# FILED
March 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) IN THE MAT TER OF: ) Hardeman County Circuit Court JAMIE MURPHY (DOB 7/12/87) ) No. 8698 JANET MURPHY (DOB 4/24/89) ) JHANAID MURPHY (DOB 2/23/91) ) ) ) C.A. No. 02A01-9610-CV-00259 ) )

______________________________________________________________________________ From the Circuit Court of Hardeman County at Bolivar Honorable Jon Kerry Blackwood, Judge

Patricia L. Pe

nn , Penn & Associates, Memphis, Tennessee Att orn ey for Pet iti one rs/ App ell ant s Je sse and Gen eva M urp hy.
Karen T. Fleet , Bolivar, Tennessee Attorney fo

r Respondents/App

ellees Edward B owers, Jr. and Mae Lena Bower

s.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) LILLARD, J. : (Concurs)1 The petition described the natural mother as a “street person” living in St. Louis. This is a child custody case involving three biological children of James Murphy and Valerie Carter. They are: Jamie Murphy , born July 12, 1987; Janet Murphy, born April 24, 1989; and Jhanaid

Mur phy, born February 23, 1991. Appellants are their paternal grandfather and stepgrandmother, Jessie and Gene va Mu rphy. The a ppellee, Edward

Bowers, Jr., is a f

irst cousin to James Murphy and A

ppellee Mae L

ena Bowers is

his wife. Appellants have appealed from an order entered by the circuit court dismissing their appeal and reinstating the

judgment of the ju

venile court which found that no material misrepresentations were made by the appellees at the July 1995 custody hearing to affect that co

urt’s decision to

award temporar

y custody of Jamie and Janet to

appellants and temporary

custody of Jha

naid to the appelle

es. For the rea

sons set forth belo

w, we affirm.

This matter began in

July 1992, when the Bowers filed a petition in the juvenile court seeking custody of Jam

ie and Jhanaid . The juveni le court granted them temporary custody after determining that

the two children were “dependent and neglected” as defined by statute (T.C.A. § 37-1-103(b)(10)) inasmuch as their father was inca

rcerated in

a correctional facility in Missouri and their mother was sufferingfrom drug addiction. 1 The court reserved a final hearing upon completion of a home study investigation.

On October 1 5, 1992, the Bowers filed a petition seeking custody of Janet. On October 27, 1992, Jessie Murphyfiled a petition with the juvenile court seeking custody of all three children. The petition alleged that their natural mother was incarcerated in Missouri for drug related crimes; that Jhanaid

had resided with the Bowers since she was 3 months old; and that the other two children had resided with their mother until February 199 2. It was ass ert ed t hat sin ce Fe bru ary, however, Jamie and Janet had r esided with

the appellants at their “mother’s request.” The petition alleged that Janet had since lived with the appellants without interruption and that Jamie had resided withthem until April 1992 when he began living with the Bower s “for visi ting p urpos es onl y.” In December

1992, the juvenile

court entered a

n order awardin

g temporary

cust ody o

f Janet to Appe llant Murphy, with visitation rights extended to him regarding the other two children, who remained in the Bowers’ c

ustody. No vis

itation pr ivileges were accorded the Bowers regar ding Janet. All other matters w ere reserved u

ntil a final heari

ng. Thereafte

r, in June 1993, the ju

venile2 Rule 34 of the Rules o f Juvenile Procedur

e pertains to reli

ef from judgmen

ts or orders - modification and v

acation of order

s.” It provide

s, as here relev

ant: (b) Extraordinary Relief . An order of the c ourt shall be vaca

ted if it appears that it wa

s obtained by

fraud or mistake

sufficient there

for in a civil action, or the court lacked jurisdiction over a necessary par ty or of the subject matter, or newly

