### IN THE COURT OF APPEALS OF TE NNESSEE AT KNOX VILLE Su bm itt ed on B ri ef

s, F eb ru ar y 26 , 200 9
JOYC E HOLT , v. STA TE OF TEN NES SEE, De partm ent of Ch ildren’ s Services

Direc t Appeal from the Juvenile Court for Hamblen Coun ty Nos. 8871, 9942, 10656, 12868 Hon. Mind y Nort on Seals, Ju dge

No. E2007-02798-COA- R3-JV - FILED MAY 1, 2009

P l aint iff mother w ho had formally surrende red pa renta l rights to her five c hildren on Mar ch 21, 2007, brought this proc eeding to vac ate the or der of surre nder in Septembe r of 2007. Following an evidentiary hearing, the Trial Court dete rm i n ed t h ere was no e videntiary ba sis to set aside the mothe r’ s su rr e nd e r o f h e r p are nta l r igh ts. On app e a l, w e a ff ir m.

Te nn. R . A pp. P .3 App e al a s o f R igh t; Judg me nt of th e Juv e nile Co ur t A ff

ir me d.

H ER S CHEL P ICK EN S F R ANKS , P.J., delivered the opinion of the Court, in which C H A RL ES D. S US ANO , J R ., J., and D. M I CHAEL S W I NEY , J., joined.

Paul W he tst on e , M or

ri sto wn , T e nn e sse e , f

or app e lla nt, Jo yc e Ho lt. Robert E. Cooper, Jr ., Attorney Ge nera l and Reporter , and Amy T. McConne ll, Assist ant Attorney Ge ne ra l, N a sh vil le , T e nn e sse e , for app e lle e , St a te of

Te nn e sse e , D e pa

rt me nt o f C hil dr e n’ s Se rv ic e s.

OP IN ION

During a trial wher ein t he Department of Children’ s Services ( “De partment” ) soug ht to terminate the pa

renta l rig hts of plaintiff, plaintiff on the advice of counse l, executed surre nder of he r p are nta l r ig hts to h e r f ive c hil dr e n on Mar c h 21, 20 07 . T he fathe r o f t he c hil dr e n h a d p re vio us ly
surre ndere d his parenta l rig hts in Februa ry of 2007.

Plaintiff broug ht a procee ding to vacate t he orde r of surr ender in September of 2007,-2-

asser ting that she was ne ver pr ovi d ed a copy of the Court’s orde r until Aug ust 2007, that she was
never advised of the time parameters within which she could appe al , t h at t he surr ender was involuntary

and not a pr oduct of he r fr ee w ill , an d t h at t he surr ender was ba sed on coe rcion, fe ar, confusion, and la ck of unde rstanding

.

The Tr ial Court conducted a hear ing on N ovember

15, 2007, and ente red an Or der on November

29, 2007, denying pla intiff relief

. The Trial Court found that the mother’ s statutory time limi t to revoke the surre nders ha d e xp ir ed, purs ua

nt t o T e nn . Co de Ann. §3 6- 1- 11 2( a )( 1) (F )( I ), wh ic h s pe c if ie d a te n d ay tim e lim it, and a lso purs ua

nt t o Te nn . Code Ann. §3 6- 1- 11 2( d) , whi c h spe c if ie d th a t no surr e nd e r “ sh a ll be set a side by

a cour t exce p t u p o n cl ea r and c onvincing evidenc e of dur ess, fra ud, intentional misrepre sentation or for

invalidity

under 36- 1-111(d) and no surre nder

. . . may be set a side for a

ny rea son under this part unless the a ction based on these g rounds is initiated within thirty (30) da y s of the execution of t h e s u rr en d er

. . .”. The Court concluded that the mother did not file this action until five months after the sur rende rs wer e executed.

The Court further found t hat t he surrender s wer e volunt ary and that the mother ha d not shown that there w as fr aud, intentional misrepre sentation, duress, or invalidity under Tenn. Code Ann. §36-1-111( d). The Court held t he majority of t he mother’ s testimony was not cr edible, and that the mother testified that she knew a s soon a s she left court on Marc h 8, 2007, that she wa nted to r evoke the surre nders, but did not g o to he r attorney ’s office during the ten day revoc ation period, and she did not tell the CASA worke r who wa s in her home two day s later that she wanted to r evoke. The CASA worke r also coor dinated a f inal visit between the mother and the children in Aug ust, but the mother did not attend.

