Bradley James Cox v. Laura Nicole Lucas

11/02/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 17, 2018 Session

BRADLEY JAMES COX v. LAURA NICOLE LUCAS

Appeal from the Circuit Court for Knox County

No. 110074 Gregory S. McMillan, Judge

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No. E2017-02264-COA-R3-CV

___________________________________

This opinion is being filed contemporaneously with our opinion in Minyard v. Lucas,

No. E2017-02261-COA-R3-CV.1 Each case involves a post-divorce custody dispute

between Laura Nicole Lucas (mother) and one of her two ex-husbands. In the present

case, Bradley James Cox (father) filed a petition in the trial court for ex parte emergency

relief and modification of the permanent parenting plan. Nearly two years later, mother

filed a motion to dismiss all orders resulting from father’s petition as void for lack of

subject matter jurisdiction. Mother argued that father’s petition included allegations of

dependency and neglect, which implicated the exclusive original jurisdiction of the

juvenile court. After a hearing on the matter, the trial court denied mother’s motion.

Mother appeals. We reverse and remand for further proceedings.

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

Reversed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Austin Lucas, Brentwood, Tennessee, for the appellant, Laura Nicole Lucas.

R. Deno Cole, Knoxville, Tennessee, for the appellee, Lewis Alvin Minyard.

OPINION

I.

The child at the center of this custody dispute was born to mother and father on

December 26, 2003. Mother and father were married on May 5, 2005. After three years

1

The Court considered these cases together at oral argument. The attorneys in both cases are the

same.

of marriage, they were granted a final decree of divorce by the trial court. The court

established a permanent parenting plan and designated mother as the primary residential

parent.

On November 10, 2015, shortly before the child’s twelfth birthday, father filed a

petition in the trial court requesting ex parte emergency relief and modification of the

permanent parenting plan. The petition contained the following factual allegations:

A. Mother is living in conditions that are not healthy for the

minor child’s upbringing (see attached Exhibit 1). The child

is uncomfortable having friends over to the home, due to the

living conditions.2

B. The minor child is complaining about multiple men

coming to the residence, drinking in excess, and paying

money to Mother.

C. Minor child had indicated that Mother is “smoking pot”

outside of the vehicle with child in the vehicle, “smoking pot”

in the car with minor child in the residence. Mother leaves

her pipe and marijuana where the minor child has access to

same.

D. The minor child is often alone without any adult

supervision, and Mother is unavailable to tend to the minor

child’s needs. The minor child is left alone at night with

Mother returning in the early morning hours. Mother

routinely will tell the minor child that she is going to the store

and does not return for hours at a time.

E. The minor child has to get herself ready for school and on

the bus with no supervision by Mother. Mother also allows

child to stay home “sick” and then takes child with her on

trips to do odd jobs.

F. For Father’s co-parenting time, the minor child returns to

Father in unclean clothing and without proper undergarments.

G. The minor child complains of having little or no food in

the home. Mother sends the minor child to the neighbors to

ask for food or beverages.

2

Exhibit 1 contained photographs depicting mother’s home in a general state of disarray.

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H. The utilities to the house have been cut off numerous

times.

I. The minor child complains of Mother sleeping in excess

and Mother is unable to be awakened.

K. Mother has anger issues and uses profanity towards the

minor child on a routine basis.

L. Mother has told the minor child to lie to school officials

about her tardiness or absences.

M. The minor child has come to Father for help, and desires

to live with him; however, she is terrified of Mother. Without

the Court’s protection, the minor child is in reasonable fear

that Mother may cause emotional or physical harm to her.

N. Subsequent to the child alarming Father of her concerns,

Father has investigated the above and other matters.

Based on the foregoing facts and circumstances, the

best interest of the minor child is to be placed in exclusive

care, custody and control of Father. The minor child is

without the proper care and supervision of Mother. Unless

the Court enters an immediate Order granting Father

temporary exclusive residential care and control of said child,

the minor child is in danger of immediate and irreparable

harm.

