IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 22, 2012 Session

IN RE MONTANA R. T.

Appeal from the Circuit Court of Cocke County

No. 31179 and 31575 Richard R. Vance, Judge

No. E2011-00755-COA-R3-PT-FILED-JUNE 29, 2012

This parental termination case concerns the child’s surname. The appellant biological father

consented to the termination of his parental rights so that the child could be adopted by the

appellee adoptive parents. At the conclusion of the telephonic hearing in which the

biological father confirmed that he consented to the termination of his parental rights, the

adoptive parents requested that the child’s surname be changed. This request was granted.

The biological father now appeals the trial court’s decision on the child’s surname. We

affirm.

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

HOLLY M. KIRBY, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and J. STEVEN STAFFORD, J., joined.

Christopher D. Brown, Dandridge, Tennessee for Respondent/Appellant, J.M.T.

1

Nicholas D. Bunstine, Knoxville, Tennessee for Petitioner/Appellees, D.F. and T.F.

Kathleen A. Mulvey, Del Rio, Tennessee as Guardian Ad Litem

After oral argument in this appeal, Mr. Brown filed a motion to withdraw as counsel for J.M.T. The trial 1

court granted the motion and appointed substitute counsel. 
OPINION

FACTS AND PROCEEDINGS BELOW

The child at issue, Montana R. T., was born to biological parents Respondent/Appellant J.

M. T. (“Biological Father”) and C. L. T. (“Biological Mother”) on April 28, 2000. At the

2

time of the proceedings below, Biological Father was incarcerated in federal prison, serving

a twenty-seven year sentence. Petitioner/Appellees D. F. (“Adoptive Father”) and T. F.

(“Adoptive Mother”), (collectively “Adoptive Parents”) are the child’s maternal great aunt

and uncle.

In September 2007, when the child was seven years old, the Cocke County Juvenile Court

granted emergency custody of the child to Adoptive Parents. Approximately two weekslater,

the same court granted Adoptive Parents temporary custody of the child. She has resided

with Adoptive Parents since that time.

On April 3, 2009, Adoptive Parents filed a petition for termination of the parental rights of

both biological parents and for adoption in the Circuit Court of Cocke County. At that time,

both of the child’s biological parents were incarcerated. The Adoptive Parents’ petition was

opposed by both Biological Father and by Biological Father’s mother, the child’s biological

paternal grandmother, F.T. (“Biological Grandmother”). Counsel was appointed to represent

Biological Father. The trial court also appointed attorney Kathleen Mulvey as guardian ad

litem (“GAL”) for the child. In September 2009, Biological Grandmother filed a petition

3

seeking to intervene.

Eventually, an agreement was reached. Under the agreement, both biological parents

consented to the termination of their parental rights and adoption of the child by Adoptive

Parents, so long as Biological Grandmother was permitted visitation with the child.

Biological Grandmother agreed not to permit the child to visit with Biological Father while

he was incarcerated.

On November 2, 2010, the trial court held a hearing for the purpose of having the parties

announce on the record the agreement they had reached, which resolved all outstanding

petitions, motions, and claims pending before the trial court. Present at the hearing in person

This Court has a policy of protecting the identity of children in parental termination cases by initializing the 2

names of the parties.

Another attorney was initially appointed as guardian ad litem but was relieved of his duties in this matter 3

due to a conflict of interest. 

-2-
were Adoptive Parents and their attorney, Biological Grandmother and her attorney, counsel

for Biological Mother, counsel for Biological Father, and the GAL. Biological Father and

Biological Mother participated by telephone.

4

At the hearing, the attorneys for the parties announced their agreement on the record. In

response to the trial judge’s questions, Biological Grandmother stated on the record her

consent to the agreement. The trial judge questioned Biological Mother, and she stated on

the record her consent to the termination of her parental rights and to adoption by Adoptive

Parents. She agreed both were in the child’s best interest. Biological Father acknowledged

that he heard the attorneys announce the agreement and that he had discussed the agreement

with his mother and his attorney. When the trial judge asked Biological Father if he agreed

to the termination of his parental rights to the child, Biological Father at first indicated that

he did not hear the question. The trial judge repeated the question, and Biological Father

then stated that he agreed to the termination. When the trial judge asked Biological Father

if he agreed that the termination of his parental rights and adoption by Adoptive Parents was

in the best interest of the child, Biological Father said, “Yes, sir.” When the trial judge asked

Biological Father if he had any questions, he replied that he did not but added a comment that

the telephone “keeps cutting us off.” After that, the trial judge questioned Adoptive Parents,

who agreed to assume the full rights and legal obligations of raising the child and to adopt

her.

