                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                      March 24, 2011 Session

                            IN THE MATTER OF: LaPORSHA S.

                   Direct Appeal from the Circuit Court for Gibson County
                            No. 8505    Clayburn Peeples, Judge


                     No. W2010-02135-COA-R3-JV - Filed April 12, 2011


This appeal involves a dispute over the placement of a child formerly in the custody of the
Department of Children’s Services. Because the child turned eighteen years old during the
pendency of these proceedings, this appeal is moot and must be dismissed.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Harold R. Gunn, Humboldt, Tennessee, for the Appellant, LaPorsha S.

Robert E. Cooper, Jr., Attorney General and Reporter, Joe Whalen, Associate Solicitor
General and Douglas Earl Dimond, Senior Counsel, for the Appellee, Tennessee Department
of Children’s Services, Tennessee.

                                   MEMORANDUM OPINION 1

        In December 2008, the Tennessee Department of Children’s Services (“DCS”) filed
a petition in the Juvenile Court of Gibson County seeking temporary custody of two siblings,
Duane M. (d.o.b. 10/12/1993) and LaPorsha S. (d.o.b. 10/11/1992). The juvenile court
entered an adjudicatory order in March 2009 finding Duane M. and LaPorsha S. dependent

       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       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       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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.
and neglected. In January 2010, the juvenile court reviewed and ratified a permanency plan
for LaPorsha S. The juvenile court’s ratification order mandated a “stepped up” placement
of LaPorsha S. in a level-three environment, forbidding DCS from placing the child in a
foster home or therapeutic foster home. DCS petitioned to reconsider and rescind the order
mandating a specific placement, which the juvenile court denied. DCS appealed to the
Circuit Court for Gibson County. The circuit court held the juvenile court could make
recommendations about child placement but did not have statutory authority to order a
specific placement. The guardian ad litem (“GAL”) appointed to represent LaPorsha S. filed
a notice of appeal to this Court on September 23, 2010. On October 11, 2010, LaPorsha S.
turned eighteen years old.

       GAL presents two issues for our review, as slightly reworded: (1) whether a juvenile
court has authority to order a level-three placement for a dependent and neglected child if
DCS files an evidentiary hearing motion and the court finds the specific placement to be in
the best interests of the child; and (2) whether the proper appeal from a ruling at an
evidentiary and/or permanency plan hearing is to the circuit court or the court of appeals.
DCS frames the issues thus: (1) whether this Court lacks subject matter jurisdiction because
the appeal is moot; (2) whether this Court, similar to the circuit court, lacks subject matter
jurisdiction to review an order from the juvenile court that is not final; (3) whether the
juvenile court lacked authority to mandate a specific placement for LaPorsha S.; and (4)
whether this appeal is frivolous.

       The dispositive issue before this Court is whether this appeal is moot.

              We recently reiterated that “‘[A] court only exercises its ‘jurisdiction’
       when it is called upon to ‘adjudicate a controversy.’” Pub. Employees For
       Envtl. Responsibility (Peer) v. Tennessee Water Quality Control Bd., No.
       M2008-01567-COA-R3-CV, 2009 WL 1635087, at *6 (Tenn. Ct. App. June
       10, 2009) (quoting Hurley v. Univ. of Tennessee at Knoxville, 188 S.W.3d 519,
       522 (Tenn. 2006) (quoting Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977))).
       “‘To ‘adjudicate’ is not simply to render a decision or an opinion. To
       ‘adjudicate’ means ‘[t]o settle in the exercise of judicial authority. To
       determine finally.’” Id. (quoting id. (quoting Black’s Law Dictionary 42 (6th
       ed. 1990))).

               To retain its character as a justiciable controversy which may be
       adjudicated by the court, the controversy must remain alive throughout the
       litigation process, including the appeal process. McIntyre v. Traughber, 884
       S.W.2d 134, 137 (Tenn. Ct. App. 1994). Subject to only limited exceptional
       conditions, the appellate courts decline to address appeals that do not involve

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       a genuine and live controversy requiring the “present adjudication ... involving
       present rights.” State ex rel. Lewis v. State, 208 Tenn. 534, 347 S.W.2d 47, 48
       (Tenn. 1961) (quoting Southern Pac. Co. v. Eshelman, 227 F. 928, 932 (D.C.
       Cal. 1914)); McIntyre, 884 S.W.2d at 137. This Court will not render advisory
       opinions or “decide abstract legal questions.” Id. (citations omitted). Rather,
       a lawsuit that no longer requires the adjudication of the parties’ rights is no
       longer justiciable and will be dismissed as moot. McIntyre, 884 S.W.2d at
       137. Our primary consideration when deciding if a lawsuit has become moot
       “is whether changes in the circumstances existing at the beginning of the
       litigation have forestalled the need for meaningful relief.” Id. (quoting Federal
       Practice and Procedure § 3533.3, at 261). Therefore, we will consider a case
       to be moot “if it no longer serves as a means to provide relief to the prevailing
       party.” Id. Whether a claim has become moot is a question of law to be
       decided by the court. Hurd v. Flores, 221 S.W.3d 14, 30 (Tenn. Ct. App.
       2006).

