In Re: Neveah W.

02/03/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 17, 2016 Session
IN RE: NEVEAH W.
Direct Appeal from the Chancery Court for Shelby County
No. CH-14-0772, CH-14-0651 Walter L. Evans, Chancellor
No. W2016-00932-COA-R3-PT
This is the second appeal in this case involving a long-running battle between foster
parents and the Tennessee Department of Children’s Services (“DCS”). In 2014, DCS
removed the three-year-old child at issue from her foster home of three years. In the
context of this already pending termination and adoption proceeding, the chancery court
held an evidentiary hearing and determined that there was insufficient evidence to justify
removal and that DCS had taken steps adverse to the child’s best interest. The chancery
court ordered DCS to return the child to her foster home. On extraordinary appeal, this
Court determined that a trial court cannot direct the placement of a foster child within
DCS legal custody, but we recognized that the trial court could remove legal custody
from DCS and place custody directly with the foster parents if warranted. One week
prior to the hearing on remand, DCS participated in a surrender proceeding under a
separate docket number and contemporaneously obtained an order of full guardianship
over the child. DCS then moved to dismiss as moot the termination, adoption, and
custody petitions pending in this case because DCS, as guardian, refused to consent to an
adoption by the child’s former foster parents. The child’s current foster mother attempted
to intervene. After a two-day trial, the trial court dismissed the former foster parents’
petitions as moot and granted the adoption to the current foster mother, as DCS in its role
as guardian would only consent to an adoption by her. The child’s guardian ad litem
appeals. The former foster parents and DCS raise additional issues. We affirm in part,
vacate in part, reverse in part, and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
in part, Vacated in part, Reversed in part, and Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which ARNOLD B.
GOLDIN, J., and DAVID R. FARMER, SP. J., joined.
William Ray Glasgow, Memphis, Tennessee, Guardian ad Litem for the Appellant,
Neveah W.
Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, and Alexander S. Rieger, Assistant Attorney General, Nashville, Tennessee, for
the Appellee, Tennessee Department of Children’s Services.
Laura Diane Rogers, Memphis, Tennessee, for the Appellees, Jason W. and Marie W.
OPINION
I. FACTS & PROCEDURAL HISTORY
The child at issue in this proceeding, Neveah, was born in May 2011. DCS
received a referral regarding Neveah on the date of her birth. Neveah’s mother
(“Mother”) was a psychiatric patient with a history of severe mental illness and diagnosis
of paranoid schizophrenia. She was hospitalized while pregnant due to suicidal and/or
homicidal ideations. After birth, Mother reportedly stated that she wanted to kill herself
and Neveah. She had an arrest history of prostitution and was unable to give the name of
Neveah’s father. Neveah remained hospitalized after birth due to withdrawal symptoms
from unknown medications. The juvenile court of Shelby County awarded temporary
custody of Neveah to DCS pursuant to a protective custody order on or about May 26,
2011.
Neveah was discharged from the neonatal intensive care unit and placed in a foster
home with Jason and Marie W. (“Foster Parents”) when she was four weeks old. Foster
Parents were military veterans who had served as foster parents in Virginia and adopted
three children before relocating to Tennessee. They had fostered a total of six children in
Virginia and Tennessee and welcomed Neveah into their home. In October 2011,
Neveah was adjudicated dependent and neglected, “as one whose parent . . . by reason of
cruelty, mental incapacity, immorality or depravity is unfit to properly care for such
child.” The dependency and neglect order provided that legal custody would remain with
DCS.
One of the adopted children in Foster Parents’ home, Kara, suffered from Reactive
Attachment Disorder. According to a therapist who testified in this case, one behavioral
manifestation of Reactive Attachment Disorder is that the person is very manipulative
and dishonest. Kara had been abused, neglected, and molested, and she was originally
placed in foster care at the age of two. By the time she was placed with Foster Parents at
the age of three, she had already been removed from four foster homes due to outrageous
behavior and attended 150 medical visits. Foster Parents believed that if they provided
Kara with a safe and loving home, she would eventually accept them. They adopted Kara
at the age of six. They enrolled her in play therapy, attachment therapy, occupational
2
therapy, speech therapy, equine therapy, sports programs, and music lessons, but nothing
seemed to help Kara. She attempted to harm Foster Parents’ dog, tried to molest other
children on the playground, tried to bite opposing team members during soccer, and
struck Foster Father more than once. According to Foster Parents, the older Kara grew,
the angrier she became. Kara was manipulative and violent. During therapy and at other
times, she would state that she wanted to “rip off your head and pee down your throat.”
She would intentionally urinate and defecate in her bedroom. She would go into fits of
rage for hours during the day and sneak out of her bedroom at night. Foster Parents
began to fear Kara, who was nine years old by then, and began working with a private
adoption agency to find another adoptive family for her. Foster Parents did not inform
DCS of their issues with Kara or their intent to surrender their parental rights to her
because Kara was not a DCS foster child; instead, they sought assistance from the
department that placed Kara.1
As Kara’s behavior escalated, Foster Parents placed baby gates, bells, and alarms
on Kara’s bedroom door, but she continued to leave her room at night. They also placed
an alarm on Neveah’s door in case Kara attempted to enter her room at night. Eventually,
Foster Parents began locking Kara’s door at night. This practice lasted for about one
month until Foster Parents surrendered their parental rights to her on April 2, 2014. Kara
went to a family with a special education teacher who had studied reactive attachment
disorder.
In the meantime, between 2011 and 2014, DCS made significant efforts to reunite
Neveah with Mother despite Mother’s severe mental health issues. DCS scheduled a
ninety-day home visit for Neveah with Mother, but after about two months, Mother
voluntarily ended the visit by reporting through the DCS safety plan that she could not
bear the child. The foster care review board recommended termination of Mother’s
parental rights. Frustrated by DCS’s failure to proceed, Neveah’s guardian ad litem
(“GAL”) filed a petition to terminate Mother’s parental rights in the chancery court of
Shelby County on April 23, 2014, just before Neveah’s third birthday. The petition
alleged that termination was appropriate based on the statutory grounds of substantial
noncompliance with permanency plans, persistent conditions, and parental incompetence
because of Mother’s impaired mental condition. The petition alleged that termination
was in Neveah’s best interest and that Foster Parents were willing to adopt her.
About three weeks later, on May 15, 2014, Foster Parents filed a separate petition
for termination and adoption, also in the chancery court of Shelby County. They alleged
abandonment, in addition to the same grounds for termination asserted by the GAL.
Foster Parents’ adoption petition noted that they had cared for three-year-old Neveah
1
Although the record is not entirely clear regarding the department that placed Kara, we infer from the
record that the Foster Parents’ adoption of Kara was accomplished through a DCS equivalent in Virginia.
3
almost continuously since she was discharged from the hospital at one month old. The
two petitions were eventually consolidated.
DCS considered Foster Parents’ decision to independently file a petition for
adoption as a breach of their foster parent agreement with DCS. DCS considered but
ultimately decided against removing Neveah from Foster Parents’ home based on their
filing of the adoption petition on May 15, 2014. However, the relationship between DCS
and Foster Parents continued to deteriorate. On May 19, 2014, Foster Parents and the
GAL jointly filed a petition for injunctive relief, alleging that DCS was allowing Mother
to have unsupervised contact with Neveah despite Mother’s recent involuntary
commitments, hallucinations, and assault on her mother. Chancellor Kenny Armstrong2
entered an injunction prohibiting Mother from having any unsupervised contact with the
child pending further orders. The day after this injunction was entered, DCS increased
Mother’s supervised visitation from four hours per month to four hours per week.
Chancellor Armstrong later ruled that DCS could not further increase Mother’s visitation
without a hearing.
On June 23, 2014, DCS learned of statements made by Kara indicating that she
had been locked in her bedroom at Foster Parents’ home and that she had urinated and
defecated in her room. DCS employees went to Foster Parents’ home and interviewed
them about the situation. Foster Parents told DCS about Kara’s Reactive Attachment
Disorder and behavioral issues and their previous attempts at counseling, baby gates, and
door alarms. Foster Parents said that they used a wooden spoon when spanking Kara but
that they did not do the same with Neveah, as DCS policies prohibited corporal
punishment for foster children. They admitted to locking Kara’s bedroom door at night
as “a last resort” for the last month that she was in their home due to their concerns about
the safety of other family members and the pets. Foster Parents also explained Kara’s
practice of urinating and defecating in her bedroom.
DCS admittedly never had any issues with the care Foster Parents provided to
Neveah prior to this incident, and they did not observe anything alarming about Neveah’s
condition during their visit to Foster Parents’ home to investigate. Foster Parents’ two
older children (ages sixteen and thirteen) were interviewed and reported that they had
never been locked in their rooms. Still, DCS considered locking Kara in her bedroom at
night to constitute abuse.
On July 14, 2014, DCS removed Neveah from Foster Parents’ home without prior
notice to Foster Parents, the GAL, or the trial court. Neveah was placed in a new foster
home with a single parent who had never fostered any children. Foster Parents were not
2
Effective September 1, 2014, Chancellor Kenny Armstrong became a Judge of the Tennessee Court of
Appeals.
4
allowed to visit Neveah or have any contact with her whatsoever after the removal. DCS
discontinued Neveah’s weekly appointments with an occupational therapist and did not
provide her with any other therapy. The GAL filed an emergency petition for injunctive
relief seeking an order requiring DCS to return Neveah to Foster Parents’ home. At a
hearing the next day, DCS conceded that it removed Neveah from Foster Parents’ home
based solely on the fact that Foster Parents locked Kara in her room.3 DCS
acknowledged that Kara “absolutely” had “issues.” However, DCS insisted that it could
remove a foster child from a foster parent for any reason or no reason at all, without
consulting a guardian ad litem. DCS argued that it had absolute discretion over the
placement of foster children that could not be interrupted by a court order. Despite this
argument, the trial court scheduled a hearing to review the placement decision.
