                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 December 12, 2013 Session

                  IN THE MATTER OF B.M., C.M., AND C.R.

                     Appeal from the Shelby County Circuit Court
                      No. CT-003183-12 Robert S. Weiss, Judge


                No. W2013-00392-COA-R10-JV - Filed March 19, 2014


This is an interlocutory appeal involving the trial court’s subject matter jurisdiction. The
juvenile court entered an order declaring three children dependent and neglected; the order
included a no-contact provision as to the father of one of the children. The mother appealed
the juvenile court’s decision to the circuit court. After she filed the appeal to the circuit
court, the father of the other two children filed a contempt petition in the circuit court
asserting that the mother and the other father violated the no-contact provision in the juvenile
court’s order. The mother filed a motion to dismiss, alleging that the circuit court was
without subject matter jurisdiction to hear a contempt petition arising out of the juvenile
court’s order. The circuit court denied the mother’s motion to dismiss but did not reach the
merits of the contempt petition. The appellate court granted the mother permission for an
extraordinary appeal under Tenn. R. App. P. 10, to address only the circuit court’s subject
matter jurisdiction to adjudicate the petitioner father’s contempt petition. After permission
for the extraordinary appeal was granted, the circuit court held an evidentiary hearing and
determined that the petitioner father’s two children were not dependent and neglected. The
circuit court then vacated the juvenile court’s order as to those two children, including the
no-contact provision. Under the circumstances, we find that the issue presented on appeal
is no longer justiciable and that this Court improvidently granted permission for the Rule 10
appeal. Accordingly, we decline to address the issue presented and dismiss the appeal.

             Tenn. R. App. P. 10 Appeal by Permission; Appeal Dismissed

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J., and
J. S TEVEN S TAFFORD, J., joined.
Rachael E. Putnam and Austin T. Rainey, Memphis, Tennessee for Respondent/Appellant
C.R.M.

Robert E. Cooper, Jr., William E. Young, and Ryan L. McGehee, Nashville, Tennessee for
Petitioner/Appellee Tennessee Department of Children’s Services

                                                OPINION

                                      F ACTS AND P ROCEEDINGS B ELOW

This appeal arises from a dependency and neglect proceeding. Respondent/Appellant C.R.M.
(“Mother”) is the mother of the three minor children at issue. M.M. (“Ex-Husband”) is the
biological father of two of the minor children, B.M. and C.M.; Mother and Ex-Husband were
married and later divorced. J.P. is the biological father of the third child, C.R.; Mother and
J.P. are not married but remained in a relationship at the time of the proceedings below.1

On June 18, 2011, J.P.’s infant child, C.R., was injured at Mother’s home. Mother and J.P.
explained that J.P. put the infant in a “bouncer” seat on top of a bed and then left the room,
leaving the child unattended. While J.P. was out of the room, the child fell off the bed onto
the floor. C.R. sustained severe injuries in the incident and J.P. and Mother eventually
brought the child to the hospital. Due to the nature and extent of the injuries, hospital
authorities reported the incident to the Tennessee Department of Children’s Services
(“DCS”).

Less than a week later, DCS filed a petition in the Juvenile Court for Shelby County,
Tennessee. Based on the injuries sustained by infant C.R., the DCS petition asked the
Juvenile Court to declare all three children dependent and neglected. The Juvenile Court
immediately entered an order removing all three children from Mother’s care and taking them
into protective custody. The Juvenile Court awarded temporary custody of B.M. and C.M.
to Ex-Husband. The Juvenile Court permitted DCS to take infant C.R. into protective
custody; the Juvenile Court order noted that DCS had entered into an immediate protection
agreement with the child’s maternal grandmother.

In January 2012, Ex-Husband filed an intervening petition in the Shelby County Juvenile
Court, asking the Juvenile Court to declare his biological children, B.M. and C.M., dependent
and neglected in Mother’s care. Ex-Husband’s dependency and neglect petition cited the
same grounds as the DCS dependency and neglect petition.



1
    J.P. is not a party to this appeal.

                                                   -2-
In Spring 2012, the Juvenile Court held a hearing on both dependency and neglect petitions;
the hearing was held over four non-consecutive days. In May 2012, the Juvenile Court
apparently issued an oral ruling in which the Juvenile Court held that all three children were
dependent and neglected and that infant C.R. had been subjected to severe abuse.

