Tennessee Supreme Court to the Rescue: “Signed” vs. “Signed Personally” in Tennessee TPR Appeals

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Samuel Robinson III

In Re Bentley D., No. E2016-02299-SC-RDO-PT (Tenn., 2017)

            On July 1, 2016, the Tennessee Legislature enacted Tennessee Code Annotated (“T.C.A.”)  36-1-124(d) which changed the way appeals of terminations of parental rights cases (“TPR”) are to be initiated. Contrary to the law prior to 7/1/16, the new code section attempts to require the appellant (as opposed to his/her attorney) to sign the Notice of Appeal. This seems unduly harsh as the Tennessee Court of Appeals has had to dismiss 9 parents’ appeals of trial court decisions terminating their parental rights simply because they did not sign the Notice of Appeal. TPR cases are the only type of case that requires the Appellant, as opposed to his/her attorney, to sign the Notice of Appeal. As the Tennessee Court of Appeals has stated, “The purpose of the Notice of Appeal is simply to declare in a formal way an intention to appeal. As long as this purpose is met, it is irrelevant that the paper is deficient in some other respect.” In Re Bentley D., No. E2016-02299-SC-RDO-PT (Tenn., 2017). Tennessee Rule of Appellate Procedure (“T.R.A.P.”) 3(f), Advisory Comments. Notably, under T.R.A.P. 3(f), a signature requirement is not among the rule’s specifications for the content of the notice of appeal.

            So with the Court of Appeals’ dismissal nine sets of parents’ appeals terminating their parental rights, this has become a hot issue in Tennessee child custody law.[1] Because of that, the Tennessee Supreme Court exercised its authority to, on its own motion, “assume jurisdiction over an undecided case when there is a compelling public interest when a case is filed in the intermediate appellate court.”[2] The effect this change in the law was having was to deny otherwise valid appellants’ constitutional right to appeal an unfavorable decision of a trial court to the Tennessee Court of Appeals. It reminds me of the new(er) laws around how medical malpractice claimants have to jump through several procedural hoops that other claimants do not have to jump through to get their case properly filed or it is subject to dismissal, as well. So far, those laws have withstood appellate scrutiny, unfortunately, as they, too, have nothing to do with the merit of the claim and everything to do with hindering access to the courts so that insurance companies do not have to pay what could be otherwise valid claims for people who are injured as a result of medical negligence. But, I digress.

            Anyway, getting to the point, in overturning this onerous change in the law, the Tennessee Supreme Court came to the rescue of parents whose appeals of the termination of their parental rights have been dismissed in this case, In Re Bentley D (full text in a link at the end of this post). The Court pointed out that the subject code section, T.C.A. § 36-1-124(d) was enacted at the same time as T.C.A. § 36-1-117(o) which states, among other things, that “the response or answer to a petition for termination of parental rights shall be signed by the respondent personally, sworn and verified, and filed with the clerk of the court.” T.C.A. § 36-1-124(d) (2016). Significantly, § 36-1-124(d) omits the modifier  “personally.” When statutes are enacted together, the doctrine of in pari materia requires [the appellate courts] to interpret them together. Bentley at 6, citing Stevens ex rel. Stevens v. Hickman Comm. Health Care Serv., Inc. 418 S.W.3d 547, 560 (Tenn., 2013). The construction of one such statute, if doubtful, may be aided by considering the words and legislative intent indicated by the language of the other statute. Id., citing Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn., 2013). So while T.C.A. § 36-1-117(o) requires that an answer or responsive pleading to a petition to terminate parental rights be “signed personally” by the respondent, T.C.A. § 36-1-124(d) simply says the Notice of Appeal of in a TPR case shall be “signed” by the appellant. Distinguishing between these two sections, and coming to the rescue of would-be appellants, the Tennessee Supreme Court concluded in Bentley that the word “appellant” under T.C.A. § 36-1-124(d) includes an attorney specifically authorized to file a notice of appeal on the appellant’s behalf. Bentley at 8.

            Hopefully the General Assembly won’t come back and insert the word “personally” into T.C.A. § 36-1-124(d) as this seems like an unreasonable and unnecessary requirement for perfecting an appeal in Tennessee. Think about it: Why is the appellant’s signature required on only TPR appeals? Usually, a party’s signature is required when factual allegations are being made which support a person’s claim or request for relief from the court, and those allegations must be made and sworn to by the claimant. Therefore, a notary seal is required, along with the person’s signature. A Notice of Appeal does not contain any factual allegations whatsoever. As the Court has said, the Notice of Appeal is simply a procedural requirement to communicate to the court to which the case is appealed who the parties are and what judgment they are being asked to review. That’s it. Later in the procedure, the appellant’s attorney will file a Brief of Appellant which states all the grounds upon which the appeal is based. However, that, too, doesn’t make any factual allegations as all factual allegations are presumed correct and will not be disturbed on appeal unless they are clearly wrong or no reasonable trier of fact could have come to that conclusion, giving the most liberal view of the evidence to the appellee. So it simply doesn’t make good sense to require the appellant to sign his/her notice of appeal. All it does is restrict people’s access to the Tennessee Appellate Courts, and that is why the Supreme Court came to the rescue and found in the way that it did.

You can read the full opinion by clicking here.

            Thanks for reading and happy parenting.

Samuel F. Robinson III

Attorney at Law

Chattanooga, TN

[1] See In re Homer D., No. M2017-00298-COA-R3-PT, 2017 WL 3611043 (Tenn. Ct. App. Aug. 22, 2017), perm. app. pending; In re Dae’jrien T., No. E2017-00051-COA-R3-PT, 2017 WL 3600461 (Tenn. Ct. App. Aug. 21, 2017), perm. app. pending; In re David P., No. E2017-00245-COA-R3-PT, 2017 WL 3535014 (Tenn. Ct. App. Aug. 17, 2017), no perm. app. filed; In re Nevaeh B., No. W2016- 01769-COA-R3-PT, 2017 WL 3494335 (Tenn. Ct. App. Aug. 14, 2017), perm. app. pending; In re Audrina E., No. E2017-01178-COA-R3-PT, 2017 WL 3475526 (Tenn. Ct. App. Aug. 14, 2017), no perm. app. filed; In re Jayden R., 2017 WL 3469708, no perm. app. filed; In re Kendall H., No. E2017-01034- COA-R3-PT, 2017 WL 3446818 (Tenn. Ct. App. Aug. 11, 2017), perm. app. pending; In re Mya V., No. M2016-02401-COA-R3-PT, 2017 WL 3209181 (Tenn. Ct. App. July 28, 2017) (dismissing father’s appeal, but not mother’s appeal), no perm. app. filed; In re Catherine J., No. W2017-00491-COA-R3-PT, 2017 WL 3141825 (Tenn. Ct. App. July 24, 2017), perm. app. pending.

[2] See T.C.A. § 16-3-201(d)(3)