discovered evid

ence so require

s. (c) Modification for

Best Interest of C

hild . An order of the court may also be modified or vacated on the ground that changed circumstances so require in the best interest of the child, . . . (d) Petitions to Modify or Vacate Orders . Any party to the pr oceeding, the probation officer, or any other person having super vision or legal custody of or an interest in the child may petition the court for the relief provided in subsections (b) and (c) of this rule. The petition shall be styled “Petition to Vacate Order” or “Petitio n to Modify Ord er,” as the ca se may be, shall set forth i n concise la nguage the grounds upon which the relief is requested, . . .
3 In determinin

g custody,

the court reason

ed as follows: [T]he Court finds that

the unification of

these three chil

dren is of utmost importance to the Court and in the best interests of the children, and that every reasonable effort should be made by all parties to foster the re lationship of brother and sisters between them. However, the Court further finds that due to the tender ages of the chi

ldren, ranging

from four y

ears to eight y

ears, most importa

ntly to the children is the

relationship of pa

rent and child. Th

e Bowers have h

ad Jhanaid residing wi th them in their home since she wa s an infant some six m onths of age and the bond of parent and child is strong. The Murphys have had Jamie and Janet residing with them in their home as brother and sister, and, without question, a strong bond exists between them both as parent and child and as brother and sister. Jamie also resided in the home of the Bowers for several months, and the rec

ord reflects tha

t he has done well i

n both homes.

. . . . This Court is of the op

inion and belief th

at serious emotiona

l harm could resul

t to Janet or Jhanaid if ei

ther child were r

emoved from their

present homes. court entered an order awarding temporary custod y of Jamie and Janet to Jessie Murphy and temporary custody of Jhanaid to the Bower s. Visitation was extended to each of the parties.

In March 1995, Appellants filed a petition to modify 2 requesting that they be

awarded permanent

custody of all three children. The Bowers responded by also see king permanent custody of the children. Prior to a hearing, the court appointed a guardian ad litem on the children’s behalf. The court conducted a hearing on July 26,1995 resulting in anaward of tempor ary custody

of Jamie and Janet to the appellants. Temporary custody of Jhanaid re mained with the Bowers. The court’s order was entered August 7, 1995. 3 No a ppe al w as t aken by ei the r par ty.

On September 6, 1995, Appellants filed a “Petition to M odify Order Awarding4 The court’s order further states that its decision was not based solely on the g uardian ad litem’s report, “but same was considered along with the evidence presented, testimony of witnesses, statements of counsel, [and] the entire record . . . .” The court found that the guardian ad litem’s report

was not rebutted b

y either pa

rty at the he

aring and the c

ourt did not conside

r it a matter in dispute. The court denied ever awarding “permanent” custody to either party or “permanently” separating them. The court ac knowledged that it had previously on its own motion requested the parties’ and children to undergo psycholog ical evaluations, but had thereafter waived same after the court was advised by the parties that the evaluations would be too expensive for them. The court, however, did not prohibit the parties from proceeding on their own with such testing and to present evidence thereof at the hearing. At the hear ing, the court was informed that two of the children had undergone professional counseling, but the court noted that the testimonies of counselors was not presented. Custodyand Petition to Hear Additional Evidence” requesting the court to hear additional evidence notpresented at the July 26, 1995 hearing and to modify its orde r to award

custody of J hanaid to them. The petition alleged that the Murphys wer

e not aware of th

e existence of the

ir grandchildren until 1992, at which time the natural parents expressed their desires that the Murphys have custody of the children; that

they were aware of “certain intentional misrepre sentations” made by

the Bowers at the July hearing which were designed to influence the c ourt’s decision, the proo

f of which should be admitted to

protect the welf

are of Jhanaid Mur

phy; that it

was in the best interest and welfare of Jhanaid to be in the appella

nts’ custody and to reside

with her other siblings; that the court’s decision
was based upon the report of the guardian ad litem “which restricts the considerations of the child’s best interest test in awarding permanent custody of [Jhanaid] and in permanently separating her from her . . . siblings”; that the list of relevant factors identified a t T.C.A. § 36-6-105 was not an exhaustive one and the court’s consideration was not to be limited thereby; and, finally, that “critical evidence” was available to the court, but could be obtained only upon the court’s enforceme ntof its July 10, 1995 order which required each of the parties and minor children to undergo psychological evaluations with the completed reports submitted to the court.

