### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON SEPTEMBER 19, 2000 Session
IN THE MATTER OF: CHRISTOPHER CODY RAINEY JAMES CHRISTOPHER RAINEY v. LESLIE HEAD Direct Appeal from the Juvenile Court for Shelby County No. J7285; The Honorable George Blancett, Special Judge

No. W2000-00504-COA-R3-CV - Filed March 20, 2001

This is a case involving ter mination of parental rights. The Appellant executed a consent order terminating his parental rights to his child. Asserting that he executed the order under influence and duress by th

e Appelle e and her family, the Appellant then filed a Petition to Vacate Order Terminating Parental Rights. The Juvenile Court of Shelby County dismissed the Appellant’s Petition.
The Appellant appeals from the dismissal of the Pet ition to Vacate Order Terminating Parental Rights. For the reasons stated herein, we affirm the trial court’s decision.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed
A LAN E. H IGHERS , J., delivered the opinio n of the co

urt, in whi

ch W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined. Cynthia A. Wilson, for Appellant John D. Horne, for Appellee
OPINION I. Facts and Procedural History
On April 3, 1995, Cody Christopher Rainey (“Cody ”) was born out of wedlock to the Appellant, James Christopher Rainey (“Mr. Rainey”), and the Appellee

, Leslie Hea

d (“Ms. Head”). Mr. Rainey and Ms. Head lived together in the home of Ms. Head’s mother a nd step-father, Gail and Jerry Atwood (“the Atwoods”) until Mr. Rainey was a sked to leave in December, 1996.1 The CASA worker als o recommended th

at Mr. Raine

y seek pr

ofessional co unseling, that the court address visitation,that Mr. Rainey be allowed supervised visitati on, and that Mr. Rainey obtain a permanent and stabl e residence free of guns.

2 A prosecutorial grant of diversion would prevent Mr. Rainey from being incarcerated. After a probationary period, M r. Rainey’s crim inal record would be expunged

. -2- Mr. Rainey filed a Petition for Custody of Cody in the Juvenile Court of Shelby County on January 24, 1997. The Court Appointed Spe cial Advocate

(CASA) conducted an investigation and recommend ed that custody of Cody remain with Ms. Head. 1 On May 8, 1997, the court awarded custody of Cody to Ms. Head. On October 10, 1997, Mr. Rainey was arrested following a se ries of crimes. Mr. Rainey assaulted his father

and took his father’s

car without permi

ssion. After strik

ing a parked ve

hicle with his father’s car, Mr. Rainey assaulted Joseph Burns. Mr. Rainey th en broke into the A

twood home and assaulted Ms. Head and the Atwoods. On May 6, 1998, the Shelby County Grand Jury returned indictments

against Mr. Rainey

for aggravated burglary

and five aggravated assaults with a handgun.
Mr. Rainey hire

d attorney R

obert Ross (“Mr

. Ross”) t o defend him against the criminal charges. Mr. Rainey contends that the attorney f

or Ms. Head and the

Atwoods, James Short (“Mr. Short”), app roached Mr. Ross with a deal in which Mr. Short’s clients would not oppose a prosecutorial grant of

diversion for Mr. Rainey if he would agree to terminate his pa

rental rights to Cod y. 2 Ms. Head contends that Mr. Ross first contacted Mr. Short with the deal and urged Mr. Short to proceed with the filing of a petition for termination of Mr. Rainey’s parental rights. Mr. Rainey stated that he repeatedly refused to terminate his parental rights despite Ms . Head and the Atw oods’ threats to oppose a prosecutorial grant of diversion if Mr. Rainey re fused to terminate his parental rights.
Ms. Head filed a Petition for Termination of Parental Rights in

the Juvenile Court of Shelby County on June8, 1998. The court appointed a guardian ad litem to investigate the petition. The facts are contradictory as

to the guardian ad

litem’s meeting with Mr. Rainey. Mr. Rainey conte nds that he told the guardian

ad litem that he would not consent to the termination of his p arental rights

. The guardian ad litem stated that Mr. Rainey informed her tha t he wished to terminat e his relationship

