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IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 22, 2016 Session

IN RE C.H.

Interlocutory Appeal from the Juvenile Court for Jefferson County

No. 15-00926 Dennis (Will) Roach, II, Judge

No. E2016-00702-COA-R9-PT-FILED-JANUARY 31, 2017

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This is a Tenn. R. App. P. 9 interlocutory appeal. Biological grandparents of a child at 

issue in a termination of parental rights action sought to intervene in the termination 

proceeding. The child had lived in the grandparents‟ home with them and the child‟s 

parents. The Department of Children‟s Services removed the child from that home and 

later sought to terminate the parental rights of the child‟s parents. The grandparents filed 

a motion to intervene. The trial court denied their motion, but granted their request for an 

interlocutory appeal. Thereafter, we also granted their request for interlocutory review. 

We affirm the decision of the trial court and now remand this case to the trial court for 

further proceedings. 

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Juvenile Court 

Affirmed; Case Remanded

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

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

John T. Sholly, Knoxville, Tennessee, for the appellants, J.H. and S.J. 

Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor 

General, and Kathryn A. Baker, Assistant Attorney General, Nashville, Tennessee, for 

the appellee, Tennessee Department of Children‟s Services. 

Linda G. Larson, Dandridge, Tennessee, for the appellee, K.J.
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OPINION

I.

J.H. (grandmother) and S.J. (grandfather) are the maternal grandparents of the 

child at issue, C.H. The child was born in May 2010 to K.J. (mother) and R.H. (father). 

Since 2010, the child had lived with his grandparents. The same house was also shared 

by the child‟s parents, aunt, and older cousin. DCS removed the child from the home in 

November 2014 due, in part, to the parents‟ drug use. 

DCS filed a dependency and neglect action against the child‟s parents in the trial

court. The grandparents sought to intervene, but their application was denied. On 

October 16, 2015, DCS filed a petition to terminate the parental rights of the child‟s 

parents. The grandparents again moved to intervene. Along with their motion, they 

attached three affidavits1asserting that the grandparents, rather than the parents, looked 

after the child, providing him with food, shelter, clothing, and transportation, among 

other things. The trial court dismissed the motion to intervene, stating: 

this matter, including a hearing on the merits, has previously 

been heard on September 2, 2015, in the Dependence and 

Neglect case filed in this court on November 26, 2014, and 

nothing has changed regarding the [grandparents‟] 

circumstances since then. 

The grandparents then asked the trial court to permit them to pursue a Tenn. R. App. P. 9

interlocutory appeal. The trial court granted their request. It listed the following reasons

for its action: 

Having given consideration to the severity of potential injury 

to the [grandparents], the probability of its occurrence and the 

probability that review upon entry of final judgment will be 

ineffective, this Court believes this Order is appealable due to 

the need to prevent irreparable injury. 

 

1 The grandparents‟ motion to intervene states that “five (5) notarized affidavits from friends, 

family, neighbors, and teachers” are attached to the document. Only three affidavits – from, respectively, 

the child‟s grandmother, the child‟s aunt, and family friend, Michelle Durand – are attached to the motion

in the record. 
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The [grandparents] are seeking permission to Intervene in a 

Termination of Parental Rights action with a view to 

obtaining visitation with and/or custody of their grandson, the 

minor child in the case. If they are not allowed to intervene at 

this time, they will be unable to appeal the final judgment as 

they would not be parties to the case. If their daughter‟s 

rights are terminated, [the grandparents] will forever be 

deprived of a legal relationship with the child, which is an 

irreparable injury. Even if they do not prevail in their petition 

for custody, if [the grandparents] are allowed to intervene 

they would at least have the opportunity to seek visitation 

with their grandson during the pendency of this matter until 

he is adopted. 

For purposes of judicial efficiency and economy, and to 

prevent the need for additional filings by [the grandparents,] 

which might delay permanent placement of the child, which 

would not be in his best interest, this Court believes the 

appeal should be permitted. 

(Paragraph numbering in original omitted.)

II.

In the order granting this appeal, we certified the following question: 

Whether the Trial Court erred in denying the motion to 

intervene as parties filed by the applicant/grandparents in the 

termination of parental rights proceeding below. 

III.

