# FILED

Novemb er 14, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk State of Tennesse e, Depa

rtment of Hum

an ) Service s, ) Petitioner/Appellee, ) Appeal N o. v. ) 01-A-01- 9704-JV-0 0171 Sylvia Fettero lf Ford, ) Respondent/

Appellant , ) and ) Stanley Fettero lf, ) Juvenile Co urt No. Respondent/

Appellant , ) 215 In the Matter of: ) Stanley Jame s Fetter

olf, D. O.B. 7-17-81 ) Teresa Diane Fetterolf

, D.O .B. 7-2 6-82 ) David Mic hael Fett

erolf, D.O. B. 9-20- 84 ) Daniel W ayne Fetterolf

, D.O .B. 11- 06-85 ) John Mark W ayne Fetterolf , D.O .B. 5-2 8-88 ) Samu el Sway

ne Fetter olf, 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 FRO M THE PUTN AM COUNTY JUVENILE C OURT AT COOKEVILLE, TENNESSEE THE HONORABLE JOHN HUDSON, JUDGE

SAMUEL L. HARRIS P.O. Box 873 Cookeville , Tenne ssee 38503 ATTORNEY FOR RESPONDENT/APPELLANT
RANDY S. CH

AFFIN 100 S. Jef ferson Avenue Cookeville , Tenne ssee 38501 ATTORNEY FOR RESPONDENT/APPELLANT
JOHN KNOX WALKUP Attorney General & Re

porter DOUGLAS EARL DIMOND Assistant Attorney General Genera l Civil Di vision 2nd Floor Cordell Hul l Bldg. 425 5th Aven

ue North Nashville , Tenne ssee 37243- 0499 ATTORNEY FOR PETITIONER/APPELLEE

REVERSED AND REMANDED

WALTER W. BUSSART, JUDGE1 W e are u nawa re of M r. Fettero lf’s argum ent as he failed to file a brief. -2- 

## O PINI ON
This is an appea

l by re spondents/appellants, Stanley Fettero lf and Sylvia Fetterol f Ford, f rom a decision of

the Putnam

County Juvenile C ourt term

inating their parental rights. Ms. Ford argues petitioner/a

ppellee, Stateof Tenne ssee Dep artm ent of Huma n Service s (“D epartm

ent”), f iled its pet

ition for te

rmina tion of par

ental righ ts in the wrongcourt and c ontends the proper ven ue was the

Overton C ountyJuvenile Courtwhich had handled the initial cus tody pr

oceedings. 1 The per

tinent facts are as follows.

The Overton C ounty Juv enile Cour t initially handl ed all of

the proce edings surroundingthis matter. The O ver ton c ourt filed an order o n Februar

y 23, 1 995 allowingthe Depa

rtment to rem

ove the seven Fetter

olf childr en from their hom

e and granting th e De par tme nt temporary care and custody. Prior to the rem oval, Mr. Fetterol f sexually abused the eldest daughter and physically abused at least threeof his sons. Ms. Ford knew of the abus e, but did n othing to pre vent it. In addition, Venessa Farris, a social counselor with th e Depar tment , descri

bed the Fetterolf household

as follows: “There

was tra sh ev erywhere , clot hes t hrown . The ki ds di dn’t have beds to sleep in, they were in the floor. It sm elled. I t was bad. ” (TE 1 03). The Departm ent fil ed a pet iti on f or t empor ary cu sto dy on Febr uar y 23, 1995. The Overton court fil ed a conse nt de cree as to Ms. Ford on April 17, 1995. The decree allowed the Depa

rtment to r etain te mpora ry le gal custody

of the chil dren. T

he Departm ent prepare d plans of

care for Mr. Fetterolf and Ms. Ford to follow in order to re gain custody

of their c hildren. The Ove rton court ratifie d and approv ed these plans. On Febr

uary 1 5 , 1996, the

Overton Court entered a nunc pro tunc order disp osin g of th e Depar tment’s petition for temporary custody. The court found the

seven children w ere dependant andneglecte d and order

ed the De partm ent to reta

in tempo rary l ega l cu sto dy.