In re Adoption of N.A.H., No. W2009-01196-COA-R3-CV, 2010 WL 457506, at *3 (Tenn.
Ct. App. Feb. 11, 2010).

        This appeal is moot because LaPorsha S. no longer needs meaningful relief from this
Court. GAL filed this appeal seeking enforcement of the juvenile court’s specific placement
of LaPorsha in a level-three environment. DCS, however, no longer has custody of LaPorsha
S. See Tenn. Code Ann. § 37-1-102(b)(4)(C) (2010) (providing that “[i]n no event shall a
person eighteen (18) years of age or older be committed to or remain in the custody of the
department of children’s services by virtue of being adjudicated dependent and neglected .
. . ”).2 Additionally, the juvenile court no longer possesses authority to enter orders of
disposition with respect to LaPorsha S. See Tenn. Code Ann. § 37-1-130(a) (2010)
(permitting a court to enter orders of disposition of a dependent and neglected “child”); Tenn.
Code Ann. § 37-1-102(b)(4)(A) (2010) (defining a “child” as “[a] person under eighteen (18)
years of age”). LaPorsha S. is no longer subject to placement of any kind, much less the
specific placement that the juvenile court ordered. Thus, it does not matter whether the
juvenile court or the circuit court appropriately addressed the specific placement of LaPorsha
S. under the facts. This Court’s resolution of the issues presented would be merely advisory,
providing the appellant no relief whatsoever. GAL conceded this point at oral arguments.



       2
         Tennessee Code Annotated § 37-1-102(b)(4)(C) provides a narrow exception for circumstances
described in Tennessee Code Annotated § 37-1-173. Tenn. Code Ann. § 37-1-102(b)(4)(C) (2010).
Tennessee Code Annotated section 37-1-173, however, has been repealed. See 2008 Tenn. Pub Acts, Ch.
906, §2, effective July 1, 2008.

                                                -3-
       There are instances when Tennessee courts recognize exceptions to the mootness
doctrine, including cases involving “issues of great public interest and importance to the
administration of justice” and “issues that are capable of repetition yet evading review.” In
re Adoption of N.A.H., 2010 WL 457506, at *4 (citing McIntyre, 884 S.W.2d at 137). GAL
nevertheless did not argue an exception to mootness doctrine in his principal brief or file a
reply brief in response to DCS’s well-supported argument on the issue. GAL therefore
waived any argument his client could have made concerning exceptions to the mootness
doctrine. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. App. R. 6(a), (b); Bean v. Bean, 40
S.W.3d 52, 55-56 (Tenn. Ct. App. 2000) (citations omitted). This appeal is moot.

        This appeal is also frivolous. A “frivolous” appeal is devoid of merit or has no
reasonable chance of success. Robinson v. Currey, 153 S.W.3d 32, 42 (Tenn. Ct. App. 2004)
(citing Indus. Dev. Bd. of the City of Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct.
App. 1995)). Given that GAL did not seek any type of expedited briefing schedule or
extraordinary relief from this Court, the issues presented were bound to become moot during
the pendency of this appeal absent the application of an exception to the mootness doctrine.
GAL should have been aware—and informed his now emancipated client—that this appeal
had no reasonable chance of success because this Court would be jurisdictionally unable to
reach the issues presented. As DCS persuasively argues, GAL also should have been aware
that the appeal would serve no purpose except to burden DCS, the Office of the Attorney
General, this Court, and the taxpayers of this State. Because this appeal had no reasonable
chance of success, it is within our authority to award DCS damages. See Tenn. Code Ann.
§ 27-1-122 (2000). We nevertheless conclude in our discretion that we should not award
damages or tax the costs of this appeal against the appellant, LaPorsha S., the person who
would ultimately suffer the consequences of her guardian ad litem’s decision to pursue a
meritless appeal. See Young v. Barrow, 130 S.W.3d 59, 66-67 (Tenn. Ct. App. 2003) (citing
Banks v. St. Francis Hosp., 697 S.W.2d 340, 343 (Tenn. 1985)) (affirming that the decision
of whether to award damages in a frivolous appeal rests within the sound discretion of the
appellate court).

                                        Conclusion


      We dismiss this frivolous appeal as moot, decline in our discretion to award
damages in favor of DCS, and waive the costs of this appeal under the unique
circumstances of this case.


                                                   _________________________________
                                                   DAVID R. FARMER, JUDGE

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