After all parties acknowledged their acceptance of the announced agreement, the trial court

asked Adoptive Parents if the child’s name was to be changed. Adoptive Parents replied in

the affirmative. Both the Adoptive Mother and the GAL confirmed that the child wanted her

name to be changed to the Adoptive Parents’ last name.

Biological Father then stated that he wanted to speak to his attorney. After Biological

Father’s attorney spoke to him privately, the attorney relayed to the trial court that Biological

Father was “balking as to the name change.” Counsel for Adoptive Parents suggested that

5

the trial court make the decision on the child’s name, and no party objected. The trial court

observed that the child’s name change was apparently not discussed as part of the parties’

overall agreement. The trial court then held: “However, given the fact that there has been

a surrender by both parents of their parental rights and acknowledged by both of them, and

We surmise that Biological Mother participated by telephone, because it appears that she was still

4

incarcerated at the time of the hearing and the transcript of the hearing shows that she participated. 

Biological Mother is not a party to this appeal.

Biological Father had consented to the termination of his parental rights as to another child, older than the 5

child that is the subject of this appeal, and that child apparently did not ask for a name change.

-3-
the adoption having been granted, that the name shall be changed to the wishes of the new

legal parents, to the last name [of the Adoptive Parents], for all legal purposes.”

On March 15, 2011, the trial court entered a written order of final judgment. The written

order detailed the parties’ agreement as announced in the hearing. It then terminated the

parental rights of both Biological Father and Biological Mother and granted the adoption

petition of the Adoptive Parents. As to the name change for the child from her biological last

name to her adoptive parents’ last name, the order stated:

The parties were unable to agree on whether the minor’s last name should be

changed from [T] to [F]. Given the fact that there has been a surrender by both

parents of their parental rights and the adoption having been granted, and at the

request of the new adoptive parents, the minor child’s name shall be changed

to Montana [R. F.] for any and all legal purposes and a new birth certificate

shall issue.

Biological Father now appeals.

6

ISSUES ON APPEAL AND STANDARD OF REVIEW

On appeal, Biological Father states the issues on appeal as follows:

(1) That the Appellant was unable to fully participate in the announcement of

the settlement agreement, due to technical problems with the telephone, thus

violating statutory and constitutional law; and

At oral argument in this appeal, Biological Father’s counsel appeared to argue issues not raised in his 6

appellate brief, such as arguing that Biological Father’s agreement to the termination should be voided

because the parties’ agreement did not include the issue of the name change. We decline to address issues

not raised in Biological Father’s appellate brief. An issue not presented in the Statement of Issues in the

appellate brief is not properly before the Court of Appeals. Tenn. R. App. P. 27 (a)(4); Bunch v. Bunch, 281

S.W.3d 406, 410 (Tenn. Ct. App. 2008) (quoting Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App.

2001)); Coleman v. Lauderdale County, No. W2011-00602-COA-R3-CV, 2012 WL 475606, at *3 n.4

(Tenn. Ct. App. Feb. 15, 2012). An item notspecifically listed as an issue presented for review is considered

waived, as this Court is under no obligation to search for, or derive, issues that are not specifically stated in

accordance with Rule 27(a)(4). Coleman, 2012 WL 475606, at *3 n.4 (citing Childress v. Union Realty Co.,

97 S.W.3d 573, 578 (Tenn. Ct. App. 2002)). Therefore, we will address only the issues listed in the

Statement of Issues in Biological Father’s brief to this Court.

-4-
(2) That the trial court erred in permitting the surname of the minor child to

be changed without proof that such change was in the best interest of the minor

child.

We note that, in his appellate brief, Biological Father does not seek to rescind his consent to

the termination of his parental rights, nor does he appeal the trial court’s termination of his

parental rights.

7

Under Tennessee Rule of Appellate Procedure 13(d), the trial court’s findings of fact are

reviewed de novo upon the record, presuming those findingsto be correct unless the evidence

preponderates otherwise. Tenn. R. App. P. 13(d) (2011). Questions of law are reviewed de

novo with no presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741,

744-45 (Tenn. 2002).

