In re Adoption of M.L.S.

IN RE ADOPTION OF M.L.S.

No. E2019-01918-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

July 21, 2020 Session

October 16, 2020

Appeal from the Chancery Court for Hawkins County

No. 2019-AD-3

Douglas T. Jenkins, Chancellor

This case involves a petition to set aside a final decree of adoption. The trial court granted the adoptive parents' motion to dismiss the petition. We affirm and remand for further proceedings.

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

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Rachel Ratliff, Johnson City, Tennessee, for the appellants, Jerry T. and Penny T.

Phillip L. Boyd, Rogersville, Tennessee, for the appellees, Renee G. and Danny G.

OPINION

I. FACTS & PROCEDURAL HISTORY

The child at issue in this proceeding, M.L.S.,¹ was born in 2013. Her biological parents died in 2014. Although the record before us is sparse, it reflects that the Tennessee Department of Children's Services became involved and filed some sort of petition with regard to the child in the juvenile court of Hawkins County. After a hearing, the juvenile court entered an order awarding temporary legal custody of the child to her maternal grandmother and step-grandfather ("Grandparents"). According to the order, "[DCS] reported that [Grandparents] were appropriate caregivers for the minor child and that [DCS] would be releasing custody of the minor child to [Grandparents]." The child'spaternal great-aunt and great-uncle ("Aunt and Uncle") also appeared at the hearing. According to the order, "[DCS] reported that the parties had worked out a visitation schedule prior to the hearing and that [Aunt and Uncle] would be entitled to a minimum of every other weekend visitation with the minor child." The court went on to find that Grandparents were "appropriate custodians of the minor child." The order states that the trial judge "advised all parties to work together to help raise [the child.]" In conclusion, the order stated that the child was "placed in the temporary legal custody of [Grandparents] with authority to consent to any ordinary or necessary medical, surgical, hospital, educational, institutional, psychiatric, or psychological care." The order states that the matter was "hereby closed" and that no further hearings were scheduled.

On May 18, 2015, the chancery court for Hawkins County entered a final decree of adoption permitting Grandparents to adopt the child. The decree recites that the child's parents were deceased, that Grandparents had "actual physical and legal care of the child," and that they had been awarded custody pursuant to the order of the juvenile court in the aforementioned matter. The adoption decree also states that all parties entitled to notice were served and that all necessary parties were before the court. The adoption decree provided that "the relationship of parent and child is hereby established with all rights and privileges incident thereto," and it stated that Grandparents, as adoptive parents, would "have exclusive care, custody and control of the said child, free from the claims or hindrances of all others[.]"

On January 17, 2019, Aunt and Uncle filed a petition in chancery court to set aside the final decree of adoption. Aunt and Uncle alleged that they "were not served with process and did not receive any form of notice of the filing of the Petition for Adoption by [Grandparents] even though [Aunt and Uncle] were entitled to notice." Aunt and Uncle claimed that Grandparents' petition for adoption included language stating that Grandparents did not have knowledge of any person with legal or physical custody of the child or who claimed custody or visitation rights to the child. Aunt and Uncle asserted that the juvenile court had awarded them visitation in 2014 and that they were exercising their visitation rights at the time. As such, Aunt and Uncle argued that they were "entitled to Notice regarding the adoption of the minor Child." Aunt and Uncle alleged that they had continued to have visitation with the child after the adoption until Grandparents abruptly ended it without reason in June 2017.² Aunt and Uncle asserted that they subsequently learned about the adoption and had instituted a separate action in chancery court in September 2018 by filing a "Petition to Enforce Visitation." They represented that the separate matter still remained pending. Aunt and Uncle sought an order setting aside the final decree of adoption from 2015. Alternatively, Aunt and Uncle asked the court to grantthem visitation according to the visitation schedule ordered by the juvenile court in 2014. They also sought an award of attorney's fees. Aunt and Uncle attached to their petition the 2014 order from the juvenile court and the 2015 adoption decree.