With respect to intervention as a matter of right, we review the trial court‟s 

decision de novo with no presumption of correctness. Gonzalez v. State Dept. of 

Children’s Servs., 136 S.W.3d 613, 616 (Tenn. 2004) (citing State v. Brown & 

Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn. 2000)). “When there is no basis 

for intervention as of right, the decision to allow intervention is a matter within the 

discretion of the trial court. This decision should not be reversed by an appellate court 

absent a showing of abuse of discretion.” Shelby Cty. Deputy Sheriff’s Ass’n v. Gilless, 

972 S.W.2d 683, 685 (Tenn. Ct. App. 1997) (citing Tenn. R. Civ. P. 24.02; Ballard v. 
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Herzke, 924 S.W.2d 652, 658 (Tenn. 1996)). We review the trial court‟s factual findings, 

if any, de novo with a presumption of correctness, unless the evidence preponderates 

against those findings. Tenn. R. App. P. 13(d).

IV.

A.

The grandparents sought to intervene as a matter of right and, alternatively, via 

permission pursuant to Tenn. R. Civ. P. 24. In Tennessee, chancery, circuit, and juvenile 

courts have concurrent jurisdiction to terminate parental rights. Gonzalez, 136 S.W.3d at 

617 (citing Tenn. Code Ann. § 36-1-113(a)). As a result, 

[b]ecause the Rules of Civil Procedure concerning 

intervention would apply in both chancery and circuit court 

proceedings to terminate parental rights, and because their 

application would not compromise the efficacy of juvenile 

proceedings, we find that standing to intervene in a 

termination proceeding in juvenile court should be analyzed 

under Rule 24 of the Rules of Civil Procedure. See Tenn. R. 

Civ. P. 1 (2003). Accordingly, we expressly overrule any 

holding to the contrary. 

Id. (internal citations omitted).

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 Tenn. R. Civ. P. 24 provides that the authority to 

intervene may be conferred expressly by statute. Gilless, 972 S.W.2d at 685. Without 

such express authority, “determining whether a party is entitled to judicial relief „requires 

the court to decide whether the party has a sufficiently personal stake in the outcome of 

the controversy to warrant the exercise of the court‟s power on its behalf.‟ ” Id. (quoting 

Metro. Air Research Testing Auth. (MARTA) v. The Metro. Gov’t of Nashville, 842 

S.W.2d 611, 615 (Tenn. App. 1992)).

B.

Tenn. R. Civ. P. 24.01 provides when intervention by right is permitted:

 

2 DCS and the grandparents acknowledge on appeal that as of July 1, 2016, Tenn. R. Juv. P. 304 

provides for intervention by right or by permission in juvenile court. The parties agree, as does this 

Court, that the current action should proceed under Tenn. R. Civ. P. 24 because this matter began prior to 

July 1, 2016. 
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Upon timely application anyone shall be permitted to 

intervene in an action: (1) when a statute confers an 

unconditional right to intervene; or (2) when the applicant 

claims an interest relating to the property or transaction which 

is the subject of the action and the applicant is so situated that 

the disposition of the action may as a practical matter impair 

or impede the applicant‟s ability to protect that interest, 

unless the applicant‟s interest is adequately represented by 

existing parties; or (3) by stipulation of all the parties.

The grandparents rely on subpart (2) of the above rule. They assert that “[t]heir 

interest in the future and well-being of their grandson is obvious[.]” DCS argues that 

interest is “too attenuated” to allow intervention by right. Under our case law, “the 

precise nature of the interest required to intervene as of right has eluded exact definition.” 

In re Brian M., No. E2014-00941-COA-R3-PT, 2015 WL 78179, at *4 (Tenn. Ct. App., 

filed Jan. 6, 2015). Still, the required interest “does not include a mere contingent, 

remote, or conjectural possibility of being affected as a result of the suit, but must involve 

a direct claim on the subject matter of the suit such that the intervenor will either gain or 

lose by direct operation of the judgment.” Id. (quoting State v. Brown & Williamson 

Tobacco Corp., 18 S.W.3d 186, 192 (Tenn. 2000)). For the reasons set forth below, we 

hold that the grandparents have not established an interest sufficient to permit 

intervention by right in this termination proceeding.

A grandparent‟s biological relationship with a child, in and of itself, is not enough 

to establish a right to intervene in a termination case brought against a child‟s parents. 