ANALYSIS

Due Process

Biological Father argues that, as an incarcerated parent, he has the right to participate in a

hearing on the termination of his parental rights, at least by telephone, pursuant to Tennessee

Code Annotated § 36-1-113(f)(3). This statute provides that the incarcerated parent must

receive actual notice of the following:

That the incarcerated parent or guardian has the right to participate in the

hearing and contest the allegation that the rights of the incarcerated parent or

guardian should be terminated, and, at the discretion of the court, such

participation may be achieved through personal appearance, teleconference,

telecommunication or other means deemed by the court to be appropriate under

the circumstances; . . .

Tenn. Code Ann. § 36-1-113(f)(3) (2010). Biological Father also cites Knight v. Knight,

11 S.W.3d 898, 903 (Tenn. Ct. App. 1999), for the proposition that prisoners have a

constitutional right to meaningful access to the courts and an opportunity to be heard. Based

on this, Biological Father contends that he was not able to participate fully in the hearing via

telephone due to the technical difficulties. He asserts that the trial court failed to ask him at

the conclusion of the hearing if he heard and understood the complete agreement prior to

Biological Father’s attorney at the trial court level was permitted to withdraw. Biological Father was 7

appointed new counsel for this appeal, who was present for oral argument but has now also withdrawn.

-5-
ending the hearing, describing this as “most troubling.” On this basis, Biological Father

contends that this matter should be remanded to the trial court for a rehearing.

This issue is without merit, for numerous reasons. First, assuming arguendo that the statute

Biological Father cites applies to a hearing held for the purpose of confirming an agreement

on termination of parental rights and adoption, Biological Father was in fact allowed to

participate by telephone. The statute does not state that the telephone connection for such

a hearing must be perfect, and certainly Biological Father’s constitutional right to meaningful

access to the courts was not impacted by the telephone occasionally “cutting out.”

Second, no due process concerns were raised by Biological Father in the trial court; there was

no objection by Biological Father or his counsel that his right to be heard was impaired or

that he was not able to fully participate in the hearing. At most, Biological Father made it

known to the trial court that there were difficulties with the telephone “cutting out”

intermittently. Once Biological Father made this known, the trial court carefully repeated

all questions and received a substantive response from Biological Father to each question

before proceeding. In light of this, there is no merit to Biological Father’s contention that

the trial judge should have again asked Biological Father if he heard and understood the

agreement as announced. Moreover, prior to adjournment of the hearing, when the issue of

the name change arose, Biological Father spoke privately by telephone with his attorney.

Even after that, the only objection raised by Biological Father was to the name change. Thus,

the issue was not raised to the trial court, and we find that it is waived on appeal. See Waters

v. Farr, 291 S.W.3d 873, 918 (Tenn. 2009).

Additionally, Biological Father fails to identify any way in which his due process rights or

his ability to participate in the hearing were substantively affected by the technical

difficulties with the telephone. Each time Biological Father told the trial court that he was

having difficulty hearing, the trial court repeated the question and made sure to receive a

response from Biological Father before going forward. In addition, Biological Father’s

attorney was physically present for the entire hearing. Having now had an opportunity to see

the transcript of the hearing, Biological Father does not point to anything that he was unable

to hear that was not repeated to him. Thus, he has pointed to no prejudice from any technical

telephone problems. For all of these reasons, we find that this argument is without merit.

Name Change

For the first time on appeal, Biological Father argues that the trial court erred in changing the

child’s name without hearing evidence on the matter. In support, Biological Father cites

Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn. Ct. App. 1993), and Halloran v. Kostka,

778 S.W.2d 454, 456 (Tenn. Ct. App. 1988), for the proposition that the trial court should

-6-
make a best interest finding based on specific factors before ordering a name change. On this

basis, Biological Father seeks to have the trial court’s order on the child’s name change

vacated, or the matter remanded to the trial court for a rehearing on this issue.

Once again, this issue, as framed by Biological Father on appeal, was not raised to the trial

court. To be sure, Biological Father objected to the name change at the hearing. The only

basis for the objection, however, was the fact that Biological Father did not consent to it.

Apparently, Biological Father had agreed to the termination of his parental rights as to an

older sibling of the child at issue in this appeal, who had not requested a name change. We

surmise that, for that reason, Biological Father did not consider in advance of the hearing that

this child might desire to change her name to that of her adoptive parents. At any rate, the

issue of the name change was not part of the parties’ overall agreement. At no point in the

8

trial court proceedings, either during or after the hearing, did Biological Father contend that

the trial court was required to conduct an evidentiary hearing on the issue. Therefore, we

9

hold that this argument was waived.

Biological Father did, of course, raise an objection in the trial court to having the name

changed because he did not consent to it. Therefore, we address this issue.