On the same day, the trial court entered an interim emergency order directing that

the child “be immediately placed in the exclusive care, custody and control of the Father

. . . pending a hearing within fifteen (15) days . . . .” After a preliminary hearing, the trial

court entered an order granting mother supervised visitation and telephone contact with

the child, reserving all other issues until the final hearing. On July 17, 2017, the trial

court established a permanent parenting plan that designated father as the primary

residential parent.

On September 15, 2017, mother, represented by new counsel, filed a motion to

dismiss father’s November 10, 2015 petition and all orders resulting therefrom for lack of

subject matter jurisdiction. Mother argued that father’s petition included allegations of

dependency and neglect, which implicated the exclusive original jurisdiction of the

juvenile court. On October 20, 2017, the trial court heard arguments from both sides on

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issue of subject matter jurisdiction. Ultimately, the court denied mother’s motion to

dismiss. Mother appealed.

II.

The sole issue in this appeal is whether the trial court erred by denying mother’s

motion to dismiss for lack of subject matter jurisdiction.

III.

Because “a determination of whether subject matter jurisdiction exists is a

question of law, our standard of review is de novo, without a presumption of

correctness.” Jackson v. Tenn. Dept. of Corr., 240 S.W.3d 241, 243 (Tenn. Ct. App.

2006) (quoting Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000)). In

Holley v. Holley, this Court discussed the significance of subject matter jurisdiction:

A court must have jurisdiction over the subject matter of the

proceeding as well as over the parties. State ex rel.

Whitehead v. Thompson, No. 01A01–9511–CH–00538, 1997

WL 749465 at *2 (Tenn. Ct. App. Dec. 5, 1997). The

question of subject matter jurisdiction relates to a court’s

power to adjudicate a particular type of controversy. Toms v.

Toms, 98 S.W.3d 140, 143 (Tenn. 2003); Northland Ins. Co.

v. State, 33 S.W.3d 727, 729 (Tenn. 2000). . . . A court

cannot enter a valid, enforceable order without subject matter

jurisdiction. Brown v. Brown, 198 Tenn. 600, 610, 281

S.W.2d 492, 497 (1955); SunTrust Bank v. Johnson, 46

S.W.3d 216, 221 (Tenn. Ct. App. 2000). Accordingly, when

subject matter jurisdiction is questioned the court must first

determine the nature of the case and then ascertain whether

the Tennessee Constitution, the General Assembly, or the

common law have conferred on it the power to adjudicate its

cases. Staats v. McKinnon, 206 S.W.3d 541 [532] at 542

(Tenn. Ct. App. 2006). Subject matter jurisdiction may be

raised at any time by the parties or by the appellate court sua

sponte on appeal. County of Shelby v. City of Memphis, 211

Tenn. 410, 365 S.W.2d 291 (Tenn. 1963).

420 S.W.3d 756, 759 (Tenn. Ct. App. 2013) (quoting Graham v. Graham, No. E2008–

00180–COA–R3–CV, 2009 WL 167071, at *6 (Tenn. Ct. App., filed Jan. 26, 2009)).

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IV.

Because a party can raise the issue of subject matter jurisdiction at any time, it is

inconsequential that mother waited over two and a half years to file her motion to

dismiss. See id. Rather, the heart of this controversy is a dispute about the “nature of the

case.” Id. Father characterizes the case as a post-divorce child custody dispute; mother,

on the other hand, characterizes the case as a dependency and neglect action. That

distinction is important in light of the following statutes.