By order entered S eptember 14, 1995 , the juvenil e court h eld, that of the matters presen ted in the appellants’ petition to modify, it had “heard, considered and ruled” on all but the allegationthat intentional misrepresentations were made by the Bower s at the Ju ly 1995 hearing. 4 The court scheduled a hearing as to this issue and orde red Appel lants to file an amended petition sp ecifically

setting forth the alleged misrepresentations, when they we re made and by whom, b y September

20, 1995. If not filed by said date, the court ordere d that the petition be dismissed. On October 6, 1995, the court entered an order dismissing Appel lants’ petition to modify after they failedto file

an amended p etition o r appear at th e scheduled hearing, tho ugh the record reflects thatthe Bowers did attend.

On October 12, Appellants filed a motion to set aside the order o n the basi s that neither they nor their counsel had received any notice of the scheduled he aring or order requiring that
an amended petition be filed. On January 10, 1996, the appellants filed an amended

petition setting forth the specific intentional misrepresentations allegedly made by the Bowers as follows: (1) that Mrs. Bowers had represented herself to medical care givers as the

“mother” of the children; (2) that Mr. Bowers was not currently an employee of the railroad company as was his testimony at the July 1995 hearing and was, thus, attempti ng to misreprese

nt his financial ab

ility to provid

e for the child in his custody; (3) tha

t a court reporter was present at the July 1995 hearing and snapshots wer e provided by the appellants, but that on January 8, 1996, neither a t ranscript of the case nor the snapshotswere included within the court’s file on the case; and (4)

that “as a restatement fro

m their original Petitions . . . critical evidence [was] available to the Court that . . . Jamie and Janet fear[ed] going to the [Bowers’ home] and exhibit[ed] adverse affects each time [they visited in the Bowers’ home],” but that such critical evidence could only be obtained upon enforcement of the court’s prior order requiring all parties and ch il dren to undergo psychological evaluations. By response, the Bowers denied that the court’s order was in any way obta ined by fraud or mistake

, that any ne

wly discovered

evidence existed or that there were changed circumstances requiring modification of the court’s prior order.

On March 28, 1996, Appellants filed a second “Petitionto Modify Order Awarding Custodyan d Petition to Hear Additional Evidence.” Appellants requested the court to reconsider “its decision to separate these minor children and to place the y

oungest . . . in a foster home and to consider additional evidence . . . .” Attached thereto was the deposition of a clinical psy

chologist who had begun eval

uations on the child

ren. Appellants a

ll egedthat “some form of abuse” was occurring in the Bowers’ home. It was further alleged, “as a restatement of

their original petitions,” that Jamie and Janet feared goingto the Bowers’ ho me and exhibited adv

erse effects

after visitation and that Jhanaid was developmentally delayed. Appellants once again urged the

court to enforce

its prior order requiring psychological evaluations of all par ties and children in or der that “critical evidence” pertaining thereto could be obtained.5 On April 12, the juve nile court enter

ed an order deny

ing the appellan

ts’ petition to modify, filed March 28, on the basis that it presented “the same issues” previously heard and decided by the court and that no new or additional proof had been shown to substantiate a material chang

e in circumstanc

es since entry

of its order on Apr

il 4; thus, renderin

g its April 4 judgment final for purposes of appeal.

