FILED

November 3, 1998

Cecil W. Crowson

Appellate Court Clerk

STATE OF TENNESSEE ex rel., ) Fentress Juvenile

DEBORAH D. WILLIS, ) No. J-898

)

Petitioner/Appellee, )

) Appeal No.

VS. ) 01A01-9804-JV-00175

)

CECIL WILLIS, JR., ) 

)

Respondent/Appellant. )

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

APPEAL FROM THE JUVENILE COURT OF FENTRESS COUNTY

AT JAMESTOWN, TENNESSEE

HONORABLE WILLIAM J. CAMPBELL, JUDGE

William B. Lawson

P.O. Box 16

112 Gay Street

Erwin, Tennessee 37650

ATTORNEY FOR DEFENDANTS/APPELLEES,

Kimberly M. Frayn

2nd Floor, Cordell Hull Bldg.

425 Fifth Avenue, North

Nashville, Tennessee 37243-0499

ATTORNEY FOR PLAINTIFF/APPELLANT

REVERSED AND VACATED.

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

BEN H. CANTRELL, JUDGE

WILLIAM B. CAIN, JUDGE
-2-

STATE OF TENNESSEE ex rel., ) Fentress Juvenile

DEBORAH D. WILLIS, ) No. J-898

)

Petitioner/Appellee, )

) Appeal No.

VS. ) 01A01-9804-JV-00175

)

CECIL WILLIS, JR., ) 

)

Respondent/Appellant. )

O P I N I O N

This case involves the efforts of the State of Tennessee on relation of Deborah D. Willis,

former wife of Cecil Willis, Jr., to obtain the revocation of a surrender executed by him

surrendering his three children, Deborah May, Pamela R. and Andrew V. for adoption. The

Juvenile Judge, who witnessed the surrenders, later entertained the petition to revoke and ordered

the surrenders to be revoked. The respondent, Cecil Willis, Jr., has appealed to this Court,

presenting the following issue:

I. Whether a Trial Court has authority to revoke

a “surrender of Child” by the natural father directly to the

natural mother and stepfather almost four (4) years after its

execution. Furthermore, whether a surrender simply becomes

void after the passing of 120 days when an adoption has not

yet occurred.

It is obvious from the present record that a divorce preceded this proceeding, but the

divorce proceedings are not included in this record.

On August 9, 1993, the following document was executed, acknowledged and filed with

the Juvenile Clerk on August 11, 1993.

SURRENDER OF A CHILD BY THE NATURAL

FATHER DIRECTLY TO THE NATURAL 

MOTHER AND STEPFATHER

I, the undersigned father, deeming it for the best interest of

my child, Pamela Rebecca Willis, female, born February 15,

1985, in Hardin County, Kentucky, in wedlock, hereby

execute the surrender of all parental rights and responsibilities

and consent for the child to be legally adopted by Charles

William Keeley, Jr.
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I have the legal right to surrender this child for

adoption as the child’s legal parent by birth of this child that

was born in wedlock.

I understand that by signing this surrender, all my

rights and responsibilities with respect to this child are

terminated.

I agree not to attempt to disrupt this child’s future

relationship by visiting, attempting to communicate with

Pamela Rebecca Willis, or attempting her removal either

physically or through legal proceedings.

SIGNATURE OF NATURAL FATHER

Father: Cecil Willis, Jr.; Race: White; Marital Status: Married

D.O.B.: 8-4-62; Permanent Address: 1537Devil’sFork Road,

Flag Pond, Tennessee 37657

Signed: Signature 

 Cecil Willis, Jr.

STATE OF TENNESSEE

COUNTY OF FENTRESS

Before me, the undersigned authority in and for the

state and county aforesaid, this day personally appeared Cecil

Willis, Jr., the bargainor, with whom I am personally

acquiainted and acknowledged the execution of the above

instrument for the purposes therein contained, as witness my

hand and official seal, this 09 day of August, 1993. 

 Frank Smith 

Notary Public

My Commission expires:

 9 - 94 

AGREEMENT OF NATURAL MOTHER AND

ADOPTING STEPFATHER

We, the natural mother and the prospective adopting

father, understand that by affixing our signatures to this

surrender, we hereby agree to assume responsibility for the

care, custody, financial support, medical care, education,

moral and spiritual training of Pamela Rebecca Willis.

SIGNATURE OF ADOPTING PARENT

Father: Charles William Keeley, Jr.; Race: White; Marital

Status: Married; D.O.B.: 7-21-59; Permanent Address: Route

1, Box 212, Jamestown, Tennessee 38556

 Signature 

Charles William Keeley, Jr.
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SIGNATURE OF NATURAL MOTHER

Mother: Deborah Deloris Keeley; Race: White; Marital

Status: Married; D.O.B.: 5-12-64; Permanent Address: Route

1, Box 212, Jamestown, Tennessee 38556

Signed: Signature 

 Deborah Deloris Keeley

WITNESS OF SURRENDER

Cecil Willis, Jr. personally appeared before me on the

9th day of August, 1993, at the courthouse in Fentress

County, Tennessee, for the purpose of surrendering to

Deborah Deloris Keeley and Charles William Keeley, Jr. for

adoption and stated that he is the father of Pamela Rebecca

Willis and accepts full responsibility for this free and

voluntary act.