In Tennessee, both circuit courts and chancery courts are statutorily authorized to

grant divorces and to make child custody determinations in connection with divorce

proceedings. Tenn. Code Ann. § 16-10-108 (2009); Tenn. Code Ann. § 36-6-101(a)(1)

(2017). Significantly, Tenn. Code Ann. § 36-6-101(a)(1) provides that a final decree of

divorce “shall remain within the control of the court and be subject to such changes or

modification as the exigencies of the case may require.” Id.; see also Tenn. Code Ann. §

36-6-217 (providing for “exclusive, continuing jurisdiction” over child custody

determinations). For example, if there has been “a material change in circumstances,” a

parent may file a petition to modify a court-ordered permanent parenting plan. Tenn.

Code Ann. § 36-6-101(a)(2)(B)(i). In addition, a parent may petition the court for an

emergency, temporary modification of the parenting plan; if “the court finds that the child

will be subject to a likelihood of substantial harm absent the temporary modification,” the

court can modify the residential schedule before a final hearing on the matter. Tenn.

Code Ann. § 36-6-405(b) (2017). If the court enters such an order ex parte, “the

respondent parent shall be entitled to an expedited hearing within fifteen (15) days of the

entry of the temporary modification order.” Id.; see also Tenn. R. Civ. P. 65.07 (“The

provisions of this Rule shall be subject to any contrary statutory provisions governing

restraining orders or injunctions. In domestic relations cases, restraining orders or

injunctions may be issued upon such terms and conditions and remain in force for such

time as shall seem just and proper to the judge to whom application therefor is made[.]”).

Nevertheless, the subject matter jurisdiction of circuit and chancery courts over

divorce proceedings and subsequent child custody matters must be considered in

conjunction with the jurisdiction allocated to juvenile courts. See Tenn. Code Ann. § 36-

6-101(c) (“Nothing in this chapter shall be construed to alter, modify or restrict the

exclusive jurisdiction of the juvenile court pursuant to § 37-1-103.”); Tenn. Code Ann. §

36-6-411(a) (“Nothing in this part shall be construed to alter, modify or restrict the

exclusive jurisdiction of the juvenile court pursuant to § 37-1-103.”). The General

Assembly has granted juvenile courts “exclusive original jurisdiction” over

“[p]roceedings in which a child is alleged to be delinquent, unruly or dependent and

neglected . . . .” Tenn. Code Ann. § 37-1-103(a)(1) (2014). Once a juvenile court

acquires exclusive jurisdiction over a case,

such jurisdiction shall continue until the case has been

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dismissed, or until the custody determination is transferred to

another juvenile, circuit, chancery or general sessions court

exercising domestic relations jurisdiction, or until a petition

for adoption is filed . . . . This subsection (c) does not

establish concurrent jurisdiction for any other court to hear

juvenile cases, but permits courts exercising domestic

relations jurisdiction to make custody determinations in

accordance with this part.

Tenn. Code Ann. § 37-1-103(c).

At first blush, the aforementioned statutes appear to be in tension with one

another; one statute gives juvenile courts “exclusive original jurisdiction” over

dependency and neglect actions and other statutes authorize circuit courts and chancery

courts to grant divorces and to exercise jurisdiction over subsequent child custody

determinations “as the exigencies of the case may require.” Tenn. Code Ann. § 36-6-

101(a)(1); see also Tenn. Code Ann. § 36-6-217 (providing for “exclusive, continuing

jurisdiction” over child custody determinations). Yet, the statutes purport to be congruent

and not contradictory. See Tenn. Code Ann. §§ 36-6-101(c), -411(a); Tenn. Code Ann. §

37-1-103(c). In attempt to effectuate each statutory provision, our courts have

consistently held to the following interpretation:

the Chancery Court [and circuit court] never loses jurisdiction

of the question of custody, that is, the subject matter as part of

a divorce proceeding, but the right and power to exercise that

jurisdiction upon the person of the minor may be suspended

temporarily or permanently either prior to or after the

inception of the divorce case by reason of the exercise by the

Juvenile Court of the special, exclusive jurisdiction conferred

on it to determine whether the minor is ‘dependent’ or

‘delinquent’, as defined by the Statute and hence necessarily

to determine custody.

