# FILED
October 1, 199 7 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) ANTHONY EA RL McCAN N and ) Dyer County Chancery

Court CYNTHIA McCANN , ) No. 95A1 ) Petitioner s/Appellees. ) ) VS. ) C.A. No. 02A01-9704-CH-00092 ) PEGG Y McCAN

N PATTERSON ) WEATHERS , ) ) Inte rvening Petitioner

/Appella nt. )

)

______________________________________________________________________________ From t he Cha ncery Cou rt of D yer Count y at Dyersburg. Honorable J. Steven Stafford, Chancellor

A. Don Walker, III , Dyersburg , Tennessee Attorney for Petiti oner/Ap

pellant.
John W. Palmer , THE PALMER LA W FIRM, Dy

ersburg, Tennessee Attorney for Petitioner/Appe llee.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. CRAWF ORD, P. J., W.S. : (Concur s) HIGHERS, J. : (Concur s)Peggy McCann Patterson Weathers appeals the trial court’s order which granted the petition of Appellees Anthony Earl McCann and Cynthia McCann to adopt the two minor children of Weather s’ daug

hter, Vir ginia D arle ne Mc Cann Wills. We affirm the court’s final order of adoption.

Petitioner

Anthony Earl McCa

nn is the adoptive father of Virginia Dar lene McCann Wills (Mother) and, thus, the grandfather of the two minor children. In their petition, McCann and his wife, Cy

nthia McCa

nn, sought to adopt the two c hildren, William Randall McCann, born May 31, 1990, and Marlene Day ne McCann, born April 10, 1992. TheMcCanns acquired custody of the tw o chil dren i n proc eedin gs bef ore the Juvenile Court of Bartow County for the State of Georg ia in Dec ember 1 994. T he pare ntal r igh ts of the children’s natural parents, including the Mother, previously were

terminated by the Georgia court. The Mother had exec uted tw o sets of surrenders relinquishing her parental rights to the children, the first set being executed in favor of the Ba rtow County Department of Family and Children Servic es and the second in favor of th e McCanns.
Appellant

Peggy McCann Patterson Weathe rs (Grandmother) is the children’s grandmother and Anthony Earl McCann’s former

wife. Th e Grand mother’sinvolveme

nt in these procee dings began when she filed a motion to intervene in which she opposed the McCanns’ petition to adopt the children. As grounds for her opposition, the Grandmother a lleged that

the Mother was confused at the time

she execu

ted the su rrende rs of par ental rig hts and tha

t the Mothe

r wished t

o revoke the surr

enders. The Grandmother also alleged that Anthony Earl McCann was not a proper party to adopt the childre n because of his prior history of domestic violence.

The Mother la

ter file d a motion to

join in the G

randmoth er’s moti on to in ter vene. The Mother’s motion was dismissed, however, after the attorney fo r the Mother and the Grandmother

advisedthe trial court that the Mother wished to withdraw as a party to this action and that she no longer wished to oppose the adoption.

At the trial held in May 1996, the Gr a n dmother claimed that adoption by the McCanns was not in

the best in

terests of the children because of Anthony Earl McCann’s history of1 Lisa Williams’ supervisor, Phyllis Webb, also testified at trial; however, none of her

testimony related to the McCanns or to their fitness as parents. viol ent behavi or toward the Grandmother and because of Cynthia McCann’s alleg ed sexual indiscre tions. Mr. McCann acknowl edged that nume

rous viole nt confr ontationsoccurr

ed during his prior marriage to the Grandmother, which la sted from 1966 to 1987. McCann admitted hitting the Grandmother

with his fist, pushing her against a wall, and, on one occ asion, hol ding a shotgun to her head. Mc Cann also

testifie d, howeve

r, that he married his pre sent wife , Cynthia McCa nn, in 1988 and that there had been no incidents of violence during this marriage. The Mother ha d lived in the McC ann s’ home for various periods of time since 1988, and she corrobor ated McCann’s testimony about the lack of violenc e in his present marriage.

