IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 3, 2010

IN RE DEVON W., ET AL.

Appeal from the Circuit Court for Blount County

No. E-22811 W. Dale Young, Judge

No. E2009-01326-COA-R3-JV - Filed April 16, 2010

Former foster mother and her new husband filed a motion to intervene and to set aside the

adoption of three children by the current foster parents. The trial court denied the motion.

We affirm.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY,J., delivered the opinion of the Court, in which HERSCHEL P. FRANKS,

P.J., and CHARLES D. SUSANO, JR., J., joined.

Lauretta Martin-Matera and Christopher P. Matera, Kingston, Tennessee, appellants, pro se.

N. David Roberts, Jr., Knoxville, Tennessee, for the appellees, Timothy John W. and Lisa

Kaye W.

OPINION

I. BACKGROUND

Three minor children - Devon P.C., Heaven L.C. and Araya S.C. (“the Children”) –

were removed from their biological parents in Anderson County by the Tennessee

Department of Children’s Services (“DCS”) on February 14, 2006. Despite attempts at

reunification, DCS ultimately filed a petition to terminate the parental rights of the biological

parents. After the parental rights were terminated, full legal guardianship was awarded to

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DCS.

Order of termination entered on July 8, 2008. 1
While in foster care, the Children were placed with Patrick Martin and Lauretta

(Laurie) Martin (“Intervenor”) on June 7, 2006. After Mr. Martin’s death in December 2007,

the Children remained with Intervenor.

DCS subsequently determined that Intervenor had engaged in inappropriate conduct

against the Children and implemented a corrective action plan in April 2008. The plan

required Intervenor to take remedial steps concerning her conduct and behavior towards the

Children. However, DCS ultimately concluded that the corrective action plan was not being

followed by Intervenor and removed the Children from her custody on July 15, 2008. DCS

closed Intervenor’s home to further participation in foster care.

Following the removal of the Children from Intervenor’s home, they were placed with

Timothy J. W. and Lisa K. W. (“Foster Parents”). Intervenor subsequently married

Christopher Matera (collectively with Intervenor “Appellants”).

On January 14, 2009, Foster Parents filed a petition to adopt the Children in Blount

County Circuit Court. Omni Visions, a licensed child placing agency, prepared a confidential

report for the trial court regarding the proposed adoptions. DCS consented to the adoptions,

and a final order of adoption was entered on February 2, 2009.

On February 13, 2009, Appellants filed a motion to intervene and to set aside the

adoption. Appellants asserted that Blount County was not the proper venue for the adoption

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proceeding and that Foster Parents had filed the petition in Blount County to prevent

Appellantsfrom filing an intervening petition for adoption. Intervenor claimed that DCS was

aware that she was asserting her right to custody of the Children as a result of the petition for

custody she had filed in the Juvenile Court for Anderson County on January 12, 2009.

After conducting a hearing on May 8, 2009, the trial court denied the motion in an

order entered on May 22, 2009. The trial court held:

Upon consideration of the argument of counsel at the hearing, the Court finds

that the movants do not [have] standing to challenge the final order of adoption

that was entered. . . . The Court further finds that setting aside the adoption is

not in the best interests of the children.

Appellants filed a timely appeal.

Appellants attached an “Intervening Petition for Adoption,” in which they sought to adopt the 2

Children.

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II. ISSUES

The issues raised by Appellants are restated as follows:

A. Whether Appellants were denied due process in the trial court’s allowance

for a permissive venue.

B. Whether Appellants, who were seeking custody for the best interests of the

Children through other legal proceedings, were denied substantive due process

in the trial court upholding the final adoption decree.

C. Whether Appellants were denied fundamental rights guaranteed to foster

parents in Tenn. Code Ann. §37-2-415(a)(1,2,4,6,11-20) in the trial court

upholding the final adoption decree.

III. STANDARD OF REVIEW

The standard of review in this appeal is de novo upon the trial court’s record with a

presumption of correctness of the court’s findings of fact unless the evidence preponderates

otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We

review a trial court’s conclusions of law under a de novo standard upon the record with no

presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.