On appeal, Biological Father points to no authority indicating that the trial court should

refrain from permitting an adopted child to take the name of the adoptive parents merely

because the biological parent, whose parental rights have been terminated, objects to the

name change. Indeed, it is doubtful that Biological Father even has standing to make such

an objection.

Standing limits access to the courts to those who have a justiciable claim. Thomas v. Tenn.

Dep’t of Transp., No. M2010-01925-COA-R3-CV, 2011 WL 3433015, at *6; 2011 Tenn.

App. LEXIS 426, at *18-19 (Tenn. Ct. App. Aug. 5, 2011); Wood v. Metro. Nashville &

Davidson Co. Gov't, 196 S.W.3d 152, 157 (Tenn. Ct. App. 2005); Metro. Air Research

Testing Auth., Inc. v. Metro. Gov't of Nashville & Davidson Co., 842 S.W.2d 611, 615

At oral argument in this appeal, Biological Father’s attorney sought to have the entire agreement voided 8

because it did not address the child’s name change. Once again, this issue was not raised to the trial court

and was not included in the Statement of Issues in Biological Father’s appellate brief. Therefore, this

argument is waived.

Neither of the cases cited by Biological Father support his assertion that an evidentiary hearing is required

9

where the biological parent’s parental rights are terminated and the child is adopted. Barabas was a name

dispute between the two unmarried biological parents. Barabas, 868 S.W.2d at 285. Halloran was a postdivorce dispute in which the mother was enjoined by the father from referring to the child by the stepfather’s

surname. Halloran, 778 S.W.2d at 455. Thus, both cases are inapposite.

-7-
(Tenn. Ct. App. 1992). In order to have standing to appeal a trial court’s order, a party must

be “aggrieved” by the order. Clark v. Perry, No. 02A01-9704-CH-00080, 1998 WL

34190562, at *7; 1998 Tenn. App. LEXIS 194, at *19 (Tenn. Ct. App. Mar. 19, 1998) (citing

Ray v. Trapp, 609 S.W.2d 508, 512 (Tenn. 1980); Koontz v. Epperson Elec. Co., 643

S.W.2d 333, 335 (Tenn. Ct. App. 1982)). In the legal sense, “[a] party is ‘aggrieved’ when

he has an interest recognized by law which is injuriously affected by the order . . . .” Clark,

1998 WL 34190562, at *7; 1998 Tenn. App. LEXIS 194, at *19 (citing Koontz, 643 S.W.2d

at 335).

The term “parental rights” is statutorily defined as the “legally recognized rights and

responsibilities to act as a parent, to care for, to name, and to claim custodial rights with

respect to a child.” Tenn. Code Ann. § 36-1-102(38) (2010) (emphasis added). When the

parental rights of a biological parent are terminated, “all legal rights and obligations of the

parent or guardian of the child against whom the order of termination is entered and of the

child who is the subject of the petition to that parent or guardian” are forever severed. Tenn.

Code Ann. § 36-1-113(l)(1) (2010). This includes the right to name the child. Thus, the

biological parent whose rights have been terminated no longer has any “right to object to the

child's adoption or thereafter to have any relationship, legal or otherwise, with the child.”

Tenn. Code Ann. § 36-1-113(l)(1).

Conversely, adoption establishes a parent-child relationship between the adoptive parents and

the adopted child “as if the adopted child had been born to the adoptive parents,” and the

child is deemed to be “the lawful child of [the adoptive parents], . . . for all legal

consequences and incidents of the biological relation of parents and children.” Tenn. Code

Ann. § 36-1-121(a) (2010). Thus, the adoptive parents acquire all parental rights and

responsibilities, including the right to name the child, and it is doubtful that Biological Father

had “an interest recognized by law” in the child’s name at that point.

Assuming arguendo that Biological Father has standing to contest the order permitting the

child to change her name to that of her adoptive parents, we find Biological Father’s

arguments unpersuasive. He cites no reason why the child should not take the name of her

new adoptive parents and does not even argue that the name change is not in the child’s best

interest.

We recognize the emotional impact on Biological Father of knowing that the child no longer

bears his last name. We also recognize the child’s legitimate desire to live her life sharing

the surname of her new family. We decline to reverse the trial court’s order allowing the

child to change her surname to that of her adoptive parents.

-8-
CONCLUSION

The decision of the trial court is affirmed. Costs on appeal are assessed against

Appellant J.M.T., for which execution may issue if necessary.

______________________________

HOLLY M. KIRBY, JUDGE

-9-