Opinion

In Re: Adoption of M.J.S.

Court: Court of Appeals of Tennessee
Filed: Apr 20, 2000
Status: Published
On the bench: Judge David R. Farmer
Cited by: 0 cases
Authority: More cited than 30.0%

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 20, 2000 Session

In Re ADOPTION OF M.J.S.

Direct Appeal from the Chancery Court for Shelby County

Nos. A5151-1, A5153-3(1) Walter L. Evans, Chancellor

No. W1999-00197-COA-R3-CV - Filed October 5, 2000

Cindy G. Snyder and Wolfgang W. Snyder appeal the trial court’s final decree of adoption that

permitted Appellee Debra Sue Langston to adopt the Snyders’ fourteen-month-old grandson, M.J.S.

The Snyders’ daughter, Christine L. Snyder, previously had delivered physical custody of the child

to Langston and had executed a surrender of her parental rights in favor of Langston. Both the

Snyders and Langston filed petitions seeking to adopt the child, and the petitions were consolidated

in one action. The trial court permitted the Snyders to participate in the adoption proceedings for

the purpose of litigating the best interests of the child; however, the trial court refused to allow the

Snyders to pursue their own petition for adoption of the child based on the court’s ruling that

Tennessee’s adoption statutes did not give the Snyders standing to adopt the child. Based upon our

interpretation of Tennessee’s adoption statutes, we conclude that the trial court committed no

reversible error in conducting these adoption proceedings, and we affirm the court’s final decree of

adoption.

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

Remanded

DAVID R. FARMER , J., delivered the opinion of the court. ALAN E. HIGHERS, J., filed a concurring

opinion. HEWITT P. TOMLIN , JR., SP . J., filed a dissenting opinion.

Richard A. Gordon, Memphis, Tennessee, for the appellants, Cindy G. Snyder and Wolfgang W.

Snyder.

Diana L. Schmied, Germantown, Tennessee, and Hayden Lait, Memphis, Tennessee, for the

appellee, Debra Sue Langston.

Paul G. Summers, Attorney General and Reporter, and Dianne Stamey Dycus, Deputy Attorney

General, for the State of Tennessee.

OPINION

On May 19, 1998, the Snyders filed a petition seeking to adopt their grandson, M.J.S., who

was born in December 1997. The Snyders’ petition for adoption alleged that the child and his

mother, Christine L. Snyder (Mother), had lived with the Snyders until April 28, 1998. At the time

they filed their petition, the Snyders did not have custody of the child, and they were uncertain as to

the child’s or the Mother’s whereabouts. The Snyders recently had obtained information, however,

that the Mother had surrendered her parental rights to the child, that the child was residing with

Debra Sue Langston at an unknown address, and that Langston had filed a petition to adopt the child.

Based on this information, the Snyders’ petition named Langston, the Mother, and the child’s

unknown father as respondents. In the event Langston had filed a petition seeking to adopt the child,

the Snyders asked the trial court to deem their petition for adoption as “a petition to intervene

therein.”

Contrary to the Snyders’ belief, Langston had not yet filed a petition seeking to adopt the

child. The next day, however, Langston filed a petition for adoption of the child. Langston’s

petition alleged that she acquired custody of the child from the Mother on May 2, 1998, that the

Mother surrendered her parental rights to the child in favor of Langston before a judge of the

Juvenile Court of Shelby County on May 8, 1998, and that, since that date, the child had resided

continuously in Langston’s home.

Initially, the petitions for adoption of the child were assigned to different parts of the

Chancery Court of Shelby County. In response to Langston’s petition, the Chancellor of Part III of

the Chancery Court entered an Order of Reference whereby the Chancellor appointed the Adoption

Resource Center as the child’s next friend. The Order of Reference directed that agency to

investigate the condition and antecedents of the child for the purpose of ascertaining

whether he is a proper subject for adoption, to make appropriate inquiry to determine

whether the proposed adoptive home is a suitable one for the child, and to investigate

any other circumstances or conditions which may have a bearing on the adoption and

of which the Court should have knowledge.

The Chancellor of Part III subsequently entered an order transferring Langston’s adoption

petition to Part I of the Chancery Court for consolidation with the Snyders’ adoption petition.