1993).

IV. DISCUSSION

As we stated in In re K.A.Y., 80 S.W.3d 19 (Tenn. Ct. App. 2002),

In Tennessee, the adoption statutes are to be strictly construed since they are

in derogation of the common law. Tenn. Code Ann. §36-1-101(a) sets forth

the purpose of the adoption statutory scheme, and provides, in pertinent part,

as follows:

(a) The primary purpose of this part is to provide means and procedures for

the adoption of children and adults that recognize and effectuate to the greatest

extent possible the rights and interests of persons affected by adoption,

especially those of the adopted persons, . . . and to those ends seek to ensure,

to the greatest extent possible, that:

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* * *

(2) Children are placed only with those persons who have been determined to

be capable of providing proper care and a loving home for an adopted child;

(3) The 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;

(4) The adoptive process protects the rights of all persons who are affected by

that process and who should be entitled to notice of the proceedings for the

adoption of the child;

(5) The adoption proceedings are held in an expeditious manner to enable the

child to achieve permanency, consistent with the child’s best interests, at the

earliest possible date . . . .

Tenn. Code Ann. §36-1-101(a) demonstrates that the best interests of the child

whose adoption is at issue [are] paramount. Accordingly, when a court is

determining an adoption petition, its primary concern is what will serve the

best interest of the child.

80 S.W.3d at 23-24 (internal citations omitted).

A. VENUE

Tenn. Code Ann. §36-1-114 provides as follows:

The termination or adoption petition may be filed in the county:

(1) Where the petitioners reside;

(2) Where the child resides;

(3) Where the child resided when:

(A) The child became subject to the care and control of a public

or private child-caring or child-placing agency; or

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(B) The child became subject to partial or complete

guardianship or co-guardianship pursuant to a surrender

proceeding as provided in this part; or

(4) In which is located any licensed child-placing agency or institution

operated under the laws of this state having custody or guardianship of the

child or to which the child has been surrendered as provided in this part.

Tenn. Code Ann. §36-1-114 (Supp. 2009).

Appellants contend that DCS orchestrated the adoption in Blount County to avoid the

intervening petition that had been filed earlier in another county. They assert that venue was

proper in either the county where the Children and Foster Parents reside – Monroe – or in the

county in which the Children resided when the biological parents’ rights were terminated –

Anderson.

In this case, DCS maintained full legal guardianship of the Children prior to their

adoption. DCS has an office located in Maryville, Blount County, Tennessee, which makes

venue proper in Blount County under Tenn. Code Ann. §36-1-114(4). There is no evidence

of record to support the contention that the adoption petition was filed in Blount County for

an improper reason.

B. DUE PROCESS

Appellants argue that they were denied substantive due process because the trial court

disregarded their attempts to seek custody of the Children. They contend it was improper to

deny Intervenor the opportunity to testify and explain how she took care of the Children for

over two years and described the bond she shared with the Children.

The adoption statutes contemplate intervention where a third party files a petition

seeking to adopt the same child that is subject to a pending adoption petition. In re Adoption

of M.J.S., 44 S.W.3d 41, 51 (Tenn. Ct. App. 2000). In order to be eligible to file an

intervening adoption petition, a petitioner need not have physical custody of the child or the

right to receive custody of the child at the time of the filing, because the adoption statutes

specifically except such an intervenor from the statutes’ custody requirement at that point in

the proceedings. Id.

However, in order to ultimately prevail on a petition to adopt to child, the intervening

petitioner must meet the adoption statutes’ custody requirement at a subsequent point in the

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adoption proceedings. Id. Although Tenn. Code Ann. §36-1-115(b) excepts an intervening

petitioner from the custody requirement at the time of filing the petition to adopt, other

provisions of the adoption statutes do not contain such an exception and contemplate that the

intervening petitioner will subsequently obtain custody of the child. Id. As further noted in

In re S.E.J., No. W2008-01354-COA-R3-PT, 2009 WL 2058790, at *3, 4 (Tenn. Ct. App.

