Jennifer Skerrett v. The Association for Guidance

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 26, 2003

JENNIFER SKERRETT v. THE ASSOCIATION FOR GUIDANCE, AID,

PLACEMENT AND EMPATHY, INC.

Appeal from the Juvenile Court for Davidson County

No. 2119-61120 Betty Adams Green, Judge

No. M2002-00218-COA-R3-JV - Filed July 11, 2003

This appeal involves a paternal grandmother’s efforts to obtain permanent custody of her grandson.

After the child’s mother surrendered him to a licensed child-placing agency, the grandmother

intervened in the proceeding commenced in the Davidson County Juvenile Court to terminate her

son’s parental rights. Following a bench trial, the trial court terminated the father’s parental rights

and denied the grandmother’s request for custody. While the grandmother does not contest the

termination of her son’s parental rights, she asserts on this appeal that the juvenile court erred by

awarding custody of the child to the child-placing agency rather than to her. We have determined

that, under the facts of this case, the grandmother lacked standing to intervene in the proceeding to

terminate her son’s parental rights. Therefore, we affirm the dismissal of her custody petition.

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and

PATRICIA J. COTTRELL, JJ., joined.

Clark Lee Shaw, Nashville, Tennessee, for the appellant, Jennifer Skerrett.

Jade A. Rogers, Gallatin, Tennessee, for the appellee, The Association for Guidance, Aid,

Placement, and Empathy, Inc.

OPINION

I.

Edwin Alexis Skerrett and Fatima Dominguez were both teenagers when they began dating

in early 1999. They began living together in August 1999 but their relationship ended in March 2000

because of Mr. Skerrett’s excessive drug use and his abusive conduct toward Ms. Dominguez. Three

months later, Ms. Dominguez discovered she was pregnant with Mr. Skerrett’s child. Mr. Skerrett

declined to support Ms. Dominguez when he learned of her pregnancy, and Ms. Dominguez

contacted a licensed child-placing agency, the Association for Guidance, Aid, Placement and

Empathy, Inc. (“AGAPE”), for assistance. When the child was born on November 7, 2000, Ms.

Dominguez permitted AGAPE to place him immediately in a pre-adoptive foster home. The child

has been in this home since November 13, 2000.

AGAPE contacted Mr. Skerrett on November 10, 2000 to make arrangements for visitation

and child support. In February 2001, after Mr. Skerrett had failed drug screens on every visitation,

AGAPE established a plan of care for Mr. Skerrett that included treatment of this drug addiction.

For the next five months, Mr. Skerrett continued to test positive for marijuana and cocaine, cancelled

a number of scheduled visits with his son, and contributed only $500 for his son’s support.

Accordingly, on June 21, 2001, AGAPE filed a petition in the Davidson County Juvenile Court to

terminate Mr. Skerrett’s parental rights.

Jennifer Skerrett, Mr. Skerrett’s mother, had only one brief visit with her grandson shortly

after his birth and had not established any sort of significant relationship with the child. After

AGAPE filed its petition to terminate her son’s parental rights, she moved to intervene in the

proceeding to obtain custody of her grandson. The juvenile court allowed Ms. Skerrett to intervene

and ordered AGAPE to prepare a home study of her home. The court also permitted Ms. Skerrett

to accompany her son during his visits with the child.

The juvenile court conducted a hearing on November 19, 2001 regarding AGAPE’s

termination petition and Ms. Skerrett’s request for custody. On December 19, 2001, the court

entered an order terminating Mr. Skerrett’s parental rights and denying Ms. Skerrett’s request for

custody. Mr. Skerrett has not appealed from the termination of his parental rights. However, Ms.

Skerrett has appealed from the juvenile court’s denial of her request for custody of her grandson.1

II.

MS. SKERRETT ’S STANDING TO INTERVENE

The pivotal issue in this case is whether Ms. Skerrett should have been permitted to intervene

in her son’s termination proceeding. Even though AGAPE questioned Ms. Skerrett’s standing, the

juvenile court did not address the issue directly and actually considered the substance of her request.

