In Re Devon W. ( 2010 )


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  •                     IN THE COURT OF APPEALS OF TENNESSEE
    AT KNOXVILLE
    Assigned on Briefs February 3, 2010
    IN RE DEVON W., ET AL.
    Appeal from the Circuit Court for Blount County
    No. E-22811     W. Dale Young, Judge
    No. E2009-01326-COA-R3-JV - Filed April 16, 2010
    Former foster mother and her new husband filed a motion to intervene and to set aside the
    adoption of three children by the current foster parents. The trial court denied the motion.
    We affirm.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
    Affirmed; Case Remanded
    J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
    P.J., and C HARLES D. S USANO, J R., J., joined.
    Lauretta Martin-Matera and Christopher P. Matera, Kingston, Tennessee, appellants, pro se.
    N. David Roberts, Jr., Knoxville, Tennessee, for the appellees, Timothy John W. and Lisa
    Kaye W.
    OPINION
    I. BACKGROUND
    Three minor children - Devon P.C., Heaven L.C. and Araya S.C. (“the Children”) –
    were removed from their biological parents in Anderson County by the Tennessee
    Department of Children’s Services (“DCS”) on February 14, 2006. Despite attempts at
    reunification, DCS ultimately filed a petition to terminate the parental rights of the biological
    parents. After the parental rights were terminated,1 full legal guardianship was awarded to
    DCS.
    1
    Order of termination entered on July 8, 2008.
    While in foster care, the Children were placed with Patrick Martin and Lauretta
    (Laurie) Martin (“Intervenor”) on June 7, 2006. After Mr. Martin’s death in December 2007,
    the Children remained with Intervenor.
    DCS subsequently determined that Intervenor had engaged in inappropriate conduct
    against the Children and implemented a corrective action plan in April 2008. The plan
    required Intervenor to take remedial steps concerning her conduct and behavior towards the
    Children. However, DCS ultimately concluded that the corrective action plan was not being
    followed by Intervenor and removed the Children from her custody on July 15, 2008. DCS
    closed Intervenor’s home to further participation in foster care.
    Following the removal of the Children from Intervenor’s home, they were placed with
    Timothy J. W. and Lisa K. W. (“Foster Parents”). Intervenor subsequently married
    Christopher Matera (collectively with Intervenor “Appellants”).
    On January 14, 2009, Foster Parents filed a petition to adopt the Children in Blount
    County Circuit Court. Omni Visions, a licensed child placing agency, prepared a confidential
    report for the trial court regarding the proposed adoptions. DCS consented to the adoptions,
    and a final order of adoption was entered on February 2, 2009.
    On February 13, 2009, Appellants filed a motion to intervene and to set aside the
    adoption.2 Appellants asserted that Blount County was not the proper venue for the adoption
    proceeding and that Foster Parents had filed the petition in Blount County to prevent
    Appellants from filing an intervening petition for adoption. Intervenor claimed that DCS was
    aware that she was asserting her right to custody of the Children as a result of the petition for
    custody she had filed in the Juvenile Court for Anderson County on January 12, 2009.
    After conducting a hearing on May 8, 2009, the trial court denied the motion in an
    order entered on May 22, 2009. The trial court held:
    Upon consideration of the argument of counsel at the hearing, the Court finds
    that the movants do not [have] standing to challenge the final order of adoption
    that was entered. . . . The Court further finds that setting aside the adoption is
    not in the best interests of the children.
    Appellants filed a timely appeal.
    2
    Appellants attached an “Intervening Petition for Adoption,” in which they sought to adopt the
    Children.
    -2-
    II. ISSUES
    The issues raised by Appellants are restated as follows:
    A. Whether Appellants were denied due process in the trial court’s allowance
    for a permissive venue.
    B. Whether Appellants, who were seeking custody for the best interests of the
    Children through other legal proceedings, were denied substantive due process
    in the trial court upholding the final adoption decree.
    C. Whether Appellants were denied fundamental rights guaranteed to foster
    parents in Tenn. Code Ann. §37-2-415(a)(1,2,4,6,11-20) in the trial court
    upholding the final adoption decree.
    III. STANDARD OF REVIEW
    The standard of review in this appeal is de novo upon the trial court’s record with a
    presumption of correctness of the court’s findings of fact unless the evidence preponderates
    otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 
    60 S.W.3d 721
    , 727 (Tenn. 2001). We
    review a trial court’s conclusions of law under a de novo standard upon the record with no
    presumption of correctness. Union Carbide Corp. v. Huddleston, 
    854 S.W.2d 87
    , 91 (Tenn.
    1993).
    IV. DISCUSSION
    As we stated in In re K.A.Y., 
    80 S.W.3d 19
    (Tenn. Ct. App. 2002),
    In Tennessee, the adoption statutes are to be strictly construed since they are
    in derogation of the common law. Tenn. Code Ann. §36-1-101(a) sets forth
    the purpose of the adoption statutory scheme, and provides, in pertinent part,
    as follows:
    (a) The primary purpose of this part is to provide means and procedures for
    the adoption of children and adults that recognize and effectuate to the greatest
    extent possible the rights and interests of persons affected by adoption,
    especially those of the adopted persons, . . . and to those ends seek to ensure,
    to the greatest extent possible, that:
    -3-
    ***
    (2) Children are placed only with those persons who have been determined to
    be capable of providing proper care and a loving home for an adopted child;
    (3) The rights of children to be raised in loving homes [that] are capable of
    providing proper care for adopted children and that the best interests of
    children in the adoptive process are protected;