with Cody and that he understoo d the meaning of termination and its

consequences. After performing an investigation, the guardian ad litem recommended

that the Petition be sustained.
On October 10, 1998, a

Consent Order terminating Mr. Rainey’s parental rights and signed by Mr. Rainey,

Ms. Head, their r

espectiv e attorneys, and approved by the g uardian ad litem was entered with the court. Mr. Rainey filed a Petition to Vacate Order Terminating Parental Rights on October 8, 1999, claiming that

he signed the Consent Order under influence and duress. The court dismissed the Petition on February 24, 2000. This appeal followed.-3- II. Standard of Review
The standard of review for a non-jury case is de novo upon the record. See Wright v. City of Knoxville , 898 S.W.2d 177, 181 (T enn. 1995). Ther

e is a presumption of cor

rectness as to

the trial court's factual findings, unless the preponderance of the evidence is otherw ise. See T ENN
. R. A PP
. P. R ULE 13(d). For issues of law, t h e standard of re

view is de novo , with no presumption of correctness. See Ridings v. Ralph M. Parsons Co. , 914 S.W.2d 79, 80 (Tenn. 1996). III. Law and Analysis
The first issue presented for our revi ew is whethe r the trial court erred in exercising jurisdiction over Mr. Rainey in order to termina

te his parental rights. Mr. Rainey asserts two reasons the trial court

was deprived of j urisdiction to terminate his par

ental rights: (1)

Ms. Head failed to comply with the verification requirements of section 36-1-113(d)(1) of the Tennessee Code; and (2) the trial court failed to make theproper findings under section 36-1-113(c) of the Tennessee Code in terminating his

parental right

s.
Mr. Rainey first asserts a lack of jurisdiction because Ms. Head failed to comply with the verification requirements of section 36-1-113(d)(1) of the Tennessee Code. Section 36-1-113(d)(1) requires that a petition to te rminate parenta

l rights “shall be

verifie d. ” T ENN
. C ODE A NN . § 36-1- 113(d)(1) (Supp. 1999). Mr. Rainey claims that a jurat from a pr e vious draft of the Petition for Termination of Parental Rights that was never filed

with the trial cour

t was then attache

d to a later amended draft of the Petition for Te

rmination of Pare

ntal Rights that wa

s actually f

iled with the trial court. Mr. Rainey argues that this resulted in an improper verification. We do not find that the filing of a jurat from

a previous draft

of the Petition resu

lted in a lack of verification. Accordingly, we find that the Petition for Terminat ion of Parental Rights was verified in accordance with section 36-1- 113(d)(1).
Mr. Rainey next asserts a lack of jurisdiction because the trial court fa iled to make the requisite findings under section 36-1-113(c) of the Tennessee Co

de in order to ter

minate his parental rights. Section 36

-1-113(c) state

s that (c)Termination of parental or guardianship rights must be based upon: (1) A finding by

the court by

clear and convi

ncing evidence

that the grounds for

termination or [sic] p

arental or gua

rdianship rights have been established; and (2) That termination of the parent’s or guardian’s rights is in the best interests of the child.
T ENN
. C ODE A NN . § 36- 1-113 (c) (S upp. 1 999). In most termination of parental right

s cases, a party brings a termination of parental rights petition against the opposition of a parent or guardian. See, e.g., In re Stanfill

, 984 S.W.2d 925 (Tenn.

Ct. App. 1998). Cour

ts must then make a determination3 Rule 60.02 st ates i n rele vant pa rt, “ On motion

and upon s

uch te rms as are just,

the court may

relieve a par ty or the party’s legal rep resentative fro m a final judgm ent, order, o r procee ding for the follo wing reason s: (2) frau d (whether heretofore denom inated intrinsi c or extrinsic), m isrepresenta tion, or other miscondu ct of an adve rse party.” T ENN
. R. C IV
. P. 60.02.

