGHTS

       This cause came to be heard on May 5, 1997 before
Judge William J. Campbell on the MOTION TO REVOKE
SURRENDER, statements by the assistant district attorney
and counsel for respondent and the entire record, from all of
which the Court finds that:

        1.     On August 9, 1993, the respondent appeared
before the Juvenile Court Judge William J. Campbell and
surrendered his parental rights to the following children: (1)
Andrew V. Willis, born November 8, 1988, (2) Deborah May
Willis, born August 24, 1982, and (3) Pamela R. Willis, born
February 15, 1985.

       2.     The purpose of the surrender was to allow the
children to be adopted by their step-father, Charles W.
Keeley, Jr., who at the time was married to their mother,
Deborah Willis.

       3.    An adoption proceeding was never filed by
Deborah Willis and Charles W. Keeley, Jr. as they later
divorced.

       4.       The children have been wards of the State of
Tennessee since November 1, 1995, when AFDC benefits
resumed. It is in their best interest that the surrender of
parental rights of the respondent be revoked.

     IT IS, THEREFORE, ORDERED, ADJUDGED and
DECREED that:

       A.     The surrender of parental rights of the
respondent, Cecil Willis, Jr., is revoked effective March 1997
when the State’s motion was filed.

       B.     Court costs are taxed to Cecil Willis, Jr., 2537
Devils Fork Rd., Flag Pond, TN 37657.




                             -6-
                    ENTERED on this 14th day of May, 1997, NUNC
               PRO TUNC TO May 5, 1997.


                                                    Signature
                                              Judge William J. Campbell

               APPROVED FOR ENTRY:

                  Signature
               Pamela A. Kissel
               Assistant District Attorney    The undersigned hereby
               (423) 663-2532                 certifies that a true and
                                              correct copy of this
                                              pleading has been served
                                              by delivery, or through
                                              the U.S. Mail with
                                              sufficient postage to
                                              carry it to its destination,
                                              upon all parties to this
                                              action. May 7, 1997.

                                              Signed: Pamela A. Kissel

                                              To: (1) Deborah Willis
                                              and (2) William Lawson,
                                              attorney for Cecil Willis, Jr.,
                                              P.O. Box 16, Erwin,TN 37650.


       On appeal, the appellant, Mr. Willis, insists that the Juvenile Court had no authority

to revoke the surrenders. The resolution of this issue depends upon legislation in effect at

the time of the surrenders and at the time of the attempted judicial revocation.



       On May 22, 1997, the date of the revocation order, T.C.A. § 36-1-103(b) (1966)

provided:

                       Adoptions and terminations of parental rights pending
               on January 1, 1996, and surrenders and consents executed
               prior to January 1, 1996, shall be governed by prior existing
               law.


“Prior existing law” included T.C.A. § 36-1-117 which provided:

                      36-1-117. Revocation of surrender - Form. - (a)(1)
               No surrender shall be revoked after the time herein provided.

                      (2)      No surrender shall be revoked after the
               entering of an interlocutory decree or a final order of adoption



                                             -7-
               when entering of an interlocutory decree has been waived in
               accordance with the provisions in this part.

                       36-1-117 - Domestic Relations. (b) P r o v i d e d a
               petition to adopt has not been filed, any parent(s) who has
               surrendered a child for adoption shall have the absolute right
               to revoke the surrender within fifteen (15) days from the date
               of the execution of the surrender by appearing in chambers
               before the chancellor or circuit judge before whom the
               surrender was executed, or his successor in office, and
               presenting to him the original and two (2) copies of the
               revocation of the surrender.


       Tennessee Code Ann. § 36-1-114 (Supp. 1993), provides the form, criteria for, and

inquiries to be made by the Court during a surrender. In relevant portion, said provision also

specifically provided that “...the child so surrendered shall become a ward of the court until

the filing of the petition for adoption. During this time, the court shall have jurisdiction of

all matters pertaining to the child.”



