### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE November 6, 2000 Session EDDIE JOE DORRIS, ET AL 

### . v. JEFFERY CRISP
Appeal from the Chancery Court for Rutherford County

No. 99D-938 Don Ash, Chancellor

No. M2000-02170-COA-R3-CV - Filed June 1, 2001

Over four months after signing a surrender of her parental rights and consent for her minor

child to be adopted, Appellee filed a Petition to Set Aside Surrender on the basis of a procedural defect. The Chancellor

held that Appellee had

abandoned the child, that the surrender executed by Appellee on June 24, 1999 should be set aside because there was no home study performed prior to the surrender, anddismissed the petitions for adoption. The Chancellor ordered the child returned to the custody of Appellee, which order was stayed by this Court September 19, 2000. The adoptive parents appeal raising the following issues for consideration: (1) Whether the mother has stand ing to attack the surrender on the basis of a lack of a home study, (2) whether the surrender is valid, and (3) whether the trial court was limited to the criteria set forth in Tennessee Code Annotated section 36-1-113(h) in determining whether termination of parental rights was in the child’s best interests. We r

everse and find the surrender valid.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed

W ILLI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S. and P ATRICIA J. C OTTRELL , J., joined.

Louise R. Fontecchio, Na

shvil le, Ten nes see, for the app ell ant s, E ddi e Jo e Do rri s an d Lin da Fa ye Dorris.

Paul A. Rutherford and L. R. DeMarco, Nashville, Tennessee, for the appellee , Chas ity Ho lmes Crisp.

OPINION

Devin Cri sp ( here ina fte r “ch ild ”), w as b orn to A ppe lle e on Jan uary 7 , 1 999. In the spring following his birth, Appellee went through a separation from her husband, the c hild’s biological father. Appellee and her husband hadtwo children together. Appellee has custody of the older child.-2-

Appellee testified that she placed the y

ounger child, D

evin Cr isp, in t he care of others because she was financia

lly unable to support him. The child stayed with several people prior to his placement

with Appellants. App ell ee, a fte r kee pin g the chi ld o nly a couple of months, se nt the child to stay with the child’s maternal grandmother, from the middle of March until May 1999.

In May 1999, Appellee

placed the child w

ith Mrs. Tims. The ch

ildremained with Mrs . Tims
over Memorial Day

weekend 1999. Then, the Appellee placed the child with the Pruitts, where he remained for a week.
Appellee’s father arranged a meeting betweenthe parties in this lawsuit. Appellee met the Appellants

and interviewed them as potential adoptive parents for the child. Appe llee chose Appellants

to adopt the child. A time was scheduled for Appellants to pick the child up. Appellee didnot provide the child at the first scheduled time. Prior to the child ult imately bein

g placed with Appellants,he stayed w

ith the maternal g

randmother for a

few days, t

hen stayed

with Joy Dorris , Appellant Linda Dorris’ sister-i n-law, u ntil June 17, 1999. The reafter, the c

hild stayed w

ith Appellants.

On June 24, 1999, in the Chancery Court for Rutherford County, Appellee a ppeared and executeda surrender of her parental rights and consent for the child to be adopted by Appe llants. Appellants

filed a Petition to Adoptand an Order of G uardianship was e

ntered. Therea

fter, a home study was completed by

the Court Appointed

Special Advocate

s’ (“CASA”) offic

e. CASA is not a licensedchi ld-placi ng agency. At the time the surrender wa s executed, no home study had been performed.

The parties had contact prior to the initiationof this lawsuit in October 1999. In July 1999, Appellee phoned Appellants requesting a visit with the child. Appellants agreed. At the meeting, Appellee did not indicate an intention to

visit the child again or any desire to have the child returned to her.
Appellee called Appellants on September 8, 1999 to ask about the child. Appellee did not express any indication she wanted the child back. On Oc tober 11, 1999, App

ellee called ag

ain to inquire about the child.

On October 27, 1999, Appellee filed a Petition to Set Aside the Surrender on the grounds that
no home study

was performed

prior to the execution of the surrender on June 24, 1999 as required by Tennessee Code Annotated section 36-1-111(a)(1)-(2) and (d)(1). In Dece mber 1999, Miriam’s Promise, a licensed

child-placing a

gency, pe rformed a home

study. The first time Appellee paid any support for the child was in December of 1999.