The Grandmother also presented the testimony of witnesses who claimed that they had observed Cynthia McCann e ngaging in sexual activities with men to whom she was not married. For example, Cynthia McCann’s former brother-in-law testified that he once observed Mr s. M cCa nn in bed with her former

husband and another man in 1984 or 1985. Another witness testified that she observed Cyn thia McCa

nn in bed w ith anothe

r man in 19 90 while Mr s. McCann was marr

ied to Anthony Earl McCann. Cy nthia McCann denied both allegations.
During the trial, employees of the Tennessee Department of Human Service s (DHS) testified on behalf

of the Mc Canns. Spe cifically, social c ounselor Lisa Williams 1 testified that

she performed

both the original home study a nd the adoptive

home study

on the McC anns’ home relative to the adoption. Williams testified that, in performing the home studies, she inv estigated the McCanns’ finances, checked police records, visited the children at the McCanns’ home, and talked to several references pr

ovided by the McCanns, including frien ds and family . Williams al so testified, without obj ection, t hat these refer ences “ were fa

vorable ” to the Mc Canns. Willia ms recommended

that the Mc Canns be p ermitted to adopt th

e childr en, testif yin g that “the famil

y appeare d capable of providing for [the] children materially and also, appeared able to provide the love and nurture for [their] physica l and emotional needs.”

Based on the evidence prese nted at trial, the trial court entered a memorandum opinion in which the court found that adoption by the McCanns was in the children’s best inter ests.2 Prior to Janu ary 1, 1996, the relev ant statut e provided that: If, at any time between the filing of a petition and the issuance of the f inal order completing the adoption, it is made known to the court that circumstance s are such that the child should not be given in adoption to the petitioners, the court may dismiss the

procee dings. The trial court later entered a final orde r of adoption, and this appeal followed.

On appeal, the Grandmother contends that the trial court er red (1 ) in ruling that adoption by the

McCanns was in the children’s best interests, (2) in admitting the testimony of the DHS employees, and ( 3) in failing to set aside the surrenders wher eby the Mother r

elinquished her parental rights to the children.

Citing Tennessee Code Annotatedsection 36-1-118, the Grandmother first contends that she presented clear and convincing evidence of

circumstances indicating that adoption by the McCanns w as not in the childr en’s bes t interes ts. As per tinent, section 36- 1-118 pro vides tha t:

If at any time betw een the s urrende r of a ch ild direc tl y to prospective adoptive parents and the filing of an adoption petition or at any time betwee

n the filing of an adoption petition and the issuance of the final order of the adoption, it is made known to the court on the basis of cle ar and convincing evidence that circumstanc es are such that the child

should not b e adopte d, th e cour t may dismiss the adoption proc e edings or, if no adoption proceedings have been commenced, the court may or der the surrender

or pare ntal cons ent to prospective adoptive parents to be revoked and may modify or dismiss any order

of guardianship previously entered, and

may order th e reinstat

ement of parenta l rights, all in con siderati on of the b est interests of the child.

T.C.A. § 36-1-118(a) (1996). The Grandmother c ontends that the trial court should have denied the McCanns’ petition for

adoption under this section based on the evidence of Anthony Earl McCann’s violentacts toward the Grandmother during their ma rriage, as well as evidence of Cynthia McCann’s sexual indis cretion s.

This argument is without merit. T he trial court’s memorandum opinion issued in May 1996 reveal s that the court considered all of this evidence but found that the Grandmother ha d failed to meet her

burde n of pr ovin g, either by a pr eponderance of the evidence 2 or by clea

r and convincingT.C.A. § 36-1-123(a) (1991).

evidence, that adoption by the McCanns was not in the chi ld ren’s be st intere sts. I n making this findi ng, the tr ial co urt no ted th at, al thou gh it was undisputed that Mr. McCann and the Grandmother had a “tum ultu ous m arriage invo lvin g a great d eal of ph

ysi cal viole

nce,” th e proof a lso “cle arly revealed that t here [h ad] been n o alleg ations of any typ e of viole

nce sinc e the cou

ples’ div orce in 1987.” As for

Cynthia McCann’s alleg ed sexual indiscretions, the trial court noted that, with one
exce pti on, all of these acts “occurred more tha n ten year s ago and prior to her marriag e to Mr. McCann” and, fur

ther, tha t “[a]ll of th

e alleg ed incide

nts were emphati cally

denied by

Mrs. McCann.” In su

bsequen tly g ranting the McCan

ns’ petition, the trial court specifically found that the adoption w as in the c

hildren’ s best inte

rests.