On April 4, 1996, the

juvenile court en

tered an order r

uling as follows:
Upo n the filing of the

Petition on Septembe

r 6, 1995, th

e Courtreviewed same and found many of the matters addressed therein had beendecided by the Court after an extensive hearing on July 26, 1995, and an Order was entered thereon on August 7, 1995, and that the only matter to be considered by the Court was regarding the allegations of misrepresentations . . . . The Court entered an Or dero n September 14, 1995, directed the Petitioners to file an AmendedPetition setting fo rth the alleged misrepresentations, and limiting any furthe

r hearing to the

issue of misrepre

sentations to

the Court. The Petition, therefore, came on for hearing on the 7th day of Febr uary, . . . the Court having heard testimony

of witnesses, examined the evidence, a

nd being suffic

iently advised finds that NO MATERIAL MISREPRESENTATIONS were made to the Court at the hearing on July

26, 1995, to substant

iate a modificati

on of this Court’s Order of August 7, 1995,
. . . the Petition should be denied.

On April11, the Bowers responded to the appellants’ petition to modify filed March 28, 1996 and denied a

ll material alleg

atio ns thereto. The Bowers requested that the matter be
summa rily dismissed as the issues raised had been previously ruled upon and were, theref or e, re s judicata
. This same day, Appellants appealed to the circuit court

from the juvenile court’s judgment rend ered April 4, 1996. 5 A hearing was conducted in the circuit court on May 3 with the cou r t ultimately

dismissing the appeal and reinstating the judgment

of the juvenile court by order entered May 6.
After Appellant s had filed a notic

e of appeal to this

Court, the circuit

court entered
a separate order

on October 16, granting Appellees’ motion to modify the transcript to be submitted to this Court on groun

ds that it contained certain evident iary matter

s that would be impro

perly included in the record on appeal. Specifically , the appellees’ “objections to transcript as filed and motion to mod ify transcript,” asserted that a transcript of the July 26, 1995 hearing would be inappropriately

included because the appellants had filed no appeal therefrom and the transcript was notconsi dered by th

e cir cuit court in its rul

ing on May 6 . In grantin g the motion and re

fusing tocertify

the record

as submitted by Appellants, the circuit court’s order specifically states that at the hearing on May3, the court “considered only the issues raised in the February 7, 1996, hearing before the Juvenile Court . . . relative to alleg

ed misr epresen tations made by

the Appellees in affirming the decision of the Juvenile Court Judge and dismissing the appeal [therefrom].” The court ruled that the record o

n appeal should

consist solely of the

transcript of the May 3 hearing and any exhibits thereto.

Appellants raise

the following issu

es on appeal:

1. Whether the Circuit Court of Hardeman County erred i n denying a trial de novo pursuant to T.C.A. § 37-1-159. 2. Whether

the juvenile Court

of Hardeman Coun

ty erred in ho l ding that the two children (Jamie and Jhanaid) were dependent and neglected children within the meaning of T.C.A. § 37- 1-10[2] (b)[(12) ]) without giving proper notice to either the paren ts or grandparents of the said children. 3. Whether the Juvenile Court of Hardeman County lacked jurisdiction pursuant

to T.C.A. § 37-1-10 1(4) in so far as the mother, the father, and the paternal grandparents of these children were not givennotice and due process, were thus denied a fair hearing and their Constitutional and other legal rights were not recognized,were denied, a nd were [u

nenforc ed].

W e first consider the

issues pertaining

to whether the juv

enile court lacke d jurisdicti on to entertain this matter for failure to give proper notice to either the appellants or the natural p arents of the children regarding the hearings, thus deny ing their due process rights and failing to comply with the provisions of T.C.A. § 37-1-101(4). Chapter 1 of Title 37 addresses “juvenile courts

and proceeding

s.” Section 37-1- 101(a)(4) prov ides:

This part shall be construed to eff ectuate the follo

wing public purposes:

. . . . Provide a simple judicial procedure through which this part is executed an d enforced and in which the parties

are assured a f

air hearing and their constitutional and other legal rights recognized and enforced;