The Departm

ent filed a petition for

term ination of p arental r

ights in the Putnam County Juvenile Co urt on Mar ch 8, 1996. The peti tion allege d the follow ing: III. The Defendant, Sylvia Ford Fettero lf, has no t comp lied with the2 Although the answer i s not in t he record, there is ot

her evidence that Mr. Fetterolf fil ed an answer containing the imprope r ven ue def ense . Fi rst , the Depart

ment fi led a n ans wer t o the aff irma ti ve def

ense s, and se cond, the tra nscr ipt contai ns st atement s fr om M r. Fetterol f’s att orney t hat he f iled an answer a nd all eged improper ven ue. -3- provisions of the foster care plan . . . . Vi sitation is the only

provision in her foster care p lan that she has com

plied with . She ha s not completed

counseling, she has not obtained safe and suitable ho using andhas not demonstrated an ability to properly parent the c hildr en or provide for

their fin ancial ne eds. Sylvia Ford Fetterolf was advised on February 24, 1995 that failure to com

ply wi th the foster c are plan w as grounds f or term ination of parental rights. The Defenda

nt, Stanl ey Fetterolf, has not com pl ied with th e provisions of the foster care plan

. . . . He ha s not com plied with

any provision of the plan . He ha s not entered i nt o any sex offender treatm ent progra

m. H e has not at

tended coun seling. (Rec. p.34). Mr. Fetterolf filed an answer in which he asserted certain affirmat iv e defenses including improper ven ue. 2 The Dep artment respo nded to Mr. F etter olf’s defenses. Specifically, the Departm ent argued Tennessee Co de Annotat ed section 36- 1-113(d) (4)(A) provided tha t the Putna

m County Juvenile Court was the proper court bec ause the children l ived in Putna m County at t

he tim e the De partm ent filed t he petition. To support

its content

ion, the D epartm

ent attac hed an aff

idavit fro m Ms. Farris stat ing that the child ren were livi ng in Put nam County on March 8, 1996. The Honorable John H

udson of the

Putnam County Juvenile Court heard the

caseon Decem

ber 12, 199 6. Prior

to the testi mony, Mr. Fe ttero lf’s counsel restated his venue defense, and Ms. Ford’s counsel argued in support of the defe nse. Mr. Fetter olf contended that the venue was improper under Tennessee Code Annotated section 36-1-113(d )(4) and

thatthis sectio n violated A ppellants’ due proce ss rights. The court re spo nded : “We ll, the st atute is cl ear on its face. It ma y be unconstituti onal, bu t th at’ s s omet hi ng th at I ’m n ot going t o rul e on to day. That ’s somet hing you’ ll have to ta

ke up on appe al.” (T

E p. 11) At the

close of t he evidence, Mr. Fettero lf and Ms. Ford obj ected onc e again to v enue. T he court agreed to ta

ke the mo tion under a

dvisem ent.

The court filed its “Final Decree of Guardianship” on December 19, 1996. The courtfound there was clear and convincing evidence requiring the termination of Mr. Fette rolf’s and Ms. F ord’s pa rental r ights. The cour

t did not dec ide the ven

ue issue. Thereafter, the parties f

iled their notices of

appeal. Ms. Ford has presented two issues for this court’ s review . These are: 1) “ Whethe r the Sta te of Tennessee proved venue”3 Livingsto n, T enne ssee is lo cated in Ov erton Co unty.
4 Margaret W harton is an employee of Plateau Mental Health Center protecti ve service s divisio n. She tre ats abuse vi ctims and does parenting. Ms. Wharton counsele d Ms. Ford and six of the Fet terol f chi ldren f

or the St ate.
5 Coo keville, T enne ssee is lo cated in Putn am C ounty. -4- and2) “Whether venue unilaterally determined by the S tate of Tennessee violates th e due process of law gua

ranteed b y the

United States Const

itution.” We bel ieve The Putnam county juvenile Cou rt lacked j urisdiction to term inate the A

ppellants’ parental rights.

