IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 20, 2015 Session

IN RE: SONYA M.

Appeal from the Chancery Court for Dickson County

No. 2014CV208 Robert E. Burch, Judge

No. M2015-00064-COA-R3-PT – Filed July 16, 2015

The issue in this case is whether former foster parents have standing to bring an action for 

termination of parental rights and adoption of children formerly in their care. We hold, as 

did the trial court, that former foster parents do not have standing to do so.

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

ANDY D. BENNETT, J., delivered the opinion of the court, in which RICHARD H. DINKINS 

and W. NEAL MCBRAYER, JJ., joined.

Karl M. Braun, Lucas Davidson, and Joanna L. McCracken, Nashville, Tennessee, and 

Kendall A. Sykes, Oklahoma City, Oklahoma, for the appellants, David Sheldon Hodgin, 

Jr. and Kimberly Ellen Hodgin.

Herbert H. Slatery, III, Attorney General and Reporter, and Alexander S. Rieger, Assistant 

Attorney General, for the appellee, Tennessee Department of Children‟s Services.

Anita Lynn Vinson Coffinberry, Erin, Tennessee, for the appellee, John M.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Sonya M. was born in Nebraska in July 2004. Sonya‟s father, John M. (“Father”), 

was awarded custody of the child in 2005. He allowed the child to travel to Tennessee 

with one of her caregivers, and in October 2005, after the caregiver‟s parents contacted the 

sheriff‟s department, the child was adjudicated dependent and neglected. The Department 

of Children‟s Services (“DCS”) was given custody of Sonya, and in April 2006, the child 
2

was officially placed in the home of foster parents David and Kimberly Hodgin.

In April 2006, Father was indicted on federal charges and was taken into custody. 

That fall, he pled guilty to the federal charge of unlawful transport of firearms and was 

sentenced to fifteen years in prison. 

In July 2006, the Hodgins filed a petition to terminate parental rights and to adopt

Sonya, in the Chancery Court of Dickson County. The chancery court terminated the 

rights of Sonya‟s mother1and Father and approved her adoption by the Hodgins. Father 

appealed the termination of his parental rights and the adoption from prison. See In re 

S.J.M., No. M2009-01080-COA-R3-PT, 2009 WL 4039430, at *1 (Tenn. Ct. App. Nov.

20, 2009). This Court found that, contrary to the trial court‟s determination, the issue of 

Father‟s sentence as a ground for termination under Tenn. Code Ann. § 36-1-113(g)(6) had 

not been tried by consent of the parties. Id. at *3. Therefore, the adoption was vacated,

and Sonya was returned to the legal custody of DCS. Id. at *4. DCS again placed the 

child with the Hodgins. 

Sonya continued to live with the Hodgins until January 2014. At that time, Father 

was no longer in prison,2and DCS removed Sonya from the Hodgins‟ care and sent her to 

live with Father in Nebraska on a trial home visit. Sonya had not seen Father since she 

was an infant.

On June 6, 2014, the Hodgins filed a petition to terminate Father‟s parental rights 

and to adopt Sonya. Father filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(1) 

and (6) for lack of standing. DCS filed a motion for judgment on the pleadings asserting 

that the Hodgins lacked standing to file a petition to terminate parental rights and adopt

Sonya. 

On September 16, 2014, the trial court entered a memorandum opinion concluding 

that the Hodgins‟ petition should be dismissed. The court construed Tenn. Code Ann. 

§ 36-1-113(b)(1) to mean that plaintiffs‟ “standing to file a termination of parental rights 

action depends upon their standing to file an adoption action.” Because, under Tenn. 

Code Ann. § 36-1-115(b), the Hodgins did not have “physical custody or . . . the right to 

receive custody of the child sought to be adopted as provided in § 36-1-111(d)(6) 

[surrender] at the time the petition is filed,” the trial court concluded that they did not have 

 

1

Sonya‟s mother did not appear or defend the termination of her parental rights, and she is 

not involved in the current appeal. 

2

Father testified that his sentence was reduced from fifteen to seven and one-half years for 

his cooperation in a homicide investigation. In re S.J.M., 2009 WL 4039430, at *2. 
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standing. The Hodgins filed a motion to alter or amend. On October 3, 2014, the trial 

court entered its final order dismissing the termination and adoption petition. The motion 

to alter or amend was denied on October 28, 2014.

On appeal, the only issue is whether the trial court erred in determining that the 

Hodgins lacked standing to file a petition to terminate Father‟s parental rights and for 

adoption.

STANDARD OF REVIEW

Making a determination regarding standing under Tenn. R. Civ. P. 12.02(6) is a 

question of law; therefore, our review is de novo with no presumption of correctness. 

