FILED

November 14, 1997

Cecil W. Crowson

Appellate Court Clerk

State of Tennessee, Department of Human )

Services, )

Petitioner/Appellee, ) Appeal No.

v. ) 01-A-01-9704-JV-00171

Sylvia Fetterolf Ford, )

Respondent/Appellant, )

and )

Stanley Fetterolf, ) Juvenile Court No.

Respondent/Appellant, ) 215

In the Matter of: )

Stanley James Fetterolf, D.O.B. 7-17-81 )

Teresa Diane Fetterolf, D.O.B. 7-26-82 )

David Michael Fetterolf, D.O.B. 9-20-84 )

Daniel Wayne Fetterolf, D.O.B. 11-06-85 )

John Mark Wayne Fetterolf, D.O.B. 5-28-88 )

Samuel Swayne Fetterolf, D.O.B. 4-05-90 )

Daniela Jordan Fetterolf, D.O.B. 4-15-92 )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE PUTNAM COUNTY JUVENILE COURT

AT COOKEVILLE, TENNESSEE

THE HONORABLE JOHN HUDSON, JUDGE

SAMUEL L. HARRIS

P.O. Box 873

Cookeville, Tennessee 38503

ATTORNEY FOR RESPONDENT/APPELLANT

RANDY S. CHAFFIN

100 S. Jefferson Avenue

Cookeville, Tennessee 38501

ATTORNEY FOR RESPONDENT/APPELLANT

JOHN KNOX WALKUP

Attorney General & Reporter

DOUGLAS EARL DIMOND

Assistant Attorney General

General Civil Division

2nd Floor Cordell Hull Bldg.

425 5th Avenue North

Nashville, Tennessee 37243-0499

ATTORNEY FOR PETITIONER/APPELLEE

REVERSED AND REMANDED

WALTER W. BUSSART, JUDGE
1

 We are unaware of Mr. Fetterolf’s argument as he failed to file a brief.

-2-

OPINION

This is an appeal by respondents/appellants, Stanley Fetterolf and Sylvia

Fetterolf Ford, from a decision of the Putnam County Juvenile Court terminating their

parental rights. Ms. Ford argues petitioner/appellee, State of Tennessee Department

of Human Services (“Department”), filed its petition for termination of parental rights

in the wrong court and contends the proper venue was the Overton County Juvenile

Court which had handled the initial custody proceedings.1 The pertinent facts are as

follows.

The Overton County Juvenile Court initially handled all of the proceedings

surrounding this matter. The Overton court filed an order on February 23, 1995

allowing the Department to remove the seven Fetterolf children from their home and

granting the Department temporary care and custody. Prior to the removal, Mr.

Fetterolf sexually abused the eldest daughter and physically abused at least three of

his sons. Ms. Ford knew of the abuse, but did nothing to prevent it. In addition,

Venessa Farris, a social counselor with the Department, described the Fetterolf

household as follows: “There was trash everywhere, clothes thrown. The kids didn’t

have beds to sleep in, they were in the floor. It smelled. It was bad.” (TE 103). The

Department filed a petition for temporary custody on February 23, 1995. The

Overton court filed a consent decree as to Ms. Ford on April 17, 1995. The decree

allowed the Department to retain temporary legal custody of the children. The

Department prepared plans of care for Mr. Fetterolf and Ms. Ford to follow in order

to regain custody of their children. The Overton court ratified and approved these

plans. On February 15, 1996, the Overton Court entered a nunc pro tunc order

disposing of the Department’s petition for temporary custody. The court found the

seven children were dependant and neglected and ordered the Department to retain

temporary legal custody.

The Department filed a petition for termination of parental rights in the Putnam

County Juvenile Court on March 8, 1996. The petition alleged the following:

III.

The Defendant, Sylvia Ford Fetterolf, has not complied with the
2

 Although the answer is not in the record, there is other evidence that Mr. Fetterolf filed an answer containing

the improper venue defense. First, the Department filed an answer to the affirmative defenses, and second, the transcript

contains statements from Mr. Fetterolf’s attorney that he filed an answer and alleged improper venue.

-3-

provisions of the foster care plan . . . . Visitation is the only provision

in her foster care plan that she has complied with. She has not

completed counseling, she has not obtained safe and suitable housing

and has not demonstrated an ability to properly parent the children or

provide for their financial needs.

Sylvia Ford Fetterolf was advised on February 24, 1995 that

failure to comply with the foster care plan was grounds for termination

of parental rights.

