                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                     November 13, 2014 Session

                                     IN RE ABIGAIL M., ET AL.

               Appeal from the Juvenile Court for Hamilton County
 Nos. 255424, 255426, 259400, 259402, 260546, 260547   Robert D. Philyaw, Judge


              No. E2014-01825-COA-R3-JV - FILED - NOVEMBER 13, 2014


This appeal is from a custody order entered in a dependency and neglect proceeding in the
Juvenile Court for Hamilton County (“Juvenile Court.”). Because we have no jurisdiction
to hear an appeal from a custody order entered in a dependency and neglect case, this appeal
is dismissed.

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

J OHN W. M CC LARTY, J., C HARLES D. S USANO, JR., C.J., AND T HOMAS R. F RIERSON, II, J.

Justin G. Woodward, Ringgold, Georgia, for the appellant, Jessica B.

Jennifer Kay Peck, Chattanooga, Tennessee, for the appellee, David M.

Rachel M. Wright, Hixson, Tennessee, Guardian Ad Litem.

                                    MEMORANDUM OPINION 1

        The children, Abigail M. and Alyssa M., previously were declared dependent and
neglected by order of the Juvenile Court and placed in the temporary legal custody of a
relative. In December of 2013, the children were returned to the custody of the appellant,


       1
           Rule 10 of the Rules of the Court of Appeals provides as follows:

                  This Court, with the concurrence of all judges participating in the case, may
                  affirm, reverse or modify the actions of the trial court by memorandum
                  opinion when a formal opinion would have no precedential value. When
                  a case is decided by memorandum opinion it shall be designated
                  “MEMORANDUM OPINION,” shall not be published, and shall not be
                  cited or relied on for any reason in any unrelated case.
Jessica B. (“Mother”). Mother and the appellee, David M. (“Father”), subsequently filed
competing petitions for custody of the minor children. By order entered on August 14, 2014,
the Juvenile Court ruled upon the parties’ competing petitions for custody by awarding
custody of Abigail M. to Father and maintaining custody of Alyssa M. with Mother. The
Juvenile Court also established co-parenting time for each child with the non-residential
parent. On August 28, 2014, counsel for Mother filed a notice of appeal to the Circuit Court
for Hamilton County from the August 14, 2014 order. On September 5, 2014, counsel for
Mother filed the Notice of Appeal to this Court from the same August 14, 2014 order.

       When a juvenile court acquires jurisdiction from a dependency and neglect
proceeding, its exclusive jurisdiction continues until one of the following events occurs:
       (1)    the case is dismissed;
       (2)    the custody determination is transferred to another court;
       (3)    a petition for adoption is filed; or
       (4)    the child reaches the age of eighteen.
Tenn. Code Ann. § 37-1-103(c). In In Re D.Y.H., 226 S.W.3d 327, 331 (Tenn. 2007), the
Supreme Court of Tennessee held that in the absence of the occurrence of one of the above
events terminating a juvenile court’s jurisdiction, “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. . . . 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.” As such, “any appeal from such a custody decision is to be made to circuit
court.” Id. (citing Tenn. Code Ann. § 37-1-159(a)).

        In light of the holding in D.Y.H., this Court directed Mother to show cause why this
appeal should not be dismissed for lack of jurisdiction. In his response to the show cause
order, counsel for Mother argued that the Juvenile Court’s reference to the “material change
in circumstances” standard for a modification of custody, together with the Juvenile Court’s
failure to indicate in the August 14, 2014 order that the children continued to be dependent
and neglected, lead him to believe that the order could be appealed only to this Court.
Counsel asserts in his response that it was not his intent to “cause confusion between the
courts.” He states that he simply did not want to waive or relinquish Mother’s appellate
rights by appealing the order to the wrong court. However, counsel’s filing of duplicative
notices of appeal has accomplished that which counsel asserts was not his intent, namely,
confusion in the appellate process.

        Because it is clear from the Supreme Court’s holding in D.Y.H. that we have no
jurisdiction to hear this appeal, this case is dismissed. Counsel for Mother may pursue
Mother’s appeal to the Circuit Court for Hamilton County. Exercising our discretion, and
because it would be manifestly unfair to tax the costs of this proceeding to Mother, we elect

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instead to tax all costs on appeal to Justin G. Woodward, counsel for Mother, for which
execution may issue if necessary.




                                                            PER CURIAM




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