This August 9, 1993.

 Signature 

William J. Campbell

Juvenile Judge for Fentress

County, Tennessee

Identical documents were executed, acknowledged and filed in respect to Deborah and

Pamela.

The record contains no evidence that the proposed adoptions were ever properly

perfected.

The brief of the State asserts that the mother sought and obtained AFDC benefits for the

children, but these facts do not appear in the record before this Court.

On March 4, 1997, a motion was filed in the Juvenile Court reading as follows:

STATE OF TENNESSEE ex rel.,

DEBORAH D. WILLIS,

Petitioner

versus

CECIL WILLIS, JR.

Respondent
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MOTION TO REVOKE SURRENDER

AND NOTICE OF HEARING

The IV-D Division of the District Attorney General’s

Office on behalf of the STATE OF TENNESSEE ex rel.

DEBORAH D. WILLIS would show that:

1. On August 9, 1993, the Respondent appeared

before Juvenile Court Judge William J. Campbell and

surrendered his parental rights to the following children: (1)

Andrew V. Willis, born November 8, 1988. (2) Deborah Mae

Willis, born August 24, 1982, and (3) Pamela R. Willis, born

February 15, 1985.

2. The purpose of the surrender was to allow the

children to be adopted by their step-father Charles W. Keeley,

Jr., who at that time was married to Deborah Willis.

3. An adoption proceeding was never filed by

Deborah Willis and Charles W. Keeley, Jr., as they later

divorced.

4. The children have been wards of the State of

Tennessee since November 1, 1995, when AFDC benefits

resumed. It is in their best interest that the surrender of

parental rights of the Respondent be revoked.

THEREFORE, THE PETITIONER requests that:

A. The Respondent’s surrender of parental rights

as to the three (3) children be revoked effective the date of

filing of this motion;

B. The State be awarded any other relief which

the Court deems the State to be entitled;

C. Court costs, if any, be taxed to the Respondent.

NOTICE IS HEREBY GIVEN that this motion will be

heard by Judge William J. Campbell in the Juvenile

Courtroom of the Fentress County Courthouse in Jamestown,

TN at 2 p.m. on Monday, March 17, 1997.

 (Signature) 

PAMELA A. KISSEL

Assistant District Attorney

P.O. Box 310, Huntsville, AL

37756

(423) 663-2532

On May 22, 1997, the Juvenile Judge entered the following order:
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STATE OF TENNESSEE ex rel.

DEBORAH D. WILLIS, No. 909

Petitioner IV-D #2548640-01

versus

CECIL WILLIS, JR.

Respondent

ORDER REVOKING SURRENDER 

OF PARENTAL RIGHTS

This cause came to be heard on May 5, 1997 before

Judge William J. Campbell on the MOTION TO REVOKE

SURRENDER, statements by the assistant district attorney

and counsel for respondent and the entire record, from all of

which the Court finds that:

1. On August 9, 1993, the respondent appeared

before the Juvenile Court Judge William J. Campbell and

surrendered his parental rights to the following children: (1)

Andrew V. Willis, born November 8, 1988, (2) Deborah May

Willis, born August 24, 1982, and (3) Pamela R. Willis, born

February 15, 1985.

2. The purpose of the surrender was to allow the

children to be adopted by their step-father, Charles W.

Keeley, Jr., who at the time was married to their mother,

Deborah Willis.

3. An adoption proceeding was never filed by

Deborah Willis and Charles W. Keeley, Jr. as they later

divorced.

4. The children have been wards of the State of

Tennessee since November 1, 1995, when AFDC benefits

resumed. It is in their best interest that the surrender of

parental rights of the respondent be revoked.

IT IS, THEREFORE, ORDERED, ADJUDGED and

DECREED that:

A. The surrender of parental rights of the

respondent, Cecil Willis, Jr., is revoked effective March 1997

when the State’s motion was filed.

B. Court costs are taxed to Cecil Willis, Jr., 2537

Devils Fork Rd., Flag Pond, TN 37657.
-7-

ENTERED on this 14th day of May, 1997, NUNC

PRO TUNC TO May 5, 1997.

 Signature 

Judge William J. Campbell

APPROVED FOR ENTRY:

 Signature 

Pamela A. Kissel

Assistant District Attorney The undersigned hereby 

(423) 663-2532 certifies that a true and 

correct copy of this

pleading has been served 

by delivery, or through

the U.S. Mail with 

sufficient postage to 

carry it to its destination, 

upon all parties to this 

action. May 7, 1997.

Signed: Pamela A. Kissel

To: (1) Deborah Willis 

and (2) William Lawson, 

attorney for Cecil Willis, Jr., 

P.O. Box 16, Erwin,TN 37650.

On appeal, the appellant, Mr. Willis, insists that the Juvenile Court had no authority

to revoke the surrenders. The resolution of this issue depends upon legislation in effect at

the time of the surrenders and at the time of the attempted judicial revocation.

