In Re Nec

173 S.W.3d 736, 2005 WL 387944
CourtCourt of Appeals of Tennessee
DecidedFebruary 17, 2005
DocketW2004-01548-COA-R10-CV
StatusPublished

This text of 173 S.W.3d 736 (In Re Nec) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Nec, 173 S.W.3d 736, 2005 WL 387944 (Tenn. Ct. App. 2005).

Opinion

173 S.W.3d 736 (2005)

In re: N.E.C.,
Meredith Craft
v.
Juvenile Court of Shelby County, Tennessee, et al.

Court of Appeals of Tennessee, Western Section, at Jackson.

January 20, 2005 Session.
February 17, 2005.
Permission to Appeal Denied August 29, 2005.

*737 Craig E. Willis and Debra L. Fessenden of Memphis for Appellant, Juvenile Court of Shelby County, Tennessee.

Robert S. Weiss of Memphis for Appellant, Nancy Polk.

Virginia M. Alexander for Appellee, In Re: N.E.C., Meredith Craft.

Permission to Appeal Denied by Supreme Court August 29, 2005.

OPINION

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and HOLLY M. KIRBY, J., joined.

The juvenile court and custodial party in a dependency and neglect proceeding were granted a Rule 10 application for extraordinary appeal from the chancery court's order staying and restraining proceedings of dependency and neglect in the juvenile court. We reverse the order of the chancery court.

I. PROCEDURAL HISTORY

On August 11, 2003, the Tennessee Department of Children's Services initiated proceedings, in the juvenile court, pursuant to T.C.A. § 37-1-103, to determine whether N.E.C. and A.S.C., the minor children of Meredith Craft (hereinafter Mother), should be removed from the custody of their parents and placed in the custody of their grandmothers. On that date, the juvenile court issued a protective custody order which awarded temporary custody of A.S.C. to the paternal grandmother, Glenda Craft, and awarded temporary custody of N.E.C. to the maternal grandmother, Nancy Polk ("Ms.Polk").

Subsequent proceedings were held in the juvenile court on September 24, 2003, wherein temporary custody of A.S.C. was awarded to the mother and father, N.E.C. remained in the custody of Polk, and the parents were awarded visitation with N.E.C. The proceedings were then continued to January 7, 2004. On January 7, 2004, the juvenile court made an oral ruling wherein the Tennessee Department of Children's Services was permitted to withdraw its petition as to A.S.C., who was to stay with his parents temporarily, but N.E.C. was to remain in Polk's custody pending further investigation, with his parents having the right to unsupervised visitation with N.E.C. one weekend every month. The juvenile court retained jurisdiction over the matter and continued the proceedings until July 6, 2004 to permit an Interstate Compact Investigation to be conducted. The juvenile court refused to accept the voluntary dismissal filed by TDCS.

The parties later discovered that the written Order entered on January 7, 2004, had possibly transposed the children's names, leading to confusion concerning the mother's right to take custody of N.E.C. No appeal was taken from any Order of *738 the juvenile court by the Mother, nor was there any request by the mother for a rehearing in the juvenile court. The course of proceedings in the chancery court which gave rise to the instant appeal were initiated on April 2, 2004 when the Mother filed a Habeas Corpus proceeding in Chancery Court and obtained custody of N.E.C. from Polk. The fiat on the petition was executed by Circuit Court Judge Rita Stotts by interchange, and a hearing was set for April 22, 2004 in chancery court. Juvenile court was not served with notice of this hearing until April 21, 2004.

II. FACTS

In May or June of 2003, Meredith Craft left her children, N.E.C. and A.S.C., with Glenda Craft, the paternal grandmother of A.S.C., while Meredith Craft went to Minnesota in an attempt to secure housing. Mother contends that she called Memphis every two or three days to check on the children. When a devastating storm hit Memphis on July 22, 2003, Glenda Craft's utility service was interrupted and Glenda Craft asked Nancy Polk, the maternal grandmother of the children, to take N.E.C. into her home.

At some point after Ms. Polk took custody of N.E.C., Glenda Craft and Ms. Polk went to juvenile court and stated (falsely, Meredith Craft alleges) that Meredith Craft had abandoned A.S.C. and N.E.C. Based on this information, on August 11, 2003, the Tennessee Department of Children's Services filed a sworn petition in juvenile court alleging that N.E.C. and A.S.C. were dependent and neglected children. On the same day, Judge Kenneth Turner entered a protective custody order finding that the placement of the children with Glenda Craft and Ms. Polk was in the children's best interests. Judge Turner further ordered that an investigation into the welfare of N.E.C. and A.E.C. be conducted by Court Appointed Special Advocates (CASA).

On September 24, 2003, a hearing was held before Referee Claudia S. Haltom. Referee Haltom ordered that the case be continued to January 7, 2004; that N.E.C. remain at Ms. Polk's home; that temporary custody of A.S.C. be awarded to the mother and father; and that the mother and father be given reasonable and liberal visitation with N.E.C. at Ms. Polk's residence.

Referee Cary Woods presided over the January 7th hearing. At the January 7th hearing, Glenda Craft recanted the allegations she had earlier made to DCS, and moved to dismiss the petition filed by DCS. However, Ms. Polk did not recant her allegations. Referee Woods refused to dismiss the proceedings in light of Ms. Polk's allegations and in light of certain facts uncovered during the CASA investigation, which required further involvement by the juvenile court. Referee Woods orally ruled that N.E.C. was to stay with Ms. Polk pending further orders from the juvenile court. Referee Woods also entered a written order that stated:

1. That the case should be continued to July 6, 2004, so that an Interstate Compact Investigation could be conducted;
2. That the Mother and Father should have temporary custody of A.S.C.
3. That DCS was permitted to withdraw its petition as to N.E.C. but that the matter of A.S.C. be continued due to CASA's investigation discovering relevant issues related to the best interest of the child, which required further involvement by the Court.
4. That the mother and father shall have unsupervised visitation with the children one weekend a month from 6 p.m. Friday until 6 p.m. Sunday, *739 to be agreed upon by mother, father, and Polk, pending further orders of the Court.

The juvenile court asserts that the names of N.E.C. and A.S.C. were transposed in Item 3 above, and that based on Referee Woods' oral ruling, it is clear that Referee Woods intended to write that DCS was permitted to withdraw its petition as to A.S.C., not N.E.C. No appeal was taken from this written order.

On April 2, 2004, Meredith Craft filed a petition for habeas corpus as to N.E.C., alleging, inter alia, that DCS dismissed the petition as to N.E.C. and that the written order did not reflect the oral order of the juvenile court. On April 2, 2004, a fiat on the habeas corpus petition was executed by Circuit Court Judge Rita Stotts by interchange, and a hearing was set for April 22, 2004 in Chancery Court, Part I. Juvenile court was not served with the habeas corpus petition until April 21, 2004.

On April 8, Nancy Polk filed a petition in juvenile court alleging that N.E.C. was a dependent and neglected child.

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Related

Gonzalez v. State Department of Children's Services
136 S.W.3d 613 (Tennessee Supreme Court, 2004)
Seessel v. Seessel
748 S.W.2d 422 (Tennessee Supreme Court, 1988)
Marmino v. Marmino
238 S.W.2d 105 (Court of Appeals of Tennessee, 1950)
Arnold v. Gouvitsa
735 S.W.2d 458 (Court of Appeals of Tennessee, 1987)
Meredith Craft v. Juvenile Court of Shelby County
173 S.W.3d 736 (Court of Appeals of Tennessee, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
173 S.W.3d 736, 2005 WL 387944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nec-tennctapp-2005.