    (4) The adoptive process protects the rights of all persons who are affected by
    that process and who should be entitled to notice of the proceedings for the
    adoption of the child;
    (5) The adoption proceedings are held in an expeditious manner to enable the
    child to achieve permanency, consistent with the child’s best interests, at the
    earliest possible date . . . .
    Tenn. Code Ann. §36-1-101(a) demonstrates that the best interests of the child
    whose adoption is at issue [are] paramount. Accordingly, when a court is
    determining an adoption petition, its primary concern is what will serve the
    best interest of the 
    child. 80 S.W.3d at 23-24
    (internal citations omitted).
    A. VENUE
    Tenn. Code Ann. §36-1-114 provides as follows:
    The termination or adoption petition may be filed in the county:
    (1) Where the petitioners reside;
    (2) Where the child resides;
    (3) Where the child resided when:
    (A) The child became subject to the care and control of a public
    or private child-caring or child-placing agency; or
    -4-
    (B) The child became subject to partial or complete
    guardianship or co-guardianship pursuant to a surrender
    proceeding as provided in this part; or
    (4) In which is located any licensed child-placing agency or institution
    operated under the laws of this state having custody or guardianship of the
    child or to which the child has been surrendered as provided in this part.
    Tenn. Code Ann. §36-1-114 (Supp. 2009).
    Appellants contend that DCS orchestrated the adoption in Blount County to avoid the
    intervening petition that had been filed earlier in another county. They assert that venue was
    proper in either the county where the Children and Foster Parents reside – Monroe – or in the
    county in which the Children resided when the biological parents’ rights were terminated –
    Anderson.
    In this case, DCS maintained full legal guardianship of the Children prior to their
    adoption. DCS has an office located in Maryville, Blount County, Tennessee, which makes
    venue proper in Blount County under Tenn. Code Ann. §36-1-114(4). There is no evidence
    of record to support the contention that the adoption petition was filed in Blount County for
    an improper reason.
    B. DUE PROCESS
    Appellants argue that they were denied substantive due process because the trial court
    disregarded their attempts to seek custody of the Children. They contend it was improper to
    deny Intervenor the opportunity to testify and explain how she took care of the Children for
    over two years and described the bond she shared with the Children.
    The adoption statutes contemplate intervention where a third party files a petition
    seeking to adopt the same child that is subject to a pending adoption petition. In re Adoption
    of M.J.S., 
    44 S.W.3d 41
    , 51 (Tenn. Ct. App. 2000). In order to be eligible to file an
    intervening adoption petition, a petitioner need not have physical custody of the child or the
    right to receive custody of the child at the time of the filing, because the adoption statutes
    specifically except such an intervenor from the statutes’ custody requirement at that point in
    the proceedings. 
    Id. However, in
    order to ultimately prevail on a petition to adopt to child, the intervening
    petitioner must meet the adoption statutes’ custody requirement at a subsequent point in the
    -5-
    adoption proceedings. 
    Id. Although Tenn.
    Code Ann. §36-1-115(b) excepts an intervening
    petitioner from the custody requirement at the time of filing the petition to adopt, other
    provisions of the adoption statutes do not contain such an exception and contemplate that the
    intervening petitioner will subsequently obtain custody of the child. 
    Id. As further
    noted in
    In re S.E.J., No. W2008-01354-COA-R3-PT, 
    2009 WL 2058790
    , at *3, 4 (Tenn. Ct. App.
    W.S., July 16, 2009) (perm. app. granted Nov. 16, 2009):
    For instance, the adoption statutes require adoption petitions to state, among
    other things, “[t]hat the petitioners have physical custody of the child or that
    they meet the requirements of §36-1-111(d)(6), and from what person or
    agency such custody was or is to be obtained.” Tenn. Code Ann. §36-1-
    116(b)(5) (2005). Similarly, the trial court’s final order of adoption must state
    “[t]he date when the petitioners acquired physical custody of the child and
    from what person or agency or by which court order.” Tenn. Code Ann. §36-
    1-120(a)(4)(2005). In addition, Tennessee Code Annotated section 36-1-
    116(f)(1) provides:
    Upon the filing of the petition, the court shall have exclusive jurisdiction of all
    matters pertaining to the child, . . . except for allegations of delinquency,
    unruliness or truancy of the child pursuant to title 37; provided, that, unless
    a party has filed an intervening petition to an existing adoption petition
    concerning a child who is in the physical custody of the original petitioners,
    the court shall have no jurisdiction to issue any orders granting custody or
    guardianship of the child to the petitioners or to the intervening petitioners or
    granting an adoption of the child to the petitioners or to the intervening
    petitioners unless the petition affirmatively states, and the court finds in its
    order, that the petitioners have physical custody of the child at the time of the
    filing of the petition, entry of the order of guardianship, or entry of the order
    of adoption, or unless the petitioners otherwise meet the requirements of §36-
    1-111(d)(6).
    When faced with interpreting this statute in In re Adoption of M.J.S., this Court
    stated:
    Although the foregoing statute is not a model of clarity, we interpret this
    statute to mean that, in cases where an intervening adoption petition has been
    filed, neither the original petitioners nor the intervening petitioners will be
    granted an adoption of the child unless the trial court finds that the petitioners
    have either physical custody of the child or the right to receive custody of the
    child pursuant to a validly executed surrender.
    