The Chancellor hear

d the Petition to Set As

ide Surrender on

January 21, 2

000 and took it under advisemen

t. The Chancellor

granted Appell

ee visitation rig

hts pending the ruling. Also on January 21, 2000, Appellants filed an Amended Petition for Adoption onthe basis of aband onment.-3-

The Chancellor held that thesurrender was ineffective. On March 17, 2000, an Order was entered sta ting:

1. There is no dispute that no home study was conducted and no court report based upon a home s

tudy was subm

it ted w ithin the time constraints of Tennessee Code Annotated § 36-1-111(a)(2).

2. The surrender perf ormed on June 24, 1999 , in the chambers of Circ uit Judge Royce Taylor should be set aside bec ause of the failure of the Petitioner t o conduct a home study prior to the surrender.

3. The Order of Gua rdianship shall re

main in effect.

4. The Amended Petition fo r Adoption will remain a pending matter before this Court.

5. The Motion to Reestab lish Visi tation wil l require a fu rther hearin g.

IT IS THEREFORE O RDERED, ADJUDGED AND DECREED that the Petition to Set Aside the Surrender is granted, and the surrender of

June 24, 1999, is hereby set aside and for nothing held.

The case was tried on August 17 and 29, 2000. The Ch

ancellor held

that the child had been abandoned, but that clear and convincing evidence had not established a basis for termination of Appellee’s par

ental rights.

The final or der was enter ed on Septe mber 6, 200 0 stating:

1. That

the Petitioners have proven by clear and co n vincing evidence that the natural mother, Chasity Holmes Crisp, intention a lly abandoned the minor child, Devon Joseph Crisp, pursuant to the definition of abandon ment in In Re: Swanson 2.SW.3d (180) and In Re: Adoption of Bowling 631 .SW.2d (386)

. 2. That

the Petit io ners have faile

d to carry t

he burden of proo

f in showing that

the termination of the natural mother’s parental rights would be in the child’ s best in terest pursuant to T.C.A. § 36-1-113(

c)(2). There is

no proof to contradict that the natu

ral moth er now lives in a home that would be a safe environment

for the minor child. The natural mother has maintained re gular visitation or other contact with the minor child. The n atural mot her attempted to keep in telephone c onta ct at least for some limited purpose during the three (3) or four (4) months from the time of the surr ender until October 1999, and then she attempted once again to try and establish visitation. There has been a meaning ful relationship

between the naturalmother and the minor child. Thereis not sufficient proof in the record to show that harm would be permanent or long lasting to the child-4-

bychanging t he caretaker to the natural mother. There is no proof that the natur a l mot her has any mental condition that would be unsafe for the minor child. Th e natural mother has paid support before the termination petition was filed. 3. That

the Petition for Adoption, Amended Petition for Adoption, and Second Amended Petition for Adoption should be dismissed. 4. That

the natural mother sh

all have visitation privileges with the minor child for ever y week end unt il S ept emb er 12 , 20 00, fro m Fri day at 5:00 p.m . until Sunda y at 5:00 p.m. The mino

r child shall be re

turned to the natur

al m other on a permanent basis on September 12, 2000. . . .

The determinative issue on appeal is whether the Chancellor erred in setting the surrender aside because of the failure of a licensed child-placing agency to perform a home study. Appellee maintains that the June 24, 1999 surrend er was n ot made in accordance with Tennessee Code Annotatedsection 36-1-111(a)(1)-(2), and that pursuant to Tennessee Code Annotated section 36-1- 111(d)(1), the su

rrender is inval

id. A surrender i

s defined as:

