IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 18, 2012

IN RE: B.R.

Appeal from the Circuit Court for Knox County, Fourth Circuit

No. 120900 Bill Swann, Judge

No. E2011-01425-COA-R3-JV-FILED-FEBRUARY 9, 2012

This case arises from juvenile proceedings concerning the then minor child B.R. The

Juvenile Court for Knox County (“the Juvenile Court”) found B.R. to be an unruly child.

B.R. filed a Petition to Vacate Orders and to Dismiss (“Petition to Vacate”) regarding the

order finding B.R. to be an unruly child. The Juvenile Court denied the Petition to Vacate.

B.R. appealed to the Circuit Court for Knox County, Fourth Circuit (“the Circuit Court”).

The State of Tennessee (“the State”) moved to dismiss the appeal arguing the appeal was

untimely. The Circuit Court granted the State’s motion to dismiss. B.R. appeals to this

Court, arguing that the Circuit Court should have heard B.R.’s appeal from Juvenile Court.

We hold that the Circuit Court erred in granting the State’s motion to dismiss B.R.’s appeal

of the Juvenile Court’s order denying B.R.’s Petition to Vacate. We reverse the judgment

of the Circuit Court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;

Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which HERSCHEL P. FRANKS,

P.J., and JOHN W. MCCLARTY, J., joined.

Dean Hill Rivkin and Brenda McGee; Emily Mack, practicum student attorney; and, Karina

Xart, practicum law student; Knoxville, Tennessee, for the appellant, B.R.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

and, Alexander S. Rieger, Assistant Attorney General; for the appellee, the State of

Tennessee.
OPINION

Background

This appeal presents a question of law, and our focus will be centered on the

pertinent procedural background. In May 2010, B.R. was found to be an unruly child by the

Juvenile Court and was placed on probation. In January 2011, B.R. filed the Petition to

Vacate in the Juvenile Court. B.R. argued, inter alia, that there were constitutional,

procedural, and jurisdictional defects in the original proceedings in which B.R. was found

to be an unruly child. On January 26, 2011, the Juvenile Court denied B.R.’s Petition to

Vacate.

B.R. appealed the Juvenile Court’s denial of the Petition to Vacate to the

Circuit Court on February 3, 2011. The State moved to dismiss B.R.’s appeal, arguing that

the time to appeal a final judgment had expired. On June 10, 2011, the Circuit Court granted

the State’s motion to dismiss B.R.’s appeal. The Circuit Courtsubsequently dismissed B.R.’s

motion for reconsideration. B.R. appeals to this Court.

Discussion

Though not stated exactly as such, B.R. raises one issue on appeal: 1) whether

the Circuit Court erred in summarily dismissing B.R.’s appeal of the Juvenile Court’s order

denying B.R.’s Petition to Vacate. The sole issue on appeal being a legal one, our review is

conducted “under a pure de novo standard of review, according no deference to the

conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon

County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

Initially, we observe that this appeal is somewhat unusual in that both parties

now agree that the Circuit Court’s judgment should be reversed. Despite the parties’ being

in agreement, we believe it is appropriate to explain why we agree with the parties.

B.R. filed the Petition to Vacate pursuant to Tenn. Code Ann. § 37-1-139 and

Rule 34 of the Tennessee Rules of Juvenile Procedure. Tenn. Code Ann. § 37-1-139 states:

(a) Except as provided in § 36-1-113(q), an order of the court shall be set aside

if it appears that:

(1) It was obtained by fraud or mistake sufficient to satisfy the legal

requirements in any other civil action;

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(2) The court lacked jurisdiction over a necessary party or of the subject

matter; or

(3) Newly discovered evidence so requires.

(b) Except for an order terminating parental rights or an order of dismissal, an

order of the court may also be changed, modified or vacated upon a finding of

changed circumstances and that the change, modification or vacation is in the

best interest of the child. An order granting probation to a child found to be

delinquent or unruly may be revoked on the ground that the conditions of

probation have not been observed.

(c) Pursuant to Tenn. R. Juv. P. 22, in no event shall modification of an agreed

order result in a child being placed into the custody of the department of

children's services without the appropriate petition having been filed with the

clerk of the court alleging the child to be dependent, neglected, abused, unruly,

or delinquent. This subsection (c) shall not be construed as eliminating the

judicial findings required for children in state custody by §§ 37-1-166 and

37-2-409 or as otherwise required by case law and federal regulations.

(d) Any party to the proceeding, the probation officer or other person having

supervision or legal custody of or an interest in the child may petition the court

for the relief provided in this section. The petition shall set forth in concise

language the grounds upon which the relief is requested.

(e) After the petition is filed, the court shall fix a time for hearing and cause

notice to be served as a summons is served under § 37-1-123 on the parties to

the proceeding or affected by the relief sought. After the hearing, which may

be informal, the court shall deny or grant relief as the evidence warrants.

Tenn. Code Ann. § 37-1-139 (2010).