The Defendant, Stanley Fetterolf, has not complied with the

provisions of the foster care plan . . . . He has not complied with any

provision of the plan. He has not entered into any sex offender

treatment program. He has not attended counseling.

(Rec. p.34). Mr. Fetterolf filed an answer in which he asserted certain affirmative

defenses including improper venue.2 The Department responded to Mr. Fetterolf’s

defenses. Specifically, the Department arguedTennesseeCode Annotated section 36-

1-113(d)(4)(A) provided that the Putnam County Juvenile Court was the proper court

because the children lived in Putnam County at the time the Department filed the

petition. To support its contention, the Department attached an affidavit from Ms.

Farris stating that the children were living in Putnam County on March 8, 1996. 

The Honorable John Hudson of the Putnam County Juvenile Court heard the

case on December 12, 1996. Prior to the testimony, Mr. Fetterolf’s counsel restated

his venue defense, and Ms. Ford’s counsel argued in support of the defense. Mr.

Fetterolf contended that the venue was improper under Tennessee Code Annotated

section 36-1-113(d)(4) and that this section violated Appellants’ due process rights.

The court responded: “Well, the statute is clear on its face. It may be

unconstitutional, but that’s something that I’m not going to rule on today. That’s

something you’ll have to take up on appeal.” (TE p. 11) At the close of the evidence,

Mr. Fetterolf and Ms. Ford objected once again to venue. The court agreed to take

the motion under advisement.

The court filed its “Final Decree of Guardianship” on December 19, 1996. The

court found there was clear and convincing evidence requiring the termination of Mr.

Fetterolf’s and Ms. Ford’s parental rights. The court did not decide the venue issue.

Thereafter, the parties filed their notices of appeal. Ms. Ford has presented two issues

for this court’s review. These are: 1) “Whether the State of Tennessee proved venue”
3

 Livingston, Tennessee is located in Overton County.

4

 Margaret Wharton is an employee of Plateau Mental Health Center protective services division. She treats

abuse victims and does parenting. Ms. Wharton counseled Ms. Ford and six of the Fetterolf children for the State.

5

 Cookeville, Tennessee is located in Putnam County.

-4-

and 2) “Whether venue unilaterally determined by the State of Tennessee violates the

due process of law guaranteed by the United States Constitution.” We believe The

Putnam county juvenile Court lacked jurisdiction to terminate the Appellants’

parental rights.

Before addressing the jurisdictional issue, however, we note two important

considerations. First, a determination of Ms. Ford’s first issue would be difficult

given the lack of substantive evidence. To explain, Tennessee Code Annotated

section 36-1-113(d)(4) provides where a petition for the termination of parental rights

may be filed. Petitioners here proceeded under subsection (A). This subsection

provides: “The petition, if filed separately from the adoption petition, may be filed:

(A) In the court of the county where the child currently resides in the physical custody

of the petitioner(s) . . . .” TENN. CODE ANN. § 36-1-113(d)(4)(A) (Supp. 1997). The

evidence in this case is vague with regard to where these children were currently

residing. Teresa Fetterolf, the eldest daughter, testified as follows:

Q. Miss Fetterolf, you’re currently residing with this lady and her

husband, your foster parents, in Livingston?3

A. Yes

There is evidence from the affidavit of Ms. Farris, the social counselor, that the

children resided in Putnam County when the Department filed the petition. The

affidavit stated: “On March 8, 1996, all of the children who are the subject of this

petition resided in Putnam County.” Ms. Farris also testified as follows: “This is the

only foster care they’ve gotten. They got this home when they’d been moved. [The

foster mother] stays at home and works with the children. . . . Now they are in an old

farmhouse in Overton County that has been remodeled.” There was testimony from

Margaret Wharton4 that she had seen the children in Cookeville5 and Livingston. We

believe the legislature’s prescription of the “currently reside” standard for the filing

of the petition intended to require the filing of the petition where the children and the

foster parents intended to reside. It appears in this case that county was Overton

County. There is evidence the children and the foster parents lived there before and

after the filing of the petition. Moreover, there is no evidence explaining why the
-5-

children and foster parents moved to Putnam County for a short time. In any event,

there is insufficient evidence to prove the children resided in Putnam County except

temporarily. In fact, the greater weight of the evidence is that their residence was in

Overton County.

The second, more important consideration in this case is that of Appellants’

due process rights. Tennessee’s courts have found as follows:

These cases deal with delicate, far reaching issues that are best

decided quickly and finally. Regrettably, the present statutory scheme

for dealing with these issues invites delay, and every day that passes

makes a final decision more difficult and more painful to all involved.