Thereafter, all proceedings in the consolidated actions took place in Part I of the Chancery Court.

Langston responded to the Snyders’ petition for adoption by filing a motion to dismiss the

petition. In support of her motion to dismiss, Langston contended that the Snyders had not met the

statutory requirements for filing an adoption petition because they had neither physical custody of

the child nor the right to receive physical custody of the child pursuant to the applicable provisions

of Tennessee’s adoption statutes. See Tenn. Code Ann. §§ 36-1-111(d)(6), 36-1-115(b),

36-1-116(b)(5) (1996 & Supp. 1998). On the same day that Langston filed her motion to dismiss,

the Snyders filed a motion in which they sought various forms of relief, including the return of the

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child to their home, access to confidential information pertaining to Langston’s adoption of the child,

and the right to intervene in Langston’s adoption proceedings.

On June 25, 1998, the trial court entered an order denying Langston’s motion to dismiss the

Snyders’ adoption petition. In a separate order, the trial court declined to act on the Snyders’ request

for the return of the child to their home; however, the trial court ruled that the Snyders’ petition for

adoption would be deemed a petition to intervene in the pending adoption proceedings brought by

Langston, and the court permitted all parties and their attorneys to have access to certain documents

pertaining to the pending adoption proceedings. Langston requested permission from the trial court

to pursue an interlocutory appeal of these rulings, but the trial court denied Langston’s request. See

Tenn. R. App. P. 9.

In October 1998, Langston filed a motion for summary judgment in which she again asked

the trial court to dismiss the Snyders’ adoption petition. In support of her motion, Langston

reiterated her argument that the Snyders had failed to meet the statutory requirements for filing an

adoption petition because the Snyders had neither physical custody of the child nor the right to

receive physical custody of the child pursuant to the applicable provisions of Tennessee’s adoption

statutes. Langston additionally challenged the Snyders’ right to intervene in the pending adoption

proceedings.

In their memorandum of law and response opposing Langston’s motion for summary

judgment, the Snyders acknowledged that the Mother had surrendered her parental rights to the child

and had delivered physical custody of the child to Langston. Nevertheless, the Snyders insisted that,

in order to protect the child’s best interests, the trial court was required to conduct a hearing on the

merits of both adoption petitions to determine which of the petitioners, the Snyders or Langston,

should be permitted to adopt the child.

Despite the Snyders’ objection that the child’s best interests could be served only by holding

a contested hearing on both adoption petitions, the trial court granted Langston’s motion for

summary judgment and dismissed the Snyders’ petition for adoption. In support of its ruling that

the Snyders lacked standing to file an “independent adoption petition,” the trial court observed that

the following facts were undisputed: Langston received physical custody of the child from the

Mother on May 2, 1998; the Mother lawfully surrendered the child to Langston in the Juvenile Court

of Shelby County on May 8, 1998; Langston had maintained physical custody of the child since

May 2, 1998; and the Snyders did not have custody of the child at the time they filed their adoption

petition on May 19, 1998. The trial court indicated that it was making no determination on the

Snyders’ right to intervene in the pending adoption proceedings “at this time,” but the court ruled

that the Snyders would “be allowed to be heard in the adoption hearing” and that the Snyders’

attorney would “be allowed to cross-examine witnesses and present deposition testimony and present

evidence as to the best interest and welfare of the child.”

After the trial court orally granted Langston’s motion for summary judgment, but before the

court had entered a written order containing its rulings, the Snyders filed another pleading that they

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titled “Intervening Petition for Adoption.” The intervening petition alleged, inter alia, that the

Mother had surrendered her parental rights to the child, that the child was in the physical custody of

Langston, and that the Snyders did not presently have custody of the child. As authority for their

intervening petition, the Snyders referenced the provisions of section 36-1-116(f)(1) of Tennessee’s

adoption statutes. See Tenn. Code Ann. § 36-1-116(f)(1) (Supp. 1998).

Langston responded to the Snyders’ Intervening Petition for Adoption by filing another

motion to dismiss. In addition to repeating her argument that the Snyders had failed to meet the

statutory requirements for filing an adoption petition, Langston contended that the cited provisions

of the adoption statutes did not give the Snyders any right to intervene in the pending adoption

proceedings.