Gonzalez, 136 S.W.3d at 620. In Gonzalez, the Supreme Court analyzed the “varying 

conclusions” reached by other state courts “regarding the right of grandparents to 

intervene in dependency and neglect and termination of parental rights proceedings.” Id.

at 618-20. The Court determined that “[a]lthough it is conceivable that a grandparent 

may adduce evidence sufficient to support intervention as of right in a parental 

termination hearing, we agree with the majority of jurisdictions which hold that the 

grandparental relationship does not alone support intervention.” Id. at 620 (emphasis 

added). In support, the Gonzalez court noted that grandparents are not included in the list 

of the parties who are mandatory participants in a termination proceeding under Tenn. 

Code Ann. § 36-1-117(a) (2014). Further, subsection (d) of the same statute provides 

“[o]ther biological or legal relatives of the child . . . are not necessary parties to the 

proceeding unless they are legal guardians as defined in § 36-1-102 or legal custodians of 

the person of the child . . . at the time the petition is filed.” Id. Here, the grandparents 

were neither the guardian nor custodian of the child at the time the petition was filed. 
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The grandparents point out that, in contrast to the grandparents in Gonzalez, they 

have a relationship with the child beyond that of a biological one. Gonzalez, 136 S.W.3d 

at 615, 620. The child, with his parents, had lived in the grandparents‟ home until his 

removal by DCS. Grandmother asserts by affidavit that she and grandfather had

“assumed almost all parental responsibility for [the child],” while his parents “were not 

interested or capable of caring for their son.” The grandparents argue that their role in 

caring for the child establishes their right to intervene in the current suit. In support, they 

point out that this Court previously held that a legally-protected interest sufficient to 

allow intervention by a non-parent in a termination action may arise through “the actual 

exercise of significant parental duties, control, or responsibilities for the child‟s benefit.” 

Skerrett v. The Ass’n for Guidance, No. M2002-00218-COA-R3-JV, 2003 WL 

21634412, at *2 (Tenn. Ct. App., filed July 11, 2003) overruled by Gonzalez 136 S.W.3d 

at 617, n.8. However, the grandparents‟ reliance on Skerrett is misplaced. The Skerrett 

court, at the outset of its analysis, held that Tenn. R. Civ. P. 24 is not applicable to 

juvenile court proceedings. 2003 WL 21634412, at *2. Our Supreme Court expressly 

overruled that holding, stating that “standing to intervene in a termination proceeding in 

juvenile court should be analyzed under Rule 24 of the Rules of Civil Procedure.” 

Gonzalez 136 S.W.3d at 617, n.8. Instead of applying Tenn. R. Civ. P. 24, the Skerrett 

court “look[ed] elsewhere for the rules and principles that should be used to determine 

whether a party should be permitted to intervene in a proceeding to terminate parental 

rights.” Id. As previously noted, pursuant to Gonzaelz, we must determine whether 

intervention is proper under Tenn. R. Civ. P. 24. Because Skerrett did not proceed under 

Tenn. R. Civ. P. 24, we decline to follow it here. 

The grandparents rely upon language from the “visitation rights of grandparents” 

statutory scheme codified at Tenn. Code Ann. § 36-6-306(b)(2) (2015),3to establish that 

the bond they have with their grandchild is “significant.” If the grandparents cite this 

statute to establish an interest sufficient to allow intervention in this termination 

 

3 This portion of Tenn. Code Ann. § 36-6-306(b) provides: 

(2) For purposes of this section, a grandparent shall be deemed to have a 

significant existing relationship with a grandchild if:

(A) The child resided with the grandparent for at least 

six (6) consecutive months;

(B) The grandparent was a full-time caretaker of the 

child for a period of not less than six (6) consecutive 

months; or

(C) The grandparent had frequent visitation with the 

child who is the subject of the suit for a period of not 

less than one (1) year.
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proceeding as a matter of right, their reliance is misplaced. The plain language of Tenn. 

Code Ann. § 36-6-306(b)(2) indicates that the description only applies “[f]or purposes of 

this section[.]” (Emphasis added.) Simply stated, the statute has absolutely nothing to do 

with a grandparent‟s attempt to intervene in a termination case. This is shown by the 

express language of the statute. 