We have determined that Ms. Skerrett lacked a legally protectable interest in the custody of her

grandson that warranted permitting her to intervene in this proceeding. Accordingly, we affirm the

dismissal of her petition on grounds other than those relied upon by the juvenile court.2

The Tennessee Rules of Juvenile Procedure do not contain a rule governing intervention

similar to Tenn. R. Civ. P. 24. While certain rules of civil procedure are applicable to proceedings

1

Despite the fact that the juvenile court’s final order was entered on December 19, 2001, the complete transcript

of the November 9, 2001 proceedings was not filed until April 7, 20 03. T his sixteen-month delay in preparing the record

is unacceptable and inconsistent with Tenn. Code Ann. § 36-1-124 (2000) which requires that termination of parental

rights cases and adoption cases m ust be expedited by bo th trial cou rts and appellate co urts.

2

This court may affirm a judgment on different grounds than those relied on by the trial court when the trial

court reached the corre ct result. Continental Cas. Co. v. Smith, 720 S.W .2d 4 8, 50 (Te nn. 19 86); Pen dleton v. M ills, 73

S.W.3d 115, 131 , n. 28 (Tenn. Ct. App. 2001); Allen v. Nationa l Ban k of Newp ort, 839 S.W.2d 763, 765 (Tenn. Ct. App.

199 2); Clark v. M etrop olitan Go v't, 827 S.W .2d 312, 317 (Tenn. Ct. App. 1991 ).

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in juvenile court,3 Tenn. R. Civ. P. 24 is not among them. Accordingly, we must look elsewhere for

the rules and principles that should be used to determine whether a party should be permitted to

intervene in a proceeding to terminate parental rights.

Proceedings in juvenile court, and particularly adoption and termination proceedings, must

be conducted in a way that recognizes and protects the rights of all affected persons. Tenn. Code

Ann. §§ 36-1-101(a)(4), 37-1-101(a)(4) (2001).4 They are intended to be “simple”5 and to be

conducted in an “expeditious manner.”6 They are also intended to further and promote the child’s

bests interests, and to that end, the rights and interests of the affected children are always superior

to the rights and interests of the affected adults.7

Adults, other than biological, legal, or adoptive parents, must demonstrate some legally

protectable interest in the care and custody of the child before being permitted to intervene in a

termination proceeding. These legally protected interests may arise from four sources. First, they

may be recognized and protected by federal and state constitutions. Second, they may be derived

from a statute.8 Third, they may arise from a prior court order. Fourth, they may be derived from

the actual exercise of significant parental duties, control, or responsibilities for the child’s benefit.

Our task in this case is to determine whether Ms. Skerrett possesses one of these legally protectable

interests.

It is now beyond reasoned debate that in Tennessee, biological and adoptive parents have

constitutionally protectable interests in the care and custody of their children. Simmons v. Simmons,

900 S.W.2d 682, 684 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993). However,

Tennessee’s courts have never held that members of a child’s extended family, including the child’s

grandparents, have these same inherent rights. Other state courts that have addressed this issue have

determined that grandparents and other members of a child’s extended family do not have an

absolute right to participate in a parental termination proceeding because they do not possess the

same inherent, constitutionally protected rights possessed by biological and adoptive parents. E.g.,

In re Adoption of I.K.E.W., 724 N.E.2d 245, 249 (Ind. Ct. App. 2000); In re M.B., 91 S.W.3d 122,

124-25 (Mo. Ct. App. 2002); In re Herbert PP., 751 N.Y.S.2d 96, 98 (App. Div. 2002); In re

3

Tenn. R. Juv. P. 1(b).

4

One of the “primary” purposes of Tennessee’s recent adoption statutes is to “recognize and effectuate to the

greatest extent possible the rights and interests of persons affected by adoption, especially those of the ad opted persons,

which are specifically protected by the constitutions of the United States and the state o f Ten nessee . . ..” Tenn. Code

Ann. § 36-1-101(a). Of course, included among the rights “specifically” protected by the state and federal constitutions

are the fundam ental, non-textual rights recognized by the federal and state courts.

5

Tenn. Cod e Ann. § 37-1-101(a)(4).

6

Tenn. Cod e Ann. § 36-1-101(a)(5).

7

Tenn. Cod e Ann. § 36-1-101(d).

8

Reflecting Tenn. R. Civ. P. 24, a statute may confer on an adult an unconditional or a conditiona l right to

intervene.

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Schmidt, 496 N.E.2d 952, 957 (Ohio 1986). These decisions are entirely consistent with Tennessee’s

law and public policy. Accordingly, we conclude that the biological relationship between a child and

the members of his or her extended family is not sufficient, by itself, to create a legally protected

interest that warrants permitting the family members to intervene in termination or adoption

proceedings.