In adoption p

roceed ings, our standard of review is “de novo upon the rec ord of the trial court, accompanied by a presumption of the cor rect ness of the

[tria l cou rt’s findings o f fact], unless the preponderance of the evidence is otherwise.” Sonet v. Unk nown Father of

Hasty , 797 S.W.2d 1, 5 (Tenn. App. 1990); T.R.A.P. 13(d). Where conflicting evidence is presented at trial as to the best interests of the children, the trial court’s findings ar e entitled to great weight. Sonet , 797 S.W.2d at 5. After a careful review of the record in this case, we conclude that the e vidence does notpreponderate against the trial court’s finding that adoption by the McCanns was in the children’s best inter ests.

In affirming thefinal adoption order, wereject the Grandmother’s contention that the trial court erred in admitting the testimony of the DHS employee s on the grounds that their testimony
was based on hearsay

and that they had not bee n qualified as experts. In order to prese rve an evidentiary

error for appella te revie w, a par ty is requir ed to obje ct to the e

vidence at the time

of its ad mission at trial. Woodson v. Porter Brown Limestone Co. , 916 S.W.2d 896, 907 n.10 (Tenn
. 19 96); T.R.E. 103(a)( 1). During the DH S employ ees’ te stimony , the Gra

ndmother failed to raise
a si ng le he ar sa y o bjection to their testimony. The Grandmother also failed to challenge the employ ees’ testimony on the ground tha t they had not been qualif

ied as expe

rts. The only objection raisedby the Grandmother r

elated to the home s tudy

reportswhich the

McCanns s ought to

introduce into evidence, an d the tria l c ourt sustained this objection on the ground that the home studies3 The Georgia court ruled that these sur renders were ineffective to surrender the Mother’s parental rights because, by virtue of the Mother’s prior execution of surrenders in favor of the Department of Family

and Children Services, the Mother had no parental rig hts to surrender. constituted inadmissible hearsay. See McKeehan v. McKeehan , No. 02A01-9407-CV-00165, 1995 WL 695124, at **2-3 (Tenn. App. Jan. 11, 1996) (excluding guardian ad litem report a s inadmissi ble hearsay ). Under

these circumstances, we conclude that the Gra ndmother has waived this issue for purposes of appellate review.

We like wise reject the Grandmother’s attack on the va lidity of the Mother’ s surrenders by

which she

relinquis hed her p arenta

l rights t o the children. Although the Grandmother raisedth is issue in her statement of the issues presented for review, the a rgument portion of the Grandmother’s brief fails to set forth her contentions with respect to this issue. Accord in gly, the Grandmother

has waiv ed this issue for purposes of appellate review. See Blair v. Badenhope , 940 S.W.2d 575, 576-77 (Tenn. App. 1996); T.R.A.P. 27.

Even if this issue were properly presented for this court’s review, we would r eject it because the record

reflects that the Mother has never revoked the surrenders. The Mothe r initially executed surrenders which relinquished her parental rights to the children in favor of the Bar tow County Department of Family

and Children Services in Georgia. An order entere d by

the Juvenile Courtof Bar

tow County

in Octo ber 1994 indic ates tha t the Mothe

r attempt ed to rev oke these surrenders but that she di d not do so within the time per mitted by Georg ia law. I

n enteri ng its October 1994 order, therefore, the Georg ia court ruled that the initial surrenders remained valid and unrevoked. This ruling remained undisturbed when the Georg ia court entered its order awarding custody of the childre

n to the McCanns in December 1994.