Notably, despite having lived with the child, the grandparents lacked standing to 

file a termination petition under Tenn. Code Ann. § 36-1-113(b)(1) (2015). Under that 

statute, “prospective adoptive . . . parents, including extended family members caring for 

a related child . . . shall have standing to file” a termination petition against the child‟s 

parents. “[P]rospective adoptive parents” are defined as 

non-agency . . . persons who are seeking to adopt a child and 

who have made application with a licensed child-placing 

agency or licensed clinical social worker or the department 

for approval, or who have been previously approved, to 

receive a child for adoption, or who have received or who 

expect to receive a surrender of a child, or who have filed a 

petition for termination or for adoption[.]

Tenn. Code Ann. § 36-1-102(41) (2015). The grandparents have not established that they 

“have made application with” a licensed child-placing agency, a licensed clinical social 

worker, or DCS for approval to adopt the child, nor that they have previously received 

such approval. Significantly, a “prospective adoptive parent” is one who has “the legal 

capacity and ability” to file a petition for adoption. In re Sonya M., No. M2015-00064-

COA-R3-PT, 2015 WL 4381567, at *3 (Tenn. Ct. App., filed July 16, 2015) (quoting In 

re Shelby L.B., No. M2010-00879-COA-R9-PT, 2011 WL 1225567, at *10 (Tenn. Ct. 

App., filed March 31, 2011)). “[P]ersons filing for adoption must have physical custody 

of the child or the right to receive physical custody pursuant to a valid surrender.” In re 

Sonya M., 2015 WL 4381567, at *3 (citing Tenn. Code Ann. § 36-1-111(d)(6); see In re 

Adoption of M.J.S., 44 S.W.3d 41, 49 (Tenn. Ct. App. 2000)). Tenn. Code Ann. § 36-1-

115(b) (2014) reserves an exception to the physical custody requirement at the time of 

filing if a party is “filing an intervening petition seeking to adopt the child.” The child 

before us has been in DCS custody since November 2014. The grandparents have not 

filed a petition for termination or for adoption, nor have they filed a petition to intervene 

in an adoption proceeding. Without meeting the definition of “prospective adoptive 

parents,” they would not have standing to file for termination. 

The grandparents assert that their “interest” will disappear “if the current action 

ends with the rights of the parents being terminated and the child being adopted[.]” 
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(Emphasis added.) However, “[t]he sole purpose of the termination proceeding under 

Tenn. Code Ann. § 36-1-113 is to sever irrevocably the legal relationship between 

biological parents and their children.” In re M.J.B., 140 S.W.3d 643, 651 (Tenn. Ct. 

App. 2004). Should the court terminate a parent‟s rights to the care and custody of a 

child,

the court may award guardianship or partial guardianship of 

the child to a licensed child-placing agency or the department. 

Such guardianship shall include the right to place the child for 

adoption and the right to consent to the child‟s adoption. 

Upon termination of parental or guardian rights, the court 

may award guardianship or partial guardianship to any 

prospective adoptive parent or parents with the right to adopt 

the child, or to any permanent guardian who has been 

appointed pursuant to title 37, chapter 1, part 8.

Tenn. Code Ann. § 36-1-113(m). “[W]hen 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 re Don Juan J.H., No. E2010-01799-COA-R3-JV, 2011 

WL 8201843, at *3 (Tenn. Ct. App., filed Sept. 7, 2011). If DCS is awarded 

guardianship at the conclusion of a termination action, “Tenn. Code Ann. § 36-1-102 and 

113 grant DCS the right to place the child for adoption, and to consent to the adoption.” 

Id. at *3 (citing In re E.M., II, No. W2006-00663-COA-R3-CV, 2006 WL 3007511 

(Tenn. Ct. App., filed Oct. 24, 2006)). The child in this case will not be adopted as of the 

conclusion of the current termination action. 

Considering other jurisdictions, the Gonzalez court found “[i]n the majority of 

cases . . . grandparents are not allowed to intervene in termination cases either because 

their interests are adequately represented by the parent‟s attorney or guardian ad litem, or 

because they are deemed to have no interest in the outcome of the proceedings.” 