Prior to the hearing, the GAL filed a motion to modify custody seeking to have
custody completely removed from DCS and awarded directly to Foster Parents. DCS
also filed its own intervening petition to terminate Mother’s parental rights on the
grounds of persistent conditions and parental incompetence. The termination petition
filed by DCS alleged that it was in Neveah’s best interest for the trial court to place her in
the full guardianship of DCS, granting it the right to consent to any adoption.4
Chancellor Armstrong held an evidentiary hearing on August 11, 2014, to consider
the GAL’s emergency petition for return of Neveah to Foster Parents’ home. At that
time, Neveah had been removed from the home for less than a month. Chancellor
Armstrong clarified at the beginning of the hearing that because of the already pending
termination petitions, “we’re going to be talking about placement; . . . not the removal of
legal custody of the Department, but placement in the interim.” Seven witnesses
testified, including Foster Parents, Neveah’s occupational therapist, and four DCS
employees.
The trial court ultimately concluded that the allegation that Kara was abused by
Foster Parents was not supported by the evidence. The trial court found that the DCS
employees who testified had never met Kara and had little if any knowledge of her
3
Neveah reportedly stated during the investigation that her foster mother hit her on the leg. Foster Parents
denied spanking Neveah. DCS did not necessarily consider spanking Neveah to be child abuse but did
consider it to be a violation of the foster care contract. However, DCS admitted that it removed Neveah
solely because Foster Parents locked Kara in her room. Counsel for DCS said, “There were additional
allegations that involved her including some corporal punishment . . . which is another violation of the
foster care parents’ contract. But is not why we removed the child. We removed the child because of the
serious concerns of the locking in the room.”
4
By statute, DCS was “permitted to assert its rights to custody or guardianship of the child” in the
termination proceeding. Tenn. Code Ann. § 36-1-117(e). DCS also had “the right to intervene in the
adoption proceeding at any time to present evidence as to the best interests of the child by filing a sworn
complaint in the adoption proceeding.” Tenn. Code Ann. § 36-1-116(k)(1).
5
mental health history or behavior that led Foster Parents to lock her bedroom door at
night. The trial court found Foster Parents “very credible.” It found that they did their
best to provide Kara with a loving home but that Kara engaged in inappropriate behavior
such as inappropriately touching other children, being physically abusive to family
members, intentionally urinating and defecating in the home, and hurting the family pet.
The trial court noted Foster Parents’ acknowledgement that they were forced to lock
Kara’s door at night as a last resort for a short period of time because they were afraid
that she would hurt the other children in the home, and other attempted measures had
been unsuccessful.
The trial court also found the allegation that Neveah may have been abused by
Foster Parents to be unsupported by the evidence. The trial court noted the foster
mother’s admission that she had “slapped at Neveah’s hand” when reaching for an object,
and, the court added, she “demonstrated for the Court a light pat,” but she denied
otherwise hitting or spanking Neveah.
In conclusion, Chancellor Armstrong concluded that the evidence did not support
DCS’s removal of Neveah from Foster Parents’ home, where she resided from June 2011
to July 2014. The court found that Neveah was not at risk of harm and that removal from
Foster Parents’ home was not in Neveah’s best interest. The court added, “The
Department has taken steps that are adverse to Neveah’s best interests.”
The trial court denied DCS’s oral request for a stay pending an interlocutory
appeal. Chancellor Armstrong ordered that Neveah be immediately returned to Foster
Parents’ home the following day, no later than 12:30 p.m. on August 12, 2014. He
clarified that he was not removing legal custody from DCS, adding, “I just did placement
for today.” In the written order, entered August 29, 2014, the court noted that Foster
Parents and the GAL had argued that legal custody should be removed from DCS and
awarded directly to Foster Parents, but the order stated that “[t]he Court declines to
decide that issue at this time.”
Pursuant to Chancellor Armstrong’s oral ruling, Neveah returned to Foster
Parents’ home on or about August 12, 2014. However, DCS filed an application for an
extraordinary appeal to this Court pursuant to Rule 10 of the Tennessee Rules of
Appellate Procedure and also sought an emergency stay of the trial court’s order. On
August 15, 2014, this Court granted DCS’s motion and stayed the trial court’s order.
DCS employees then went to Foster Parents’ home and removed Neveah a second time.
On September 10, 2014, we granted DCS’s application for an extraordinary appeal to
decide the single issue of whether a trial court is authorized to direct the placement of a
child within the custody of DCS. On April 2, 2015, this Court issued an opinion
answering that question in the negative. See In re Neveah W., 470 S.W.3d 807, 808
6
(Tenn. Ct. App. 2015) (“we hold that a trial court may not direct placement of a child in
the legal custody of DCS”). We noted, however, that all parties to the case recognized
that the trial court maintained the power to award legal custody of a child to pre-adoptive
parents like Foster Parents. Id. at 818 n.12. We recognized that the GAL and Foster
Parents requested such relief in the trial court and that the trial court had declined to grant
their request at that time. Id. Whether the trial court erred in that particular decision was
not designated as an issue in the extraordinary appeal, and we noted that our opinion
should not be construed as precluding such relief. Id.
By the time of our opinion, eight months had passed since DCS initially removed
Neveah from Foster Parents’ home. Back in the trial court, the GAL set for hearing his
previously filed petition to have legal custody removed from DCS and awarded directly
to Foster Parents, which Chancellor Armstrong specifically declined to resolve at the
evidentiary hearing. The custody hearing was set for May 8, 2015, to be heard by
Chancellor Walter Evans, as Chancellor Armstrong had by that time been appointed to
the Tennessee Court of Appeals. Prior to the May 8 custody hearing, DCS moved to
have the custody matter heard at the same time as the pending termination petitions.
However, DCS suggested that its expert witnesses might not be ready by May 8. Foster
Parents opposed any further delay of the custody hearing and pleaded for the earliest
possible hearing date, suggesting that the court hear all of the pending matters at the
upcoming May 8 hearing. The trial court ruled that the custody and termination petitions
would be heard together in one hearing on May 18, 2015.
On May 11, 2015, DCS and Mother appeared before Chancellor Evans in a
surrender proceeding under a separate docket number from the pending proceeding
involving custody, termination, and adoption. In the separate surrender proceeding,
Mother executed a surrender of her parental rights to Neveah to DCS. DCS filed a
“Motion for Order of Full Guardianship” and obtained an “Order of Full Guardianship”
on the same date. Neither the GAL nor Foster Parents were given notice of the surrender,
the motion for order of guardianship, or the order of full guardianship. DCS’s motion for
guardianship recited that DCS had obtained custody of Neveah in 2011 shortly after her
birth and that she had remained in its care since that time. However, it did not mention
the pending custody, termination, and adoption petitions under the separate docket
number or the hearing that was scheduled for one week later regarding whether Neveah
should be removed from DCS custody. Chancellor Evans entered the order granting DCS
full guardianship of Neveah thereby entitling it “to provide care, supervision, and
protection of said child” and “to place said child for adoption with prospective adoptive
parents and to consent to the adoption of the child by those prospective adoptive parents.”
On May 18, 2015, counsel for DCS appeared at the previously scheduled custody
and termination hearing with the surrender documents and order of guardianship and
7
provided them, for the first time, to Foster Parents and the GAL. DCS immediately filed
a notice of voluntary dismissal of its pending petition to terminate Mother’s parental
rights and filed a motion to dismiss the termination petitions filed by the GAL and Foster
Parents as moot. At the same time, DCS filed a motion to dismiss Foster Parents’
adoption petition, asserting that the May 11 order of guardianship gave it sole authority to
place Neveah for adoption and consent to her adoption and that it would not consent to an
adoption by Foster Parents.5 DCS insisted that the order of guardianship was a final
order and irrevocable. It also filed a motion to dismiss the GAL’s petition to have
custody removed from DCS on the basis that its order of guardianship superseded
custody orders.
We do not have a transcript of the May 18, 2015 hearing, but it appears that the
trial judge indicated his intention to adopt the factual findings made by Chancellor
Armstrong from the August 11, 2014 hearing and award legal custody of Neveah to
Foster Parents without hearing additional evidence. Prior to the entry of a written order
to this effect, DCS filed a motion for reconsideration, a motion to clarify order, and a
notice of objections to proposed order.
At a subsequent hearing on May 28, 2015, DCS continued to insist that its order of
guardianship trumped any custody matters and rendered all pending petitions in this case
moot, including Foster Parents’ adoption petition, because DCS refused to consent to an
adoption by Foster Parents. The GAL questioned whether DCS had authority to seek
guardianship due to the existence of the petitions that were already pending in this case.
The trial court ruled that it would “stay any movement” of Neveah because the mandate
had not yet issued from this Court. However, over DCS’s objection, the trial court
permitted Foster Parents to have visitation with Neveah pending further orders. On June
29, 2015, the trial court entered an order staying the proceedings “other than visitation
and hearing for disposition of custody petition.”