Town of Collierville v. Town of Collierville Bd. of Zoning Appeals, No. 

W2013-02752-COA-R3-CV, 2015 WL 1606712, at *3 (Tenn. Ct. App. Apr. 7, 2015). If 

“matters outside the pleadings are presented to and not excluded by the court, the motion 

[to dismiss pursuant to Tenn. R. Civ. P. 12.02(6)] shall be treated as one for summary 

judgment . . . .” Tenn. R. Civ. P. 12.02. Because we are faced with a question of law, the 

standard of review is the same: de novo with no presumption of correctness. 

Statutory interpretation is an issue of law which we review de novo on appeal, 

granting the trial court‟s interpretation no deference. In re Kaliyah S., 455 S.W.3d 533, 

552 (Tenn. 2015) (citing Mills v. Fulmarque, 360 S.W.3d 362, 366 (Tenn. 2012)). When 

interpreting a statute, we strive to “„ascertain and give effect to the legislative intent 

without unduly restricting or expanding a statute‟s coverage beyond its intended scope.‟” 

Id. (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). We are to presume that 

every word used in a statute has meaning and serves a purpose. Nye v. Bayer 

Cropscience, Inc., 347 S.W.3d 686, 694 (Tenn. 2011). The most important feature of a 

statute is the language used. In re Kaliyah S., 455 S.W.3d at 552.

ANALYSIS

Both terminations of parental rights and adoptions are governed exclusively by 

statute in Tennessee. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); In re Shelby L.

B., No. M2010-00879-COA-R9-PT, 2011 WL 1225567, at *5 (Tenn. Ct. App. Mar. 31, 

2011). Tennessee Code Annotated section 36-1-113(b)(1) designates the parties who 

have standing to file a petition to terminate parental rights. That subsection provides, in 

pertinent part: 

The prospective adoptive parent or parents, including extended family 

members caring for a related child, any licensed child-placing agency having 

custody of the child, the child‟s guardian ad litem, or the department shall 
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have standing to file a petition pursuant to this part or title 37 to terminate 

parental or guardianship rights of a person alleged to be a parent or guardian 

of the child. . . . The prospective adoptive parents . . . shall have standing 

to request termination of parental or guardianship rights in the adoption 

petition filed by them pursuant to this part.

Tenn. Code Ann. § 36-1-113(b)(1) (emphasis added). The Hodgins claim that they are 

“prospective adoptive parents.”

The term “prospective adoptive parents” is defined in Tenn. Code Ann. 

§36-1-102(41) as follows:

[A] non-agency person or 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;

(Emphasis added). The Hodgins assert that they were “previously approved” by DCS to 

adopt Sonya. In making this argument, the Hodgins rely upon a foster care review 

summary from March 2010 showing a permanency goal of adoption by the Hodgin family 

and the termination of Father‟s parental rights. This foster care review occurred almost 

four years prior to the filing of the Hodgins‟ petition in June 2014. By that time, however, 

DCS had changed its permanency goals for Sonya, removed Sonya from the Hodgins‟ care, 

and placed her with Father. Thus, by the time they filed their petition for termination and 

adoption, the Hodgins‟ classifcation as “previously approved” to adopt Sonya was 

nullified by DCS‟s subsequent actions. 

Further, as the trial court emphasized, the Hodgins cannot be prospective adoptive

parents unless they have standing to file a petition for adoption. In the case of In re Shelby 

L.B., 2011 WL 1225567, at *10, this Court construed the legislative scheme for 

termination and adoption “as contemplating that a „prospective adoptive parent‟ is one who 

not only harbors the intention or desire to adopt, but who also has the legal capacity or 

ability to do so.” Tennessee Code Annotated section 36-1-115(b) imposes the following 

requirements for persons filing an adoption petition:

The petitioners must have physical custody or must demonstrate to the court 

that they have the right to receive custody of the child sought to be adopted as 

provided in § 36-1-111(d)(6) [statute regarding surrender/parental consent] 

at the time the petition is filed, unless they are filing an intervening petition 
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seeking to adopt the child.

 

Thus, a person or persons filing for adoption must have physical custody of the child 

or the right to receive physical custody pursuant to a valid surrender. 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) 

(discussing adoption statutes). In this case, when they filed their petition, the Hodgins did

not have custody of Sonya, and they did not have the right to receive custody pursuant to a 

surrender. 

While we recognize the harsh consequences of this decision, we must agree with the 

trial court that the Hodgins lacked standing to bring an adoption or a parental termination 

action. As a result, the trial court did not err in granting Father‟s motion to dismiss and 

DCS‟s motion for judgment on the pleadings.

CONCLUSION

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

appellants, and execution may issue if necessary.

_________________________

ANDY D. BENNETT, JUDGE