On May 22, 1997, the date of the revocation order, T.C.A. § 36-1-103(b) (1966)

provided:

Adoptions and terminations of parental rights pending

on January 1, 1996, and surrenders and consents executed

prior to January 1, 1996, shall be governed by prior existing

law.

“Prior existing law” included T.C.A. § 36-1-117 which provided:

36-1-117. Revocation of surrender - Form. - (a)(1)

No surrender shall be revoked after the time herein provided.

(2) No surrender shall be revoked after the

entering of an interlocutory decree or a final order of adoption
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when entering of an interlocutory decree has been waived in

accordance with the provisions in this part.

36-1-117 - Domestic Relations. (b) Provided a

petition to adopt has not been filed, any parent(s) who has

surrendered a child for adoption shall have the absolute right

to revoke the surrender within fifteen (15) days from the date

of the execution of the surrender by appearing in chambers

before the chancellor or circuit judge before whom the

surrender was executed, or his successor in office, and

presenting to him the original and two (2) copies of the

revocation of the surrender.

Tennessee Code Ann. § 36-1-114 (Supp. 1993), provides the form, criteria for, and

inquiries to be made by the Court during a surrender. In relevant portion, said provision also

specifically provided that “...the child so surrendered shall become a ward of the court until

the filing of the petition for adoption. During this time, the court shall have jurisdiction of

all matters pertaining to the child.” 

In the present case, on August 9, 1993, the three children were surrendered by a father

who lost the power to revoke the surrender 15 days later on August 24, 1993. At that time,

if the person to whom the children were surrendered, decided not to adopt the children, that

person was empowered to surrender the children to a licensed child-placing agency.

Apparently, this second surrender did not take place. Instead, application was made by

someone to the State to supply support to the children, and such support was granted

resulting in the present effort of the state to force the surrendering father to perform his

responsibilities to the children despite the above cited statutory provisions.

The record contains a brief narrative statement of the evidence containing the

following:

The respondent has had no contact with either the

minor children nor the petitioner herein nor with the

childrens’ prospective step-father since executing the

surrenders. On or about March 4, 1997, the State of

Tennessee, ex. rel., Deborah D. Willis-Keeley, filed a motion

in this Court alleging, inter alia, that the petitioner Charles W.

Keeley, Jr., were divorced and that Mr. Keeley, Jr., had never

adopted the children.
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The State further alleged that the petitioner, Deborah

D. Willis-Keeley had resumed receiving AFDC benefits and

moved the Court to revoke the surrenders alleging that the

revocation was in the best interests of the minor children.

It is obvious that, before the inception of this unfortunate situation, Mr. and Mrs.

Willis were divorced by a court which thereby acquired continuing jurisdiction of the minor

children of the parties. It is therefore surprising that the parties would go to a different court

to effectuate their plans for transfer of responsibility for the welfare of the children. 

It is also surprising that the State agency did not appeal to the divorce court to enforce

its orders for support and custody of the children.

In Killion v. Tenn. Dept. Of Human Services, Tenn. 1992, 845 S.W.2d 212, the

question before the Supreme Court was whether a mother could revoke a surrender three

years after its execution by invoking T.R.C.P. Rule 60. The Court ruled that she could not

because T.C.A. § 36-1-117 limited the time for revocation to fifteen days. The Court also

held that Rule 60 does not authorize later revocation “because it is in the best interest of the

child.”

In two unpublished opinions, this Court has held that a surrender does not relieve the

surrendering parent of liability for child support until such liability is fully placed upon the

adoptive parent by adoption decree.

The Supreme Court has held that contract for adoption should not be enforced,

because the final decision as to the best interest of the child is for the adoption court. In re:

Petition to Adopt Glenda Sue Clements. 201 Tenn. 98, 296 S.W.2d 875 (1956).

The appellant contends that a court has no power to revoke a surrender which has not

been revoked by the surrendering parent within the time allowed by T.C.A. § 36-1-112
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(1996). We agree. We see nothing in the adoption statutes that gives the state the authority

to seek a revocation of the surrender. The statutes in effect in 1993 only gave the

surrendering parents a fifteen day period in which to revoke -- if a petition for adoption had

not been filed in the meantime. Tenn. Code Ann. § 36-1-117(b). If a petition had been filed,

the court had the power to determine what was for the best interest of the child. Tenn. Code

Ann. § 36-1-117(e)(1).

Under the circumstances, the Juvenile Court erred in revoking the surrender, and the

order of revocation is vacated. Since the question of the father’s liability for continuing

support has not been litigated, that question is not before us. It must first be decided by a

court having jurisdiction of the parties and the subject matter. 

In its discretion, this Court taxes one-half of all costs, both trial and appellate to the

appellant, and the remainder of said costs to the appellee.

The judgment of the Juvenile Court, revoking the surrender of parental rights of Cecil

Willis, Jr., is reversed and vacated, and the motion or petition filed by the State of Tennessee

seeking revocation of said surrender is overruled/denied, without prejudice to any proper

application made to a court of competent jurisdiction to enforce the payment of child support

from the appellant.

REVERSED AND VACATED.

__________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

___________________________

BEN H. CANTRELL, JUDGE

___________________________

WILLIAM B. CAIN, JUDGE