5
An award of only legal custody “vest[s] the legal custodian with the authority to provide the care and
control of the child . . . but does not, by itself, without entry of an order of guardianship . . . authorize the
legal custodian to place the child for adoption or to consent to the adoption.” Tenn. Code Ann. § 36-1-
118(e)(8). In contrast, complete guardianship permits the guardian entity to place the child for adoption
and consent to adoption. Tenn. Code Ann. § 36-1-102(25)(C)(ii). This statute grants the guardian “the
exclusive authority to place the child for adoption and to consent to the adoption, and confers no authority
on the trial court to interfere with the guardian’s exclusive authority.” In re E.M., II, No. W2006-00663-
COA-R3-CV, 2006 WL 3007511, at *2 (Tenn. Ct. App. Oct. 24, 2006). Thus, when guardianship has
been granted to DCS or any other party, “the guardianship carries certain rights that must be dealt with
before another party can adopt the child.” In re Don Juan J.H., No. E2010-01799-COA-R3-JV, 2011 WL
8201843, at *3 (Tenn. Ct. App. Sept. 7, 2011). “When the department . . . is the guardian of the child, its
rights must be terminated by court action or it must provide consent . . . before an adoption can be
ordered.” Tenn. Code Ann. § 36-1-102(24)(D).
8
Neveah began having supervised visits with Foster Parents in July 2015. Neveah
had not seen or spoken to Foster Parents in approximately ten months. She ran to Foster
Parents and their two children, referred to Marie as “mom,” and asked repeatedly if she
could return home. Neveah had eight or nine supervised visits with Foster Parents during
the proceedings below and asked to go home during every visit.
Despite the trial court’s initial ruling regarding the conclusiveness of Chancellor
Armstrong’s factual findings, the case was ultimately set for an additional evidentiary
hearing to be held on August 11, 2015. However, on August 11, Neveah’s current foster
mother, Tammy D. (“Current Foster Mother”), filed an “intervening memorandum in
support of motion to dismiss” urging the trial court to grant DCS’s motion to dismiss the
custody petition. The intervening memorandum stated, “Subject to the Court[’]s
approval, [Current Foster Mother] respectfully asks this Court to allow her to intervene in
the instant proceedings and as grounds for her request she provides the following
background information.” She stated that she was Neveah’s current foster mother and
had been so since Neveah was removed from Jason and Marie’s home about thirteen
months earlier. Current Foster Mother’s intervening memorandum stated that she had
filed an “Intervening Petition for Adoption” on August 7, 2015, but, as will be discussed
later in this opinion, the intervening petition for adoption was not actually filed by the
chancery court clerk. Current Foster Mother did not file a motion to intervene, and no
order was entered allowing her to intervene in the proceedings.
The evidentiary hearing was continued and eventually held on November 17 and
18, 2015, for consideration of the custody petition, parental termination petitions, and
adoption petitions. By this time, Neveah was four years old. At the beginning of the
hearing, DCS argued its pending motions to dismiss. DCS asserted that the trial court
should only consider Current Foster Mother’s adoption petition and should dismiss the
other petitions as moot due to DCS having obtained the order of guardianship with the
right to consent to any adoption. Foster Parents and the GAL acknowledged that the trial
court had jurisdiction to accept a surrender of parental rights from Mother, but they
argued that the trial court should not have ruled on the issue of guardianship without any
notice being provided to them and without consideration of Foster Parents’ pending
petition for adoption and the pending petition for custody to be removed from DCS.
Counsel for Current Foster Mother addressed the court as well and asserted that her
adoption petition was entitled to preference because she had been Neveah’s foster parent
for over a year.6 The trial judge ultimately ruled that he would hear the proof on both of
6
Tennessee Code Annotated section 36-1-115(g)(1) provides:
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
9
the competing adoption petitions and “see where we go from there.”
Over the course of two days, the trial court heard testimony from the counselor
who had been observing Foster Parents’ supervised visits with Neveah, a psychologist
who performed “a very basic evaluation” of Neveah, the occupational therapist who
treated Neveah prior to her removal from Foster Parents’ home, Foster Parents, two
family friends of Foster Parents, Current Foster Mother, and a DCS foster care worker.
On the second day of trial, Foster Parents filed a written motion to set aside or vacate the
order of guardianship. At the conclusion of the testimony, the trial judge requested
proposed findings and took the matter under advisement.
On March 30, 2016, the trial court entered its findings of fact, conclusions of law,
and final order. The trial court noted that Neveah’s biological mother “surrendered all
her parental rights to Neveah [] on May 11, 2015 before Chancellor Evans who signed
and entered an order granting full guardianship to the Department.” The trial court found
that “[a]ll persons entitled to notice of the proceedings ha[d] been served with process
and . . . all necessary parties were properly before the Court.” The trial court found that
“the Department followed proper procedure for the surrender” because the surrender
statute only allows limited persons to be present and requires that surrenders occur under
a separate docket number. Accordingly, the court concluded that the GAL and Foster
Parents were not proper parties to the surrender action. The trial court also dismissed the
termination petitions as moot due to the surrender.
Next, the trial court concluded that the order of guardianship could not be attacked
more than thirty days after its entry pursuant to Tennessee Code Annotated section 36-1-
112(d). The trial court also concluded that the GAL and Foster Parents had no standing
to challenge the order of full guardianship, reasoning that a litigant is barred from raising
another person’s legal rights. Accordingly, the court declined to set aside or vacate the
order of guardianship.
The trial court dismissed the petition seeking to remove custody from DCS as
moot based on the order of guardianship. It also found that “[t]he only way [Foster
Parents] can adopt is if the Department’s guardianship is terminated or the Department
consents to them adopting Neveah, neither of which has occurred.” The court also found
preference to adopt 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.
However, this statutory “preference is not conclusive.” In re Adoption of A.K.S.R., 71 S.W.3d
715, 718 (Tenn. Ct. App. 2001).
10
that Foster Parents did not have physical custody of Neveah or the right to receive
custody, so they could not prevail on an adoption petition.
The trial court found that DCS did consent to Current Foster Mother adopting
Neveah and that Current Foster Mother had a legal preference due to the fact that she had
maintained custody of Neveah for more than a year. See Tenn. 36-1-115(g)(1). The
court found that Neveah was doing well in her current foster home and that adoption was
in her best interest. Accordingly, the trial court granted Current Foster Mother’s petition
for adoption. The GAL timely filed a notice of appeal on April 28, 2016.
Upon transmission of the record to this Court, the parties discovered that Current
Foster Mother’s “Intervening Petition for Adoption” was not included in the record
because it was not accepted for filing by the trial court clerk. On August 19, 2016,
Current Foster Mother filed in the trial court a “Motion to Correct the Record and to
Allow [her] to Intervene as a Petitioner nunc pro tunc.” On September 19, 2016, the
chancery court entered an order granting Current Foster Mother’s motion for leave to
intervene nunc pro tunc and designating her pleadings as “properly includable” in the
appellate record.
II. ISSUES PRESENTED
The GAL presents the following issues for review on appeal:
1. Whether a Guardian ad Litem appointed to represent a child under
Tennessee Supreme Court Rules 13 and 40 is entitled to notice:
(a) when placement of a foster child in the custody of [DCS] is
changed or modified;
(b) of court hearing upon filing with the court for emergency
removal by [DCS]; or
(c) when a Motion for Full Guardianship has been filed by [DCS] of
a child in foster care represented by a Guardian ad Litem;
2. Whether the trial court erred in ignoring an order of a previous
chancery court ruling on the same parties and issues without an offer of
proof from [DCS] challenging the previous findings of fact and
conclusions of law set forth in the previous order.
In their posture as appellees, Foster Parents raise the following additional issues:
11
3. Whether Tennessee Code Annotated section 37-1-129 limits an
adoption court’s authority to make decisions for the child’s best interest
including ordering [DCS] to return children to their foster home after a full
hearing;
4. Whether the trial court erred in granting leave to [Current Foster
Mother] to intervene in the custody proceeding;
5. Whether the trial court erred in denying [Foster Parents’] Petition for
Adoption;
6. Whether the trial court erred in awarding full guardianship to [DCS]
ex parte and in failing to set it aside;
7. Whether the trial court erred in granting [Current Foster Mother’s]
motion to intervene retroactively and ordering pleadings to be included in
the appellate record nunc pro tunc that had been refused by the clerk of
court without permission from this Court;
8. Whether the trial court erred in denying the Guardian Ad Litem’s
Petition to remove custody from [DCS].
DCS raises an additional issue:
9. Whether the trial court properly dismissed the Guardian Ad Litem’s
petition for custody as moot.
For the following reasons, we affirm in part, vacate in part, reverse and remand for
further proceedings.
III. DISCUSSION
A. The Foster Care Placement Decision
At the outset, we address Foster Parents’ issue regarding whether Tennessee Code
Annotated section 37-1-129 limits an adoption court’s authority to return a child to a
particular foster home. They argue that Chancellor Armstrong was within his authority to
order Neveah returned to her foster home in August 2014. Foster Parents acknowledge
12
that this Court has already agreed with DCS’s interpretation of the statute in our opinion
entered in the context of the Rule 10 extraordinary appeal. See In re Neveah, 470 S.W.3d
at 818 (“Tennessee Code Annotated Section 37-1-129(e) expressly limits the court’s
power to direct the placement of a child in DCS custody”). However, they suggest that
this Court’s ruling was erroneous and places trial courts in a difficult position.
“The law of the case doctrine ‘generally prohibits reconsideration of issues that
have already been decided in a prior appeal of the same case.’” In re
Bridgestone/Firestone, 495 S.W.3d 257, 266 (Tenn. Ct. App. 2015) (quoting Memphis
Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306
(Tenn. 1998)). In other words, a court will generally refuse to reconsider an issue that
has already been decided by the same court in the same case. Id. (quoting 36 C.J.S.