“Surrender” means a

document executed under theprovisions of § 36-1-111
or under the laws of another state or territory or country , by the parent or guardian of
a child, by whi

ch that parent or

guardian relin

quishes all paren

ta l or guard ianship rights of that parent or guardian to a child, to another person or public child care agency or licensed child-pl acing agen cy for the p urposes of making

that child available for adoption;
Tenn. Code Ann. § 36-1-102(45)(2000).
Tennessee Code Annotated section 36-1-111(a)(1)-(2) and (d)(1) provide:
(a)(1) Prior to receivin

g a surrender

by a paren

t of a child or prio

r to t he execution of a parental consent by a parent in a petition for adoption, the prospective adoptive parents may

request that a licensed child-placing agency , a licensed clinical social worker, or, if indigent under federal poverty g uidelines, the de partment, to conduct a home study or preliminary home study for use in the surrender, or parental consent proceeding, or in the adoption. (2) A court

report based upo

n the home study

or preliminary

home study mus

t be available to the court or, when using a Tennessee surrender form, to the persons under subsec ti on (h), (i), or (j), and, before the surrender to prospective adoptive parentsis executed, the court report must be reviewed by the court or persons under those subsections in any

surrender proc

eeding in which the surren

der is not made to the department or a licensed child-placing agency. When a parental cons en t is executed, the court report based upon the home study or preliminary home study must be filed with the adoption petition, and must be reviewed by the court before the entry of an

order of guar

dianship giv

ing th e prospective ad

optive parents guardianship of the child.-5- . . . . (d)(1) No surrender or any parental consent shall be valid which does not meet the requirements of subdivision (a)(2).
Tenn. Code Ann. § 36-1-111(a)(1)-(2), (d)(1) (2000) (emphasis added).

When a surrender

has been executed, it may be revoked within ten days. Tenn. Code Ann. § 36-1-112(a)(1)(A)(2000).

A home study was not performed prior to the June 24, 1999 sur rende r. A home study

is defined as:

“Home

study” means the product of a preparation process in which individuals

or families are assessed by themselves and t he department or licensed child-placing agency, or a licensed clinical social worker as to t heir suitability for adoption and their desires with regard to t he ch ild they wish to adopt . The home study shall conform to the

requirements

set forth in the rules of the department and it becomes a written document which is used in t he d eci sio n to app rov e or d eny a particular home for adoptive placement . The home study may be the basis on which the court report re

commends approva

l or denial to the c

ourt of the family

as adoptive parents

. A court report based upon a ny home study conducted by a licensed child–placing agency, license d clinical social worker or the department which has been com pleted or updated within six (6) months prior to the date of the surrender
or order of reference

shall be accepted by the court for purposes of §§ 36-1-111 and 36-1-116. The home study shall be confidential, and at the conclusion of the adoption proceeding shall be forwarded to the department to be kept under seal pursuant to § 36-1-126, and shall be subject to disclosure only upon o rd er entered pursuant to § 36-1-138;
Tenn. Code Ann. § 36-1-104(24)(2000) (emphasis added).

The “home study” definition does not mention the surrendering natural parent and has no purpose except to assure the fitness of the adopting parents. The purpose of a home st udy is to protect the child, not the biological mother.

In Hatcher v. Patterson , 16 S.W.3d 792 (Tenn. Ct. App. 1999), this Court addressed a trial court’s finding of

voiding an adoption for substantive and procedural problems including the failure of the biological mother to sign a surrender and the failure to complete a hom e st udy. Hatcher

is applicable

to the present case. In Hatcher , a pregnant, un wed teenager

sought a couple t

o adopt her unborn child. Hatcher , 16 S.W.3d 792, 793 (Tenn. Ct. App. 1999). She chose a couple to adopt the child. The adoptive parents took the child home with them after the chil d was released from the hospital. A petition for adop tion was executed u

nder oath before the juven

ile judge. Approximat

ely
a year after the child’s birth, the biological mother filed a Petition to Set Aside the Adoption because,-6-

among other procedural defects, no home study was completed. The trial court ordered the adoption set aside and ordered the return of the child to the biological mother. Id.
With regard to the surrender in Hatcher , this Court stated:

We are satisfied, however, that Ms. Patterson effectively surrende red the child. The Juvenile Court of Dickson County does have jurisdiction to accept her surrender, Tenn. Code Ann. § 36 -1-111(b), and M

s. Patter son did everything necessary to surrender thechild except sign the surrender document. She selected the Hatchers as the persons she wished to adopt her child. She appeared in court before the juvenile judge and signed the adoption petition under oath.

