# FILED
November 3, 1998 Cecil W. Crowson Appellate Cou rt Clerk STATE OF TENNESSEE ex rel., ) Fentress Juveni le DEBORAH D. WILLIS, ) No. J-898 ) Petitioner/Appellee, ) ) Appeal No. VS. ) 01A01-9804-JV-00175 ) CECIL WILLIS, JR., ) ) Respondent/Appellant. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE JUVENILE COURT OF FENTRESS COUNTY AT JAMESTOWN, TENNESSEE HONORABLE WILLI AM J. CAMPBELL, JUDGE
William B. Lawson P.O. Box 16 112 Gay Street Erwin, Tennessee 37650 ATTORNEY FOR DEF

ENDANTS/APPEL

LEES,
Kim berl y M. F rayn 2nd Floor, C ordell Hul l Bldg. 425 Fifth Avenue

, North Nashville, Tennessee 37243-0499 ATTORNEY FOR PLAINTIF F/APPELLANT

REVERSED AND VACATED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M B. CAIN, JUDGE-2-

STATE OF TENNESSEE ex rel., ) Fentress Juveni le 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 De

borah D. Willis, former wife of Cecil Willis, Jr., to obtai n the revocation of a surrender exec

uted by him surrendering his three children, Deborah May, Pamela R. an d A ndrew V. for adoption. The Juvenile Judge, who witnessed the surrenders, later entertained the petition to revoke and ordered the surrenders t

o be revoked. The respondent, C ecil Willis, Jr., has ap

pealed to this Court

, presenting the following issue:

I. Whether

a Trial Court has authority to revoke a “surrender of Child” by the natura l fath er directly to the natural mother and stepfa ther almost four (

4) years a fter its execution. Furth ermore, 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 t his 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 TH E NATURAL MOTHER AND STEPF ATHER I, the undersigned f

ath er, deeming it for the best interest of my child, Pamela

Rebecca Willis, female, born February 15, 1985 , in H ardin County, Kentucky, in wedlock, here by execute the surrender of all pa

rent al rights and responsibilities andconsent for the child to be legally adopted by Char les William Keeley, Jr.-3- I have the legal right to surrender this child f or adoption as the child’s legal parent by birth of this child that was born in wedlock. I understand that by

signing this surr

ender, all my rights andre sponsibilities with respect to this child are terminated. I agree not to attempt to disrupt this child’s futu re relationship

by visiting, at

tem pting to communica

te with Pamela Rebecca Willis, or attempting her rem oval e ither physically

or through leg

al proceedings.
SIGNATURE OF NAT

URAL FATHER Father: Cecil Willis, Jr.; Race: White; Marital Status: Married D.O.B.: 8-4-62; Permanen t Address: 1537 Devil’s F ork Road, Flag Pond, Tennessee 37657 Signed: Signature Cecil Willis, Jr.
STATE OF TENNESSEE COUNTY OF FENT

RESS 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 persona lly acquiainted

and acknowledged the execut i on of the above instrumentfor the purposes therein containe d, as witness my hand and official seal, this 09 day of August, 1993. Frank Smith Notary Publi

c My Commission e

xpires: 9 - 94 AGREEMENT OF NATURAL MOTHER AND

ADOPTING STEPF

ATHER We, the natural mother and the prospectiveadopting father, und ers tan d th at b y a ffixin g our signatur es to this surrender, we he r eby agree to assume responsibility for the care, custody, financial support , medical care, education, moral and spiritua

l training of Pame

la 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 Signatu re Charles William Keeley, Jr.-4- SIGNATURE OF NAT

URAL MOTHER Mother: Deborah Deloris Ke eley ; Race: White; Marital Status: Married; D.O. B .: 5-12-64; Perman ent Address: Route 1, Box 212, Jamestown, Tennessee 38556

Signed: Signature Deborah Deloris Keeley WITNESS OF SURRENDER CecilWillis, Jr. personally appeared before me on the 9thday of Aug

ust, 1993, at the co

urthouse in Fentr

ess Count y, Tennessee, for

the purpose of sur

rendering to DeborahDeloris Keeley

and Cha rle s Wi lli am K eel ey, Jr. for adoption and sta

ted that he is the father of Pamela Rebecca Willis and acc epts full responsibility for this free and voluntary a

ct. This August 9, 1993. Signature

William J. Campbell Juvenile Judge for F

entress County, Tennessee
Identical documents were executed, acknowledged and filed in respe

ct to Deborah and Pamela.