In its subsequent order entered on Langston’s motion, the trial court stopped short of

dismissing the Snyders’ intervening petition. Instead, the trial court ruled that the Snyders had “no

standing at this time to petition for adoption” but that the Snyders would be allowed to intervene in

the pending adoption proceedings for the limited purpose of presenting evidence as to Langston’s

fitness. The trial court’s order also disposed of several pretrial motions filed by the Snyders. In one

of its rulings, the trial court agreed to consider information that had been filed in the Snyders’

adoption proceedings. The trial court indicated that it would consider this information, however,

“solely on the issue of guardianship in the event [Langston’s] petition [was] denied.”

After conducting a hearing on Langston’s petition, the trial court entered a final decree

granting the adoption to Langston. On appeal from this final decree, the Snyders contend that the

trial court erred in (1) granting Langston’s motion for summary judgment and dismissing the

Snyders’ petition for adoption, (2) permitting the Snyders to intervene for the limited purpose of

litigating the best interest and welfare of the child, (3) accepting the home study report and approving

the recommendation of Anne McGinnis of the Adoption Resource Center, and (4) determining that

the proposed adoptive home of Langston was a suitable one for the child. The Snyders also attack

Tennessee’s adoption statutes on various constitutional grounds, contending that the statutes fail to

adequately protect the constitutional rights of the child.

We first address the Snyders’ contention that the trial court erred in granting Langston’s

motion for summary judgment, thereby dismissing the Snyders’ petition for adoption and permitting

the Snyders to intervene for the limited purpose of litigating the best interest and welfare of the child.

In addressing this contention, we are mindful that summary judgment is appropriate only when the

parties’ “pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. In determining whether or not

a genuine issue of material fact exists for purposes of summary judgment, the courts are required to

consider the question in the same manner as a motion for directed verdict made at the close of the

plaintiff’s proof. See Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). That is, the trial court, and

this court on appeal, “must take the strongest legitimate view of the evidence in favor of the

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nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing

evidence.” Id. at 210-11.

We begin our analysis of this issue with a brief overview of what we perceive to be the

relevant provisions of Tennessee’s adoption statutes. The legislature has stated that the primary

purpose of the adoption statutes “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.” Tenn. Code Ann. § 36-1-101(a) (Supp. 1998). Among other rights and

interests, the adoption statutes strive to protect “the rights of all persons who are affected by [the

adoption] process and who should be entitled to notice of the proceedings for the adoption of a

child,” the interests of adopted children in achieving permanency “at the earliest possible date,” the

rights of adopted children to be free “from any interference by any person who may have some legal

claim after the child has become properly adjusted to the child’s adoptive home,” and, similarly, the

rights of adoptive parents to be free “from the later disturbance of their parental relationship with

their child.” Tenn. Code Ann. § 36-1-101(a)(4)–(6), (b)(3) (Supp. 1998). Above all, however, the

adoption statutes strive to protect the “best interests” of children who are involved in the adoptive

process. Tenn. Code Ann. § 36-1-101(a), (d) (Supp. 1998).

Tennessee’s adoption statutes limit the parties who may bring an adoption proceeding in this

state by imposing certain requirements on such parties. Some of these requirements include that the

petitioner be over eighteen years of age, see Tenn. Code Ann. § 36-1-115(a) (1996), that the

petitioner be a resident of this state, subject to certain exceptions, see Tenn. Code Ann. §

36-1-115(d)–(f) (1996), and that any living spouse of the petitioner join in the petition if the spouse

is competent to do so, see Tenn. Code Ann. § 36-1-115(c) (1996).

The adoption statutes additionally require 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. See

Tenn. Code Ann. § 36-1-115(b) (1996). In accordance with this requirement, the adoption statutes

provide that the petition for adoption must state “[t]hat the petitioners have physical custody of the

child or that they meet the requirements of § 36-1-111(d)(6) [regarding validity of surrenders], and

from what person or agency such custody was or is to be obtained.” Tenn. Code Ann. §

36-1-116(b)(5) (Supp. 1998).