The Court re iterate d the testimony of L oren B rooks, paraleg al to the mother’s f ormer attorney , who testified that the mother and her former attorney came to the attorney ’s offic e af ter the
surr e nd e rs we re e xec ute d o n M arc h 8 , 2 00 7, and the a tto rn e y

ha nd e d th e re vo c a tio n f

or ms to Ms. Br ooks, and advised the mother to come ba ck to the off ice within ten day s if she cha ng ed her mind. The Court stated that Ms. B rooks talked to the mother by phone in July 2007, to a rran ge t h e final visit. The Court further r eiterated that the mother testified that the Court asked he r if she unde rstood the surre nder, a

nd further informed he r that she ha d ten day s to revoke. Th e C o u rt found that the mother testified that she kne w what the period of revoc ation meant, and that the mother wa s satisfied with the surre nders until she missed the final visit in Aug ust which DCS would not reschedule . The Court fo un d th e mot

he r h a d co mp lai ne d th a t sh e did no t g e t a

c op y of the Or de r o f C omp le te Guar dianship until August 2007, but the mother surrender ed her rig hts in March a nd was not entitled to further notice re g ardingthe childre n.
Th e pla int if

f t he mot he r r a ise d th e se iss ue s o n a pp e a l:

1. Whether the e vidence adduce d at the hea ring preponde rate s ag ainst the Trial Court ’s fi nd ing s o f f

a c t?-3- 2. Whether the tec hnical fla ws and the a

bsence of a transcr ipt of the surr ender sh ou ld m and a te a

re ve rs a l of

the Tr ia l Co ur

t?

The mother a

rgues the Tr ial C o u rt ’s fi n dings of fac t were err oneous, and that the evidenc e pre ponderates otherwise

. The trial c ourt’s finding s come to this Court with a presumption
o f c o rr ec t n es s , u n l es s t h e e v i d en ce p re p o n d er at es o t h erwi s e. T en n

. R

. Ap p

. P

. 1 3

. I f t h e t ri al co u rt 's fac tual deter

minations are bas ed on it s assessment of witness c redibility , this Court wil l not
ree valuate that assessment abse nt clear and convinc ing evidenc e to the contra ry

. J on es v . G arre tt , 92 S.W .3d 835, 838 (Tenn. 2002)

.

The mother a sserts that the evidenc e adduce d at trial pre ponderates ag ainst the Trial Court’s finding s, and that much of he r testimony was unre butted. The re cord de monstrates that the mother’s testimony

was i n co n s istent, and when it wa s not contradicte d by another witness, it was contra dicted by

the mother he rself a

nd by the documenta

ry evidenc e. F o r example, the mother claimed that whe n she signe d the surre nder forms, her attorney had five sheets of paper stacke d up and aske d her to sign e ach one . She testified that she ne ver sa w the full pac kets. The e x hibits show, howeve r, that the mother sig ned ea ch surr ender packe t in mult iple place s. Furthe r, the mother admi tted that she provided a ll the detailed information on the family and hea lth questions to her attorney as she wa s filling out the for ms.
The mother a lso claimed that she did not know what was on the forms and that no one explained it to her, but then she later admitted that her attorney and the Judge rea d to her fr om the documents, and that the Court e x plained the ten day revoc ation period and the mother unde rstood what it meant. She claimed that she was under dure ss from her attorney ’s pre dictions reg ardingwhat might happe n if she g ot her c hildren bac k, but later a dmitted that t h e attorney did not mis lead he r in any way , and that in her

opinion, every

thing the a

ttorney told her wa s fac tually

true.

The mother te stified that s h e immediately reg retted he r dec ision to surrender her rig hts a nd went back to he r lawy er’ s office that very day to try to revoke it, but thi s testimony was re butte d by the pa

ra le g a l, wh o tes tif

ie d that the ne xt co nta c t w iththe mot he r w a s in July to s c he du le the fi na l vi sit . Upo n re vie w, the e vid e nc e do e s no t pr e po nd e ra te a g a ins t the Tr ia l Co ur

t’ s f ind ing s. Tenn. R. App. P. 13(d).

Th e mot he r a lso se e ks re lie f u

nd e r T e nn . R. C iv. P. 6 0, in o rd e r t o e sc a pe the tim e limit ations contained in the sur rende r statutes. A similar plea was made in the case of Kill ion v. TennesseeDept. of Human Se rvice s , 8 45 S.W. 2d

21 2 ( Te nn . D e c 28 , 1 99 2) , whe re in t he Sup re me Court state d:

H o w e v e r , c o n tr ar y to th e h o ld in go f

th e Co u rt o f

Ap p e a ls , Ru le 6 0 d o e s n o t a u th o r iz e the re vocation of a sur

rende r on the g round that re vocation is in the best intere st of the child. The c omplaint obviousl y does not alleg e fa cts that co n s t i t ute a ba sis for relief un d er subsections (1) to (4) of Rule 60.02, which provide that a cour t “may relieve a par

ty ... from a f

inal judgme nt ... for th e fo l l o wi ng rea sons: (1) mistake,-4- inadver tence , surprise, or excusable negle ct; (2) f raud, ... misre prese ntation, or other misconduct of an a dverse party ; (3) the judgme nt is void; [or] (4) the judg ment has been satisfied....” In addition , the Rule provides that a pplication for r elief unde r su bs e c tio ns (1 ) a

nd (2 ) mus t be ma de wi thi n one y e ar fr om the e ntr y of the jud g me nt. Appar ently , the Court of Appe als found that re lief could be g rante d under the g ener al lang uag e of subsection (5), whic h allows relief for “ any other re ason justifying r elief from the ope ration of the judg ment.”

