IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 18, 2021 Session

IN RE RYAT M.

Appeal from the Circuit Court for Macon County

No. 2019-CV-18, 2018-JV-35 Clara W. Byrd, Judge

___________________________________

No. M2020-00156-COA-R3-JV

___________________________________

In this dependency and neglect case, the juvenile court found the child dependent and 

neglected and awarded custody to Appellees, maternal grandparents. Appellant/father 

failed to timely perfect an appeal of the juvenile court’s final order in the dependency and 

neglect matter. However, father filed a petition to set aside or vacate the same, which the 

juvenile court denied. On appeal, the circuit court accepted jurisdiction over the 

dependency and neglect matter, and conducted a de novo hearing; however, the circuit 

court denied hearing as to “other issues,” including father’s petition to set aside or vacate

order. We conclude that the circuit court lacked jurisdiction to review the dependency and 

neglect petition; as such, we vacate the circuit court’s order on dependency and neglect for 

lack of jurisdiction. Because there is a question as to whether father’s notice of appeal 

concerning his motion to set aside or vacate order conferred jurisdiction on the circuit court 

to review that motion, we vacate the portion of the circuit court’s order wherein it 

determined that it would hear no other issues on appeal. We remand to the circuit court for 

determination of whether father perfected an appeal of the juvenile court’s order denying

his motion to set aside or vacate order. If the circuit court determines that father perfected 

the appeal, then the circuit court should proceed with de novo review of father’s motion.

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

Vacated and Remanded with Instructions.

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ANDY D. BENNETT,

J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Melissa Morris Baker, Brentwood, Tennessee, for the appellant, James H.1

Lisa C. Cothron, Lafayette, Tennessee, for the appellees, Kristy M., and Mark M.

 

1

In cases involving minor children, it is the policy of this Court to redact the parties’ names to 

protect their identities.

09/27/2021
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OPINION

I. Background

In June 2014, Ryat M. (the “Child”) was born to Lindsey M. (“Mother”) and James 

H. (“Father” or “Appellant”). Mother and Father were never married and are no longer in

a relationship. The Child has resided with his maternal grandparents, Kristy M. and Mark 

M. (“Grandparents” or “Appellees”), for the majority of his life. On March 1, 2018, in the 

Juvenile Court of Macon County (the “Juvenile Court”), the Grandparents filed a petition 

to declare the Child dependent and neglected and for temporary legal custody. That same 

day, the Juvenile Court awarded the Grandparents temporary custody of the Child and set 

the matter for a preliminary hearing. Although she was served with the petition, Mother 

failed to appear for the preliminary hearing, which resulted in a waiver. The Juvenile Court 

found that Father was not entitled to a preliminary hearing because: (1) he and Mother were 

never married; (2) there had been no prior adjudication of his parentage;2and (3) custody 

of the Child lay solely with Mother when the petition was filed.

On August 2, 2018, the Juvenile Court held an adjudicatory hearing as to Mother 

only. Mother again failed to appear. By order of September 6, 2018, the Juvenile Court 

declared the Child “dependent and neglected as to Mother based upon the statements of the 

sworn petition . . . .” Mother has not appealed any of the Juvenile Court’s orders, and she 

is not a party to this appeal. 

On September 10, 2018, the Juvenile Court conducted an adjudicatory hearing as to 

Father. By order of September 25, 2018 (the “original adjudicatory order”), the Juvenile 

Court found that: (1) the Child was dependent and neglected as to Father; (2) “Father [had] 

willfully failed to support, visit, or provide any necessities [for the Child] since January 

2017;” and (3) “the [C]hild [would] suffer substantial harm if he [was] removed from the 

continuous care of” the Grandparents. The Juvenile Court ordered that the Child would 

remain in the Grandparents’ custody. The original adjudicatory order provided that it was 

a final order and that any appeal therefrom should be made to the circuit court within ten

days following the entry of the order. Father did not appeal this order.

On October 26, 2018, Father filed a petition for custody modification asking the 

Juvenile Court to place the Child in his custody. On October 29, 2018, the Grandparents 

filed an answer to Father’s petition. On November 1, 2018, the Juvenile Court conducted

a review hearing in the dependency and neglect matter. On November 14, 2018, the 

Juvenile Court entered several orders. Relevant to this appeal, the Juvenile Court entered 

an order amending the original adjudicatory order (the “amended adjudicatory order”) to 

provide that “the September hearing was both . . . [a]djudicatory and [d]ispositional, and 

 

2 During the pendency of this case, Father was determined to be the Child’s biological father via a 

paternity test.
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that it represent[ed] a final order.” Father did not appeal this order.