In the context of adoptions involving a surrender or parental consent, Tennessee’s adoption

statutes permit biological parents to surrender their parental rights to a child in favor of a particular

person or agency. The statutes define “surrender” as “a document executed under the provisions of

§ 36-1-111 or under the laws of another state or territory or country, by the parent or guardian of a

child, by which that parent or guardian relinquishes all parental or guardianship rights of that parent

or guardian to a child, to another person or public child welfare agency or licensed child-placing

agency for the purposes of making that child available for adoption.” Tenn. Code Ann. §

36-1-102(45) (Supp. 1998) (emphasis added). The statutes provide that “[a] surrender or parental

consent may be made or given to any prospective adoptive parent who has attained eighteen (18)

years of age, the department, or a licensed child-placing agency in accordance with the provisions

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of this section.” Tenn. Code Ann. § 36-1-111(c) (Supp. 1998) (emphasis added). Thus, the statutes

allow a biological parent to surrender a child directly to a prospective adoptive parent chosen by the

biological parent. See id.; see also Tenn. Code Ann. § 36-1-111(l), (m), (q)(1) (Supp. 1998).

Although a biological parent has the right to make the initial choice of his or her child’s

adoptive parent, the biological parent’s right to choose the child’s adoptive parent is not absolute.

In filing an adoption petition, the prospective adoptive parent must allege, inter alia, that the

petitioner is a fit person “to have the care and custody of the child and that it is in the best interest

of the child for this adoption to occur.” Tenn. Code Ann. § 36-1-116(b)(9) (Supp. 1998). In its final

order of adoption, the trial court must find “[t]hat the adoption is for the best interest of the child.”

Tenn. Code Ann. § 36-1-120(a)(13) (1996). Thus, the biological parent’s choice of an adoptive

parent is always subject to the trial court’s determination that the proposed adoption is in the child’s

best interests.

The adoption statutes contemplate different types of intervention by interested parties.

Tennessee’s paternity statutes permit the putative father of a child for whom an adoption petition has

been filed to file a complaint to establish parentage or to intervene in the adoption proceedings by

filing a complaint in the court in which the adoption petition is pending. If the putative father

chooses this course of action, he may pursue his complaint to establish his parentage of the child,

or he may intervene for the purpose of presenting a defense to the adoption petition. See Tenn. Code

Ann. §§ 36-2-307(c), 36-2-318(j) (Supp. 1998). In such cases, the court hearing the adoption

petition has exclusive jurisdiction to determine the issue of parentage. See Tenn. Code Ann. §

36-2-307(c)(3) (Supp. 1998).

Moreover, in cases involving a child who is the subject of a surrender, parental consent, or

guardianship order, Tennessee’s adoption statutes authorize “any person” who is interested in the

child’s welfare to intervene in a surrender or adoption proceeding for the purpose of presenting

evidence regarding the best interests of the child. See Tenn. Code Ann. § 36-1-111(u)(2) (Supp.

1998). Specifically, the statutes authorize the Department of Children’s Services (DCS), a licensed

child-placing agency, a licensed clinical social worker, or “any person” to intervene in the

proceeding by filing a sworn complaint that “seeks to present proof concerning the best interests of

the child.” Id.; cf. Tenn. Code Ann. § 36-1-116(k)(1) (Supp. 1998) (authorizing DCS or licensed

agency or social worker to intervene in any adoption proceeding for purpose of litigating child’s best

interests). The party seeking to intervene may file the complaint “in the court where the surrender

was executed or filed or where the adoption petition containing a parental consent was filed.” Tenn.

Code Ann. § 36-1-111(u)(3) (Supp. 1998). After conducting a final hearing on the complaint, if the

trial court finds by clear and convincing evidence that such action is in the best interests of the child,

the trial court may “enter an order removing the child from the prospective adoptive parents or other

custodian or guardian of the child.” Tenn. Code Ann. § 36-1-111(v)(4) (Supp. 1998). In that event,

the trial court “may award temporary legal custody giving any person, [DCS] or [a] licensed child-

placing agency, or a child-caring agency, the care and custody of the child.” Id.; cf. Tenn. Code Ann.