    -6- 44 S.W.3d at 52
    .
    
    2009 WL 2058790
    , at *3,4 (footnote omitted). Accordingly, the trial court would not be
    authorized to grant Appellants an adoption of the Children unless the court found that the
    Appellants had physical custody or the right to receive custody of the Children at some point
    during the adoption proceedings. See Tenn. Code Ann. §§36-1-116(f)(1), 36-1-120(a)(4).
    At the time of the filing of the adoption petition on January 14, 2009, the Children had
    not resided in Intervenor’s home for twelve or more consecutive months immediately
    preceding the filing of the adoption petition. Accordingly, Appellants were not entitled to
    the statutory first preference. See Tenn. Code Ann. §36-1-115(g)(1). Additionally, as
    revealed in the proposed intervening petition for adoption, an approved adoptive home study
    had not occurred in Appellants’ home. Intervenor states as follows in the petition:
    That due to the previous foster parent relationship and the fact that the Minor
    Children resided with the Intervenor, Laurie Martin-Matera for over two (2)
    years, that the six-month waiting period, order of reference, preliminary home
    study, order of guardianship or custody, supervision, and preliminary and final
    court reports be waived pursuant to Tennessee Code Annotated §36-1-119(a)
    and (b), and that the Department do a background check on the new resident
    in the home, Chris Martin-Matera, prior to entering an Order of Adoption.
    Due to failing to provide the trial court with an approved adoptive home study and DCS’s
    closing of Intervenor’s home, Appellants did not meet the requirements imposed upon
    persons seeking to adopt children in the custody of DCS. Thus, Appellants did not meet the
    requirements of either prong (g)(1) or (g)(2) of Tenn. Code Ann. §36-1-115.3 The trial court
    did not err in refusing to allow Appellants to proceed with the intervening petition because
    3
    Tenn. Code Ann. §36-1-115(g) provides:
    (1) When a child is placed in a foster home by the department or otherwise, and becomes
    available for adoption due to the termination or surrender of all parental or guardianship
    rights to the child, those foster parents shall be given first preference to adoption of the child
    if the child has resided in the foster home for twelve (12) or more consecutive months
    immediately preceding the filing of an adoption petition.
    (2) In becoming adoptive parents, the foster parents shall meet all requirements otherwise
    imposed on persons seeking to adopt children in the custody of the department, and shall be
    subject to all other provisions of this part.
    Tenn. Code Ann. §36-1-115(g)(2005).
    -7-
    they cannot meet the custody requirement at all times pertinent to the adoption proceeding.
    Additionally, Appellants have not established that even if the court were to vacate the
    final adoption decree, they could otherwise prevail in adopting the Children. Appellants
    would have to take the following steps, at a minimum, to adopt the Children if the final order
    of adoption were vacated: (1) Become approved foster parents able to seek custody (since
    you must first have physical custody in order to adopt a child), see Tenn. Code Ann. 36-1-
    115(b); (2) File a petition for custody and be awarded physical custody of the Children; (3)
    Present an approved adoptive home study to a trial court showing suitability for adoption,
    after first obtaining physical custody (due to DCS’s closing of Intervenor’s home, this home
    study would have to be submitted by a licensed child-placing agency); (4) Seek termination
    of the guardianship rights of DCS for one of the statutory grounds set forth at Tenn. Code
    Ann. §36-1-113(g)(1)-(9). If Appellants were unable to terminate the guardianship rights of