On November 29, 2018, Father filed a motion to set aside or vacate several orders 

including the original adjudicatory order. The next day, Father filed a motion for change 

of custody, again asking the Juvenile Court to award him custody of the Child. The 

Grandparents filed replies to both of these motions in early December 2018.

On December 12, 2018, the Juvenile Court entered an order concerning Father’s

retroactive child support obligation. On December 22, 2018, Father filed a notice of appeal 

(the “first notice”) in the Juvenile Court, wherein he stated that he was appealing the 

Juvenile Court’s decision of December 12, 2018. By order of January 18, 2019, the 

Juvenile Court entered a visitation schedule between Father and the Child. That same day, 

the Juvenile Court set a hearing for April 12, 2019 on Father’s motion to set aside or vacate 

order as well as his petition and motion for custody. On January 31, 2019, Father filed his 

second notice of appeal (the “second notice”) in the Juvenile Court, wherein he stated that 

he was appealing “the decision of the Juvenile Court entered on the 18th of December 2019 

[sic].” Apparently, Father misstated the date of the order appealed because the Juvenile 

Court did not enter an order on December 18, 2019.

On February 19, 2019, a “notice of filing appeal” was filed in the Circuit Court of 

Macon County (the “trial court”) along with Father’s appeal bond for costs. On February 

25, 2019, counsel for both parties appeared before the trial court. The trial court ruled that 

Father’s appeal was premature and noted that Father’s motion to set aside or vacate order 

was set for April 12, 2019 in the Juvenile Court.

On April 12, 2019, the Juvenile Court heard Father’s: (1) October 26, 2018 petition 

for custody modification; (2) November 29, 2018 motion to set aside or vacate order; and 

(3) November 30, 2018 motion for change of custody. By order entered April 24, 2019, 

the Juvenile Court dismissed Father’s petition for custody modification and his motion for 

change of custody; the trial court also denied Father’s motion to set aside or vacate order.

Following entry of the Juvenile Court’s April 24, 2019 orders, the trial court resumed 

hearing the case. By order entered, nunc pro tunc, on November 13, 2019, the trial court 

found that

3. . . . the Notice of Appeal, which was prematurely filed, is now applicable 

only to the [dependency and neglect] [p]etition, and no other issues will be 

considered.

4. The Appeal was perfected, as to the [a]mended [dependency and neglect]

[a]djudicatory [o]rder, filed November 14, 2018.

The trial court also set a de novo trial for November 13 and 14, 2019 “as to the Adjudicatory 

Hearing held on September 10, 2018.” By order of January 23, 2020, the trial court found 
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that the Child was dependent and neglected as to Father, and that custody of the Child 

should remain with the Grandparents. Father appeals.

II. Issues

Upon review, we conclude that the dispositive issues in the case are:

1. Whether the trial court acquired jurisdiction to conduct a de novo review 

of the dependency and neglect petition.

2. Whether the trial court should have conducted a de novo review of 

Father’s motion to set aside or vacate order.

III. Standard of Review

The issues in this case are purely procedural, presenting questions of law rather than 

fact. Accordingly, our review is de novo, and we accord no deference to the trial court’s 

conclusions of law. See Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 

642 (Tenn. 2008). 

IV. Analysis

Before addressing the issues on appeal, we first examine the unique characteristics

of dependency and neglect proceedings. As an initial matter, Tennessee Code Annotated 

section 37-1-103(a)(1) vests juvenile courts with exclusive jurisdiction over these

proceedings. Tenn. Code Ann. § 37-1-103(a)(1). This exclusive jurisdiction continues 

until one of the following occurs: (1) the case is dismissed; (2) the custody determination 

is transferred to another court; or (3) a petition for adoption is filed. Tenn. Code Ann. § 

37-1-103(c). Accordingly, absent one of the foregoing events, once a juvenile court’s 

jurisdiction vests in a dependency and neglect proceeding, that court continues to hear any 

subsequent matters in that case. See In re Brian G., No. M2017-01586-COA-R3-JV, 2018 

WL 4181474, at *2 (Tenn. Ct. App. Aug. 30, 2018). Thus, as discussed further, infra, a 

juvenile court may enter multiple final and appealable orders in a case even after it has 

concluded the dependency and neglect portion of that case. 