On May 21, 2012, Mother filed a notice of appeal of the Juvenile Court’s decision to the
Shelby County Circuit Court.2 Several months later, on July 13, 2012, the Juvenile Court
entered a written order memorializing its oral ruling.3 The written order declared all three
children dependent and neglected “due to the neglect by the mother and the severe abuse by
[J.P.] of [C.R.]” The order granted Mother supervised parenting time with the children as
arranged by the Exchange Club. The Juvenile Court’s order expressly prohibited any contact
between J.P. and all three children.

In January 2013, prior to a hearing in the Circuit Court on Mother’s appeal, Ex-Husband filed
a contempt petition against Mother and J.P. in the Circuit Court. Ex-Husband’s petition
alleged that Mother and J.P. violated the no-contact provision in the Juvenile Court’s order.

In response to Ex-Husband’s contempt petition, Mother filed a motion to dismiss asserting
that the Circuit Court did not have subject matter jurisdiction to adjudicate the contempt
petition. Mother argued in her motion to dismiss that, despite the appeal to the Circuit Court,
only the Juvenile Court would have subject matter jurisdiction to enforce its order.

In February 2013, the Circuit Court held a hearing on Mother’s motion to dismiss for lack
of subject matter jurisdiction. After the hearing, the Circuit Court held that it had subject
matter jurisdiction to adjudicate the contempt petition:

        [D]ue to the pending appeal of the Shelby County Juvenile Court Order
        finding the three minor children to be dependent and neglected, the Shelby
        County Circuit Court has subject matter jurisdiction to adjudicate the alleged
        contempt . . . and hear all other matters pertaining to custody, care, and control
        of the three minor children.

Mother immediately filed an application for an extraordinary appeal pursuant to Rule 10 of
the Tennessee Rules of Appellate Procedure and also asked the appellate court to stay all


2
 A dependency and neglect appeal from the juvenile court to the circuit court is de novo, but the juvenile
court record may be considered by the circuit court. Tenn. Code Ann. § 37-1-159(a) and (c) (2013).
3
  “A prematurely filed notice of appeal shall be treated as filed after the entry of the judgment from which
the appeal is taken and on the day thereof.” Tenn. R. App. P. 4(d) (2013).

                                                    -3-
proceedings pertaining to the three minor children. While it considered Mother’s application
for extraordinary appeal, the appellate court granted the stay only as to trial court proceedings
“seeking adjudication of allegations of contempt of the July 13, 2012 order of the [Juvenile
Court] and seeking punishment for alleged violations of that order.” The appellate court did
not, however, grant a stay as to any other proceedings pertaining to the children.4 In April
2013, the appellate court granted permission for a Rule 10 extraordinary appeal on the issue
of whether the Circuit Court erred in denying Mother’s motion to dismiss Ex-Husband’s
contempt petition for lack of subject matter jurisdiction. The appellate court’s order noted
that it had declined to issue a stay as to trial court proceedings on the care, custody and
control of the children, so those matters were permitted to proceed in the trial court below.

In February and March 2013, the Circuit Court held evidentiary hearings on all matters
pending before it except the contempt petition. On June 10, 2013, the Circuit Court entered
an order adjudicating these matters. In this June 2013 order, the Circuit Court “reversed” and
“vacated” the Juvenile Court’s July 2012 order holding that Ex-Husband’s children, B.M.
and C.M., were dependent and neglected. The Circuit Court remanded the dependency and
neglect petition as to these two children to the Juvenile Court for entry of an order of
dismissal of the petition. As to J.P.’s child C.R., the Circuit Court held that the child was
dependent and neglected in that he suffered an injury while in the care of Mother and J.P. and
affirmed that holding of the Juvenile Court. However, the Circuit Court concluded that
C.R.’s injuries were accidental and did not amount to severe abuse, so it reversed the
Juvenile Court’s order insofar as the Juvenile Court found severe abuse; the Circuit Court
remanded that matter to the Juvenile Court for entry of a modified order to reflect the Circuit
Court’s holding. The Circuit Court also reversed in part the Juvenile Court’s no-contact
order, to permit J.P. to have contact with his child, C.R. It ordered DCS to monitor the care
of C.R. in Mother’s home for a 90-day period. During this 90-day period, the Circuit Court
held, J.P. was to have no contact with B.M. and C.M., Ex-Husband’s children. At the end
of the 90-day monitoring period, the order provides, “the Department of Children’s Services
shall close their file incident to [C.R.].”

Thus, the Circuit Court’s June 2013 order resolved all matters pending before the Circuit
Court except for Ex-Husband’s contempt petition against J.P. and Mother. No appeal was
filed from the Circuit Court’s June 2013 order.