    DCS, they would be unable to adopt the Children without the voluntary consent of DCS. The
    agency will not give its voluntary consent to a home which it has closed for cause.
    Accordingly, even if the trial court set aside the final order of adoption, Appellants could not
    prevail in adopting the Children.
    We note further that Tenn. Code Ann. §36-1-117(a)(1) and (d) list the necessary
    parties to an adoption proceeding and the parties who are entitled to notice of the matter.
    Former foster parents, such as Intervenor, are not listed. See In re 
    K.A.Y., 80 S.W.3d at 24
    .
    Foster parents in Tennessee have no state or federal statutory rights comparable to natural
    parents.
    The relevant adoption statute only required two parties be joined in the adoption
    proceeding. One required party was the petitioners – Foster Parents – seeking the adoption
    of the Children, and the other party required to be joined would be any person with “parental
    or guardianship rights to the [C]hild[ren].” See Tenn. Code Ann. §36-1-117(a)(1). Former
    foster parents are not included among the individuals entitled to notice. Even other
    biological or legal “relatives” of the Children are not entitled to notice of the adoption
    proceeding if they have no parental or guardianship rights to the Children. Tenn. Code Ann.
    §36-1-117(d)(1). The only persons entitled to notice are legal guardians or any public or
    private agency having custody or complete or partial guardianship of the Children. In this
    case, DCS was the only “person” having custody or complete or partial legal guardianship
    of the Children. DCS had proper notice, a representative appeared at the proceedings, and
    the agency participated in the adoption proceedings by giving consent pursuant to its
    guardianship rights of the Children.
    In this matter, Mr. Matera was clearly not entitled to notice, as he was never a foster
    parent to any of the Children, never resided with them, and has no relationship or connection
    -8-
    with them. He is not an approved adoptive parent for the Children. As for Intervenor, the
    Children were removed from her care by DCS for legal cause. At the time of the hearing,
    she had neither parental rights nor guardianship rights to the Children. Thus, she was not
    entitled to any notice of the adoption proceedings.
    C. RIGHTS OF FOSTER PARENTS
    The rights of foster parents, contained at Tenn. Code Ann. §37-2-415, provide that
    “[t]o the extent not otherwise prohibited by state or federal statute, the department shall,
    through promulgation of rules in accordance with the Uniform Administrative Procedures
    Act . . .” implement certain rights for foster parents. Tenn. Code Ann. §37-2-415(a) (Supp.
    2009). A foster parent is afforded the right to an administrative hearing if he or she believes
    that his or her rights have been denied under the statutory rights. In this case, Intervenor filed
    the administrative pleading to assert a grievance; however, due to multiple requests for
    continuances made by her or her counsel, the administrative grievance became moot when
    the adoption was granted to Foster Parents. The Administrative Law Judge dismissed the
    administrative action in an order entered March 5, 2009. Thus, the statute does not provide
    any remedy that will assist Appellants.
    V. CONCLUSION
    The judgment of the trial court is affirmed. Costs on appeal are taxed to Appellants,
    Christopher Matera and Lauretta Martin-Matera. This case is remanded to the trial court,
    pursuant to applicable law, for enforcement of that court’s judgment.
    _________________________________
    JOHN W. McCLARTY, JUDGE
    -9-
    

Document Info

Docket Number: E2009-01326-COA-R3-JV

Judges: Judge John W. McClarty

Filed Date: 4/16/2010

Precedential Status: Precedential

Modified Date: 4/17/2021