The record contains

no evidence that

the proposed adop

tions were ever

properly perfected.

The brief of the State asserts that the mother sought and obtained AFDC benefits for the children, but thes

e facts do not app

ear in the recor

d before this Cour

t.
On March 4, 1997, a

motion was filed in th

e Juvenile Court rea

ding as follows: STATE OF TENNESSEE ex rel., DEBORAH D. WI

LLIS, Petitioner
versus CECIL WI

LLIS, JR. Respondent-5- 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 TENNESSE E ex rel. DEBORAH D. WI

LLIS w ould show that: 1. On August 9, 1993, the Respondent appeared before Juvenile Court Jud ge 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 allowthe children to be adopted by their step-father Charles W. K eel ey, Jr., who at that time w

as married to Deb

orah Willis. 3. An adoption proceeding was n ever filed by DeborahWillis and Charles W. Ke eley , Jr ., as they later divorced. 4. The children have been wards of the State of Tennesse e since November 1 , 1995, when AFDC b enefits resumed. It is in their be st interest that th

e surrender of parental rights of the Respondent be revoked. THEREFORE, THE PE

TITIONE R requests that: A. The Respondent’s surrender of parental rig

hts as to the three (3) children be revoked effective the date of filing of this motion; B. The State be awarded any oth er relief which the Court deems the State to be entitled; C. Courtcosts, if any, b e taxed to the Respondent. NOTICE IS HEREBY GIVEN that thi s motion will be h eard by Judge William J. Campbell in the Juve nil e Courtroomof the Fentress C ounty 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:-6- STATE OF TENNESSE

E ex rel. DEBORAH D. WI

LLIS, No. 909 Petitioner IV-D #2548640-01
versus CECIL WI

LLIS, JR. Respondent
ORDER REVOKING SURRENDER OF PARENTAL RIG

HTS This cause

came to be heard on May 5, 1997 before Judge William J. Campbell on t he MOTION TO REVOKE SURRENDER, statements by the assistant district attorney and counsel for

respondent and

the entire record, from all of which the Court fin

ds that: 1. On August 9, 1993, the responden t a ppeared before the Juv enile 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, 19 82, and (3) Pamela R. Willis, born February 15, 1985. 2. The purpose of

the surrender was to allowthe children to be adopt ed by th eir step- father, C harles W. Keel ey, Jr., who at the time was married to th eir mother, Deborah Willis. 3. An a doption proceeding was never filed by Debora h 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, wh en AFDC benefits resumed. It is in t

he ir best interest that the surrender of parental rights of the respondent be revoked. IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that: A. Th e surrender of parental rights of the respondent,

Cecil Willis, Jr., is revoked effective March 1997 when the State’s motion was filed. B. Courtcosts are taxed to Cecil Willis, Jr., 2537 Devils Fork Rd., Flag Pond, TN 37657.-7- ENTER ED on this 14th day of May, 1997, NUNC PRO TUNC TO May 5, 1997. Signature Judge William J. Campbel l APPROVED FOR ENTRY: Signature Pamela A. Kissel Assistant District Attorney The und ers igne d he reby (423) 663-2532 certifies that a true and correct copy

of this pleading has been served by delivery, or thr ough 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 Wi

llis 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 par ental rights pending

on Janua ry1, 1996, and surrenders and consents executed prior to January 1, 1 996, 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 s hall be revoked after the entering of an interlocutory decree or a final order

of adoption-8- when entering of an interlocutory decree has bee

n waived in accordance w

ith the provisions in t

his part. 36-1-117 - Dom

estic Relations.