§ 36-1-116(k)(7) (Supp. 1998) (authorizing trial court to remove child from custody of prospective

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adoptive parents, dismiss adoption petition, and make alternate disposition if court finds by clear and

convincing evidence that such action is in child’s best interests).

The adoption statutes contemplate another type of intervention where a third party files a

petition seeking to adopt the same child that is subject to a pending adoption petition. With one

notable exception, a third party who files an intervening petition seeking to adopt a child must meet

all of the statutory requirements for filing an adoption petition. That is, the person must be over

eighteen years of age, the person’s spouse must join in the petition (if the person has a living spouse

who is competent to do so), and the person must be a resident of this state (unless the person is

related to the child or is in military service stationed out of this state). See Tenn. Code Ann. §

36-1-115(a), (c), (d), (e), (f) (1996).

In order to file an intervening petition for adoption, however, the petitioner need not have

physical custody of the child or the right to receive custody of the child because the adoption statutes

specifically except such intervenors from the statutes’ custody requirement. Specifically, the

pertinent provision of the adoption statutes states that

[t]he 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) at the time the petition is filed, unless they are filing

an intervening petition seeking to adopt the child.

Tenn. Code Ann. § 36-1-115(b) (1996) (emphasis added).

Although persons who file an intervening petition seeking to adopt a child need not have

physical custody or the right to receive custody of the child at the time they file their petition, other

provisions of the adoption statutes indicate that, in order to prevail on their petition to adopt the

child, the intervening petitioners must meet the statutes’ custody requirement at some point in the

adoption proceedings. The adoption statutes provide that a petition for adoption must state “[t]hat

the petitioners have physical custody of the child or that they meet the requirements of

§ 36-1-111(d)(6) [regarding validity of surrenders], and from what person or agency such custody

was or is to be obtained.” Tenn. Code Ann. § 36-1-116(b)(5) (Supp. 1998). Although section

36-1-115(b) of the adoption statutes excepts intervening petitioners from this custody requirement,

section 36-1-116(b)(5) does not. Compare Tenn. Code Ann. § 36-1-115(b) (1996), with Tenn. Code

Ann. § 36-1-116(b)(5) (Supp. 1998).

Another provision of the adoption statutes provides courts with guidance when they are faced

with both an original adoption petition and an intervening adoption petition. When an adoption

petition is filed, the trial court in which the petition is filed has “exclusive jurisdiction of all matters

pertaining to the child, including the establishment of paternity of a child pursuant to chapter 2,

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part 1 of this title,1 except for allegations of delinquency, unruliness or truancy of the child pursuant

to title 37.” Tenn. Code Ann. § 36-1-116(f)(1) (Supp. 1998) (footnote added). This grant of

jurisdiction, however, includes the following caveat:

[P]rovided, 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).

Tenn. Code Ann. § 36-1-116(f)(1) (Supp. 1998).

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. See id. This interpretation is bolstered by other provisions

of the adoption statutes, which require the trial court to include in its final order of adoption, among

other findings, “[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) (1996).

Applying the foregoing principles to the present adoption proceedings, we first conclude that

the Snyders met the statutory requirements for filing an intervening petition for adoption. The

adoption statutes specifically permitted the Snyders to file an intervening petition seeking to adopt

the child even if the Snyders did not have physical custody of the child or the right to receive custody

of the child at the time they filed their petition. See Tenn. Code Ann. § 36-1-115(b) (1996).

Inasmuch as the Snyders’ petition constituted “an intervening petition seeking to adopt the child,”

the petition did not have to allege that the Snyders had physical custody of the child or the right to

receive custody of the child pursuant to a valid surrender. Id.

Nevertheless, we decline to reverse the trial court’s final decree of adoption based upon the

court’s refusal to permit the Snyders to proceed with their intervening adoption petition.2 Although

Chapter 2, part 1 of title 36 was repealed in 1997. See 1997 Tenn. Pub. Acts. 477, § 1 (repealing Tenn. Code

Ann. §§ 36-2-101 to -115 (1996)). Tennessee’s new paternity statutes appear in chapter 2, part 3 of title 36. See Tenn.