Legally protectable interests may also be supplied by statute; however, we know of no statute

in Tennessee that enables members of a child’s extended family to intervene in termination or

adoption proceedings to obtain custody of the child. To the contrary, Tenn. Code Ann. § 36-1-

117(a)(1) (2001), which identifies the persons who must be made parties to termination and adoption

proceedings does not mention members of a child’s extended family. In fact, after explicitly

identifying biological parents, legal parents, putative biological fathers, and guardians, the statute

states that “[o]ther biological or legal relatives of the child . . . are not necessary parties to the

proceeding.” Tenn. Code Ann. § 36-1-117(d)(1).

Another statute defining the rights of grandparents with regard to their grandchildren

provides only limited visitation rights. As long as the statutory conditions are met, the grandparents

of children who have been removed from their parents’ custody may obtain a court order providing

them reasonable visitation with their grandchildren. Tenn. Code Ann. § 36-6-302(a)(2) (2001).

However, this visitation right ends by operation of law when the child is adopted by any person other

than a stepparent or another relative of the child, Tenn. Code Ann. §§ 36-6-302(b), -307(d)(2)

(2001), and provides no statutory basis for obtaining custody as a matter of right in cases of this sort.

Accordingly, we find no statutory basis for permitting members of a child’s extended family a right

to intervene in termination or adoption proceedings.

Members of a child’s extended family may also possess a legally protectable interest in a

child’s care and custody by virtue of a previous court order appointing them the child’s guardian,

placing the child in their custody, or otherwise empowering them to make decisions regarding the

child that parents would ordinarily make. Orders granting limited visitation rights are not the sort

of orders that give rise to a legally protectable interest in the care and custody of a child.

Finally, members of a child’s extended family could have a legally protectable right in the

care and custody of the child if they have taken on significant parental responsibilities with regard

to the child. As Chief Justice Celebrezze has pointed out:

[i]ntervention by grandparents in a permanent custody proceeding is

appropriate where the grandparents have a legal right to or a legally

protectable interest in custody or visitation with their grandchild,

where the grandparents have stood in loco parentis to their

grandchild, or where the grandparents have exercised significant

parental control over, or assumed parental duties for the benefit of,

their grandchild.

In re Schmidt, 496 N.E.2d at 958 (Celebrezze, C.J., concurring).

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Ms. Skerrett’s motion to intervene and petition for custody did not articulate a specific basis

for her request for custody of her grandson. She asserted only that she was the “[g]randmother of

the minor child.” Neither her biological relationship nor her desire to have custody provide her with

a legally protectable interest in the care and custody of her grandson. The juvenile court should have

permitted her to intervene only if she demonstrated either that she was entitled to intervene by virtue

of a statute or prior court order or that she had exercised significant control and responsibilities

regarding the child. Ms. Skerret made neither of these showings. Therefore, the court should have

denied her request to intervene as a party in the proceeding to terminate her son’s parental rights.

Denying Ms. Skerrett’s request to intervene in her son’s termination proceedings does not

leave her without a remedy with regard to the future care and custody of her grandson. Until the time

her grandson is adopted, Tenn. Code Ann. § 36-6-302(a)(2) gives her a limited right to visitation.

In addition, nothing prevents her from seeking to adopt her grandson herself. See In re Herbert PP,

751 N.Y.S.2d at 98 (noting that adoption is the sole and exclusive means for a grandparent to gain

the care and custody of a grandchild following termination of the parent’s parental rights).

III.

THE CRITERIA FOR CUSTODY

Even though we have determined that Ms. Skerrett was not entitled to intervene in the

proceeding to terminate her son’s parental rights, we have chosen to address two other issues she has

raised because they will arise in other proceedings of this sort. The first involves what preference,

if any, grandparents should receive when parties are competing for custody prior to an adoption. The

second involves the factors that should be used to determine which party should receive custody in

circumstances such as this one.

A.

Ms. Skerrett first asserts that she should be given preference over AGAPE because she is a

member of the child’s extended family. While Tennessee’s courts have recognized a preference for

natural parents over non-parent third parties in some custody contexts, Blair v. Badenhope, 77

S.W.3d 137, 141 (Tenn. 2002); Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. Ct. App. 1992), they

have not extended these superior rights to members of a child’s extended family, including

grandparents. There is a compelling legal basis for declining to give superior rights to grandparents

who have not established a significant relationship with their grandchild.