The Mother also executedsurrenders relinquishing her parenta l rights to the children in favor of

the McCanns. Even if these surrenders were e ffective to relinquish the Mother’s parental rights, 3 we note th at the Moth er likew ise has not revoke d these su rrende rs i n accord ance with Tennessee law. Under the adoption laws in effect at the time the Mother executed the surr enders, the Mother had the absolute right, provided a petition to a dopt had not been filed, to revoke the surrender within fifteen days from the da te of execution by appea

ring in the trial court

and presenting4 We also not e that the Mother ha s not revo

ked the su

rrende rs in acc ordance

with Te nn es se e’ s c ur re nt ad op ti on la ws , w hi ch pe rm it a p ar en t t o r ev ok e t he su rr en de r w it hi n t en da ys of execution by appea

ring in court and revoking the surre nder under oath. T.C.A. § 36-1-112(a)(1) (1996). After the e xpiration of this ten-day period, a par ent’s right to revoke the surren der is limi ted by sub secti on (d) . T.C .A. § 3 6-1-1 12(a)( 1)(F)( I) (1996) . Alt hough subsecti on (d) pe

rmits a sur

render to be set a side upon c lear and convinc ing evid ence of duress, fraud, intentional misrepresentation, or other specified invalidities, any action to revoke a surrender under subsection (d) must be initiated within thirty days of the surr

ender’s execution. T.C.A. § 36-1-112(d) (1996).

5 See Clark v. Butt

ry , 174 S.E.2d 356, 358 (Ga. Ct. App.), aff’d , 177 S.E.2d 89 (Ga. 1970); In re Adoptio n of A.S.S. , 907 P.2d 91 3, 918-19(Kan. Ct. App. 1995 ); Webb v. Wiley , 600 P.2d 317, 319 (Okla. 1979). the cour t with a written revoca

tion of sur

render . T.C.A. § 3 6-1-117( b) (1991) . Once a

petition to adopt was file d, the Moth

er’s rig ht to revoke the surrender was not absolute, but was subject to the trial court’s determination of what wasin the best interests of the children. T.C.A. § 36-1-117(e)(1) (1991). Upon entr

y of a final a doption or

der, th e Mo ther’s right to revoke the surrender was governed by rule 60.02

of the TennesseeRules of Civil Procedure. In order to set a side an adoption order under this rule, the Mother would be required to present clear and convincing evidence of the grounds for vacating the order, such a s that the surrenders were obtained by fraud or undue influence. In re Bishop , 678 S.W.2d 471, 472 (Tenn. App. 1984); T.R.C.P. 60.02(2).

In the present case, the Mother executed the surre nders relinquishing her parental rights to the children in favor of the McCanns in April 1994. The Mother did not seek to revoke the surrenders until August 1995, more than one year la ter, when she filed a motion to join in the Grandmother’s petition opposing the adoption of the children. This attempt to revoke the surrenders
was untimely

because it was not filed within fifteen day s of the Mother’s execution of the surrenders
as required by

statute. T.C.A. § 36-1-117(b) (1991). Moreover, the Mother’s motion to intervene
was ineffective to revoke the surrenders because the trial court subseque ntly dismissed

the Mother’s motion when her attorney represented to the court that she had chang ed her mind and no longer wished to oppose the adoption. Although the Mother’s deposition revealed that she wished to re voke the surrenders, the record indicates that she made no further a ttempts to do so. 4 Inasmuch as the Mother has failed to effectively

revoke the surrender s, and inasmuch as the Grandmother has no standing to asser t the Mothe

r’s par ental rig hts, 5 we conc lude that

this issue i s without me

rit.

The trial cou

rt’s judgment is af

firmed a nd this cau se remanded for furtherprocee dings. Costs of thi s appeal are taxe d to the Ap

pella nt, for which executio n may issue if
ne ce ss ar y.

____________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIG HERS, J. (Conc

urs)