Before addressingthe juri sdictional issue, how ever, w e note twoimpor tant considera tions. First , a determ

ination of M s. Ford’ s first iss ue would be difficult given the l ack of su bstantive evidence. To explain, Tennessee Code Annotated section 36-1-113(d )(4) prov ides wher e a petiti on for the t

ermi nation of pa

rental r ights may be filed. Petitioners here procee d ed under sub section (A ). This subsection provides: “The petition, if filed separately fr

om the adoption pet

ition, may be filed: (A) In the cour

t of the cou nty wh ere the c hild currently r esides in th e physi cal custody of the petit ioner(s) . . . .” T ENN
. C ODE A NN . § 36-1-11 3(d)(4)(A) (Su pp. 1997 ). The evidence in this case is vague w ith regar d to where

these chil dren wer

e curren tly residing. Teresa

Fettero lf, the e ldest daught er, tes tified as follows: Q. Miss Fettero lf, y ou’re c urrently residi ng wi th this lady and her husband, y our foster

parents, in Livingst

on? 3 A. Yes There is evidenc e from

the affi da vit of M s. Farr is, the soc ial counsel or, that the children res ided in Putna m County when the Depa rtment filed the

petition. The affidavi tstated: “On March 8, 1996, all of the chil dren who are t he subje ct of thi s petition resided in

Putnam County .” Ms. Farris a

lso testifi ed as follo ws: “ This is the onlyfoster care th ey’ve gotten. They got this home when they ’d been moved. [The foster mothe r] stay s at hom

e and wor ks with the

children. . . . Now they

are in an old farm house in Overton County that has been remodeled. ” There was test imony from Margaret Wharton 4 that she had seen the c hildren in C ookeville 5 andLivin gsto n. We believe the legisla

ture’s prescrip tion of the “ currently reside” standard f or the fil ing of the petitio n intended torequire the filing o f the petit ion where the children a

nd the foster parents in tended to reside. I t appea rs in this c ase that c ounty w as Overt on Cou nty. There i s evidence the children and the fos ter parents lived the re befor e and after the filing of the peti t ion. M oreover, there is n o evidence explaining why the-5-

children and foster parents moved to Putnam County for a short tim e. In any event, there is insuffic ient evide nce to prove the childr

en reside d in Putnam

County except tempo rari ly. In fact, t

he greate r weight o f the evidence is that their residenc e was in Over ton Cou nty.

The second, m

ore im portant con sideratio n in this cas e is t hat of App ellants’ due proces s rights. Tennesse e’s cou rts have f ound as follo ws: Thesecases dea

l with delicate , far r

eaching iss ues that ar

e best decided qui ckl y and fin all y. Regrett ably, the presentst atu to ry sc heme for dealing w ith these is sues i nvit es delay, and every day that passes make s a final decision m ore diffi cult and m

ore painf ul to all invo lved. "The re is no shortage of victims in this case. . . . B u t Ms

. McCloud and the Na sh-Putnam s are vic tims a s well. Like the child, they have been victim

ized by . . . s tatutes cr

eating hazy j ur isdictional boundaries that perm

it judge s hopping and de la y, and discord ant judicial attitudes c oncerning t

he best inte

rests and r

ights of all

the partie s. Nash-P utnam v. McCloud , 921 S.W .2d 170, 17 3 (Tenn 19 96) (quo tin g In re McCloud , No. 01-A -01-9212-C V00504, 199 3 WL 194041, at *5 (Tenn. App. 1993) (Koch, J.)). “Tennessee c ourts have historica lly hel d that, ‘ [a] pa

rent is entitled to the

cus tod y, compa

nionship, a

nd care of

the child, and should not be deprive d thereof except by due process of law.” In re Adopt ion of Female Child , 896 S.W .2d 546, 547 (Tenn. 1995) (quoti ng State ex re l. Beth ell v. K ilvington , 100 Tenn. 22 7, 236 45 S.W. 433, 435 (18 98)) (quote d in Nash-P utnam , 921 S.W.2d at

174). “Parents .