The record indicates that the order of temporary custody determining Jamie and6 Appellant Murphy’s first petition for custody was filed on Oc tober 27, 1992.
7 This section was amended in June 1997 to allow an appeal from the judgment of the juvenile court to b

e made to either th

e criminal or cir

cuit courts. Jhanaid “dependent and neglected” was entered August 3, 1992. The rec or d includes a notarized “Consent For Adoption By Natural

Father” signe

d by James Murp

hy on Dece

mber 12, 1991 wher

ein he agrees to the “ad option” of his three children by the Bowers. A similar notarized handwritten letter, signed by V

alerie Carter, “acknowledg[ing] the voluntary transfer of tempor ary custody” of the children to the Bowers is also in the record. It is dated February 18, 1992. The record further evid ences a le tter from the juvenile court addressed to both James Murphy and Ms. Carter, dated November

2, 1992, informing them of the parties’ respective petitions for tempo

rary custo dy of their children. The letter

informs them of their right to respond to thepetitions 6 and further stat es that a hearing date had not

yet been scheduled so as to afford them time to respond. James Murphy’s “Answer to Petition for Custody” was entered by the juvenile court on Nove mber 23, 1992. A similar “Answer” by Ms. Carter was filed with the court on December 14, 1992.

We conclude that the record does not indicate a denial of the due proce ss rights afforded the natural pare

nts of these chil

dren. Appellants have been active participants in the proceedings below, having filed numero us petit ions regarding this matter. We hold that any due processrights afforded them under t he circumstance

s were met. Henc

e, it is the holding

of this Courtthat the juveni le court had jurisdic tion to entertain th

e issue of tempora

ry custody

of these children.

We next address the issue of whether the hearing be fore the c ircuit court fail

ed to comply with the requirements of T.C.A. § 37-1-159. At the ti me of the appeal t

o circuit court, th

is code section rea

d as follows, in par

t pertinent: 7
(a) The juvenile court shall be a court of record and any appea l from any final order or judgment in a delinquency

proceeding, un

ruly child proceeding, or dep endent and neglect pr oceeding, file

d under this chapter, except a proceedingpursuant to § 37-1-134, may be made to the circuit court

which shall hear thetestimony of witnesses and try the case de novo. The appeal shall be perfected withi

n ten (10) day

s, excludi ng nonjudicial days, following the juvenile court’s disposition.8 The notice of appeal specifically states that Appellants are appe aling to the circuit court “from the final judgment entered . . . on the 4th day of April, 1996.”

Appellants

are correct that § 37-1-159 require s the circ uit court to “hear the testimonies of witnesses and try the case de novo .” They argue that the circuit court failed in this respect by refusing to hear any other than tha t which perta ined to the Bowers’ alleged misrepr e sentations. They contend, “[t]he Circuit Court never heard any issues of jurisdiction, refused to hear al legations of abuse, or any matters pertaining to substantive, jurisdictional or procedural issues . . . .” We believe Appellants’ argument must fail for two reasons: First, no appeal
was ever made to the circuit court from the juvenile

court’s August 7, 1995 order pertaining to the hearing conducted on July 26, which would hav e required the circuit court to review the entire custody hearing “ de novo ” and, secondly, the judgment from which the appellants did timely appeal to circuit court

was specificall

y from the ju

venile court’s Ap

ril 4 ruling, 8 which expressly considered onl y the allegations

of misrepresenta

tions, after dete

rmining that all ot

her issues raised in Appellants ’ petition to modify had been previously decided. T he record inc ludes a transcript of the hearing conducted by

the circuit court on May 3, 1996 on the limited issue alleging misrepresentations by the Bowers. The fa

ct that this

was the only issue considered by the court is made abundantly clear by its order of October 16. As the circuit court conducted a de novo hearing on the o nly issue before it, we find no error by the court in this regard.

The judgment of the tr

ial court is

affirmed and this cause remanded for any furthe r necessary proceedings. Costs are assessed against the appellants, for which execution may issue if
nece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LILL ARD, J. (Concurs)