. . . . At oral argument counsel for Ms. Patterson concede d that Ms. Patterson intendedto permit the Hatchers to adopt the ch ild and tha t she has no basis to challenge t he adoption other than the defects and oversights in the preparation and execution of the forms. Counsel also conceded that Ms. Patterson made the decision to surrender the child with full under standing of her options and the consequences of her decision. There

is no evidence in th

e record that she

felt any remorse about her decision or that she attempt ed to rev oke her surrender within the time provided by Tenn. Code Ann. § 36-1-112 (1996).

. . . . Un doubtedly

other unfulfille

d requirements lurk in the labyrinthine provision s of the adoption laws, but as a consequence of her surrender Ms. Patterson no longer has the standing

to raise them.

Hatcher v. Patterson , 16 S.W.3d 792, 796-97 (Tenn. Ct. App. 1999).

In the present case, a copy of the surrender is not contained in the record on appeal. As in Hatcher , Appellee does not deny that she willingly a nd with full understanding of what she was doing, went before the judge and surrendered the child. At the hearing, Appellee testifie d as follows:
Q. Do you remem

ber being asked by the

judge if yo

u were sure this is what you wanted to do? A. Yes. Q. And were you under oath? A. Yes. Q. Did you unders tand the im portance of what you were doi ng? A. Yes. Q. And didyou tell the ju dge that, y

es, you wan

ted to give up all parental rights and responsibilities for this child? A. Yes. Q. Did

you understand

that if you did this, the child was not going to be yours anymore?1 The portion of the order of the trial court com pelling the retur n of the child to the appelle e was stayed by this Court in an order ent

ered September

19, 2000.
-7- A. Yes.

. . . . Q. And the judge explained to you at that time thatif you changed your mind you needed to do it within ten days, didn’t he? A. Yes, he did. Q. And did you un

derstand that? A. Yes. Q. But you didn’t do anything within ten day s, did you? A. No. I couldn’t. I wasn’t financially able at the time. Q. Well, did the judge tell you that you needed a lawyer o r did he just tell you you needed to c

ome u p here to court and see anybody in - - A. I was not financially able to take car e of Devin. Q. Okay. So you weren’t able to c are for him then? A. Financially, no. Q. All right. You have another child? A. Yes, I do. Q. And you’re

providing a home

for him? A. Yes. Applying a literal construction of Tennessee Code Annotated section 36-1-111(a)(1) and (2), the tr ial judge felt he was compelled to invalidate the surrender. He then went on to hold that Appellee had willfully abandoned the child. Further , feeling hi mself bound by the factors of Tennessee Code Annotated section 36-1-113(c), he held that Appellants had failed to prove by clear andconvincing evidence that termination of parental rights was in the best interests of the child. On this basis, he dismissed the petition to terminate p a rental rights and the adoption petition, and ordered the child returned to Appellee. 1 In acting as he felt the law compelled him to do, the learned Chancellor

made certain observations which are well to repeat in order to focus on the human side of his dilemma.

THE COURT: Mr. and Mrs. Dorris, let me tell you what my choices are. I eithe

r do what I wa

nt to in my heart or what I want to in my head. Those are my choices. Obvi ous ly, you two are fine people. Obviously, y ou came into the situation where you were going to help somebody andthat’s something

I think is a very good thing. But

I also took the

oath when I to

ok this to follow wha

t the law is in Tennessee. And I can disregard what the law is in Tennessee and let the child stay with you all a

nd they’ll a

ppeal and, in my

opinion, you’ ll losethe appeal. So I just drag and tag you

on for another year or two. And I ’m not going to do that. I’m not.-8- I’ve got to follow what

the law is. And I’m sorry about that. I wish I didn’t. But it’s not fair to you if I don’ t follow the law.

S o, first of all, as Ms.

Fontecchio said

, it is a two-prong

test. Fir st , I’ve got to find by clear and convincing evidence w hether or not one of

the asserted grounds for termination is this, that’s the Code Section 36-1-113.

I’m goin g to f ind tha t th is l ady i nte nti ona lly a band oned this child. That’s In r

e: Swanson 2 S.W .2d - - 3d 180 and In re: Adoption of Bowling at 631 S.W.2d 386. And the languag e there say

s in Swanson: Abandonment comports any conduct on the part of the parent whi ch evidences a s ettled purpose to f

orego all parental duties and relinquish all parental claims to the child.