The appeals process in dependency and neglect proceedings is also somewhat 

unique. Litigants wishing to appeal “any final order or judgment” from a dependency and 

neglect proceeding in juvenile court may do so by filing an appeal with the circuit court, 

rather than with this Court. See Tenn. Code Ann. § 37-1-159(a) (emphasis added). The 

appeal must be filed and perfected within ten days following the entry of the juvenile 

court’s final order. Tenn. Code Ann. § 37-1-159(a); see also Tenn. R. Juv. P. 118(e) (“[a]n 

appeal may be filed with the clerk of the juvenile court within 10 days of the entry of the 

final order.”). A party perfects an appeal when a notice of appeal is filed and:
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(1) a filing fee is paid, or bond in lieu of the filing fee is posted;

(2) an affidavit of indigency is filed within the applicable time period and an 

order allowing filing on a pauper’s oath is subsequently entered; or

(3) the court has previously determined the appellant to be indigent.

Tenn. R. Juv. P. 118(f). Only after an appeal is timely filed and properly perfected does 

the circuit court acquire jurisdiction to “hear the testimony of witnesses and try the case de 

novo.” Tenn. Code Ann. § 37-1-159(a). 

As mentioned, supra, a juvenile court may enter multiple final orders in a 

proceeding that began as a dependency and neglect matter. Thus, circuit courts may 

entertain multiple appeals from these cases. Indeed, the Tennessee Supreme Court has 

reiterated that any final order appealed from a dependency and neglect proceeding, even 

after the dependency and neglect matter has concluded, is properly appealed to the circuit 

court rather than to this Court. In Tennessee Department of Children’s Services v. Owens, 

129 S.W.3d 50 (Tenn. 2004), after the Tennessee Department of Children’s Services 

(“DCS”) filed a petition to declare a child dependent and neglected, the child’s aunt and 

uncle filed a petition to intervene and for temporary custody. Id. at 52. Although the 

juvenile court later declared the child dependent and neglected, entered a final order 

terminating parental rights, and awarded custody of the child to DCS, it continued to 

exercise jurisdiction over that proceeding. Id. at 53; see also Tenn. Code Ann. § 37-1-

103(c). Under its continuing jurisdiction, the juvenile court entered a subsequent final 

order denying the aunt and uncle’s petition. Id. When the aunt and uncle appealed the 

denial of their petition to the circuit court, the circuit court dismissed the appeal for lack of 

jurisdiction. Id. On appeal, the Tennessee Supreme Court held that the aunt and uncle’s 

appeal was properly before the circuit court because it was “connected to the dependency 

and neglect proceeding”—this despite DCS’ petition and the order terminating parental 

rights. Id. at 54-55. In short, because the order appealed arose from the dependency and 

neglect proceeding, the juvenile court had continuing jurisdiction to hear it, and any appeal 

of an order therefrom was within the jurisdiction of the circuit court under Tennessee Code 

Annotated section 37-1-159(a). Id. at 55.

The Tennessee Supreme Court confirmed its Owens holding in In re D.Y.H., 226 

S.W.3d 327 (Tenn. 2007). In that case, the juvenile court also acquired jurisdiction over 

the action through the filing of a dependency and neglect petition. Id. at 328; see also

Tenn. Code Ann. § 37-1-103(a)(1). The juvenile court entered a final order determining 

that the child was dependent and neglected as to the mother and awarded custody to the 

father. Id. Three years later, the mother filed a petition for change of custody. Id. After 

the juvenile court entered a final order that denied the mother’s petition, she appealed the 

denial to the circuit court. Id. The circuit court dismissed the mother’s appeal “ruling that 
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the petition for a change in custody was unrelated to the dependency and neglect 

proceeding, and, accordingly, any appeal should be filed in the Court of Appeals . . . .” Id.

at 328-29. On appeal, the Tennessee Supreme Court first explained that the juvenile court 

originally acquired jurisdiction over the case through a dependency and neglect 

proceeding. Id. at 331. Because there was never an “interrupting event” that stripped the 

juvenile court of its continuing jurisdiction, it heard the mother’s petition for change of 

custody under that continuing dependency and neglect jurisdiction. Id.; see also Tenn. 