The c ircumstance s of t his case do not br ing it within the terms of subse ction (5). The substance of the pl aintiff' s alleg ations is a chang e of c ircumstance s. She alleg es that sh e ha s r e c ov e re d h e r h e a lth , th a t th e re is n o r e a so nab le expe c tatio n th a t th e c hil d wi ll b e a do pte d, and

that r e vo c a tio n o f the surr e nd e r w ou ld r e mov e a le g a l ob sta c le to the development of

a re lationship between t h e child and her that would be benef icial to the child. These alleg ations may be relevant to an action for c ustody or adoption, but they

do not c onstitut e g rounds to set aside a judgme nt under Rule 60. The purpose of Rule 60 is to al l eviate the eff ect of an oppre ssive or oner ous final judgme nt. “Rule 60.02 ‘wa s desig ned to strike a pr oper b al an ce be tween the
c omp e tin g pr inc ipl e s o f fi na lity and jus tic e .’ ” Th is ru le “ is n ot m e ant t o b e us e d in
ever y case in which the cir cumstance s of a pa rty chang e af ter the entry of a judg ment or orde r.” “ ‘Rule 60. 0 2 ac t s as an escape valve f rom possible inequity

that might otherwise a

rise from the unrelenting imposi tion of the principle of finality imbedded in our proce dural rule s.’ B eca use of the importance of

this ‘principle of f

inality ,’ the ‘esc ape va lve’ should not be ea sily opened.” The princ iple of finality

is of para mount importance in this are a of the law.

Id. at 213-214. The Supreme Court rec o g nized that Tenn. R. Civ. P . 60 could be use d in proper circ umstances to vac ate a n order surre ndering pare ntal rig hts, but also made clea r that finality

was “of pa ramount i m p o rt an ce ” in this area , and that Rule 60 wa s an esc ape va lve that should not be easily opened. Id. The mother has alleg ed that she was coer ced into surr ender ing he r rig hts, and that she did not a ct of her own fre e will, but she has not me t the require ments of Rule 60, i.e., there was no mis take , s ur

pr ise or e xcu sa

ble ne g le c t, an d the re wa s no misr e pr e se ntatio n or f ra ud by an a dv e rs e party . Whil e the mother

said that s h e wa s “ter

rified” by her attorney ’s pre dictions of what mig ht happen if she g ot her c hildren bac k, she lat er admitted that she did not think the attorney told her any thing that wa s misleading or fa ctually incorre ct. The mother

further admitted that the surre nder documents we re r ead to he r and that she unders t o o d t h e p er iod of revoc ation. Acc ording ly , the mother fa iled to show that she was e ntitled to relief pursua nt to Rul e 60. Finally , the mother a

rgues t h a t t h e s urre nders should be va cate d beca use her signature
wa s n ot o n on e of the pa g e s in on e of the surr e nd e r p a c ke ts whe re it w a s su pp os e d to be , a

nd a lso-5-

be c a us e the re wa s n o c ourt

re po rt e r p re se nt a

nd the fo rm s w e re no t no tari zed . T he mot he r a dmi ts that th e c ourt s o f t

his State have re c og nize d that it is su ff ic ie nt to have “ su

bs tanti a l c omp lia

nc e ” wi th the re qu ir e me nts of

the surr e nd e r a

nd a do pti on laws , w hic h a

re ve ry te c hn ic a l and

c omp lic a ted i n nature

. In re Hatc her , 1 6 S. W.3 d 7 92 (T e nn . Ct . App . 1 99 9) ; Do rri s v . Cr isp , 2001 WL 585100 (Tenn. Ct. App. June 1, 2001).

The re cord de monstrates that whi le the mother did not re member a court re porter beingprese nt, counsel for the State and the Judge reme mbere d otherwise, a nd a stateme nt was put into the rec ord re flec ting same. Further, the forms di d not need to be notarized since the mother ’s
surre nders we re ma de dire ctly befor e the Judge , who administered the oath to the m o t h er , as demonstrated by

the re cord. The evidence shows that all five surr ender documents we re done at the same time, and that the Trial Court read parts of the documents to the mother a nd advised he r of he r revoc ation rig hts. The mot her was represe nted by counsel who he lped her

fill out all the forms and
rea d portions of the docume nts to the m o t h er , an d advised he r of he r rig hts. The Trial Court accep t ed h er sur

rende rs to all five c hildren at that time. While the mother’s sig nature was ina dv e rt e ntl y

omi tte d f ro m on e pa g e of the surr e nd e r pa c ke t of JRL D, it a

pp e ars in o the r p la c e s in the same pa cket. More over, the mother did not claim that she re fused to sig n that one surr ender or that it was differ ent in a

ny way . The De partment ha s shown substantial compliance a nd there is no ba sis to v oid

any of the se surr e nd e rs fo r p ro c e dura l de fe c ts.

Th e Judg me nt o f t

he Tr ia l Co ur

t is a ff ir me d a nd the c a us e re mand e d, wi th t

he c os t of the a pp e a l a sse sse d to Joy c e Ho lt.

______________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.