W.S., July 16, 2009) (perm. app. granted Nov. 16, 2009):

For instance, the adoption statutes require adoption petitions to state, among

other things, “[t]hat the petitioners have physical custody of the child or that

they meet the requirements of §36-1-111(d)(6), and from what person or

agency such custody was or is to be obtained.” Tenn. Code Ann. §36-1-

116(b)(5) (2005). Similarly, the trial court’s final order of adoption must state

“[t]he date when the petitioners acquired physical custody of the child and

from what person or agency or by which court order.” Tenn. Code Ann. §36-

1-120(a)(4)(2005). In addition, Tennessee Code Annotated section 36-1-

116(f)(1) provides:

Upon the filing of the petition, the court shall have exclusive jurisdiction of all

matters pertaining to the child, . . . except for allegations of delinquency,

unruliness or truancy of the child pursuant to title 37; provided, that, unless

a party has filed an intervening petition to an existing adoption petition

concerning a child who is in the physical custody of the original petitioners,

the court shall have no jurisdiction to issue any orders granting custody or

guardianship of the child to the petitioners or to the intervening petitioners or

granting an adoption of the child to the petitioners or to the intervening

petitioners unless the petition affirmatively states, and the court finds in its

order, that the petitioners have physical custody of the child at the time of the

filing of the petition, entry of the order of guardianship, or entry of the order

of adoption, or unless the petitioners otherwise meet the requirements of §36-

1-111(d)(6).

When faced with interpreting this statute in In re Adoption of M.J.S., this Court

stated:

Although the foregoing statute is not a model of clarity, we interpret this

statute to mean that, in cases where an intervening adoption petition has been

filed, neither the original petitioners nor the intervening petitioners will be

granted an adoption of the child unless the trial court finds that the petitioners

have either physical custody of the child or the right to receive custody of the

child pursuant to a validly executed surrender.

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44 S.W.3d at 52.

2009 WL 2058790, at *3,4 (footnote omitted). Accordingly, the trial court would not be

authorized to grant Appellants an adoption of the Children unless the court found that the

Appellants had physical custody or the right to receive custody of the Children at some point

during the adoption proceedings. See Tenn. Code Ann. §§36-1-116(f)(1), 36-1-120(a)(4).

At the time of the filing of the adoption petition on January 14, 2009, the Children had

not resided in Intervenor’s home for twelve or more consecutive months immediately

preceding the filing of the adoption petition. Accordingly, Appellants were not entitled to

the statutory first preference. See Tenn. Code Ann. §36-1-115(g)(1). Additionally, as

revealed in the proposed intervening petition for adoption, an approved adoptive home study

had not occurred in Appellants’ home. Intervenor states as follows in the petition:

That due to the previous foster parent relationship and the fact that the Minor

Children resided with the Intervenor, Laurie Martin-Matera for over two (2)

years, that the six-month waiting period, order of reference, preliminary home

study, order of guardianship or custody, supervision, and preliminary and final

court reports be waived pursuant to Tennessee Code Annotated §36-1-119(a)

and (b), and that the Department do a background check on the new resident

in the home, Chris Martin-Matera, prior to entering an Order of Adoption.

Due to failing to provide the trial court with an approved adoptive home study and DCS’s

closing of Intervenor’s home, Appellants did not meet the requirements imposed upon

persons seeking to adopt children in the custody of DCS. Thus, Appellants did not meet the

requirements of either prong (g)(1) or (g)(2) of Tenn. Code Ann. §36-1-115. The trial court

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did not err in refusing to allow Appellants to proceed with the intervening petition because

Tenn. Code Ann. §36-1-115(g) provides:

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(1) When a child is placed in a foster home by the department or otherwise, and becomes

available for adoption due to the termination or surrender of all parental or guardianship

rights to the child, those foster parents shall be given first preference to adoption of the child

if the child has resided in the foster home for twelve (12) or more consecutive months

immediately preceding the filing of an adoption petition.

(2) In becoming adoptive parents, the foster parents shall meet all requirements otherwise

imposed on persons seeking to adopt children in the custody of the department, and shall be

subject to all other provisions of this part.