Code Ann. § 37-1-103(c). Accordingly, any subsequent final order by the juvenile court

concerning “whether to modify an initial custody order [would] also arise from and be a 

part of the dependency and neglect proceeding.” Id. So, jurisdiction over any appeal from 

such custody decision would lie with the circuit court under Tennessee Code Annotated 

section 37-1-159(a). Id. With the foregoing law in mind, we turn to address the issues 

before us.

A. Trial Court’s Adjudication of Dependency and Neglect Petition

Although not raised as an issue on appeal, we first address the trial court’s exercise 

of jurisdiction over the dependency and neglect petition. Under Rule 13(b) of the 

Tennessee Rules of Appellate Procedure, this Court is required to “consider whether the 

trial and appellate court have jurisdiction over the subject matter” even if the issue is not 

presented for review. Tenn. R. App. P. 13(b). Subject matter jurisdiction “involves a 

court’s power to adjudicate a particular controversy brought before it.” First Am. Tr. Co. 

v. Franklin-Murray Dev. Co., L.P., 59 S.W.3d 135, 140 (Tenn. Ct. App. 2001) (citing 

Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000); Cashion v. Robertson, 955 

S.W.2d 60, 63 (Tenn. Ct. App. 1997)). “A court’s subject matter jurisdiction is derived—

‘either explicitly or by necessary implication’—from the state constitution or statute.” 

Jack R. Owen Revocable Tr. v. City of Germantown, No. W2018-01662-COA-R3-CV, 

2019 WL 2233886, at *2 (Tenn. Ct. App. May 23, 2019) (quoting Benson v. Herbst, 240 

S.W.3d 235, 239 (Tenn. Ct. App. 2007)). “The existence of subject matter jurisdiction 

depends on ‘the nature of the cause of action and the relief sought.’” Jack R. Owen 

Revocable Tr., 2019 WL 2233886, at *2 (quoting Landers v. Jones, 872 S.W.2d 674, 675 

(Tenn. 1994)). “[W]hen an appellate court determines that a trial court lacked subject 

matter jurisdiction, it must vacate the judgment and dismiss the case without reaching the 

merits of the appeal.” Hirt v. Metro. Bd. of Zoning Appeals of Metro. Gov’t of Nashville, 

542 S.W.3d 524, 527 (Tenn. Ct. App. 2016) (quoting First Am. Trust Co., 59 S.W.3d at 

141).

Here, the Juvenile Court acquired exclusive jurisdiction over this case on the 

Grandparents’ filing of the dependency and neglect petition. See Tenn. Code Ann. § 37-

1-103(a)(1). Relevant to the dependency and neglect matter, the Juvenile Court entered

two adjudicatory orders concerning Father: (1) the September 25, 2018 original 

adjudicatory order; and (2) the November 14, 2018 amended adjudicatory order. The 

original adjudicatory order specifically stated that it was a final order as to the dependency 
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and neglect matter, and that any appeal therefrom should be made to the trial court within 

ten days of its entry. The amended adjudicatory order clarified that the September hearing 

and order were adjudicatory and dispositional and represented a final order. Father failed 

to timely perfect an appeal as to either of these orders. See Tenn. Code Ann. § 37-1-159(a); 

Tenn. R. Juv. P. 118(e), (f). Although the Juvenile Court had already declared the Child 

dependent and neglected and ordered that custody should remain with the Grandparents, 

the order of January 18, 2019 resolved the issue of visitation between Father and the Child. 

Father failed to timely perfect an appeal as to this order as well. See Tenn. Code Ann. § 

37-1-159(a); Tenn. R. Juv. P. 118(e), (f).

It is clear that the Juvenile Court entered a final order in the dependency and neglect 

portion of this case no later than January 18, 2019. We need not determine which of the 

above orders constituted the “final order” because Father failed to timely perfect an appeal 

as to any of them. Indeed, in his reply brief to this Court and at oral argument, Father 

conceded that he failed to perfect an appeal to the trial court of the Juvenile Court’s final 

dependency and neglect order. Counsel for the Grandparents also acknowledged this fact 

at oral argument.3 Because Father failed to properly perfect an appeal of the Juvenile 

Court’s final dependency and neglect order(s), the trial court never acquired subject matter 

jurisdiction to conduct a de novo hearing on the question of dependency and neglect, see 

Tenn. Code Ann. § 37-1-159(a); First Am. Tr. Co., 59 S.W.3d at 140, and it was plain 

error for the trial court to conduct the hearing and to enter judgment on same. Accordingly, 

we vacate the trial court’s January 23, 2020 order adjudicating the dependency and neglect 

petition. See Hirt, 542 S.W.3d at 527.