4 In re Bishop

statesthat clear

and convincing evi

dence of fraud or undue influence must be presented i n order to set aside an adoption order. See In re Bis hop , 678 S.W.2d at 472. Though at issue in the case at hand is a consent order for the ter

mination of par

ental rig hts rather

than an adoption order, we find that In re Bish op is a correct statement of the law in case s of termination of parental rig hts as well. -4- as to whether the op po sing party’s parental rights should be terminated pursuant to the g uidelines established in section 36-1-113(c). See id. at 927-28.
In the case

at bar, however

, Mr. Rainey

entered into a co

nsent order ag

reeing to termin

ate his parental rights. It was thus unnecessary for the trial court to make findings of fact and conclusions of law as to whether Mr. Rainey’s parental rights should be terminated. Additionally, the trial court appointed a guardian ad litem who, after performing her investigation, found that it was in Cody’s best int erest to allo w the petition for termination of parental rights to stand. Because it was unnecessary

for the trial court to make findings of fact and conclusions of law pursuant to section 36-1-113(c), we

find Mr. Rainey ’s argument to be meritless.
The second issue pre

sented for our re

view is whether Mr

. Rainey fr

eely and vo

luntarily agreed to terminate his parental rights. Mr. Rainey argues that he agreed to terminate his parental rights only under the influence and duress

of Ms. Head and the Atwoods that they would oppose a prosecutorial grant of diversion if he did not terminate hi

s parental righ

ts to Cody. Pursua

nt to Rule 60.02 of the Tennessee R ules of Civil Procedure, 3 Mr. Rainey must present clear and convincing evidence of duress or undue influence in

order to set aside the Consent Order terminating his parental rights. See In re Bishop , 678 S.W.2d 471, 472 (Tenn. Ct. App. 1984). 4 There is conflicting evidence that Mr. Rainey’ s attorney,

Mr. Ross, first approached the attorney for Ms. Head and the Atwoods, Mr. Short, with the proposal in which M r. Rainey wo

uld agree to ter

minate his parenta

l rights if Ms. Head and the Atwoods would no t oppose a prosecutorial grant of diversion. There is also conflicting evidence that Mr. Rainey told the guardian ad litem that he wish

ed to terminate his rel

ationship with Cody and understood the meaning of termination and its consequen ces. Finally

, Mr. Rainey

and his att orn ey, Mr. R oss, both signed the Consent Order agreeing to terminate Mr. Rainey ’s parental rights. We have carefully reviewed the record a nd do notfind clear and convincing evidence that undue influence or duress was asserted on Mr. Rainey to influence the Consent Order.
The final issue prese

nted for our revi

ew is whe ther Mr. Rainey’s Petition to Vacate was proce durally

barred under se

ction 36-3-113(q

) of the Tennesse

e Code. Ms. Head c

laims that Mr

. Rainey improperly filed the Petition to Vacate instead of fi ling a timely appeal from the Consent Order as requir

ed by sectio

n 36-3-113(q) of

the Tennessee Co

de, which provide

s: After the entry

of the order ter

minating parent

al rights, no par

ty to the proceeding, nor anyone claiming under suc h party, may-5- later question the validity of the termination proceeding by reason of any defect or irregular ity therein, jurisdictional or otherwise, but shall be fully bound thereby, except base d upon a timely appeal of the termination order as may be allowed by law; and in no event, for any reason, shall a termination of pare nta l ri ghts be o vert urn ed b y any co urt or co lla ter all y attacked by any person or entity after one (1) ye

ar from the date of the entry of the final order of termination. This provision is intended as a statute of repose.
T ENN
. C ODE A NN . § 36-1-113(q) (1999 Supp.). Because we fi nd Mr. Rainey’s appeal meritless on other grounds, we decline to addr ess the applicability of section 36-3-113(q) of the Tennessee Code to the case a t bar.
IV. Conclusion
For the foregoing

reasons, the decision of

the trial court is affirmed. Costs of this appeal are taxed agai nstthe Appellant, James Christopher Rainey, and his surety, for which e xecution may iss ue i f nec ess ary.

___________________________________ ALAN E. HIGHERS, JUDGE