"There is no shortage of victims in this case. . . . But Ms.

McCloud and the Nash-Putnams are victims as well. Like the child,

they have been victimized by . . . statutes creating hazy jurisdictional

boundaries that permit judge shopping and delay, and discordant judicial

attitudes concerning the best interests and rights of all the parties.

Nash-Putnam v. McCloud, 921 S.W.2d 170, 173 (Tenn 1996) (quoting In re

McCloud, No. 01-A-01-9212-CV00504, 1993 WL 194041, at *5 (Tenn. App. 1993)

(Koch, J.)). “Tennessee courts have historically held that, ‘[a] parent is entitled to the

custody, companionship, and care of the child, and should not be deprived thereof

except by due process of law.” In re Adoption of Female Child, 896 S.W.2d 546,

547 (Tenn. 1995) (quoting State ex rel. Bethell v. Kilvington, 100 Tenn. 227, 236 45

S.W. 433, 435 (1898)) (quoted in Nash-Putnam, 921 S.W.2d at 174). “Parents . . .

have a fundamental liberty interest in the care and custody of their children under

both the United States and Tennessee Constitutions” Nale v. Robertson, 871 S.W.2d

674, 678 (Tenn. 1994) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct 1208, 31 L.

Ed. 2d 551 (1972) and Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993)) (quoted in

Nash-Putnam, 921 S.W.2d at 174). “‘[A] parent cannot be deprived of the custody

of a child unless there has been a finding, after notice required by due process, of

substantial harm to the child. Only then may a court engage in a general ‘best interest

of the child’ evaluation in making a determination of custody.’” Petrosky v. Keene,

898 S.W.2d 726, 728 (Tenn. 1995) (quoting In re Adoption of Female Child, 896

S.W.2d at 547-48) (quoted in Nash-Putnam, 921 S.W.2d at 175). We hold a strong

preference for venue in the “home county” for proceedings to terminate parental

rights.
6

 The juvenile courts have exclusive original jurisdiction in dependancy and neglect proceedings. See TENN.

CODE ANN. § 37-1-103(a)(1) (Supp. 1997). The juvenile courts have concurrent jurisdiction with the chancery and

circuit courts to terminate parental or guardianship rights. See id. 36-1-113(a); 37-1-104(c).

-6-

Finally, we come to the jurisdiction question. It is the opinion of this court that

the Putnam County Juvenile Court lacked jurisdiction because the jurisdiction of the

Overton County Juvenile Court had attached for the purposes of dealing with these

children.

The jurisdiction of the court entertaining delinquency or dependency

proceedings is continuing, to the exclusion of any other court of

concurrent jurisdiction, and except as jurisdiction may be relinquished

in accordance with statute, once a juvenile court has entertained

jurisdiction over a child that court must take affirmative action to

dispose of the case in one of the ways provided by statute before

jurisdiction can terminate.

State of Tenn. Dep’t of Human Servs. v. Gouvitsa, 735 S.W.2d 452,455-56 (Tenn.

App. 1987) (quoting 43 C.J.S. Infants § 53 (1978)). There are no statutes specifically

providing for the termination of jurisdiction in the juvenile court. The statutes define

a child as a person under eighteen years of age. See TENN. CODE ANN. § 37-1-102

(b)(4)(A) (1996). Case law provides that the juvenile court’s jurisdiction shall

continue until the child reaches the age of majority. See Kidd v. State, 207 Tenn. 244,

252, 338 S.W.2d 621, 625 (Tenn. 1960). We are of the opinion that the best forum

in most circumstances is the forum which determined the children were dependant

and neglected and granted temporary custody to the Department. Although there

may be exceptions, that would be the most reliable forum.6 From all of this we find

and conclude that the proper venue in this case was the Overton County Juvenile

Court. The Overton court’s order of temporary custody to the Department is still a

valid order pending further proceedings in that court and subject to the Department

filing an action there. In addition, the order of the Putnam County Juvenile Court is

void for lack of jurisdiction. See Gouvitsa, 735 S.W.2d at 457.

Therefore, it follows that the decision of the trial court is reversed and

remanded. On remand, the court shall enter an order dismissing the Department’s

petition for lack of jurisdiction. Costs on appeal are taxed against the

petitioner/appellee, the State of Tennessee Department of Human Services.
-7-

_____________________________

WALTER W. BUSSART, JUDGE

CONCUR:

_______________________________

BEN H. CANTRELL, JUDGE

_______________________________

WILLIAM C. KOCH, JR., JUDGE