B. Trial Court’s Adjudication of Father’s Motion to Set Aside or Vacate Order

Having vacated the trial court’s order on the dependency and neglect petition, we 

turn to address whether the trial court should have conducted a de novo review of any of

the Juvenile Court’s subsequent orders. As discussed, supra, our laws allow a juvenile 

court to enter multiple final orders in proceedings arising from dependency and neglect 

matters even after the dependency and neglect portion of the case has ended. See In re 

D.Y.H., 226 S.W.3d at 331; Owens, 129 S.W.3d at 54-55; see also In re Brian G., 2018 

WL 4181474, at *2. Thus, circuit courts may entertain multiple appeals from these cases. 

See Tenn. Code Ann. § 37-1-159(a); see also In re D.Y.H., 226 S.W.3d at 331; Owens, 

129 S.W.3d at 54-55. In its November 13, 2019 order, the trial court ruled that it would 

review only the dependency and neglect petition and would consider “no other issues.” 

Father argues that this was error. Specifically, Father alleges that the trial court should 

have conducted a de novo review of the Juvenile Court’s April 24, 2019 order denying his 

 

3 We note that the Grandparents also filed a motion to dismiss unperfected appeal in the trial court 

wherein they argued that Father failed to timely perfect an appeal of the Juvenile Court’s dependency and 

neglect order. 
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motion to set aside or vacate order.4 

As an initial matter, we reiterate that, on November 29, 2018, Father filed a motion 

seeking to set aside or vacate several of the Juvenile Court’s orders from the dependency 

and neglect proceeding, including the original adjudicatory order. Thus, it is clear that this 

motion and order arose from the initial dependency and neglect matter. See In re D.Y.H., 

226 S.W.3d at 331; Owens, 129 S.W.3d at 54-55. Also, it does not appear that there was 

an “interrupting event” that stripped the Juvenile Court of its continuing jurisdiction over 

the case. See Tenn. Code Ann. § 37-1-103(c); In re D.Y.H., 226 S.W.3d at 331. 

Accordingly, we conclude that the Juvenile Court’s entry of the April 24, 2019 order

denying Father’s motion to set aside or vacate order was proper under its continuing 

dependency and neglect jurisdiction. See Tenn. Code Ann. § 37-1-103(c). Therefore, if 

the Juvenile Court’s April 24, 2019 order was both final and properly appealed, then the 

trial court should have reviewed it under Tennessee Code Annotated section 37-1-159(a). 

We turn to those questions now.

Father filed his motion to set aside or vacate order under Tennessee Code Annotated 

section 37-1-139(a) and Tennessee Rule of Juvenile Practice and Procedure 310(b). 

Tennessee Code Annotated section 37-1-139(a) provides that an order of the juvenile court 

shall be set aside if:

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

requirements in any other civil action;

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

matter; or

(3) Newly discovered evidence so requires.

Tenn. Code Ann. § 37-1-139(a). Similarly, under Tennessee Rule of Juvenile Procedure 

310(b), in dependency and neglect proceedings, an order of the juvenile court shall be set 

aside if:

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

requirements for relief in any other civil action;

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

matter; or

 

4 The Juvenile Court also entered orders denying Father’s petition and motion for custody. 

However, because Father’s stated issues on appeal to this Court concern only the motion to set aside or

vacate order, we do not address the trial court’s failure to review the Juvenile Court’s orders concerning 

Father’s petition and motion for custody.
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(3) Newly discovered evidence so requires. The court must determine that, 

with regard to such newly discovered evidence, the movant was without fault 

in failing to present such evidence at the original proceeding, and that such 

evidence may have resulted in a different judgment at the original 

proceeding.

Tenn. R. Juv. P. 310(b). Pertinent here, in his motion, Father argued that the original 

adjudicatory order should be set aside or vacated because: (1) it was obtained by fraud or 

mistake; (2) the Juvenile Court lacked jurisdiction over a necessary party or over the 

subject matter; and (3) newly discovered evidenced so required. Although we review the 

requirements for setting aside orders in the Juvenile Court, in this appeal, we are not 

concerned with the substance of Father’s motion. Rather, we are charged to address 

whether the trial court had jurisdiction over the Juvenile Court’s order denying Father’s 

motion. We now turn to that question.