Federal Courts § 602 (2015)). This discretionary rule of judicial practice is based on the
common sense recognition that issues previously litigated and decided need not be
revisited. Id. An appellate court’s decision on an issue of law will be binding in later
appeals of the same case if the facts on the subsequent appeal are substantially the same
as those in the first appeal. Id. However, a redetermination of a previously decided issue
may be justified (1) when the evidence offered following remand is substantially different
from the evidence in the earlier proceeding; (2) when the prior decision was clearly
erroneous and would result in manifest injustice if allowed to stand; or (3) when the prior
decision is contrary to a change in the controlling law which occurred between the first
and second appeal. Id. Foster Parents have not demonstrated that any of these grounds
exist. We have already considered and rejected Foster Parents’ interpretation of this
particular statute in the previous appeal and decline to re-analyze the issue in this
subsequent appeal of the same case.
B. Notice of the Change in Placement
Next, we address the GAL’s argument that a guardian ad litem should be entitled
to prior notice when placement of a child in DCS foster care is changed or modified.
Again, we find our previous opinion in this case instructive. In In re Neveah, 470 S.W.3d
at 808, we held that a trial court may not direct placement of a child in the legal custody
of DCS. Based on the applicable statutes, we concluded that “DCS is empowered, rather
than the court, to direct placement of children in its custody.” Id. at 816. Given this
“specific limitation on the court’s power to direct the placement of a child in DCS
custody,” id. at 817 (emphasis added), we discern no basis for requiring DCS to notify a
guardian ad litem prior to changing or modifying a foster care arrangement. The statutes
and rules cited by the GAL on appeal simply do not require that DCS provide prior notice
to a guardian ad litem when foster placement is modified. Although notice to the
guardian ad litem might be desirable, we find no other authority for imposing a
mandatory notice requirement on DCS.
13
The GAL correctly notes that a guardian ad litem represents the best interest of a
child, and he suggests that he was unable to do so without notice of the change in foster
care placement. However, Neveah was removed from Foster Parents’ home on July 14,
2014, due to DCS’s ongoing investigation into possible abuse of Kara. The GAL filed an
emergency petition for injunctive relief, seeking Neveah’s return to Foster Parents’ foster
home, on that same date. Thus, the GAL was able to file a petition on Neveah’s behalf
and advocate for her best interest in a timely manner. He does not suggest what
additional action he would have taken if he had learned of the impending removal before
it occurred. The fact remains that the GAL was not empowered to veto DCS’s foster care
placement decision under the facts of this case and our holding in In re Neveah. “DCS is
empowered . . . to direct placement of children in its custody.” Id. at 816.
The record demonstrates no reversible error with regard to this issue.
C. Holding an Additional Evidentiary Hearing
Next, we consider the GAL’s issue regarding “[w]hether the trial court erred in
ignoring an order of a previous chancery court ruling on the same parties and issues
without an offer of proof from [DCS] challenging the previous findings of fact and
conclusions of law set forth in the previous order.” The GAL claims that “the previously
entered findings of fact and conclusions of law [by Chancellor Armstrong] were binding
on the trial court.” Foster Parents likewise argue that Chancellor Armstrong’s findings
from 2014 “should have been conclusive on the issue of Neveah’s return to [Foster
Parents] and removal of custody from the Department.”
As noted above, Chancellor Evans initially indicated his intention to return
custody to Foster Parents based solely on Chancellor Armstrong’s findings. He entered
an order stating that Chancellor Armstrong’s factual findings from the August 11, 2014
evidentiary hearing were not challenged in the extraordinary appeal by DCS and were
binding on the court. Prior to the entry of a written order officially changing custody,
however, Chancellor Evans “stayed” the “transfer” of Neveah pending an additional
hearing on custody. His order noted that Chancellor Armstrong’s hearing “was addressed
by the Court as one of placement and not of legal custody.” According to the GAL, DCS
demanded an opportunity to put on new evidence, and after the additional evidentiary
hearing, Chancellor Evans “overruled” his previous ruling “without cause” and accepted
DCS’s position regarding the conclusiveness of its order of guardianship.
We cannot fault Chancellor Evans for holding an additional evidentiary hearing to
receive updated evidence in this case. In fact, it appears that the parties below may have
agreed, although reluctantly, to such a procedure. At the beginning of the final
14
evidentiary hearing, counsel for Foster Parents explained to Chancellor Evans:
So we came before you to argue our petition for custody, but at that point
this child had been away from her home for almost a year. And so at that
point, because we had to have an evidentiary hearing on the custody, we
made the decision just to go forward with the adoption and try all of the
issues at the same time. So that is procedurally why we have this custody
issue that is still out there and how that came to be and why [] we are here
on all of the petitions.
During closing arguments after the evidentiary hearing, counsel for Foster Parents
continued:
The only reason we are here now is because to avoid an appeal and to make
sure that we had a full record where all the evidence was presented, all of
the lawyers agreed -- and certainly correct me if I’m misstating what we all
agreed to -- but the consensus was not to waste any more time in this
child’s life with legal maneuvers. Let’s come down here and have a full
blown evidentiary hearing on all the issues and let you hear the evidence
and let you decide.
In a written motion filed during trial, Foster Parents explained that when DCS objected to
Chancellor Evans’s oral ruling that he would award custody to Foster Parents based on
Chancellor Armstrong’s previous findings, “in order to avoid another lengthy appeal, all
parties agreed that the matter would be set for an evidentiary hearing along with the
adoption petitions.” The GAL likewise noted in his pretrial brief that his argument
regarding Chancellor Armstrong’s findings and res judicata “may not be dispositive at
this juncture, as the parties are now willingly appearing to present testimony and
argument [regarding] whether custody should be removed from [DCS] and awarded to
[Foster Parents].”
In any event, this Court recognizes that Chancellor Armstrong clarified at the
beginning of the 2014 evidentiary hearing that “[f]or the purposes of our hearing today,
we’re going to be talking about placement; . . . not the removal of legal custody of the
Department[.]” We also recognize that additional evidence would be relevant to
determine whether completely removing Neveah from the legal custody of DCS would
serve her best interest. Moreover, the August 2014 hearing before Chancellor Armstrong
was held many months prior to the first hearing before Chancellor Evans around May
2015. This Court has often recognized that “events and lives” do not stand still while
custody disputes proceed through the courts. See, e.g., Crafton v. Roberts, No. W2015-
00048-COA-R3-CV, 2015 WL 9466011, at *8 (Tenn. Ct. App. Dec. 28, 2015) (quoting
15
Gorski v. Ragains, No. 01A01-9710-GS-00597, 1999 WL 511451, at *4 (Tenn. Ct. App.
July 21, 1999)) (instructing the trial court to “endeavor to ascertain and give effect to the
parties’ circumstances as they exist as of the date of the remand proceedings”). We reject
the GAL’s suggestion that Chancellor Evans was required to accept Chancellor
Armstrong’s findings regarding the issue of placement as binding the outcome on remand
on the determination of legal custody.
D. The Order of Guardianship
The next issue raised by Foster Parents is whether the chancery court erred in
awarding full guardianship to DCS ex parte and in failing to set it aside. A brief review
of the basic timeline is helpful in analyzing this issue. The chancery court proceedings
began with the filing of the termination petition by the GAL on April 23, 2014. Foster
Parents filed their own petition to terminate parental rights and for adoption on May 15,
2014. After the adoption petition was filed, DCS removed Neveah from Foster Parents’
foster home, and in August 2014, Chancellor Armstrong ordered that she be returned.
This Court granted a stay of the trial court’s order and ultimately reversed the order
directing foster home placement of Neveah via an opinion issued on April 2, 2015.
However, we noted that a trial court presiding over an adoption maintains the power to
award legal custody of a child to pre-adoptive parents like Foster Parents. One week
prior to the scheduled custody hearing on remand, Mother and DCS participated in
surrender and guardianship proceedings before Chancellor Evans on May 11, 2015. The
surrender proceeding took place under a separate docket number without notice to the
GAL or Foster Parents. In that separate proceeding, DCS obtained an order of full
guardianship over Neveah without informing Chancellor Evans of the pending matters
under the separate docket number.7 DCS then appeared at the custody hearing on remand
in this case and insisted that its order of guardianship trumped all other orders and
rendered the termination and adoption proceedings moot.
7
During a later hearing, Chancellor Evans indicated his surprise when he learned that he was the judge
who signed the surrender and guardianship order regarding Neveah:
THE COURT: The department has made a whole lot of statements that are not
supported in the record in this proceeding. And regarding the surrender that was made by
the natural mother and the guardianship order that was referred to is not in this file, so
there are a number of things that need to be confirmed, but in any –
[Counsel for DCS]: Your Honor, those are maintained in a separate file, separate
proceedings. I have a copy of the order and the surrender. Your Honor actually signed it.
THE COURT: I signed it?
[Counsel for DCS]: Yes, Your Honor.
16
DCS claims that it acted in accordance with governing statutes in all aspects of
these proceedings. It also claims that it has an absolute right to veto an unwanted
adoption due to its order of guardianship. The GAL and Foster Parents dispute that DCS
acted lawfully in obtaining the order of guardianship. Resolving this disagreement
requires a careful examination of the applicable statutes governing adoption and
surrenders.
“In Tennessee, the adoption statutes are to be strictly construed since they are in
derogation of the common law.” In re K.A.Y., 80 S.W.3d 19, 23 (Tenn. Ct. App. 2002)
(citing Johnson ex rel. Johnson v. Wilbourn, 781 S.W.2d 857, 859 (Tenn. Ct. App.
1989)). Tennessee Code Annotated section 36-1-116 governs the filing of adoption
petitions. In re Neveah W., 470 S.W.3d at 816 n.11. At the time of the proceedings
below, the adoption statute provided, in pertinent part:
(f)(1) Upon the filing of the [adoption] petition, the court shall have
exclusive jurisdiction of all matters pertaining to the child, including the
establishment of paternity of a child pursuant to chapter 2, part 3 of this
title, 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).