4
By that time, Ex-Husband had filed a petition to modify the parenting arrangement between himself and
Mother with regard to his two biological children, B.M. and C.M., based on the same facts alleged in his
Circuit Court contempt petition.

                                                  -4-
                      ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Mother argues that the Circuit Court erred in denying her motion to dismiss Ex-
Husband’s contempt petition for lack of subject matter jurisdiction. In response, DCS argues
that the issue for which the extraordinary appeal was granted is now moot. In the alternative,
DCS maintains that the Circuit Court did not err in denying the motion to dismiss the
contempt petition.

The issues presented are questions of law, which we review de novo with no presumption of
correctness. Nelson v. Wal-mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999); Alliance for
Native Am. Indian Rights in Tenn., Inc. v. Nicely, 182 S.W.3d 333, 338-39 (Tenn. Ct. App.
2005) (citing Orlando Residence, Ltd. v. Nashville Lodging Co., No. 01A01-9807-CH-
00357A, 1999 WL 1040544, at *3 (Tenn. Ct. App. Nov. 17, 1999)).

                                          A NALYSIS

We first address the issue of justiciability, as it appears determinative of this appeal. While
this case involved a live controversy when permission for the extraordinary appeal was
granted, we must consider whether the proceedings that took place in the Circuit Court while
this appeal was pending mooted the issue presented in this appeal.

Under our system of government, justiciability is fundamental to a court’s exercise of its
power:

       In general terms, the justiciability doctrine requires that cases must involve
       presently existing rights, live issues that are within a court’s power to resolve,
       and parties who have a legally cognizable interest in the judicial resolution of
       the issues. Thus, courts will decline to provide judicial relief in cases that do
       not involve genuine existing controversies requiring the adjudication of
       present rights, and will likewise decline to render declaratory judgments to
       decide theoretical questions or render advisory opinions.

Charter Lakeside Behavioral Health Sys. v. Tenn. Health Facilities Comm’n, No. M1998-
00985-COA-R3-CV, 2001 WL 72342, at *4 (Tenn. Ct. App. Jan. 30, 2001) (citations
omitted). An overview of the various concepts involved in determining whether a case is
justiciable:

       Concepts of justiciability have been developed to identify appropriate occasions
       for judicial action. Justiciability rulings often are attributed to limits on the
       judicial power created by Article III of the Constitution, reflecting the premise

                                               -5-
       that this power “is not an unconditioned authority to determine the
       constitutionality of legislative or executive acts.” Other rulings reflect a refusal
       to exercise the judicial power even in cases within the reach of Article III,
       invoking prudential principles for wise administration of the power. This blend
       of power with prudence is regularly acknowledged. The central concepts often
       are elaborated into more specific categories of justiciability—advisory opinions,
       feigned and collusive cases, standing, ripeness, mootness, political questions,
       and administrative questions. . . . [T]he same concerns often can be reflected
       in the language of two or more of these categories. A ruling that a case is not
       justiciable because the former injury has vanished, for example, might be
       expressed by finding the case moot; by finding that the plaintiff lacks standing
       for want of injury; or by finding that the prospect of further injury in the future
       is not yet ripe.

13 Charles A. Wright, et al., Federal Practice and Procedure § 3529 (2d ed. 1984) (updated
2013) (footnotes omitted) (cited in Charter Lakeside Behavioral Health Sys., 2001 WL
72342, at *4).

In order for the proceedings in a given case to continue, the same requirements for initiating
litigation must be met. “A case must remain justiciable through the entire course of litigation,
including any appeal.” Alliance for Native Am. Indian Rights in Tenn., Inc., 182 S.W.3d
at 338 (citing State v. Ely, 48 S.W.3d 710, 716 n. 3 (Tenn. 2001)). “A case is not justiciable
if it does not involve a genuine, continuing controversy requiring the adjudication of presently
existing rights.” Alliance for Native Am. Indian Rights in Tenn., Inc., 182 S.W.3d at 338
(citing State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000)). A
case is rendered moot if it “has lost its justiciability because it no longer involves a present,
ongoing controversy.” Alliance for Native Am. Indian Rights in Tenn. Inc., 182 S.W.3d
at 338 (citing McCanless v. Klein, 188 S.W.2d 745, 747 (Tenn. 1945); County of Shelby v.
McWherter, 936 S.W.2d 923, 931 (Tenn. Ct. App. 1996)).