This Court has specifically addressed whether a juvenile court order denying a 

petition to vacate was a final order that was appealable to the circuit court in In re A.W., 

No. E2011-01427-COA-R3-JV, 2012 WL 403869 (Tenn. Ct. App. Feb. 9, 2012).5 In re 

A.W. began in the juvenile court as an unruly child proceeding.6 Id. at *1. In February 

2010, the juvenile court found the child to be an “unruly child” and placed him on 

probation. Id. Later, in January 2011, the child filed a petition to vacate, arguing that there 

were constitutional, procedural, and jurisdictional defects in the original proceeding when 

the juvenile court found him to be an unruly child. Id. The juvenile court denied the 

petition to vacate on January 26, 2011, and the child appealed the denial to the circuit court 

on February 3, 2011, which was within the ten-day period for appeals. Id. On a motion 

from the State of Tennessee, the circuit court dismissed the child’s appeal stating that the 

time to appeal a final order had expired. Id. In reversing the circuit court, this Court 

explained that juvenile courts have exclusive, continuing jurisdiction over unruly child 

(and dependency and neglect) proceedings, and that an appeal from any final order in such

proceedings may be made to the circuit court for a de novo review. Id. at *3-4. We 

concluded that, because the juvenile court’s order denying the child’s petition to vacate 

constituted a final appealable order, and because the child timely appealed the denial of the 

same to the circuit court, the circuit court had jurisdiction to conduct a de novo review of

the petition to vacate. Id. at *4. 

 

5 We note that In re A.W. was one of four cases this Court consolidated due to a common question 

of law. See In re M.R., No. E2011-01428-COA-R3-JV, 2012 WL 403876, at *1 (Tenn. Ct. App. Feb. 9, 

2012); In re B.R., No. E2011-01425-COA-R3-JV, 2012 WL 403871, at *1 (Tenn. Ct. App. Feb. 9, 2012); 

In re T.W., No. E2011-01423-COA-R3-JV, 2012 WL 403878, at *1 (Tenn. Ct. App. Feb. 9, 2012).

6 Although unruly child proceedings and dependency and neglect proceedings differ, they are 

treated identically under our statutes. Juvenile courts have exclusive and continuing original jurisdiction 

over both proceedings, and the appeal process to circuit court is the same. See Tenn. Code Ann. § 37-1-

103(a)(1); Tenn. Code Ann. § 37-1-159(a).
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It is clear from our statutory and case law that the Juvenile Court’s April 24, 2019

order denying Father’s motion to set aside or vacate order was a final order that was

appealable to the trial court. See Tenn. Code Ann. § 37-1-159(a); In re D.Y.H., 226 S.W.3d 

at 331; Owens, 129 S.W.3d at 54-55; In re A.W., 2012 WL 403869 at *4. Thus, the 

question becomes whether Father properly and timely perfected an appeal of this order. 

According to the record, Father did not file an appeal after the Juvenile Court’s entry of 

the April 24, 2019 order. However, the record shows that a notice of appeal and an appeal 

bond for costs were filed two months prior, on February 19, 2019. Under Tennessee Rule 

of Juvenile Procedure 118(e), any appeal that is filed prematurely “shall be treated as filed 

on the day of entry of the order from which the appeal is taken.” Tenn. R. Juv. P. 118(e). 

Therefore, it is possible that Father timely perfected an appeal of the Juvenile Court’s April 

24, 2019 order. If Father timely perfected his appeal of this order, then the trial court erred 

in refusing to review it.

Given the foregoing, we vacate the portion of the trial court’s order ruling that it 

would consider “no other issues.” On remand, the trial court must first determine whether 

the February 19, 2019 notice of appeal is sufficient to confer it with jurisdiction to address, 

de novo, the Juvenile Court’s April 24, 2019 order denying Father’s motion to set aside or 

vacate order. If Father properly perfected his appeal, the trial court should proceed to a de 

novo review of his November 29, 2018 motion to set aside or vacate order under Tennessee 

Code Annotated section 37-1-139(a) and Tennessee Rule of Juvenile Procedure 310(b).