(2) Except for proceedings concerning allegations of delinquency,
unruliness, or truancy of the child under title 37, any proceedings that may
be pending seeking the custody or guardianship of the child or visitation
with the child who is in the physical custody of the petitioners on the date
the petition is filed, or where the petitioners meet the requirement of § 36-
1-111(d)(6), shall be suspended pending the court’s orders in the adoption
proceeding, and jurisdiction of all other pending matters concerning the
child and proceedings concerning establishment of the paternity of the child
shall be transferred to and assumed by the adoption court; provided, that
until the adoption court enters any orders affecting the child’s custody or
guardianship as permitted by this part, all prior parental or guardian
17
authority, prior court orders regarding custody or guardianship, or statutory
authority concerning the child’s status shall remain in effect.
Tenn. Code Ann. § 36-1-116(f) (emphasis added).8
Pursuant to the adoption statute, then, the chancery court obtained exclusive
jurisdiction of all matters pertaining to Neveah upon the filing of Foster Parents’ adoption
petition in 2014, and any proceedings seeking guardianship of the child were to be
suspended pending the court’s orders in the adoption proceeding. See, e.g., In re K.A.Y.,
80 S.W.3d at 25 (explaining that an adoption petition “had priority over” another party’s
custody petition and therefore the trial court did not err in granting the adoption petition
without deciding the suspended custody petition).
We now turn to the provisions of the surrender statute in order to determine
whether it provides for a different result. A “surrender” by a parent is a document
8
Effective July 1, 2016, shortly after the entry of the trial court’s March 30, 2016 order, the
statute was amended to include the following additional sentence in subsection (b) regarding the
effect of the suspension:
Actions suspended by this section, regardless of the stage of adjudication, shall
not be heard until final adjudication of the action for termination of parental rights
or adoption regarding the same child, even if such adjudication of the termination
of parental rights or adoption will render the custody, guardianship, or visitation
action moot.
Tenn. Code Ann. 36-1-116(f)(2); 2016 Pub.Acts, c. 919, § 19, eff. July 1, 2016. “When the
legislature amends a statute, it presumably does so either to change the law or to clarify it.” State
v. Odom, 928 S.W.2d 18, 30 (Tenn. 1996). The legislature’s addition in this case was clearly a
clarification of the existing statute rather than a substantive change. The senate bill summary
stated:
Under present law, except for proceedings concerning allegations of delinquency,
unruliness, or truancy of the child, any proceedings that may be pending seeking
the custody or guardianship of the child or visitation with the child who is in the
physical custody of the petitioners on the date the petition is filed are suspended
pending the court’s orders in the adoption proceeding. This amendment adds that
actions so suspended, regardless of the stage of adjudication, will not be heard
until final adjudication of the action for termination of parental rights or adoption
regarding the same child, even if such adjudication of the termination of parental
rights or adoption will render the custody, guardianship, or visitation action moot.
(http://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=SB1393&ga=109).
18
executed pursuant to Tennessee Code Annotated section 36-1-111 (or the law of another
jurisdiction) by which the parent relinquishes all parental rights to a child to another
person or agency for the purpose of making the child available for adoption. Tenn. Code
Ann. § 36-1-102(49). The surrender statute, Tennessee Code Annotated section 36-1-
111, is incredibly lengthy and complex, with the statutory text of subsections (a) to (z)
spanning nineteen pages of the Tennessee Code. The surrender statute requires that
surrenders be made in chambers and entered on a special docket for surrenders. Tenn.
Code Ann. § 36-1-111(b), (p)(2)(A); see also In re Angela E., 303 S.W.3d 240, 247
(Tenn. 2010) (“the [surrender] proceeding is judicial, [but] it occurs privately in the
chambers of a judge”). Accordingly, “a surrender need not be filed in the same
proceeding as the petition for adoption.” In re Baby, 447 S.W.3d 807, 830 n.15 (Tenn.
2014).
A surrender executed in accordance with the statute has the effect of terminating
all rights of the parent to the child. Tenn. Code Ann. § 36-1-111(r)(1)(A)(i). The
surrender statute “anticipates . . . that the surrender of parental rights is made in favor of a
specific other person or entity who must (or will soon) have physical custody of the child,
and that the child will be made available for adoption.” In re Angela E., 303 S.W.3d at
247 (internal citations omitted). However, a surrender does not by itself establish
guardianship or custody in the person or entity designated to receive the surrender:
Unless prior court orders or statutory authorization establishes guardianship
or custody in the person or entity to whom the surrender . . . is executed, the
surrender . . . alone does not vest the person, persons or entities who or that
receive it with the legal authority to have custody or guardianship or to
make decisions for the child without the entry of an order of guardianship
or partial guardianship as provided in subdivision (r)(6)(A) or as provided
in § 36-1-116(f) [of the adoption statute]. The court accepting the surrender
. . . shall not enter any orders relative to the guardianship or custody of a
child for whom guardianship or custody is already established under prior
court orders or statutory authorization, except upon motion under
subdivision (r)(4)(D) by the person, persons or entities to whom the
surrender or parental consent is executed.
Tenn. Code Ann. § 36-1-111(r)(2)(A) (emphasis added); see also Monica L. Allie, The
New Adoption Law in Tennessee: A Controversial Sweeping Reform, 32 Tenn. B.J. 18
(Sept./Oct. 1996) (“the person receiving the surrender does not automatically obtain
guardianship of the child but must be granted guardianship by specific court order”).9
9
To be clear, the parties to this appeal do not challenge the surrender of Mother’s parental rights. Instead,
they challenge the order of guardianship entered by the court after Mother’s surrender.
19
The surrender statute goes on to address jurisdictional issues at length in
subsection (r) as follows:
(3)(A) Except as provided in subdivisions (r)(2) and (4), a validly executed
surrender shall confer jurisdiction of all matters pertaining to the child
upon the court where the surrender is executed or filed until the filing of the
adoption petition, at which time jurisdiction of all matters pertaining to the
child shall transfer to the court where the adoption petition is filed;
provided, that the jurisdiction of the juvenile court to adjudicate allegations
concerning any delinquent, unruly, or truant acts of a child pursuant to title
37 shall not be suspended.
....
(4)(A) When, at the time the surrender . . . is executed, a prior court order is
in effect that asserts that court’s jurisdiction over the child who is the
subject of the surrender . . . , the prior court order shall remain effective
until, and only as permitted by this section, an alternate disposition for the
child is made by the court where the surrender is executed or filed or until,
and only as permitted by this section, an alternate disposition is made for
the child on the basis of a termination of parental rights proceeding, or, as
permitted by § 36-1-116, until an alternate disposition for the child is made
by the court where the adoption petition is filed.
....
(C) If the court that has entered the prior custody order under subdivision
(r)(4)(A) has subject matter jurisdiction to terminate parental or guardian
rights at the time a surrender of the child who is the subject of that order is
validly executed in another court pursuant to subdivision (r)(4)(D) or at the
time a petition to terminate parental rights is filed pursuant to subdivision
(r)(4)(E), it shall continue to have jurisdiction to complete any pending
petitions to terminate parental or guardian rights that are filed prior to the
execution of the surrender or prior to the filing of the petition to terminate
parental rights in the other court pursuant to subdivision (r)(4)(E). The
court shall not have jurisdiction to complete any pending petitions to
terminate parental rights subsequent to the filing of a petition for adoption.
The court may enter orders of guardianship pursuant to the termination of
parental rights proceedings unless prior thereto an order of guardianship is
entered by another court pursuant to subdivisions (r)(4)(D) and (E). Any
orders of guardianship entered pursuant to subdivisions (r)(4)(D) and (E) or
20
pursuant to § 36-1-116 shall have priority over the orders of guardianship
entered pursuant to this subdivision (r)(4)(C); provided, that orders
terminating parental rights entered pursuant to this subdivision (r)(4)(C)
shall be effective to terminate parental rights.
(D) If the person, persons or entities in subdivision (r)(4)(B) to whom the
surrender is made have legal and physical custody of the child or the right
to legal and physical custody of the child pursuant to a prior court order at
the time the surrender is executed to them, any court with jurisdiction to
receive a surrender may receive a surrender that is executed to them and
shall have jurisdiction, upon their motion, to enter an order giving
guardianship or partial guardianship to the person, persons or entities,
and, notwithstanding subdivision (r)(4)(A), such order may make an
alternate disposition for the child.
....
(6)(A) Subject to the restrictions of subdivisions (r)(2) and (4), a validly
executed surrender under this section . . . shall give to the person to whom
the child is surrendered . . . standing to file a written motion for an express
order of guardianship or partial guardianship, as defined in § 36-1-102,
from the court where the child was surrendered or where, under subsection
(q), the surrender was filed, or in the court that, pursuant to subdivision
(r)(4)(A), has granted legal custody of the child to such person, or in the
court in which the adoption petition is filed. A validly executed surrender
shall entitle the department or the licensed child-placing agency that
received the surrender to have the court enter an order of guardianship
pursuant to subdivision (r)(6)(C).
....
(C) If the person, the department, or the licensed child-placing agency to
whom the child is surrendered . . . has physical custody or has otherwise
complied with the requirements of subdivision (d)(6), and if there has been
full compliance with the other provisions of this section, the court may,
contemporaneously with the surrender or the filing of an adoption petition,
immediately upon written motion by the person or the person's attorney,
and the court shall, if the surrender is to a licensed child-placing agency or
the department, enter an order giving the person, the licensed child-placing
agency, or the department, guardianship or partial guardianship of the
child.
21
Tenn. Code Ann. § 36-1-111(r) (emphasis added).