Code Ann. §§ 36-2-301 to -322 (Supp. 1998).

Contrary to the Snyders’ description of the trial court’s action, we are not convinced that the trial court

dismissed the Snyders’ inte rvening petitio n for adop tion. In its order on Langston’s motion for summary judgment, the

(continued ...)

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the Snyders were not required to comply with the statutory custody requirement before filing an

intervening petition for adoption, under the pertinent provisions of the adoption statutes, the trial

court was not authorized to grant the Snyders an adoption unless the court found that the Snyders

had physical custody or the right to receive custody of the child at some point during the adoption

proceedings. See Tenn. Code Ann. §§ 36-1-116(f)(1), 36-1-120(a)(4) (1996 & Supp. 1998). At no

time during these adoption proceedings did the Snyders have either physical custody of the child or

the right to receive custody of the child pursuant to a validly executed surrender. To the contrary,

it was undisputed that, at all times pertinent to these adoption proceedings, Langston was the only

petitioner who had physical custody of the child or the right to receive custody of the child pursuant

to a valid surrender executed by the Mother. In light of the undisputed fact that the Snyders never

met the adoption statutes’ custody requirement, we conclude that the trial court did not err in

refusing to allow the Snyders to pursue their intervening petition for adoption.3

On appeal, the Snyders contend that the trial court erred in granting Langston’s motion for

summary judgment on this issue because Langston’s motion failed to comply with the technical

requirements of rule 56.03 of the Tennessee Rules of Civil Procedure. Rule 56.03 requires the party

moving for summary judgment to provide “a separate concise statement of the material facts as to

which the moving party contends there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. The

rule directs the movant to set forth each fact in a separate, numbered paragraph and to support each

fact with a specific citation to the record. See id. These requirements were added in 1997 to assist

the court and litigants in determining whether the record contains a genuine issue as to any material

fact. See Tenn. R. Civ. P. 56.03 advisory commission comment.

In the present case, Langston supported her motion for summary judgment with a

memorandum of law that contained a concise statement of material facts; however, Langston failed

to separately number the facts or to support each fact with a specific record citation. Nevertheless,

we decline to reverse the trial court’s summary judgment based upon Langston’s failure to comply

with rule 56.03’s technical requirements. When the trial court granted Langston’s motion for

summary judgment, the only material fact at issue was whether the Snyders had physical custody or

the right to receive custody of the child pursuant to Tennessee’s adoption statutes. At the summary

judgment hearing, the Snyders’ counsel conceded that the Snyders had not met the adoption statutes’

(...continued)

trial court clearly dismissed the first petition for adoption filed by the S nyders. The trial court did not express itself as

clearly, however, when it entered its subsequent order on Langston’s motion to dismiss the intervening petition for

adoption filed by the Snyders. Rather than dismissing the intervening petition, the trial court’s order merely ruled that

the Snyders lac ked standin g to pursue th eir petition “at this time.” Reg ardless of ho w the trial court’s ac tion is

characterized, we agree that the court’s ruling on this issue effectively prevented the Snyders from pursuing their petition

to adopt the child.

W e reject the Snyders’ co ntention that they h ad physical c ustody of the c hild until April 28, 1998, by virtue

of the fact that the M other and th e child reside d in the Snyd ers’ home u ntil that date. Eve n if the child’s residence in the

Snyders’ home could be characterized as physical custody by the Snyders, we note that this custody arrangement did not

exist on May 19, 1998, when the Snyders filed their petition for adoption, or at any other time during these adoption

proceedings.

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custody requirement. Under these circumstances, we conclude that the Snyders were not prejudiced

by any technical deficiencies in Langston’s summary judgment motion. See Selvy v. Vinsant, No.

03A01-9903-CV-00081, 1999 WL 894435, at *1 (Tenn. Ct. App. Oct. 13, 1999) (no perm. app.

filed). Moreover, we note that the Snyders’ own memorandum of law and response opposing

Langston’s motion contained many factual assertions that were not supported by citations to the

record.