V. Attorney’s Fees

The parties seek attorney’s fees accrued in the trial court and on appeal. Because 

the trial court lacked jurisdiction to hear the dependency and neglect petition, we lack 

jurisdiction to hear or decide the issue of attorneys’ fees arising from that proceeding. See 

Hirt, 542 S.W.3d at 527. Concerning appellate attorney’s fees, we note that Father failed 

to designate his request as an issue in the statement of the issues section of his appellate 

brief. Tennessee Rule of Appellate Procedure 27(a)(4) provides that an appellant’s brief 

shall contain “[a] statement of the issues presented for review.” Tenn. R. App. P. 27(a)(4). 

Because “[a]n award of attorney’s fees generated in pursuing [an] appeal is a form of 

relief,” our rules require that such a request be stated as an issue on appeal. Killingsworth 

v. Ted Russell Ford, Inc., 205 S.W.3d 406, 411 (Tenn. 2006). Any issue not included in 

the statement of issues presented for review as required by Tennessee Rule of Appellate 

Procedure 27(a)(4), is not properly before the Court of Appeals. Hawkins v. Hart, 86 

S.W.3d 522, 531 (Tenn. Ct. App. 2001). By failing to include the issue of appellate 

attorney’s fees in his brief, Father has waived this issue. 

The Grandparents included the issue of appellate attorney’s fees in the statement of 

issues section of their appellate brief; as such, the question of their appellate attorney’s fees

is properly before this Court. In Tennessee, “litigants are responsible for their own 
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attorney’s fees absent a statute or agreement between the parties providing otherwise.” 

Darvarmanesh v. Gharacholou, No. M2004-00262-COA-R3-CV, 2005 WL 1684050, at 

*16 (Tenn. Ct. App. July 19, 2005) (citing State v. Brown & Williamson Tobacco

Corp., 18 S.W.3d 186, 194 (Tenn. 2000)). The Grandparents argue that Tennessee Code 

Annotated section 36-5-103(c) authorizes an award of attorney’s fees in this case. In part,

the statute grants a court the discretion to award attorney’s fees to a prevailing party in 

child custody proceedings. See Tenn. Code Ann. § 36-5-103(c). This Court has awarded 

attorney’s fees under section 36-5-103(c) in a dependency and neglect action to a father 

who incurred attorney’s fees when he successfully enforced a circuit court’s custody decree 

concerning his children. See Shofner v. Shofner, 232 S.W.3d 36, 40 (Tenn. Ct. App. 

2007). Even assuming, arguendo, that section 36-5-103(c) allows the Grandparents to 

recover attorney’s fees here,7such an award is still within the sound discretion of this 

Court. In re C.W., 420 S.W.3d 13, 22 (Tenn. Ct. App. 2013) (citing Archer v. Archer, 907 

S.W.2d 412, 419 (Tenn. Ct. App. 1995)). “In considering a request for attorney’s fees on 

appeal, we consider the requesting party’s ability to pay such fees, the requesting party’s 

success on appeal, whether the appeal was taken in good faith, and any other equitable 

factors relevant in a given case.” In re C.W., 420 S.W.3d at 22 (citing Darvarmanesh,

2005 WL 1684050, at *16). Here, we have concluded that the trial court may have erred 

when it declined to conduct a de novo review of the Juvenile Court’s order denying Father’s 

motion to set aside or vacate order. Accordingly, we are unable to determine which party 

has prevailed at this time. Thus, we conclude that the Grandparents are not entitled to an 

award of attorney’s fees on appeal, and we deny their request for same.

VI. Conclusion

For the foregoing reasons, we vacate the trial court’s January 23, 2020 order on 

dependency and neglect for lack of subject matter jurisdiction. We also vacate the trial 

court’s ruling that it would consider “no other issues” on appeal. The case is remanded for 

such further proceedings as may be necessary and are consistent with this opinion, 

including, but not limited to: (1) determination of whether Father perfected an appeal of 

the Juvenile Court’s April 24, 2019 final order denying Father’s motion to set aside or 

vacate order; and (2) if so, for de novo review of Father’s November 29, 2018 motion to 

set aside or vacate order. Costs of the appeal are assessed one-half to the Appellant, James 

H. and one-half to the Appellees, Kristy M. and Mark M., for all of which execution may 

issue if necessary. 

 s/ Kenny Armstrong 

KENNY ARMSTRONG, JUDGE

 

7 We make no determination concerning whether Tennessee Code Annotated section 36-5-103(c) 

would allow the Grandparents to recover their attorney’s fees in this case.