. . have a fundam

enta l li ber ty i nterest 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) (c iting Stanley v. Illin ois , 405 U.S. 645, 92 S. Ct 1 208, 31 L. Ed. 2d 551 (1972) and Hawk v. Hawk , 855 S.W. 2d 57 3 (Tenn. 1993)) (quo ted in Nash-P utnam , 921 S.W.2d at 174). “‘ [A] pa rent cann otbe deprive d of the cus tody of a child unless there has been a finding, after notice req uired by due process, of substantial harm to the chil d. Only then ma y a court engage in a general‘best in terest of the child’ evaluation in making a determ ination of custody.’” Petrosky v. Keene , 898 S.W. 2d 726, 728 ( Tenn. 199 5) (quoting In re Adoption of Fem ale Child , 896 S.W. 2d at 547-48) (quoted in Nash-P utnam , 921 S.W .2d at 175) . We hold a strong preference for venue

in the “home c ounty” for proce edin g s to terminate parental rights.6 The juvenil e courts have excl usive origi nal jurisdiction in depe ndancy an d neglect pro ceedings. See T ENN
.

C ODE A NN . § 37-1- 103(a)(1) (Supp. 1997). The juveni le court s have concu rrent juri sdiction wit

h the ch ancery a n d circuit co urts to term inate p arenta l or gua rdian ship righ ts. See i d. 36-1-113(a); 37-1-104(c). -6- Fin all y, we com

e to thejurisdiction question. It is the opinion of this court that the Putnam

County Juvenile C ourt lacke d jurisdic tion because the juri sdiction of the Overton County Juvenile Court hadattached for the purposes of

dealing w ith these children. The jurisdic tion of the

court entertaining delinquency or dependency proceedin gs is continuing , to the e xclusion of a

ny othe r court of concurrent jurisdi ction, and except as jurisdiction may be relinquished in accorda

nce with s tatute, o nce a ju venile cou r t has entertained jurisdic tion over a child that court must take affirm at ive action to d ispose of the ca se in one of the way s provided by

statute be for e jurisdiction can terminate. State of Tenn. Dep’t

of Human Servs. v. Gouvitsa , 735 S.W .2d 452,455 -56 (Tenn. App. 1987) (quotin g 43 C.J.S. Infants § 53 (1978)) . Ther e are no s tatutes spe cifically providing for

the term ination of j urisdiction

in the juv enile cour

t. The stat

utes defin e
achild as a pers on under eigh teen years of age. See T ENN
. C ODE A NN . § 37-1-1 02 (b)(4)(A) (199 6). Case law provides tha

t the juvenile court ’s jur isdiction sha

ll continueuntil the child reaches the age of majority. See Kidd v. State , 207 Tenn. 24 4, 252, 338 S. W.2d 62 1, 625 (T enn. 1960) . We are of th e opinion that the be st forum in most c ircum stanc es is the for um which deter

mined the childr

en were dependant andneglected and grante d temporary custod y to the Department. Al though there may be except

ions, that would be t he mo st rel iab le f oru m. 6 From all of this we find and c onclude tha

t the prope

r venue in t

his case w as the Ove

rton County

Juvenile Court. The Ove

rton court ’s ord er of tem

porary custody to the De partm ent is still a valid orderpending fur

ther proc eedings in that cour t and subje ct to the D epartm ent filing an action t

here. In addition, the order of the Put

nam C ounty Juv enileCourtis void for l ack of jurisd iction. See Gou vitsa , 735 S.W .2d at 457.

Therefore, it follows that the de cision of th e trial c ourt is rev ersed and

rema nded. On r ema nd, th e cour t sha ll ent er an o rder d ismiss ing t he Dep artment ’s p etition for lack

of juris diction. C osts on appea l are tax ed against the petitioner /appellee , the Sta

te of Tennessee D epartm ent of Hum

an Servic es.-7- _________________ ____________ WALTER W. BUSSART, JUDGE

CONCUR:

_________________

______________ BEN H. CANTRELL, JUDGE

_________________

______________ WILLIAM C. KOCH, JR., JUDGE