Grandparents filed a motion to dismiss the petition to set aside the adoption decree for failure to state a claim. Grandparents argued that Aunt and Uncle were not entitled to notice of the adoption proceeding pursuant to Tennessee Code Annotated section 36-1-117(d)(1) and that they lacked standing to set aside the adoption decree. At the time of the adoption decree in 2015, the referenced statute provided:

(d)(1) Other biological or legal relatives of the child or the adult are not necessary parties to the proceeding and shall not be entitled to notice of the adoption proceedings unless they are legal guardians as defined in § 36-1-102 or legal custodians of the person of the child or adult at the time the petition is filed.

Tenn. Code Ann. § 36-1-117 (2015). Regarding the alternative request for visitation, Grandparents relied on Tennessee Code Annotated section 36-1-121(f), which provided, at the time:

(f) The adoptive parents of a child shall not be required by any order of the adoption court to permit visitation by any other person, nor shall the order of the adoption court place any conditions on the adoption of the child by the adoptive parents. Any provision in an order of the court or in any written agreement or contract between the parent or guardian of the child and the adoptive parents requiring visitation or otherwise placing any conditions on the adoption shall be void and of no effect whatsoever; provided, that nothing under this part shall be construed to prohibit "open adoptions" where the adoptive parents permit, in their sole discretion, the parent or guardian of the child who surrendered the child or whose rights to the child were otherwise terminated, or the siblings or other persons related to the adopted child, to visit or otherwise continue or maintain a relationship with the adopted child; and provided further, that the permission or agreement to permit visitation or contact shall not, in any manner whatsoever, establish any enforceable rights in the parent or guardian, the siblings or other related persons.

Tenn. Code Ann. § 36-1-121 (2015). Additionally, Grandparents contended that Aunt and Uncle had actual notice of the adoption based on Aunt's comment on a social media post referencing the adoption. Finally, Grandparents argued that Aunt and Uncle should be barred by the doctrine of laches. Grandparents sought dismissal of the petition and an award of attorney's fees.

The trial court conducted a hearing on February 20, 2019, to jointly address thepetitions in this case and in the companion case. At the conclusion of the hearing, the trial judge announced his conclusion that Aunt and Uncle did not have standing to set aside the adoption for lack of notice because they were not guardians or custodians of the child. However, the trial judge announced that he was taking under advisement the issue regarding visitation. The trial judge said he intended to do more research to determine whether the juvenile court's visitation order survived the adoption and that he would issue a ruling on that issue within the next couple of months.

On March 5, 2019, the trial court entered an order granting Grandparents' motion to dismiss the petition to set aside the adoption "for lack of standing pursuant to T.C.A. § 36-1-117." Aunt and Uncle filed a "Motion for Reconsideration and or Notice of Appeal." On September 30, 2019, the trial court entered an order denying the motion. Aunt and Uncle then filed a notice of appeal to this Court. Around the same time, Grandparents were granted permission to file an interlocutory appeal to this Court in the companion case regarding visitation, and Aunt and Uncle moved to consolidate this appeal with the Rule 9 appeal. This Court entered an order consolidating the matters for the purposes of oral argument only. The order stated that the two cases would not be consolidated for purposes of briefing and that the two cases would be assigned to the same panel.

After further review of the record in this appeal, it appears that the order appealed failed to resolve the alternative request for visitation and both parties' requests for attorney's fees. Rather than remanding for the trial court to resolve those issues at this juncture, we allow this appeal to also proceed as an interlocutory appeal in the interest of judicial economy. See Roberts v. Bailey, 338 S.W.3d 540, 541 n.1 (Tenn. Ct. App. 2010).

II. ISSUES PRESENTED

The determinative issues raised by Aunt and Uncle on appeal, as we perceive them, are:

1. Whether Aunt and Uncle were guardians of the child within the meaning of the adoption statute such that their absence from the adoption proceeding rendered the adoption decree void;

2. In the alternative, whether the trial court should have set aside the adoption decree on the basis of fraud.

For the following reasons, we affirm the decision of the chancery court and remand for further proceedings.

III. DISCUSSION

A. Guardianship

Tennessee's statutes governing the termination of parental rights and adoption "also govern the termination of the rights of persons who are a child's 'guardian'...