(b) Provided a petition to adopt has not been filed, any parent(s) who has surrendered

a child for adoption shall havethe absolute right to revoke the surre

nder within

fifteen(15) days f

rom the date of the execution of th e surrender by appearing in chamber s before the chancellor or circuit judge before whom the surrender was executed, or h

is success or i n office, and presenting to him the original and t wo (2) co pies of the revocation of the surrender.
TennesseeCode Ann. § 36-1-114 (Supp. 1993), provides the form, criteria for, and inquiries to be made by the Cou rt during a surrender. I n relevant portio

n, said provision al

so specifically

provided that

“...the child so su

rrendered sha

ll become a ward of the cou

rt until the filing of the pet

ition for adoption.

During this time, t

he 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 Aug ust 24, 1993. At

that time, if the person to whom the children were surrendered, decided not to adopt the children, that person was emp owere d to sur rend er t he ch ild ren t o a l ice nse d ch ild -pl aci ng ag ency. Ap pare ntl y, this second surrender did not take place. Instead, application was made b y
someone to t he State to

supply support to the children, and such support was granted resulting in the present ef fort of t he state to force

the surrenderin

g father to per

form his responsibilities to

the children desp

ite the above cite

d statutory p

rovisions.

The record contains a brief narrative statement of the evidence cont ain ing the following: The respondent has had no con tact with either the

minor chil dr en nor the petitioner herein nor with the childrens’ prospective step-father since executing the surrenders.On or about March 4, 1997 , the St ate of Tennessee, ex. rel., Deborah D. Willis-Keeley, filed a motion in this Court alleging, inter alia, that the petitioner Charles W. Keel ey, Jr., were divorced and that Mr. Keeley, Jr.,had never adopted the children.-9- The State further

alleged that the petitioner, Deborah D. Willis-Keeley

hadresumed receiving AFDC benefits and move d t he Court to revoke the surrenders alleging that the revocation was in the best interests of the minor children.
It is ob vious that, before

the inception of th

is unfortunate situ

ation, Mr. and Mr

s . Willis were div orce d by a court which thereby acquired continuing jurisdiction of the minor children of

the parties. I

t is therefore sur

prising that the p

arties would go t

o a different court to effectuate their plans for transfer of responsibility for the we lfare 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 Kil lion v. Tenn. Dept. Of Human Services , Tenn. 1992, 845 S.W.2d 212, the question before the Supreme Court was whether a mot her could revoke a surrender three years aft er 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 day

s. The Court also held that Rule 60 does not authori

ze later revoca

tion “because it i

s in the best interest of the child.”

In two unpublished opin ions, 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.

Th e Supreme Court has held that contract for adoption should not be enforced, because the final decision

as to the best

interest of the ch

ildis 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 s urrenderin g p arentwithin the time allowed by T.C.A. § 36-1-112-10-

(1996). We agree. We see nothing in the adoption statutes that gives the state theauthority to se ek arevocation of the surrender. The statutes in effect in 1993 only g ave the surrendering parents a fifteen day period in which to revoke -- if a pe tition foradoption had notbeen 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 in

terest of the child. Tenn. Code Ann. § 36-1-117(e)(1).

Under the circumstanc

es, the Juvenile

Court erred

in revoking the surrender, and the order of r evocation is

vacated. Since the question of the father’s liability for continuing support has not been litig

ated, that questio

n is not before us. I

t mu s t fi rst be d eci ded 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 right

s of Cecil Willis, Jr., is reversed and vacated, and

the motion or petition filed by the State of Tennessee seeking revocation of said surre n der 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 appella

nt. 

### REVERSED AND VACATED

.

__________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION CONCUR:

___________________________ BEN H. CANTRELL, JUDGE

___________________________ WILLIA M B. CAIN, JUDGE