Ex-Husband’s contempt petition asserts that Mother and J.P. violated the no-contact provision
in the Juvenile Court’s July 2012 order. Necessarily, Ex-Husband’s contempt petition relates
to his two biological children, B.M. and C.M. The no-contact provision was based on the
Juvenile Court’s overall holding that all three children were dependent and neglected “due to
the neglect by the mother and the severe abuse by [J.P.] of [C.R.]”

The Circuit Court’s June 10, 2013 order essentially removed the underpinnings for Ex-
Husband’s contempt petition. It held that the incident that prompted the dependency and
neglect petitions was merely an accident, “reversed” and “vacated” the Juvenile Court’s
holding that Ex-Husband’s children, B.M. and C.M., were dependent and neglected, and

                                               -6-
remanded the matter to the Juvenile Court for entry of an order dismissing the dependency and
neglect petition as to Ex-Husband’s two children. The Circuit Court’s order included a new
no-contact provision that ended after a short monitoring period that has long since passed.
The Circuit Court’s order was not appealed.

Meanwhile, the issue that was pending in the appellate court was the Circuit Court’s denial
of Mother’s motion to dismiss Ex-Husband’s contempt petition; the contempt petition accused
Mother and J.P. of violating the no-contact provision of the Juvenile Court’s order as to Ex-
Husband’s children. The Circuit Court held that it had subject matter jurisdiction to
adjudicate Ex-Husband’s contempt petition but refrained from doing so. Thus, at this time,
the Circuit Court has never determined whether Mother violated the no-contact provision in
the same Juvenile Court order that the Circuit Court later vacated.

On appeal, Mother argues that, absent a ruling by this Court that the Circuit Court would not
have subject matter jurisdiction to adjudicate Ex-Husband’s contempt petition, the Circuit
Court might yet hold that Mother and J.P. violated the no-contact provision of the no-longer-
extant Juvenile Court order. She cites the principle that a court order is not rendered void or
unlawful simply because it is erroneous or subject to reversal on appeal and notes that she was
charged with violating the order while it was still in place. Konvalinka v. Chattanooga-
Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 355 (Tenn. 2008) (citing In re Vanvaver, 12
S.W. 786, 791 (Tenn. 1890); Churchwell v. Callens, 252 S.W.2d 131, 137 (Tenn. Ct. App.
1952)).

We think that Mother’s argument relies on a “mere theoretical possibility” that she will be
held in contempt of an order that was vacated by the Circuit Court for lack of any basis in fact.
Alliance for Native Am. Indian Rights in Tenn., Inc., 182 S.W.3d at 340. For us to rule on
the issue presented in this appeal would in essence be rendering an advisory opinion or
deciding an abstract legal question. This we decline to do. Brown & Williamson Tobacco
Corp., 18 S.W.3d at 193 (Tenn. 2000)(“If the controversy . . . involves a theoretical or
hypothetical state of facts, the controversy is not justiciable.”) (citing Story v. Walker, 404
S.W.2d 803, 804 (Tenn. 1966)).

We note that this is not an appeal as of right under Rule 3 of the Tennessee Rules of Appellate
Procedure. Rather, it is a permissive appeal pursuant to Rule 10 of the Tennessee Rules of
Appellate Procedure. To the extent that there remains any smidgen of a possibility that Ex-
Husband might continue to attempt to pursue his contempt petition and that the Circuit Court
might grant Ex-Husband’s contempt petition, it no longer warrants a grant of permission for
an extraordinary appeal under Rule 10. Blackwell v. Comanche Const., Inc., No. W2012-
01309-COA-R9-CV, 2013 WL 1557599, at *1, 9 (Tenn. Ct. App. Apr. 15, 2013) (permission
under Rule 9 improvidently granted). Under the circumstances, we hold that this Court

                                               -7-
improvidently granted permission for this interlocutory appeal under Rule 10 of the Tennessee
Rules of Appellate Procedure. Blackwell, 2013 WL 1557599, at *9.

Accordingly, because the issue in this interlocutory appeal is no longer justiciable and this
Court improvidently granted permission for the appeal under Rule 10 of the Tennessee Rules
of Appellate Procedure, we dismiss the appeal. All other issues raised in this appeal are
pretermitted by this decision.

                                       C ONCLUSION

The appeal is dismissed. Costs on appeal are assessed one-half against Tennessee Department
of Children’s Services and one-half against Appellant C.R.M. and her surety, for which
execution may issue, if necessary.




                                                          ___________________________
                                                            HOLLY M. KIRBY, JUDGE




                                             -8-
