In Re LAYLA C.S.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 10, 2012 Session

IN RE: LAYLA C.S.

Appeal from the Chancery Court for Hamilton County

No. 10-A-059 Hon. W. Frank Brown, III., Chancellor

No. E2012-00392-COA-R3-PT-FILED-AUGUST 14, 2012

Petitioner filed a Rule 60.02 motion to set aside a parental termination and adoption decree.

The motion asked relief from the Judgment on the ground set forth in Tenn. R. Civ. P.

62.02(1) and (2). The Trial Court held that petitioner did not establish a basis to set aside the

Judgment on the grounds relied upon in the Rule 60.02 motion. On appeal we affirm the

Judgment of the Trial Court.

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

H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which D. M ICHAEL

S WINEY, J., and J OHN W. M CC LARTY, J., joined.

Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Carolyn Ferguson.

Leslie B. McWilliams, Chattanooga, Tennessee, for the appellees, Brenda Carolyn Fleming

and Michael Paris Fleming.

OPINION

The mother has appealed the Trial Court's refusal to grant Rule 60.02 relief from

terminating her parental rights, and the Judgment of Adoption of the Child by the child's

great-grandparents.

In the adoption proceeding, the Petition stated that the parents placed the child with

petitioners, and they have had custody of the child since 2009. They were given temporary

legal custody on December 1, 2009, and permanent legal custody on July 21, 2010 by Order

of the Hamilton County Juvenile Court. The Petition asked that the mother's parental rights

be terminated on the ground that she abandoned the child, as defined by Tenn. Code Ann.

§36-1-102(1)(A)(I) by willfully failing to visit the child and by willfully failing to support her

or make reasonable payments for the support of the child for a period in excess of four

consecutive months immediately preceding the filing of the petition.

The record shows that the process server on November 19, 2010, left the summons

for appellant with Melanie Ferguson at 6775 Hickory Creek Road, Chattanooga, and his

affidavit identifies Melanie Ferguson as appellant's "grandmother/roommate”.

On December 22, 2010, petitioners filed motions for default judgment against

appellant, and a certificate of service states that Caroline Ferguson was sent a copy of the

motion at 6775 Hickory Creek Road, Chattanooga, Tennessee. A hearing was held on the

motions for default and judgment was entered on January 3, 2011, finding that respondent

was “personally served” on November 19, 2010 and had failed to plead or otherwise defend

within the time prescribed by law. The Trial Court granted a Default Judgment against

appellant and set an evidentiary hearing on January 26, 2011. A certificate of service in the

record shows that an order was sent to both respondents at the Hickory Creek Road address.

A Final Decree of Adoption was entered on January 26, 201l.

On January 25, 2012, appellant filed a Motion pursuant to Tenn. R. Civ. P. 60.02 (1)

and (2) to set aside the Final Order of Adoption. Appellant filed an affidavit that she was

never personally served with a copy of the summons and complaint in this case, and was

living with her grandmother, Melanie Ferguson, in the four months before entry of the final

order and her grandmother handed her the documents attached to her affidavit [summons and

letter addressed to her from petitioners’ attorney ] on or about Christmas Day, 2010.

The motion to set aside the final order was heard on February 6, 2012 and the Trial

Court denied the motion. The Trial Court, in his Memorandum Opinion, concluded that

service of process was proper under Rule 4.04(1) of the Tenn. R. Civ. P.

The Trial Court cited the provisions of Tenn. R. Civ. P. 60.02 (1) and (2), relied on

by appellant as follows:

On motion and upon such terms as are just, the court may relieve a party or the

party’s legal representative from a final judgment, order or proceeding for the

following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud

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(whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other

misconduct of adverse party . . . .

The Court stated that a Rule 60.02 motion is supposed to be made within one year of

judgment or order and that Tenn. Code Ann. § 36-1-122(b)(2) also contains a one year period

to attack the validity of an order of adoption and that Ms. Ferguson barely met these

deadlines. The Court noted that Ms. Ferguson’s affidavit showed no “mistake, inadvertence,

surprise or excusable neglect”, and thus Rule 60.01(1) did not apply. Nor did the affidavit

allege “fraud, misrepresentation, or other misconduct of adverse party.” The Court further

noted that the default judgment against appellant on January 3, 2011, was over a year before

she filed her Rule 60.02 motion. The Trial Court concluded that appellant had alleged no

facts that would be a basis for setting aside the Final Decree of Adoption under Rule 60.02

(1) or (2) and the termination and adoption were justified and in the child’s best interest, and

the Motion to Set Aside the Final Order was denied.

Caroline Ferguson filed a Notice of Appeal on February 20, 2012. The issues

presented for review are:

A. Did the Trial Court abuse its discretion when it denied appellant’s motion to

vacate the January 26, 2011 order of termination of parental rights and

adoption?

B. Was the Trial Court’s denial of appellant’s motion to vacate the January 26,

2011 plain error?

This Court's review of a trial court's decision to grant or deny relief under Rule 60 is

limited to whether the trial court abused its discretion. Henry v. Goins, 104 S.W.3d 475, 479

(Tenn.2003). The abuse of discretion standard requires this Court to consider whether the

Trial Court “applied an incorrect legal standard or reached a decision which is against logic

or reasoning that caused an injustice to the party complaining.” Id.

Appellant's motion was made pursuant to Tenn. R. Civ. P. 60.02 (1) and (2). Her sole

argument in support of the motion was that she was not properly served with the summons

and complaint and that plaintiff’s failure to effectuate proper service deprived her of her right

to due process. Essentially her argument was not addressed to the grounds she raised in her

motion, but rather to 60.02(3), that the Judgment is void. This Court generally will not

consider an issue on appeal that has not been raised in the court below. See Barnes v.

Barnes, 193 S.W.3d 495, 501 (Tenn. 2006)(citing Simpson v. Frontier Cmty. Credit Union,

810 S.W.2d 147, 153 (Tenn.1991)). Appellant did not plead for relief under Tenn. Code

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Civ. P. 60.02(3).1 Accordingly, we hold the Trial Court did not abuse its discretion in

overruling the Rule 60 motion. Moreover, the State has a strong public policy to uphold

adoption decrees. Tenn. Code Ann. §36-1-113(q) states:

After the entry of the order terminating parental rights, no party to proceeding, nor

anyone claiming under such party, may later question the validity of the termination

proceeding by reason of any defect or irregularity therein, jurisdictional or otherwise,

but shall be fully bound thereby, except based upon a timely appeal of the termination

order as may be allowed by law; and in no event, for any reason, shall a termination

of parental rights by overturned by any court or collaterally attacked by any person or

entity after one (1) year from the date of the entry of the final order of termination.

This provision is intended as a statute of repose.

The Judgment of the Trial Court is affirmed, and the cost of the appeal is assessed to

Caroline Ferguson.

_________________________________

HERSCHEL PICKENS FRANKS, P.J.

1

In Rogers v. Estate of Russell, 50 S.W.3d 441, 444, the court said: "To set aside a judgment under

Rule 60.02, the movant has the burden to prove that he is entitled to relief, and there must be proof of the

basis on which relief is sought."

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