A grandparent’s interest in the care and custody of his or her grandchild stems from his or

her relationship with the child’s parent. An order terminating a biological parent’s parental rights

completely and indelibly extinguishes not only the parent-child relationship, Tenn. Code Ann. § 36-

1-113(l)(1) (2001); C.J.H. v. A.K.G., No. M2001-01234-COA-R3-JV, 2002 WL 1827660, at *2

(Tenn. Ct. App. 2002) (No Tenn. R. App. P. 11 application filed); O'Daniel v. Messier, 905 S.W.2d

182, 186 (Tenn. Ct. App. 1995), but also the legal relationship between a child and his or her

grandparents. Following the termination of a parent’s parental rights, the statutory rights of the

parent’s parents are limited solely to visitation as long as the child is not adopted by a person who

is not a stepparent or a relative of the child. Tenn. Code Ann. §§ 36-6-302(b), -307(d)(2).

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B.

Ms. Skerrett also argues that the juvenile court should have treated her request for custody

as if it were an initial custody decision. Accordingly, she asserts that the court should have engaged

in a comparative fitness analysis in which she would have been favored over AGAPE because she

was related to the child. Ms. Skerrett is again mistaken because this proceeding did not involve an

initial custody determination. The court had already placed the child in AGAPE’s custody pending

the hearing on its petition to terminate Mr. Skerrett’s parental rights.

Parties seeking to change an existing custody arrangement must demonstrate the existence

of a material change in circumstances since the entry of the initial custody decision and that the

child’s interests will be best served by changing the existing custody arrangement. Kendrick v.

Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Blair v. Badenhope, 77 S.W.3d at 148, 150. Ms.

Skerrett has made neither showing in this case.

The child has been in the custody of his pre-adoptive foster parents ever since November

2000. Ms. Skerrett produced no evidence that the circumstances of the child or his foster parents

have changed in any material way since November 2000 or that the child’s interests would be better

served by awarding her custody of the child. To the contrary, the evidence demonstrates that the

child’s interests will be ill-served if he were to be uprooted from the only home he has known and

placed in Ms. Skerrett’s custody. Thus, in addition to her lack of standing, Ms. Skerrett failed to

present any evidence warranting a change in the existing custody arrangements.

IV.

MS. SKERRETT ’S REQUEST FOR ATTORNEY ’S FEES

As a final matter, Ms. Skerrett asserts that the juvenile court erred by declining to award her

attorney’s fees. Tennessee, like many other states, follows the American Rule that requires litigants

to pay their own legal expenses in the absence of a statute or contractual provision otherwise. State

v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000); Massachusetts Mut. Life

Ins. Co. v. Jefferson, 104 S.W.3d 13, 33 (Tenn. Ct. App. 2002). Accordingly, to recover her

attorney’s fees, Ms. Skerrett must point to some statute authorizing their payment.

Tenn. Code Ann. § 36-5-103(c) (2001) empowers courts to award “spouses” their reasonable

attorney’s fees in actions “concerning the adjudication of custody or the change of custody of any

child, or children.” Courts may award attorney’s fees under this statute when doing so is just and

equitable under the facts of the case. Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992).

There are two reasons why Tenn. Code Ann. § 36-5-103(c) does not provide a basis for Ms.

Skerrett’s claim. First, she is not a spouse seeking reimbursement from another spouse. Second,

even if the plain words of the statute could somehow be stretched to cover her, she has not

demonstrated that it would be just and equitable to require AGAPE to pay her legal expenses. She

did not prevail in this case, and in fact, we have determined that the juvenile court should not have

permitted her to intervene in this proceeding because she lacks a legally protectable interest in the

care and custody of her son’s child. Accordingly, the court did not err by denying Ms. Skerrett’s

request for attorney’s fees.

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V.

We affirm the juvenile court’s dismissal of Ms. Skerrett’s petition for custody and remand

the case for whatever further proceedings may be required. We tax the costs of this appeal to

Jennifer Skerrett and her surety for which execution, if necessary, may issue.

_____________________________

WILLIAM C. KOCH, JR., JUDGE

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