Kidd v. State ex rel. Moore, 338 S.W.2d 621, 624 (Tenn. 1960) (quoting Marmino v.

Marmino, 238 S.W.2d 105, 108 (Tenn. Ct. App. 1950)); see also State of Tenn. Dept. of

Human Servs. v. Gouvitsa, 735 S.W.2d 452, 456 (Tenn. Ct. App. 1987) (“This issue was

decided in Tennessee in [Marmino] and subsequently has been followed by all appellate

courts of this state.”).

In most cases, this jurisdictional quandary arises after a parent has filed a petition

for dependency and neglect in the juvenile court. E.g., Branch v. Thompson, No.

M1998-00511-COA-R3-CV, 2000 WL 898759, at *1 (Tenn. Ct. App., filed July 7,

2000); Hicks v. Hicks, No. 01A01-9309-CH-00417, 1994 WL 108896, at *1 (Tenn. Ct.

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App., filed Mar. 30, 1994); George v. George, No. 02A01-9711-CH-00279, 1999 WL

252710, at *1 (Tenn. Ct. App., filed Apr. 28, 1999); Gouvitsa, 735 S.W.2d at 453;

Marmino, 238 S.W.2d at 107. In those cases, we held that the circuit or chancery court

lacked subject matter jurisdiction because the juvenile court’s exclusive original

jurisdiction attached upon the filing of a dependency and neglect petition in the juvenile

court. Branch 2000 WL 898759, at *4; Hicks, 1994 WL 108896, at *2; George, 1999

WL 252710, at *4; Gouvitsa, 735 S.W.2d at 457; Marmino, 238 S.W.2d at 108-09. In

contrast, we have held that a juvenile court’s exclusive original jurisdiction does not

attach when a juvenile court dismisses a petition alleging dependency and neglect.

Farley v. Farley, No. W2000-01987-COA-R9-CV, 2001 WL 846075, at *3 (Tenn. Ct.

App. July 20, 2001); P.E.K. v. J.M. & C.Y.M., No. M2000-02737-COA-R10-CV, 2001

WL 356673, at *5 (Tenn. Ct. App., filed Apr. 11, 2001)).

On a few occasions we have held that a juvenile court’s exclusive original

jurisdiction attaches even when the petition filed in the juvenile court does not expressly

include the words “dependency and neglect” – so long as the “substance” of the petition

contains allegations of dependency and neglect. E.g., J.W.G. v. T.L.H.G., No. M2002-

02656-COA-R3JV, 2003 WL 22794537, at *4 (Tenn. Ct. App., filed Nov. 25, 2003);

Fletcher v. Fletcher, No. E2001-01223-COA-R3JV, 2002 WL 459012, at *3 (Tenn. Ct.

App., filed Mar. 26, 2002); State o/b/o Whitehead v. Mattie, No. 01A01-9511-CH-

00538, 1997 WL 749465, at *1 n.1 (Tenn. Ct. App., filed Dec. 5, 1997).

This case is different from the cases cited above because neither party has filed a

petition alleging dependency and neglect in the juvenile court. Instead, mother argues

that the juvenile court’s exclusive original jurisdiction attached when father filed his

petition to modify the parenting plan in the circuit court. We have identified at least

three post-divorce cases in which other parents have made the same argument. We will

briefly discuss each of those cases.

In Munday v. Munday, No. E1999-02605-COA-R3-CV, 2000 WL 1154500

(Tenn. Ct. App., filed Aug. 15, 2000), the parties were granted a divorce in chancery

court. Several years later, father filed a petition in the chancery court to modify the

permanent parenting plan based on the following allegations:

[Mother’s] mental and emotional status has changed so as to

render her disabled from employment and from managing the

emotional, physical and financial burdens associated with the

responsibility of being a primary residential custodian of

minor children. [Mother’s] emotional or psychological

disability results in a significant degree of lethargy which, in

turn, causes the minor children to be called upon to maintain

the home and care for the mother, essentially reversing the

roles of mother and children. Also, [Mother] has separated

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from current husband and, upon information and belief,

[Father] alleges that during the period of separation from her

current husband [Mother] has exposed the minor children to

inappropriate influences in her household.