Tenn. Code Ann. §36-1-115(g)(2005).

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they cannot meet the custody requirement at all times pertinent to the adoption proceeding.

Additionally, Appellants have not established that even if the court were to vacate the

final adoption decree, they could otherwise prevail in adopting the Children. Appellants

would have to take the following steps, at a minimum, to adopt the Children if the final order

of adoption were vacated: (1) Become approved foster parents able to seek custody (since

you must first have physical custody in order to adopt a child), see Tenn. Code Ann. 36-1-

115(b); (2) File a petition for custody and be awarded physical custody of the Children; (3)

Present an approved adoptive home study to a trial court showing suitability for adoption,

after first obtaining physical custody (due to DCS’s closing of Intervenor’s home, this home

study would have to be submitted by a licensed child-placing agency); (4) Seek termination

of the guardianship rights of DCS for one of the statutory grounds set forth at Tenn. Code

Ann. §36-1-113(g)(1)-(9). If Appellants were unable to terminate the guardianship rights of

DCS, they would be unable to adopt the Children without the voluntary consent of DCS. The

agency will not give its voluntary consent to a home which it has closed for cause.

Accordingly, even if the trial court set aside the final order of adoption, Appellants could not

prevail in adopting the Children.

We note further that Tenn. Code Ann. §36-1-117(a)(1) and (d) list the necessary

parties to an adoption proceeding and the parties who are entitled to notice of the matter.

Former foster parents, such as Intervenor, are not listed. See In re K.A.Y., 80 S.W.3d at 24.

Foster parents in Tennessee have no state or federal statutory rights comparable to natural

parents.

The relevant adoption statute only required two parties be joined in the adoption

proceeding. One required party was the petitioners – Foster Parents – seeking the adoption

of the Children, and the other party required to be joined would be any person with “parental

or guardianship rights to the [C]hild[ren].” See Tenn. Code Ann. §36-1-117(a)(1). Former

foster parents are not included among the individuals entitled to notice. Even other

biological or legal “relatives” of the Children are not entitled to notice of the adoption

proceeding if they have no parental or guardianship rights to the Children. Tenn. Code Ann.

§36-1-117(d)(1). The only persons entitled to notice are legal guardians or any public or

private agency having custody or complete or partial guardianship of the Children. In this

case, DCS was the only “person” having custody or complete or partial legal guardianship

of the Children. DCS had proper notice, a representative appeared at the proceedings, and

the agency participated in the adoption proceedings by giving consent pursuant to its

guardianship rights of the Children.

In this matter, Mr. Matera was clearly not entitled to notice, as he was never a foster

parent to any of the Children, never resided with them, and has no relationship or connection

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with them. He is not an approved adoptive parent for the Children. As for Intervenor, the

Children were removed from her care by DCS for legal cause. At the time of the hearing,

she had neither parental rights nor guardianship rights to the Children. Thus, she was not

entitled to any notice of the adoption proceedings.

C. RIGHTS OF FOSTER PARENTS

The rights of foster parents, contained at Tenn. Code Ann. §37-2-415, provide that

“[t]o the extent not otherwise prohibited by state or federal statute, the department shall,

through promulgation of rules in accordance with the Uniform Administrative Procedures

Act . . .” implement certain rights for foster parents. Tenn. Code Ann. §37-2-415(a) (Supp.

2009). A foster parent is afforded the right to an administrative hearing if he or she believes

that his or her rights have been denied under the statutory rights. In this case, Intervenor filed

the administrative pleading to assert a grievance; however, due to multiple requests for

continuances made by her or her counsel, the administrative grievance became moot when

the adoption was granted to Foster Parents. The Administrative Law Judge dismissed the

administrative action in an order entered March 5, 2009. Thus, the statute does not provide

any remedy that will assist Appellants.

V. CONCLUSION

The judgment of the trial court is affirmed. Costs on appeal are taxed to Appellants,

Christopher Matera and Lauretta Martin-Matera. This case is remanded to the trial court,

pursuant to applicable law, for enforcement of that court’s judgment.

_________________________________

JOHN W. McCLARTY, JUDGE

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