The jurisdictional provisions of the surrender statute are certainly not a model of
clarity. We recognize that subsection (r)(4)(D) of the surrender statute, if read in
isolation, would appear to allow any court that has jurisdiction to receive a surrender to
also enter an order of guardianship to an entity receiving a surrender if that entity already
has legal and physical custody of the child. However, we believe that a guardianship
order pursuant to subsection (r)(4)(D) of the surrender statute cannot be entered when an
adoption court has previously assumed exclusive jurisdiction and any guardianship
actions were thereby suspended pursuant to section 36-1-116(f). We interpret subsection
(r)(4)(D) of the surrender statute as authorizing the entry of a guardianship order only in
the absence of a suspension due to a pending adoption petition. Likewise, we believe
subsection (r)(6) of the surrender statute entitles DCS to obtain the entry of an order of
guardianship only in the absence of any existing suspension of guardianship proceedings
pursuant to the adoption statute. According to the adoption statute,
Except for proceedings concerning allegations of delinquency, unruliness,
or truancy of the child under title 37, any proceedings that may be pending
seeking the custody or guardianship of the child or visitation with the child
who is in the physical custody of the petitioners on the date the petition is
filed, or where the petitioners meet the requirement of § 36-1-111(d)(6),
shall be suspended pending the court’s orders in the adoption proceeding[.]
Tenn. Code Ann. § 36-1-116(f)(2) (emphasis added). The adoption statute specifically
exempts delinquency, unruliness, and truancy proceedings from the suspension, but it
does not provide a similar exception for guardianship actions in the context of a surrender
proceeding. The recent amendment makes clear that suspended guardianship
proceedings “regardless of the stage of adjudication, shall not be heard until final
adjudication of the action for . . . adoption regarding the same child, even if such
adjudication of the . . . adoption will render the . . . guardianship . . . action moot.”10
10
One of the primary purposes of the adoption statutes is “to ensure, to the greatest extent possible, that . .
. [t]he adoptive process protects the rights of all persons who are affected by that process[.]” Tenn. Code
Ann. § 36-1-101(a)(4). We believe that our interpretation of the adoption statute is consistent with that
stated purpose and permits the adoption court to make informed decisions regarding the child with notice
to the interested parties in the adoption proceeding. As the facts of this case demonstrate, DCS’s
interpretation would arguably permit a court to enter an immediate order of guardianship in the context of
a private surrender proceeding without notice to the parties in the adoption proceeding or the child’s
guardian ad litem and without hearing evidence regarding the child’s best interest, while at the same time
binding the hands of the adoption court if the newly appointed guardian does not consent to the adoption.
Such an interpretation would not serve the stated purpose of protecting the rights of all persons involved
in the adoptive process.
22
Tenn. Code Ann. § 36-1-116(f)(2); see also Dawn Coppock, Coppock on Tennessee
Adoption Law 80 (2005) (“Pending proceedings seeking custody, guardianship or
visitation . . . are suspended pending the court’s orders in the adoption.”).
Turning to the facts of the case before us, the chancery court had exclusive
jurisdiction over all matters pertaining to the child due to the filing of the adoption
petition in 2014. Pursuant to the adoption statute, 36-1-116(f), any separate proceedings
seeking guardianship of the child should have been suspended pending the court’s orders
in the adoption proceeding and should not have been heard until final adjudication of the
adoption action. The chancery court therefore was not authorized to enter the May 11,
2015 order awarding full guardianship of Neveah to DCS in the context of the surrender
proceeding, and the chancery court should have granted Foster Parents’ motion to set
aside or vacate the order of guardianship.
The trial court did not discuss these statutes regarding jurisdiction and suspension
of guardianship proceedings. It denied Foster Parents’ motion to set aside or vacate the
order of guardianship upon finding that “the order of full guardianship cannot be attacked
more than thirty days after the entry of the order” pursuant to Tennessee Code Annotated
section § 36-1-112(d). The referenced statute, entitled “Revocation of surrender and
parental consent; form,” provides:
After the revocation period has expired or after the court has entered
an order confirming a parental consent, no surrender or waiver of interest
or parental consent shall be set aside by a court except upon clear and
convincing evidence of duress, fraud, intentional misrepresentation or for
invalidity under § 36-1-111(d), and no surrender, waiver of interest, or
parental consent may be set aside for any reason under this part unless the
action based on these grounds is initiated within thirty (30) days of the
execution of the surrender, waiver of interest or within thirty (30) days of
the date of entry of the order of confirmation of the parental consent.
Tenn. Code Ann. § 36-1-112(d) (emphasis added). By its terms, this statute applies to
surrenders, not to orders of guardianship. The trial court erred in refusing to set aside the
order of guardianship based on this statute.
The trial court also added that “the Guardian ad Litem and [Foster Parents] have
no standing to challenge the order of full guardianship. See Allen v. Wright, 46[8] U.S.
737, 751 (1984) (a litigant is barred from raising another person’s legal rights).”
However, Foster Parents were not seeking to litigate another person’s legal rights by
filing the motion to set aside the order of guardianship. They were seeking to protect
their own rights, as they had previously filed an adoption petition as prospective adoptive
23
parents and were denied the right to pursue that petition based on the entry of the order of
guardianship. Courts use the doctrine of standing “to determine whether a party has a
sufficiently personal stake in a matter at issue to warrant a judicial resolution of the
dispute.” Metro. Gov’t of Nashville v. Bd. of Zoning Appeals of Nashville, 477 S.W.3d
750, 755 (Tenn. 2015). We conclude that Foster Parents had sufficient standing to
challenge the order of guardianship.
For the aforementioned reasons, we hereby vacate and set aside the chancery
court’s May 11, 2015 order of guardianship.
E. The petitions for Foster Parents to obtain custody and/or adopt
The trial court dismissed as moot the petition for custody to be removed from DCS
and granted directly to Foster Parents due to the order awarding guardianship to DCS.
The trial court also dismissed Foster Parents’ petition for adoption, finding that “[t]he
only way [Foster Parents] can adopt is if the Department’s guardianship is terminated or
the Department consents to them adopting Neveah, neither of which has occurred.”
Because we have set aside and vacated the order of guardianship, the dismissal of the
custody petition and adoption petition on these bases is unwarranted.
The trial court also found, perhaps alternatively, that Foster Parents “do not have
the right to custody of Neveah nor do they meet the requirements of T.C.A. § 36-1-
111(d)(6) to receive custody of her, so they cannot prevail on their Adoption Petition.”
Tennessee Code Annotated section 36-1-115 addresses those eligible to file an adoption
petition:
The petitioners must have physical custody or must demonstrate to the
court that they have the right to receive custody of the child sought to be
adopted as provided in § 36-1-111(d)(6) at the time the petition is filed,
unless they are filing an intervening petition seeking to adopt the child.
Tenn. Code Ann. § 36-1-115(b) (emphasis added). Foster Parents had physical custody
of Neveah as her foster parents when they filed their petition for termination and for
adoption in April 2014.
The concept of physical custody is synonymous with having physical possession
of the child and does not require a court order or other judicial act. In re Joseph F., 492
S.W.3d 690, 700 (Tenn. Ct. App. 2016). Physical custody can be granted by a parent,
guardian, child-placing agency, or court. Id. at 701. Although the adoption statutes did
not define “physical custody” at the time of the Joseph F. decision or the proceedings
below, the legislature has since provided a statutory definition, effective July 1, 2016,
24
that is consistent with the common sense definition espoused in Joseph F. “Physical
custody” is now statutorily defined as “physical possession and care of a child.” Tenn.
Code Ann. § 36-1-102(39). The statutory definition goes on to say:
“Physical custody” may be constructive, as when a child is placed by
agreement or court order with an agency, or purely physical, as when any
family, including a formal or informal foster family, has possession and
care of a child, so long as such possession was not secured through a
criminal act. An agency and a family may have physical custody of the
same child at the same time.
Id. Because Foster Parents had physical custody of Neveah “at the time the petition
[was] filed,” Tenn. Code Ann. § 36-1-115(b), as the adoption statute requires, Foster
Parents had standing to file and pursue their adoption petition.
We discern no statutory requirement that petitioners must also maintain physical
custody throughout the entirety of the adoption proceeding. The adoption statute
provides:
[U]nless 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).
Tenn. Code Ann. § 36-1-116(f)(1) (emphasis added). Moreover, “standing is determined
as of the date of the filing of the complaint[.]” LaFollette Med. Ctr. v. City of LaFollette,
115 S.W.3d 500, 504 (Tenn. Ct. App. 2003). Foster Parents had physical custody and
standing at the time of filing of the adoption petition. DCS could not unilaterally defeat
Foster Parents’ standing to pursue their adoption petition simply by removing Neveah
from their foster home.
For these reasons, the trial court’s only stated reasons for denying or dismissing
the pending petitions for Foster Parents to either obtain custody of Neveah or adopt her
were erroneous and are hereby reversed.
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F. Current Foster Mother
According to the original record transmitted to this Court, Current Foster Mother’s
participation in this case began on August 11, 2015, with her filing of an “Intervening
Memorandum in Support of Motion to Dismiss Amended Petition for Injunctive Relief
and for Custody of the Minor Child to be Awarded to [Foster Parents] Pursuant to Rule
12.02(6),” in which Current Foster Mother urged the trial court to grant a motion to
dismiss that was previously filed by DCS. Within the context of this memorandum in
support of the motion to dismiss, Current Foster Mother also stated,
BACKGROUND
Subject to the Courts approval, [Current Foster Mother] respectfully
asks this Court to allow her to intervene in the instant proceedings and as
grounds for her request she provides the following background information.
[Current Foster Mother] avers that she is the current foster mother through
the Tennessee Department of Children’s Services, for the above referenced
child, that the child has resided in her home for more than twelve months
(since June 25, 2014) and that it is her desire to adopt the child as
evidenced by the Intervening Petition for Adoption filed by her on August
7, 2015.