Id. at *1. Mother filed a motion to dismiss for lack of subject matter jurisdiction, arguing

that father’s petition “raises issues of dependency and neglect, which . . . placed Father’s

petition within the exclusive jurisdiction of the juvenile court.” Id. The trial court denied

mother’s motion. Id. This Court affirmed:

We find [mother’s] argument wholly without merit.

Although Mother is correct in asserting that, pursuant to

T.C.A. § 37-1-103(a)(1), the juvenile court has exclusive

jurisdiction over proceedings in which a party seeks to have a

child declared dependent and neglected, Mother

mischaracterizes the nature of the instant proceeding. This is

not a proceeding to have a child declared dependent and

neglected; this is a post-divorce proceeding seeking a change

in a custodial arrangement. As such, it was properly brought

in chancery court. Therefore, the chancery court, the site of

the original divorce proceedings, properly exercised

jurisdiction over Father’s petition.

Id. at *7.

We confronted a similar situation in Holley v. Holley, 420 S.W.3d 756 (Tenn. Ct.

App. 2013). In Holley, the parties were divorced in circuit court. Id. at 757. Two years

later, the father filed a petition in the circuit court seeking a change of custody based on

allegations that the mother failed to follow the recommendations of medical experts who

diagnosed the parties’ children with various intellectual and emotional disorders. Id. at

757-58. Specifically, father’s petition alleged that “the minor children will suffer

immediate and irreparable injury if the recommendations of the experts are ignored and

the minor children’s educational, psychological and behavioral needs continue to be

ignored by Mother.” Id. at 758.

The mother in Holley filed a motion to dismiss for lack of subject matter

jurisdiction, arguing that the substance of father’s petition alleged dependency and

neglect, which implicated the juvenile court’s exclusive original jurisdiction. Id. at 759.

The trial court granted mother’s motion to dismiss. Id. According to the trial court, the

substance of father’s petition alleged that the parties’ children were dependent and

neglected as defined by Tenn. Code Ann. § 37-1-102(b)(13)(D), which includes children

“[w]hose parent . . . neglects or refuses to provide necessary medical, surgical,

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institutional, or hospital care for such child.”3 Id. Accordingly, the court concluded that

the petition triggered the juvenile court’s exclusive original jurisdiction. Id.

On appeal, this Court accepted the premise that “[a] petition [filed in circuit court]

alleging dependency and neglect, either expressly or in substance, implicates the

exclusive original jurisdiction of the juvenile court.” Id. at 760 (citing J.W.G., 2003 WL

22794537, at *4). Nevertheless, we reversed the decision of the trial court because

[i]n spite of the tone of urgency and severe language, we

believe the allegations in the Petition are not tantamount to

allegations of dependency and neglect under the statute. The

allegations are more in the nature of a disagreement over the

long-term manner of addressing the Children’s psychological,

behavioral, and educational issues. . . . We find nothing in

the statutes to support a determination that our General

Assembly intended by enacting Tenn. Code Ann. § 37-1-

103(a)(1) to strip jurisdiction from a court that has handled a

divorce and post-divorce matters solely because the parents

disagree on how to address their child’s medical needs. Such

an intention by our General Assembly would have resulted in

a wholesale shifting of custody cases to the juvenile court . . .

.

Id. We therefore reversed the trial court’s decision that it lacked subject matter

jurisdiction over the case.

We addressed this issue most recently in Tavino v. Tavino, No. E2013-02587-

COA-R3CV, 2014 WL 5430014 (Tenn. Ct. App., filed Oct. 27, 2014). In Tavino, the

parties were divorced in chancery court. Id. at *2. The father filed a petition in chancery

court for modification of the permanent parenting plan and termination of father’s child

support obligation. Id. The trial court entered an order that modified the parenting plan

by designating father the primary residential parent and terminating his wage assignment.

