IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 15, 2011 Session

IN RE: DON JUAN J.H., et al.

Appeal from the Chancery Court for Bledsoe County

No. 3105 Hon. Jeffrey F. Stewart, Chancellor

No. E2010-01799-COA-R3-JV-FILED-SEPTEMBER 7, 2011

Petitioners filed a Petition to Adopt the minor child, Don Juan J.H., and the Department of

Children's Services then filed a Waiver of Guardianship stating that DCS approved of

adoption by the petitioners. The Trial Court granted petitioners partial guardianship of the

child before trial, and the appellants filed a Petition to Intervene in the adoption proceeding

which the Trial Court granted. Upon trial of the case, the Trial Court dismissed appellants'

intervening petition and granted the adoption. Appellants appealed, arguing that the Trial

Court refused to conduct a comparative fitness analysis between petitioners and appellants

to determine the best interests of the child. We affirm the Judgment of the Trial Court

because appellants were required to contest the guardianship before they would have been

eligible to petition for adoption of the child.

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

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D.

SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined.

Philip M. Jacobs, Cleveland, Tennessee, for the appellants, Nathan and Pamela Riddle.

Alice W. Wyatt, Dunlap, Tennessee, for the appellees, Kelly and Misty Thurman.

Robert E. Cooper, Jr., Attorney General and Reporter, and Marcie E. Greene, Assistant

Attorney General, Nashville, Tennessee, for the Tennessee Department of Children's

Services.
OPINION

Background

Misty and Kelly Thurman, DCS, and N.H. filed a Petition for Voluntary Surrender on

August 4, 2009, alleging that the Thurmans were the foster parents of J.H. (d.o.b. 1/25/09)

and DonJuan J.H. (d.o.b. 1/17/08), and that the children had been in their custody since

January 2009. The petitioners stated that N.H. was the biological mother of the children, and

that DCS had been granted partial guardianship of the children. The petitioners stated that

the mother wished to surrender her parental rights to the foster parents so that they could

adopt the children. DCS joined in the petition to concur that the mother should surrender her

rights to the Thurmans, and that it was in the children’s best interests that the Thurmans

adopt them.

The Thurmans then filed a Petition for Adoption on August 11, 2009, and stated the

father had already surrendered his rights to the children, and that the mother was in the

process of doing so. DCS filed a Waiver of Guardianship, stating that DCS was waiving its

rights to accept the mother’s surrender in favor of the Thurmans, and that DCS approved of

adoption by the Thurmans.

The Trial

The record contains the documents relating to the mother’s surrender of the children,

and also the home study that was completed on the Thurmans. A Motion to Intervene was

then filed by Nathan and Pamela Riddle, the former foster parents of DonJuan J.H. The

Riddles stated that they had custody of the child from the time he was removed from his

parents on June 3, 2008, until January 14, 2009, when he was removed from their home and

given to the Thurmans. The Riddles alleged that they were the adoptive parents of Gabriel,

DonJuan J.H.’s sibling, and that it was in DonJuan J.H.’s best interests to be with them.

The Thurmans filed a Motion for Partial Guardianship, seeking to have partial

guardianship of DonJuan J.H., and J.H. because the mother had surrendered to them, and

because they had physical custody of the children. The Court granted the Thurmans partial

guardianship on September 14, 2009.

The Thurmans filed a Response to the Riddles’ Petition, stating that DonJuan J.H.

should be with them and with his sister and not the Riddles. DCS filed a Motion to Intervene

by Right, stating that they had partial guardianship of the children, and believed the children

should be with the Thurmans and had information to provide to the Court regarding the issue.

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DCS then filed a Complaint to Support Adoption and to Present Evidence for the

Children’s Best Interests, stating that DCS had not given the Riddles permission to adopt

DonJuan J.H., and that if they did so, it would take him away from his sister whom he dearly

loved. DCS argued that since DCS and the Thurmans had joint guardianship of the children,

the Riddles would either have to have the guardianship rights of DCS/Thurmans terminated

or DCS/Thurmans would have to consent to the adoption, neither of which had occurred.

The Trial Court entered an Order, stating that it held a hearing on the intervening

petition, and heard evidence and accepted exhibits from the Riddles. The Court rendered its

Memorandum Opinion from the bench and ruled that the intervening petition did not rise to

the level of proof necessary to prevent adoption by the Thurmans, and dismissed the

intervening petition. The Riddles then filed a Motion for a new trial or to alter or amend,

which DCS and the Thurmans opposed. The Trial Court denied the Motion. The Riddles

then filed a Notice of Appeal.

The intervenors' issue on appeal is: Did the Trial Court err in refusing to conduct a

comparative fitness analysis between the Thurmans and the Riddles to determine the best

interest of the child in this contested adoption proceeding?

Analysis

The Riddles argue that the Trial Court erred in failing to conduct a comparative fitness

analysis, and rely upon the Supreme Court’s opinion in In re: Sidney J., 313 S.W.3d 772

(Tenn. 2010), which mandates that the court conduct a comparative fitness analysis to

determine who should adopt when faced with two competing adoption petitions.

In re: Sidney J. concerned a child whose father had shot and killed her mother, and

after her father was taken into custody, her maternal grandparents took custody of her. Id.