The memorandum went on to address the merits of the motion to dismiss. Current Foster
Mother never filed a motion to intervene, and no order was entered allowing her to
intervene. No intervening petition for adoption appeared in the original record
transmitted to this Court. However, Current Foster Mother participated in the final
hearing of this matter and was ultimately permitted to adopt Neveah.
After the GAL filed his notice of appeal to this Court on April 28, 2016, and the
record was transmitted to this Court, the parties discovered that the record did not contain
any adoption petition filed by Current Foster Mother. On August 19, 2016, Current
Foster Mother filed in the chancery court a “Motion to Correct the Record and to Allow
[Current Foster Mother] to Intervene as a Petitioner Nunc Pro Tunc.” Current Foster
Mother sought relief from the chancery court pursuant to Tennessee Rule of Civil
Procedure 60.01 and Tennessee Rule of Appellate Procedure 24(e). Current Foster
Mother stated in the motion that she had filed her intervening petition for adoption with
the chancery court clerk on August 7, 2015. However, she admitted that “[n]o proper
motion for leave to intervene was ever filed and no order granting leave to intervene was
ever entered.” Current Foster Mother noted that she was allowed to participate as a party.
She sought an order from the chancery court permitting her to intervene nunc pro tunc to
August 7, 2015, and requested that her pleadings be added to the appellate record.
26
Foster Parents and the GAL filed separate responses to Current Foster Mother’s
motion, both asserting that the chancery court was without jurisdiction to hear a Rule 60
motion after the filing of a notice of appeal without first obtaining leave of the appellate
court.
The chancery court held a hearing on the matter on September 2, 2016. During
the hearing, the GAL and counsel for Foster Parents argued, again, that the chancery
court had no jurisdiction to consider the motion due to the pending appeal. Both
attorneys suggested that the proper procedure would be for Current Foster Mother to
approach the appellate court and seek leave to address the trial court regarding the issue.
Counsel for Current Foster Mother suggested that the trial court retained jurisdiction to
correct errors or omissions in the record pursuant to Tennessee Rule of Appellate
Procedure 24(e). She acknowledged, though, that she never filed a proper motion to
intervene or obtained the entry of an order granting intervention in the original
proceedings. The trial court granted Current Foster Mother’s motion without elaboration.
Before the hearing ended, the clerk of the court stated that she had researched the issue
and determined that “there was an attempt to file.” She explained that counsel for
Current Foster Mother gave documents to the filing department, which were stamped, but
the documents were subsequently “removed” by the filing department. Counsel for
Current Foster Mother stated that she only learned of the problem with the documents
after the notice of appeal was filed and she reviewed her records and determined that she
“did not properly proceed in this matter” regarding the intervention.
On September 19, 2016, the chancery court entered an “Order Granting Petitioner,
[Current Foster Mother’s] Motion for Leave to Intervene Nunc Pro Tunc and Order to
Supplement the Appellate Record.” The order stated that the request for leave to
intervene as a petitioner nunc pro tunc was well taken and granted “back to August 7,
2015.” The court also found that the pleadings presented to and stamped by the clerk
were “relevant to the issues in this matter and are properly includable in the record.”
On appeal, Foster Parents assert that the trial court erred in granting Current Foster
Mother leave to intervene retroactively and ordering pleadings that had been refused by
the clerk of court to be included in the appellate record, all without permission from this
Court.
“It should now be plain that once a party perfects an appeal from a trial court’s
final judgment, the trial court effectively loses its authority to act in the case without
leave of the appellate court.” First Am. Trust Co. v. Franklin-Murray Dev. Co., 59
S.W.3d 135, 141 (Tenn. Ct. App. 2001). We must examine the rules invoked by the trial
court and cited as the basis for providing relief to Current Foster Mother in order to
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determine whether the trial court was authorized to provide the relief she requested
during the pendency of this appeal.
Tennessee Rule of Civil Procedure 60.01 provides:
Clerical mistakes in judgments, orders or other parts of the record, and
errors therein arising from oversight or omissions, may be corrected by the
court at any time on its own initiative or on motion of any party and after
such notice, if any, as the court orders. During the pendency of an appeal,
such mistakes may be so corrected before the appeal is docketed in the
appellate court, and thereafter while the appeal is pending may be so
corrected with leave of the appellate court.
(Emphasis added.) Pursuant to Tennessee Rule of Appellate Procedure 5(c), for an
appeal as of right, “[t]he clerk of the appellate court shall enter the appeal on the docket
immediately upon receipt of the copy of the notice of appeal served upon the clerk of the
appellate court by the trial court clerk[.]” Here, the appeal was docketed in this Court on
May 6, 2016. Thereafter, leave of this Court was required before the trial court could
take action pursuant to Tennessee Rule of Civil Procedure 60.01. However, no leave was
sought or obtained in this matter prior to the chancery court’s order of September 19,
2016.
In Burke v. Huntsville NH Operations LLC, 491 S.W.3d 683 (Tenn. Ct. App.
2015), this Court considered a similar attempt by a trial court to utilize Rule 60.01 to
enter an order during the pendency of an appeal without leave of the appellate court. We
explained that “the trial court was without authority to act once the notice of appeal was
received and docketed by this Court unless the [litigant] sought and received leave from
this Court.” Id. at 692. We ultimately concluded that “absent a remand from this court,
the trial court was without jurisdiction to act on the Tennessee Rule of Civil Procedure
60.01 motion while this appeal was pending.” Id. at 684. We further held that the trial
court’s order granting relief pursuant to Rule 60.01 was void. Id. at 692.
For the same reasons, we conclude that Rule 60.01 did not authorize the trial court
to enter the September 19, 2016 order while this appeal was pending without leave of the
appellate court. We express no opinion as to whether Current Foster Mother would have
been entitled to relief under Rule 60.01 if leave had been obtained from this Court. When
an appellate court determines that a trial court lacked subject matter jurisdiction, it must
vacate the order without reaching its merits. See First Am. Trust Co., 59 S.W.3d at 141.
In this case, the trial court also cited Tennessee Rule of Appellate Procedure 24(e)
as a basis for entering its order. Tennessee Rule of Appellate Procedure 24 governs the
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content of the record on appeal. “The appellate record provides the boundaries of an
appellate court’s review.” State v. Smotherman, 201 S.W.3d 657, 660 (Tenn. 2006). The
record is to contain “copies, certified by the clerk of the trial court, of all papers filed in
the trial court,” with certain exceptions. Tenn. R. App. P. 24(a). Rule 24 further
provides:
(e) Correction or Modification of the Record. If any matter properly
includable is omitted from the record, is improperly included, or is
misstated therein, the record may be corrected or modified to conform to
the truth. Any differences regarding whether the record accurately discloses
what occurred in the trial court shall be submitted to and settled by the trial
court regardless of whether the record has been transmitted to the appellate
court. Absent extraordinary circumstances, the determination of the trial
court is conclusive. If necessary, the appellate or trial court may direct that
a supplemental record be certified and transmitted.
....
(g) Limit on Authority to Add or Subtract From the Record. Nothing in this
rule shall be construed as empowering the parties or any court to add to or
subtract from the record except insofar as may be necessary to convey a
fair, accurate and complete account of what transpired in the trial court with
respect to those issues that are the bases of appeal.
(Emphasis added.) “Omissions, improper inclusions, and misstatements may be
remedied at any time, either pursuant to stipulation of the parties or on the motion of a
party or the motion of the trial or appellate court.” Tenn. R. App. P. 24, Adv. Comm’n
Cmt.
As subsection (g) indicates, “The trial court’s authority to add to or subtract from
the record is not unlimited.” State v. Housler, 167 S.W.3d 294, 296 (Tenn. 2005).
However, pursuant to subsection (e), “absent extraordinary circumstances, an appellate
court does not have the authority to refuse to consider matters that are determined by the
trial court judge to be appropriately includable in the record.” Id. (quoting Bradshaw v.
Daniel, 854 S.W.2d 865, 869 (Tenn. 1993)).
As for what is “properly includable,” our supreme court has stated that “any matter
that the trial court has appropriately considered is properly includable in the appellate
record . . . when the matter is ‘necessary to convey a fair, accurate and complete account
of what transpired [in the trial court] with respect to those issues that are the bases of
appeal.’” Smotherman, 201 S.W.3d at 661 (emphasis added) (quoting Tenn. R. App. P.
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24(g)).
Applying these principles to the case at bar, it becomes clear that Rule 24(e) did
not authorize the trial court to enter an order nunc pro tunc granting Current Foster
Mother leave to intervene in the trial court proceedings when Current Foster Mother did
not file a motion to intervene in the trial court, and the trial court made no ruling during
the original proceedings regarding intervention. This was not a situation involving a
matter that was “properly includable” being “omitted from the record,” as addressed in
Rule 24(e). The trial court’s order granting leave to intervene nunc pro tunc does not
convey an accurate account of “what transpired in the trial court.” See Tenn. R. App. P.
24(g). “A nunc pro tunc entry is an entry made now of something which was actually
previously done, to have effect as of the former date.” Cook v. Alley, 419 S.W.3d 256,
261 (Tenn. Ct. App. 2013) (quoting Cantrell v. Humana of Tenn., Inc., 617 S.W.2d 901,
902 (Tenn. Ct. App. 1981)). “Its office is not to supply omitted action by the court, but to
supply an omission in the record of action really had where entry thereof was omitted
through inadvertence or mistake.” Id. A nunc pro tunc entry “may not be granted to
relieve an attorney from the consequences of his own failure to comply with the rules, but
only to correct mistakes or omissions arising from the actions of the court itself.”