Id. The court also ordered mother to pay father child support. Id. at *3. Several months

later, mother filed a Tenn. R. Civ. P. 60.02 motion to alter or amend the judgment. Id. at

*5. Mother’s motion included an allegation that “[t]he minor child of these parties

remains in severe danger, from himself and others, and the Father has refused to arrange

critical evaluation of his mental condition or arrange other help for this child.” Id. The

trial court determined that it lacked subject matter jurisdiction because mother’s petition

“constituted a dependency and neglect claim rather than a petition to modify a permanent

3

In Holley, we emphasized that “[t]he Trial Court invoked this definition of dependency and

neglect in its oral ruling, and, although the law contains several other definitions, this is the most relevant

for the instant appeal.” 420 S.W.3d at 760 n. 1.

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parenting plan.” Id. This Court affirmed. Id. at *12. We agreed with the trial court’s

conclusion “that Mother’s allegations against Father’s parenting of the Child constituted

a dependency and neglect claim over which the juvenile court would have sole

jurisdiction.” Id. at *11.

Returning to the present case, mother argues that the trial court lacked subject

matter jurisdiction because father’s November 10, 2015 petition included allegations that

implicated the exclusive original jurisdiction of the juvenile court. Specifically, mother

claims that all of the allegations in father’s petition are “tantamount to alleging

dependency and neglect” as defined in sections (B), (C), (F), and (G) of Tenn. Code Ann.

§ 37-1-102(b)(13) (Supp. 2018).4 Those sections of the statute define a “dependent and

neglected” child to include a child:

(B) Whose parent, guardian or person with whom the child

lives, by reason of cruelty, mental incapacity, immorality or

depravity is unfit to properly care for such child;

(C) Who is under unlawful or improper care, supervision,

custody or restraint by any person, corporation, agency,

association, institution, society or other organization or who

is unlawfully kept out of school;

* * *

(F) Who is in such condition of want or suffering or is under

such improper guardianship or control as to injure or

endanger the morals or health of such child or others;

(G) Who is suffering from abuse or neglect;

Tenn. Code Ann. § 37-1-102(b)(13).

We are not persuaded that all statements in father’s petition are tantamount to

allegations of dependency and neglect under the portions of the statutory definition

quoted above. For instance, the petition alleged that “Mother is living in conditions that

are not healthy for the minor child’s upbringing.” That allegation was supported by an

4

Specifically, mother’s brief asserts that: paragraphs (B), (D), (E), (F), (H), and (I) of father’s

petition fit within section (C) of the statutory definition; paragraphs (A), (B), (C), (G), (K), and (L) of

father’s petition fit within section (F); paragraph (M) fits within section (G); and that paragraph (B) fits

within section (B).

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attached exhibit depicting mother’s home in a general state of disarray. According to the

petition, “[t]he child is uncomfortable having friends over, due to the living conditions.”

We cannot say that this constitutes an allegation that the child is “in such condition of

want or suffering . . . as to injure or endanger the morals or health of such child . . . .”

The petition also alleged that mother has had male guests who “drink[ ] in excess” and

“pay[ ] money to Mother.” It is unclear from the petition how often this allegedly occurs

and for what reason individuals are paying money to mother. This is not an allegation

that mother is unfit to properly care for the child or that the child is in danger. The same

can be said of the allegation that mother “sleep[s] in excess” and that mother “is unable to

be awakened.” Father’s allegation that “[t]he utilities to the house have been cut off

numerous times” is concerning, but the petition did not allege that the utilities were

currently cut off or that the health of the child was presently in danger. Finally, mother’s

alleged use of profanity, although not commendable, does not seem to rise to the level of

“immorality or depravity” that makes a parent “unfit” to properly care for a child.