Rule 34 of the Tennessee Rules of Juvenile Procedure states, in part:

(b) Extraordinary Relief. An order of the court shall be vacated if it appears

that it was obtained by fraud or mistake sufficient therefor in a civil action, or

the court lacked jurisdiction over a necessary party or of the subject matter, or

newly discovered evidence so requires.

(c) Modification for Best Interest of Child. An order of the court may also be

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modified or vacated on the ground that changed circumstances so require in

the best interest of the child, except an order committing a delinquent child to

the Department of Correction, or an institution for delinquent children, an

order terminating parental rights or an order of dismissal. An order granting

probation to a child found to be delinquent or unruly may be revoked,

according to the provisions of Rule 35, on the ground that the conditions of

probation have not been observed. Placements after a child has been

committed to the Department of Correction shall be reviewed as provided in

Tenn. Code Ann. § 37-1-137, and, in the case of termination of home

placement, Rule 35.

(d) Petitions to Modify or Vacate Orders. Any party to the proceeding, the

probation officer, or any other person having supervision 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 “Petition to Modify Order,” as the case may be, shall set

forth in concise language the grounds upon which the relief is requested, and

shall include:

(1) The name of the court to which the application is addressed;

(2) The title and action number of the original proceeding;

(3) The name, age, and address, if any, of the child upon whose behalf the

application is brought;

(4) The name and residence address, if known, of the parent, guardian or legal

custodian or, if not known or if there is no parent, guardian or legal custodian

residing within the state, the name and residence address, if known, of any

adult relative residing within the county, or if there is none, the name and

residence address of the adult relative residing nearest the court;

(5) The date and general nature of the order sought to be modified or vacated;

(6) A concise statement as to the grounds alleged to require the modification

or vacation of the order, including any change of circumstance or new

evidence;

(7) A concise statement as to relief requested; and

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(8) A statement as to the petitioner's relationship or interest in the child, if the

petition is brought by a person other than the child. A petition to modify or

vacate an order under this section shall be liberally construed in favor of its

sufficiency.

Tenn. R. Juv. P. 34 (b) - (d).

1

As pointed out by B.R., our Supreme Court addressed a somewhat analogous

matter in In re D. Y. H., 226 S.W.3d 327 (Tenn. 2007). In In Re D. Y. H., the juvenile court

made a custody determination regarding the child. Id. at 328. Approximately three years

later, the child’s mother filed a petition in the juvenile court requesting a change of custody,

which the court denied. Id. The mother appealed to circuit court, which dismissed her

appeal on the basis that her petition for change of custody was unrelated to the original

dependency and neglect proceeding. Id. at 328-29. On appeal, the Tennessee Court of

Appeals affirmed the circuit court. Id. at 329. The Supreme Court reversed, stating, inter

alia:

We hold that in these circumstances without an interrupting event under

section 37–1–103(c), a subsequent decision by the juvenile court on whether

to modify an initial custody order will also arise from and be a part of the

dependency and neglect proceeding. This is true even if a petition for a change

of custody does not reference the dependency and neglect hearing and even if

it is filed years after the final order is entered. Accordingly, any appeal from

such a custody decision is to be made to circuit court.

226 S.W.3d at 331.

The juvenile court has exclusive original jurisdiction over “[p]roceedings in

which a child is alleged to be delinquent, unruly or dependent and neglected, or to have

committed a juvenile traffic offense . . . .” Tenn. Code Ann. § 37-1-103(a)(1) (2010).

“[A]ny appeal from any final order or judgment in an unruly child proceeding or dependent

and neglect proceeding, filed under this chapter, may be made to the circuit court that shall

hear the testimony of witnesses and try the case de novo.” Tenn. Code Ann. § 37-1-159(a)

(2010).

B.R. argues that the Circuit Court should have heard the appeal of the Juvenile

Court’s denial of B.R.’s Petition to Vacate. We agree. The State, though not invoking

Rule 34 has been amended since the relevant actions in this case. The amendments are not as yet 1

effective and, in any case, they would not be applicable in this appeal.

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precisely the same law or arguments, also now agrees that the Circuit Court’s judgment

should be reversed. When the Juvenile Court denied B.R.’s Petition to Vacate, the Juvenile

Court’s order constituted an appealable order under Tenn. Code Ann. § 37-1-159. B.R.

timely appealed to the Circuit Court the decision of the Juvenile Court to deny the Petition

to Vacate. The Circuit Court had jurisdiction to hear the appeal.

In accordance with the controlling law, B.R.’s appeal of the Juvenile Court’s

order denying B.R.’s Petition to Vacate should have been heard by the Circuit Court.

Accordingly, we reverse the judgment of the Circuit Court, and remand this cause to be heard

before the Circuit Court on its merits.

Conclusion

The judgment of the Circuit Court is reversed, and this cause is remanded to

the Circuit Court for further proceedings consistent with this Opinion. The costs on appeal

are assessed against the Appellee, the State of Tennessee.

_________________________________

D. MICHAEL SWINEY, JUDGE

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