Dewees v. Sweeney, 947 S.W.2d 861, 864 (Tenn. Ct. App. 1996). The portion of the trial
court’s order allowing Foster Mother to intervene nunc pro tunc under Rule 24(e) and/or
Rule 60.01 is hereby vacated.
The second part of the trial court’s September 19, 2016 order concerns the
pleadings that Current Foster Mother attempted to file in the trial court. When ordering
those pleadings to be added to the record on appeal, the trial court noted that the
pleadings were presented to the court clerk, stamped as filed, and copies were provided to
all of the lawyers. Even though the pleadings were not ultimately accepted by the clerk,
the trial court ruled that these pleadings were “relevant to the issues in this matter and []
properly includable in the record” on appeal. The trial court ruled that the intervening
adoption petition was “hereby supplemented into the appellate record.” The
supplemental appellate record contains the intervening petition for adoption with a stamp
from the clerk’s office containing the word “FILED,” although the spaces underneath that
would ordinarily contain handwriting indicating the time of filing and the person who
filed the document are blank.
The Tennessee Supreme Court has upheld supplementation of the appellate record
by the trial court under Rule 24 in several cases involving matters that were not properly
introduced into evidence at trial but were for other reasons properly considered. See, e.g.,
Housler, 167 S.W.3d at 298 (concerning a transcript of a separate trial used by both sides
and the trial judge during trial and put before the court for consideration, although it was
never admitted into evidence); Johnson v. Hardin, 926 S.W.2d 236 (Tenn. 1996)
30
(involving portions of a transcript attached to a motion for new trial in the technical
record but not properly filed and certified as a transcript); State v. Causby, 706 S.W.2d
628, 633 (Tenn. 1986) (involving affidavits filed in support of a motion for new trial but
not admitted into evidence).
Here, the trial court’s final order referenced Current Foster Mother’s intervening
petition for adoption, and the court clearly considered it before ultimately granting the
adoption by Current Foster Mother. Because of the deference we afford to a trial court’s
decision regarding the matters properly includable in the appellate record, see Housler,
167 S.W.3d at 296, we cannot say that the trial court erred in supplementing the appellate
record with the pleadings that Current Foster Mother unsuccessfully attempted to file in
the trial court in order to “convey a fair, accurate and complete account of what
transpired in the trial court with respect to those issues that are the bases of appeal.” See
Tenn. R. App. P. 24(g). However, this conclusion regarding supplementation of the
appellate record does not necessarily mean that it was proper for the trial court to
ultimately grant Current Foster Mother’s petition for adoption in the proceedings below.
We now consider that issue.
Current Foster Mother basically participated in the trial below without filing a
motion to intervene and without the entry of any order permitting her to intervene. “It is
fundamental that ‘[a] person who is not a party of record to a lawsuit has no standing
therein which enables him or her to take part in the proceedings.’” City of New
Johnsonville v. Handley, No. M2003-00549-COA-R3-CV, 2005 WL 1981810, at *10
(Tenn. Ct. App. Aug. 16, 2005), perm. app. denied (Tenn. Feb. 6, 2006) (quoting In re
Estate of Reed, No. W2003-00210-COA-R3-CV, 2004 WL 1488568 (Tenn. Ct. App. July
1, 2004)). Even if Current Foster Mother had filed a proper motion to intervene, which
she did not, “a person does not automatically become a party to an action simply by filing
a motion to intervene.” Carson v. Challenger Corp., No. W2006-00558-COA-R3-CV,
2007 WL 177575, at *4 (Tenn. Ct. App. Jan. 25, 2007). “When a person moves to
intervene and the trial court never rules on the motion, the person is not a party and has
no standing to participate in the proceedings, including on appeal.” Reynolds v. Tognetti,
No. W2010-00320-COA-R3-CV, 2011 WL 761525, at *7 (Tenn. Ct. App. Mar. 4, 2011)
(citing Carson, 2007 WL 177575, at *4).
In Boles v. Smith, 37 Tenn. 105, 5 Sneed (TN) 105, 1857 WL 2560 (Tenn. 1857),
the supreme court considered a case in which a nonparty took part in ejectment
proceedings but was never made a party of record. The nonparty was a landlord who
essentially presented his title papers and took over the presentation of a case even though
his tenant was the named party. Id. at 106. The opposing party argued that because the
landlord “in point of fact” was allowed to conduct the defense and avail himself of the
advantages that he would have possessed if a formal party of record, he should not be
31
allowed to institute a second lawsuit against the opposing party. Id. at 107. The supreme
court concluded that the landlord was not bound by the previous judgment because he
was not a named party “in the legal sense of the term, and the fact that he officiously, or
by the favor of the court, was permitted to interfere in conducting the [defense], does not
affect the question; he had no legal right to do so.” Id. at 107-108. See also Carson,
2007 WL 177575, at *3 (rejecting the contention that a person “effectively became a
party” by filing a motion to intervene, filing another motion, and signing consent orders,
when no order was entered allowing intervention); Cowan v. Tipton, 1 F.R.D. 694, 694
(E.D. Tenn. 1941) (“a person cannot become an intervening party on his own motion.”).
With these principles in mind, we conclude that Current Foster Mother was not a
party of record and had no standing to participate in the trial court proceedings. In fact,
Current Foster Mother’s status as a nonparty apparently led the clerk’s office to remove
or reject her pleadings. She was not an original party, she did not file a motion to
intervene until after this appeal was filed, and the order purportedly granting intervention
nunc pro tunc was improperly entered and has been vacated.11 Because Current Foster
Mother was not a party of record in the adoption proceeding, the trial court erred in
granting her an adoption, and we hereby vacate the adoption order. See, e.g., J.A.W. v.
G.H., 72 So. 3d 1254, 1257 (Ala. Ct. App. 2011) (holding that foster parents were not
parties to a dependency proceeding even though their attorney filed a notice of
appearance and they participated in the reunification process developed by the court,
where no motion to intervene was filed and no order was entered making them parties,
therefore the court’s injunction against the foster parents was void); B.V. v. Macon Cty.
Dep’t of Human Res., 14 So. 3d 171, 175 (Ala. Ct. App. 2009) (affirming dismissal of a
custody petition filed by foster parents in the context of a dependency proceeding
because they were never granted permission to intervene and were “not parties in this
case,” so the trial court lacked jurisdiction to consider their custody petition even though
they had filed other motions and participated in the proceeding for several years); Boggs
v. Com. ex rel. Boggs, No. 2010-CA-001401-MR, 2012 WL 3236060, at *3-4 (Ky. Ct.
App. Aug. 10, 2012), appeal denied (Ky. Feb. 13, 2013) (concluding that the state did not
11
In Lamar Advert. Co. v. By-Pass Partners, 313 S.W.3d 779, 788 (Tenn. Ct. App. 2009), we
construed a trial court’s inartfully drawn order as implicitly granting a motion to intervene when
a motion to intervene was actually filed, the issue was clearly put before the court, and the
court’s order did not explicitly state that intervention was granted but added the party’s name to
the style of the case and granted relief that the party sought. Considering those circumstances,
we concluded that the court effectively and implicitly granted the motion to intervene. Here,
however, Current Foster Mother conceded that she never filed a motion to intervene or obtained
an order on intervention. We cannot conclude that the trial court implicitly granted a motion that
was never filed. See, e.g., Pfizer, Inc. v. Farr, No. M2011-01359-COA-R10-CV, 2012 WL
2370619, at *8 (Tenn. Ct. App. June 22, 2012) (“As no motion to intervene was made, the trial
court’s ruling on a non-existent motion is, of course, a nullity.”).
32
properly intervene in a post-divorce case prior to filing a motion to set child support,
therefore it was not a party, its motion to set child support was ineffectual, and the child
support order entered thereafter was void).
G. Disposition
To briefly summarize, we have set aside and vacated the order of full guardianship
to DCS, rejected the trial court’s stated reasons for denying Foster Parents’ petition for
adoption and request for legal custody, and held that the trial court erred in granting
Current Foster Mother an adoption because she was not a party of record. The remaining
question is -- what proceedings should take place on remand? Before the final
evidentiary hearing, the trial court ruled that he would hear proof on both of the
competing petitions to adopt and “see where we go from there.” Accordingly, both
Foster Parents and Current Foster Mother were permitted to present their proof regarding
their respective petitions. Foster Parents asked the court to either grant their adoption
petition outright or alternatively award them custody and allow them to proceed with
pursuing an adoption. The trial court denied Foster Parents’ adoption petition and request
for legal custody due to the existence of the order of guardianship and the lack of consent
by DCS. As a result, the court made no findings regarding whether a change in legal
custody or an adoption by Foster Parents would serve Neveah’s best interest or whether
Foster Parents otherwise met all of the other requirements for an adoption. We decline to
make those determinations in the first instance and remand for the trial court to make
those decisions. Recognizing, as we did above, that lives do not stand still during the
appellate process, we expressly authorize the trial court to hold an additional hearing on
remand if necessary. Nothing in this opinion should be construed as prohibiting Current
Foster Mother from filing a proper motion to intervene in the proceedings on remand.
Appellate courts view the record and the proceedings in the trial court in a rather
sterile vacuum, removed from the emotion that so often prevails in litigation. Despite
this, the fact remains that everyone involved in this litigation has very strong feelings.
This child happens to have two sets of foster caregivers who love her and want the best
for her. We urge the parties to continue to have the best interest of this child as the focal
point on remand, including the clear need for permanent resolution in the interest of the
child’s stability.
IV. CONCLUSION
Any remaining issues are pretermitted. The decision of the chancery court is
hereby affirmed in part, vacated in part, reversed in part, and remanded for further
proceedings. Costs of this appeal are taxed to appellee, the Tennessee Department of
Children’s Services.
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_________________________________
BRANDON O. GIBSON, JUDGE
34