Other allegations in the petition are more serious. For example, the petition

alleged that

[t]he minor child is often alone without any adult supervision,

and Mother is unavailable to tend to the minor child’s needs.

The minor child is left alone at night with Mother returning in

the early morning hours. Mother routinely will tell the minor

child that she is going to the store and does not return for

hours at a time.

The petition also claimed that the child “has to get herself ready for school and on the bus

with no supervision by Mother.” According to the website of the Juvenile and Family

Courts:

There is no legal age for children to stay at home alone.

Parents are advised to use their best judgment, keeping the

child’s maturity level and safety issues in mind. Younger

children have a greater need for supervision and care than

older children. Obviously, young children under age 10

should not be left without supervision at any time. In most

cases, older teenage children may be left alone for short

periods of time.

Tennessee Administrative Office of the Courts, Juvenile & Family Courts, FAQS,

http://www.tncourts.gov/courts/juvenile-family-courts/faqs. The child in the present case

was eleven years old at the time of father’s petition. It is probably unfair to say that an

eleven-year-old child cannot be left home alone at any time or that such a child cannot be

trusted to get on the school bus without supervision. However, father’s petition alleged

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that the child was “often” left home alone, even in the middle of the night. If these

allegations do not fit squarely within section (C) of the statutory definition, they are very

close.

The most serious allegations in father’s petition concern mother’s alleged use of

marijuana in the presence of the child, the child’s access to mother’s marijuana and pipe,

the child’s complaints of “little or no food in the home,” and mother’s alleged habit of

“allow[ing] [the] child to stay home ‘sick’ and then tak[ing] [the] child with her on trips

to do odd jobs.”

In In re K.A.P., this Court held that evidence of a mother’s weekly marijuana use

“d[id] not amount to clear and convincing evidence that Mother is ‘unfit to properly care

for [Son]’ or that Son is dependent and neglected under any subsection in Section 37–1–

102(b)(12).” In so holding, however, we specifically observed that there was no evidence

that mother used marijuana in the presence of the child. In the case at bar, father’s

petition alleged that mother’s drug use occurred in the presence of the child. Moreover,

the petition alleged that the child had access to both marijuana and mother’s pipe. We

think these allegations fit within Tenn. Code Ann. § 37-1-102(b)(13)(F).

Assertions that there is “little or no food in the home” and that the child returns to

father without clean clothes or even proper undergarments raise serious questions about

the child’s health and hygiene. We think these allegations fit within Tenn. Code Ann. §

37-1-102(b)(13)(F).

Finally, father’s petition alleged that mother “allows child to stay home ‘sick’ and

then takes child with her on trips to do odd jobs.” The petition also alleged that mother

has instructed the child to lie “to school officials about her tardiness or absences.”

Parents have a legal obligation to “cause the[ir] child or children to attend public or

nonpublic school . . . .” Tenn. Code Ann. § 49-6-3001(c)(1) (2016). A parent who fails

to do so “commits educational neglect, which is a Class C misdemeanor.” Tenn. Code

Ann. § 49-6-3009(a) (Supp. 2018). Because father’s petition alleged that mother permits

the child to skip school without justification and encourages the child to lie about doing

so, the petition alleged that the child was “unlawfully kept out of school” by mother. See

Tenn. Code Ann. § 37-1-102(b)(13)(C).

In light of the foregoing analysis, we conclude that father’s petition contained

assertions that were tantamount to allegations of dependency and neglect. Accordingly,

the trial court lacked subject matter jurisdiction and all actions taken by the court are void

for lack of subject matter jurisdiction.

V.

The judgment of the trial court denying mother’s motion to dismiss for lack of

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subject matter jurisdiction is hereby reversed. We vacate all orders of the trial court that

resulted from father’s November 10, 2015 petition, and we remand the case for further

proceedings. Costs on appeal are taxed against the appellee, Bradley James Cox.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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