Both the maternal grandparents and the paternal grandparents petitioned to adopt her, and the

trial court did a comparative fitness analysis and determined that the paternal grandparents

should adopt. Id.

The maternal grandparents appealed, and this Court reversed, finding that the paternal

grandparents did not meet the physical custody requirements of the adoption statute. Id. The

Supreme Court held, however, that Tenn. Code Ann. §36-1-115 stated that an adoption

petition could only be filed by a party who had physical custody of the child or who had the

right to receive custody, unless they were filing an intervening petition. Id. The Court held

that the other provisions in the statute relating to physical custody did not apply when there

was an intervening petition involved, and that the trial court did not err in considering the

intervening petition even though the paternal grandparents did not have physical custody.

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Id.

The Supreme Court then discussed the trial court’s analysis of the two competing

petitions, and said:

One stated purpose of Tennessee's adoption statutes is to protect “[t]he rights of

children to be raised in loving homes that are capable of providing proper care for

adopted children and that the best interests of children in the adoptive process are

protected.” Tenn. Code Ann. § 36–1–101(a)(3) (2005). Although Tennessee's

adoption statutes do not outline a specific procedure by which a trial court evaluates

two competing adoption petitions, a comparative fitness analysis furthers the purpose

of ensuring that a child is placed in the best possible home. Indeed, trial courts

currently engage in a comparative fitness analysis to determine which parent is the

more fit custodian. In re C.K.G., 173 S.W.3d at 732; Parker v. Parker, 986 S.W.2d

557, 562 (Tenn. 1999); see Tenn. Code Ann. § 36–6–106 (2005 & Supp. 2009).

In re: Sidney J., 313 S.W.3d 772, 776 (Tenn. 2010).

In response, the Thurmans and DCS argue that In re: Sidney is not applicable because

the Riddles and the Thurmans were not on equal footing in this case. They argue that

because they had guardianship of the children, they would either have to consent to the

adoption or have their guardianship rights terminated pursuant to Tenn. Code Ann. §36-1-

113, before the Riddles could possibly seek to adopt DonJuan J.H. Further, they argue that

Sidney is not factually similar, because there was no indication in Sidney that there had been

any order of guardianship entered, so both sets of grandparents were equally situated.

Tenn. Code Ann. §36-1-113 is the statutory provision which governs termination of

parental rights, and it expressly states that it also applies to terminate guardianship rights as

well. Accordingly, unless guardianship rights are voluntarily relinquished by the guardian,

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they must be terminated in the same manner as parental rights. We have previously held that,

when former foster parents filed an intervening petition to adopt a child that DCS had

guardianship rights over, the former foster parents would have to (among other things) seek

to terminate the guardianship rights of DCS pursuant to Tenn. Code Ann. §36-1-113 before

they could adopt the children without the voluntary consent of DCS. In re: Devon W., 2010

For example, itstates: “chancery and circuit courts shall have concurrent jurisdiction

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with the juvenile court to terminate parental or guardianship rights to a child in a separate

proceeding, or as a part of the adoption proceeding by utilizing any grounds for termination

of parental or guardianship rights permitted in this part”. Tenn. Code Ann. §36-1-113(a).)

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WL 1526306 (Tenn. Ct. App. Apr. 16, 2010).

This Court has also held that when DCS has been granted guardianship of a child,

Tenn. Code Ann. §36-1-102 and 113 grant DCS the right to place the child for adoption, and

to consent to the adoption. In re E.M., II, 2006 WL 3007511 (Tenn. Ct. App. Oct. 24, 2006).

Thus, we held that where the trial court disagreed with DCS’ choice of a potential adoptive

parent (because she was a single mother) and terminated the biological parents’ rights but

ordered that DCS find a dual-parent home for the child, the trial court exceeded its authority.

Id. It is clear based upon these cases and the plain wording of the statute, that when partial

guardianship has been granted to DCS or any party, the guardianship carries certain rights

that must be dealt with before another party can adopt the child. In this case, the Riddles

sought to intervene to adopt DonJuan J.H., but did not seek to terminate the guardianship

rights of DCS or the Thurmans, and neither DCS nor the Thurmans consented to the Riddles’

request to adopt. Accordingly, the Trial Court properly found, presumably based on a lack

of evidence sufficient to justify termination of the guardianships, that the Riddles' evidence

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“does not rise to the level of proof necessary to prevent the adoption of the child DonJuan

by Mr. and Mrs. Thurman”, and dismissed the intervening petition.

In sum, where a parent chooses to surrender his or her parental rights directly to the

adoptive parents, and where the Court has additionally granted partial guardianship of the

child to the adoptive parents, as was done here, the adoptive parents (the Thurmans) are

clearly not in the same legal position as the former foster parents (the Riddles),who had

custody of the child removed from them for reasons not set forth in this record. Neither DCS

nor the Thurmans, the legal guardians of the child, have consented to allow the Riddles to

adopt, and the Riddles were not entitled to require the Trial Court to apply a comparative

fitness analysis in this case.

We affirm the Judgment of the Trial Court in dismissing the Riddles' Petition. The

case is remanded with the cost of the cause assessed to Nathan and Pamela Riddle.

_________________________________

HERSCHEL PICKENS FRANKS, P.J.

There is no transcript of the hearing on May 5 wherein the Trial Court received evidence from the 2

Riddles, thus, we must presume there was proof to uphold the Court's findings.

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