       In the present case, on August 9, 1993, the three children were surrendered by a father

who lost the power to revoke the surrender 15 days later on August 24, 1993. At that time,

if the person to whom the children were surrendered, decided not to adopt the children, that

person was empowered to surrender the children to a licensed child-placing agency.

Apparently, this second surrender did not take place. Instead, application was made by

someone to the State to supply support to the children, and such support was granted

resulting in the present effort of the state to force the surrendering father to perform his

responsibilities to the children despite the above cited statutory provisions.



       The record contains a brief narrative statement of the evidence containing the

following:

                        The respondent has had no contact with either the
               minor children nor the petitioner herein nor with the
               childrens’ prospective step-father since executing the
               surrenders. On or about March 4, 1997, the State of
               Tennessee, ex. rel., Deborah D. Willis-Keeley, filed a motion
               in this Court alleging, inter alia, that the petitioner Charles W.
               Keeley, Jr., were divorced and that Mr. Keeley, Jr., had never
               adopted the children.

                                              -8-
                         The State further alleged that the petitioner, Deborah
                  D. Willis-Keeley had resumed receiving AFDC benefits and
                  moved the Court to revoke the surrenders alleging that the
                  revocation was in the best interests of the minor children.


          It is obvious that, before the inception of this unfortunate situation, Mr. and Mrs.

Willis were divorced by a court which thereby acquired continuing jurisdiction of the minor

children of the parties. It is therefore surprising that the parties would go to a different court

to effectuate their plans for transfer of responsibility for the welfare of the children.



          It is also surprising that the State agency did not appeal to the divorce court to enforce

its orders for support and custody of the children.



          In Killion v. Tenn. Dept. Of Human Services, Tenn. 1992, 845 S.W.2d 212, the

question before the Supreme Court was whether a mother could revoke a surrender three

years after its execution by invoking T.R.C.P. Rule 60. The Court ruled that she could not

because T.C.A. § 36-1-117 limited the time for revocation to fifteen days. The Court also

held that Rule 60 does not authorize later revocation “because it is in the best interest of the

child.”



          In two unpublished opinions, this Court has held that a surrender does not relieve the

surrendering parent of liability for child support until such liability is fully placed upon the

adoptive parent by adoption decree.



          The Supreme Court has held that contract for adoption should not be enforced,

because the final decision as to the best interest of the child is for the adoption court. In re:

Petition to Adopt Glenda Sue Clements. 201 Tenn. 98, 296 S.W.2d 875 (1956).



          The appellant contends that a court has no power to revoke a surrender which has not

been revoked by the surrendering parent within the time allowed by T.C.A. § 36-1-112



                                                 -9-
(1996). We agree. We see nothing in the adoption statutes that gives the state the authority

to seek a revocation of the surrender. The statutes in effect in 1993 only gave the

surrendering parents a fifteen day period in which to revoke -- if a petition for adoption had

not been filed in the meantime. Tenn. Code Ann. § 36-1-117(b). If a petition had been filed,

the court had the power to determine what was for the best interest of the child. Tenn. Code

Ann. § 36-1-117(e)(1).



       Under the circumstances, the Juvenile Court erred in revoking the surrender, and the

order of revocation is vacated. Since the question of the father’s liability for continuing

support has not been litigated, that question is not before us. It must first be decided by a

court having jurisdiction of the parties and the subject matter.



       In its discretion, this Court taxes one-half of all costs, both trial and appellate to the

appellant, and the remainder of said costs to the appellee.



       The judgment of the Juvenile Court, revoking the surrender of parental rights of Cecil

Willis, Jr., is reversed and vacated, and the motion or petition filed by the State of Tennessee

seeking revocation of said surrender is overruled/denied, without prejudice to any proper

application made to a court of competent jurisdiction to enforce the payment of child support

from the appellant.

                           REVERSED AND VACATED.


                                                __________________________________
                                                HENRY F. TODD
                                                PRESIDING JUDGE, MIDDLE SECTION

CONCUR:


___________________________
BEN H. CANTRELL, JUDGE


___________________________
WILLIAM B. CAIN, JUDGE

                                               -10-