Obv iou sly, ma’am, you d id that. You may

get up here and say today you didn’t do it, but when you went up there in front of Judge Taylor and surrendered that child, you did that.

Also, there was an ac

tual desertion ac

companied with an

intent to entirely sever so far as i

s possible to do so the

parental relati

onship and throw of

f all obligations gro

wing out of that. Y

ou did that. I’ msorry that whoever’s responsible for doing that home study o r getting that done

when these people

went up there to

surrender that child didn’t do their job. They didn’t. And

because of that you’re

suffering. I

can’t go back i

n time andfix that. I wish

they would’ve done what they should have done, but they

didn’t. Mrs. F onetecchio and - - I agree, whether that pa rt needs to be followedor not, I think it does. But, I also think that this lady’s intent on that day
was to abandon the chi

ld and she continue

d with that intent.

She did that

for three
or four months, wh ile you al l were basically raising her child, taking on that
res pon sib ili ty. Like

you said, going to church, feeding the child eve ry day, changing the diapers, all those things. So that’s the first p rong of the test.

And I’m goin

g to find by clear and convincing evidence that on that day she did abandon. The second part

of the test, Mr. an

d Mrs. Dorris,

though, is where you will not be successful.

. . . . Based upon all that, I’m go

ing todismiss the petition for termination, dismiss the petition for adoption. Tell Mr. and Mrs. Dorris I’m sorry, that the child needs to be returned to the natural mother.

And, ma’am, you’ve not done well on this. These people came to that child’s rescue when nobody else was there, when y ou weren’t there. And, Mr. and Mrs. Dorr

is, I’m sorry I’ ve got to do this. I don’t want to do this. But I’ve got to follow what the law is in Tennessee. Like I sai d, I’m deep ly, d eepl y sor ry.

I believe fine people like you that come to the rescue - - especially of children - - ther

e’s a place in

heaven for them. I believe that. And, like I said, I’m very sorry I’ve got to d

o this.-9-

As the Chancellor so correctly obs erved, this record disclo ses a child having

no stability through the first six months of his life and then finding a stable and loving environment with E

ddie Joe and Linda Faye Dorris as prospe ctive a doptive pare nts. The home study report of Miriam’s Promise reported on March 1, 2000 , confirms t he observations of the trial judge relating to the fitness of Mr. and

Mrs. Dorris.

This Court has observed: “No parent has the right to abandon

all responsibility, yet insist that the child be fed, hous

ed, clothed, and n

urtured by o

thers but remain ava ilable to be claimed as an offspring to be visited at the w him of a derelict parent who would thereby deny the child the security andstable environment of anadoption.” Derryberry v. M artin , 686 S.W.2d 94, 97 (Tenn. Ct. App. 1984).

It may be an overstatement in this record to refer to

Appellee as a derelict parent, but the fact remains that she was content for Appellants to assume the responsibility for all care of this child, develop a lovin g parental attachment to the child, and then seek to use provisions of the adoption statutes, never intended for her benefit, but rather for the benefit of the child, to belatedly reassert her parental cl

aim.

As in Hatcher , we aresatisfied that Ms. Crisp effectively surrendered the child and made no attempt to revoke her sur

render within the

time limit

provided by Tennessee Code Annotated section 36-1-112 (2000). The surrendering parent cannot expand the statutory time limit for withdrawing the surrender by

use of a procedu

ral defect that w

as not designed t

o protect that par

ent.

To paraphrase Hatcher, undoubtedly other unfulfilled requirements lurk in the labyr inthine provisions of the adoption laws, but as a cons equence of her

surrender, Ms.

Crisp no longer has the standing to raise

them.

Since we reverse the findings of the Chancellor relative to thesurrender of the child, finding the sur render to be valid under the criteria of Hatcher , it is unnecessary to address the issue o f abandonment

and termination of

parental right

s. We reverse the

action of the tria

l court in dismissing the adoption petition and remand the case for further proceedings thereon.
Costs of the cause are assessed to the Appellee.

___________________________________ WILLIA M B. CAIN, JUDGE