Gonzalez, 136 S.W.3d at 619. In In re Brian M., this Court considered grandparents‟ 

request to intervene in a termination of parental rights case brought by DCS against the 

child‟s parents. 2015 WL 78179, at *1. There, the father was a convicted felon, serving 

a long prison sentence. Id. The children‟s paternal grandparents filed a motion to 

intervene, but were denied. Id. at *1-2. On appeal, we affirmed, finding, in part,

[t]he pending custody petition . . . did not warrant 

intervention when Father was capable of adequately 

representing their interest in the termination proceeding. The 

parties and the court were apprised of the situation regarding 
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Grandparents‟ desire to adopt the Children. Indeed, Father 

testified to that fact during the proceeding. 

Id. at *4. Here, DCS argues that if the grandparents established an interest in the current 

action, that interest would be “adequately represented” by the parents. Under Tenn. R. 

Civ. P. 24.01(2) intervention is inappropriate where “the applicant‟s interest is adequately 

represented by existing parties.” The grandparents maintain that if they are “allowed to 

intervene, their testimony will be against the interests of the parents[.]” However, mother 

expressed support for the grandparents‟ position in a brief she filed in the current appeal. 

She stated that she “does not refute that [the grandparents] and [the child] were extremely 

bonded” and expressed her desire for the child to be returned to their home. We find that 

mother would adequately represent any interest the grandparents have in the termination 

action. As a result, intervention as a matter of right is not appropriate under Tenn. R. 

Civ. P. 24.01. 

C.

We also must consider the grandparents‟ request for permissive intervention: 

Upon timely application anyone may be permitted to 

intervene in an action: . . . (2) when an applicant‟s claim or 

defense and the main action have a question of law or fact in 

common. In exercising discretion the court shall consider 

whether or not the intervention will unduly delay or prejudice 

the adjudication of the rights of the original parties.

Tenn. R. Civ. P. 24.02(2). “Where . . . a common question of law or fact is established, 

the decision to allow intervention is a matter entrusted to the trial court‟s discretion, and 

the decision should not be reversed by an appellate court absent a showing of abuse of 

discretion.” Ballard, 924 S.W.2d at 658. “An abuse of discretion exists when the 

reviewing court is firmly convinced that the lower court has made a mistake in that it 

affirmatively appears that the lower court‟s decision has no basis in law or in fact and is 

therefore arbitrary, illogical, or unconscionable.” Brown, 18 S.W.3d at 191 (citing

Ballard, 924 S.W.2d at 661). Here, the grandparents do not address how the trial court 

abused its discretion. Instead, they simply state that they raised a common question –

“that of [C.H.]‟s future” and a desire to “vigorously pursue [the child]‟s best interest.” In 

In re Brian M., this Court affirmed a trial court‟s denial of a motion to intervene despite 

concluding that “[t]he proceedings admittedly had a question of law or fact in common, 

namely the best interest of the [c]hildren.” 2015 WL 78179, at *4. There, we affirmed 
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after finding the trial court did not abuse its discretion or act against logic in concluding 

intervention was not proper under Tenn. R. Civ. P. 24.02. Id. 

We find that the gravamen of the grandparents‟ argument is in support of their 

position that they are entitled to visitation with or custody of the child. To this point, the 

trial court stated the grandparents seek permission to intervene “with a view to obtaining 

visitation with and/or custody of their grandson[.]” In the current appeal, the 

grandparents seek to intervene in a termination of parental rights proceeding, which has 

the “sole purpose” under Tenn. Code Ann. § 36-1-113 of “sever[ing] irrevocably the 

legal relationship between biological parents and their children.” In re M.J.B., 140 

S.W.3d at 651. “Permissive intervention is generally not proper when the intervenor 

seeks to raise new claims or issues against the existing parties.” Brown, 18 S.W.3d at 

191(citing Ariz. v. Calif., 460 U.S. 605, 614 (1983)). We find any efforts by the 

grandparents to obtain visitation through intervention in a termination proceeding are 

misplaced. For the reasons set forth above, we find no abuse of discretion in denying the 

grandparents‟ motion to intervene. 

“This ruling, made at this interlocutory stage of the proceedings, does not leave 

the [grandparents] without a remedy. They may participate in the termination 

proceedings as witnesses,” pursue adoption, or seek other appropriate options. Gonzalez, 

136 S.W.3d at 620. 

V.

The judgment of the trial court is affirmed. Costs on appeal are assessed to the 

appellant grandparents, J.H. and S.J. This case is remanded to the trial court for further

proceedings consistent with this opinion.

 _______________________________

 CHARLES D. SUSANO, JR., JUDGE