In contending that the trial court erred in granting Langston’s motion for summary judgment,

the Snyders insist that the trial court should have conducted a full and fair hearing to determine the

merits of the competing petitions for adoption filed in this case. The Snyders’ argument suggests

that the trial court should have given equal consideration to Langston’s adoption petition and the

Snyders’ intervening adoption petition despite the Snyders’ failure to meet the adoption statutes’

custody requirement.

We conclude that this argument is without merit. As we previously indicated, the adoption

statutes did not authorize the trial court to grant the Snyders’ adoption petition because it was

undisputed that the Snyders had neither physical custody of the child nor the right to receive custody

pursuant to the relevant provisions of the adoption statutes. In our view, this limitation on the trial

court’s authority to grant an adoption was consistent with other provisions of the adoption statutes

that permitted the Mother, as the child’s biological parent, to choose the child’s prospective adoptive

parent subject to the trial court’s determination that such adoption was in the child’s best interests.

In the present case, it was undisputed that the Mother physically delivered the child to

Langston and that, shortly thereafter, the Mother executed a surrender designating Langston as the

child’s prospective adoptive parent. Under our current adoption statutes, the Mother had the right

to choose Langston as the child’s adoptive parent subject to the trial court’s determination that the

proposed adoption was in the child’s best interests. See Tenn. Code Ann. §§ 36-1-102(45),

36-1-111(c), 36-1-116(b)(9), 36-1-120(a)(13) (1996 & Supp. 1998). Inasmuch as the Snyders had

neither physical custody of the child nor the right to receive custody, and inasmuch as the Mother

delivered the child to Langston and thereafter executed a surrender in Langston’s favor, we reject

the Snyders’ contention that their adoption petition was entitled to the same consideration as the

petition filed by Langston.4

In holding that the Mother had the right to choose the child’s adoptive parent, subject to the

trial court’s later determination that the proposed adoption was in the child’s best interests, we also

reject any suggestion that, inasmuch as the Mother surrendered all parental rights to the child, she

had no right to choose the child’s prospective adoptive parent. The adoption statutes specifically

permit a biological parent to choose a child’s prospective adoptive parent while at the same time

W e also reject the Snyders’ contention that the trial court should have conducted a full and fair h earing to

explore the issues of dur ess and und ue influence re lative to the M other’s execution of the surrender in favor of Langston.

The Mother has not attempted to revoke the surrender, and the Snyders’ intervening petition for adoption contains no

allegations of a ny deficiencies in the Mo ther’s executio n of the surrend er.

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surrendering all parental rights to the child in favor of the adoptive parent. See Tenn. Code Ann. §§

36-1-102(45), 36-1-111(c) (Supp. 1998). To this end, the adoption statutes draw a distinction

between a voluntary surrender of parental rights, such as occurred here, and an involuntary

termination of parental rights. In the case of a voluntary surrender, the adoption statutes permit the

biological parent to choose the child’s prospective adoptive parent; however, the statutes confer no

such right on a biological parent whose rights are involuntarily terminated. Compare Tenn. Code

Ann. § 36-1-111 (Supp. 1998), with Tenn. Code Ann. § 36-1-113 (Supp. 1998).

In our view, the adoption statutes’ provisions authorized the procedure employed by the trial

court in this case. When faced with competing adoption petitions, the trial court properly allowed

Langston to proceed with her petition, inasmuch as only her petition met the statutory custody

requirement. See Tenn. Code Ann. § 36-1-116(f)(1) (Supp. 1998). As authorized by the cited

statutory provisions, the trial court also allowed the Snyders to proceed with their petition to the

extent that it sought to litigate the issue of the best interests of the child. See Tenn. Code Ann. §

36-1-111(u)(2) (Supp. 1998). Under the applicable statute, the Snyders had the burden of proving

by clear and convincing evidence that the proposed adoption was not in the child’s best interests.

See Tenn. Code Ann. § 36-1-111(v)(4) (Supp. 1998). If the Snyders had succeeded in meeting this

burden, the Snyders then could have asked the court for custody of the child and pursued their

petition for adoption. See id.

We believe that this interpretation is consistent with the entire statutory scheme, which

attempts to strike a balance between several potentially conflicting interests, including the biological

parent’s right to choose a prospective adoptive parent, the petitioner’s right to custody of the child

pending the adoption proceedings, any third party’s interest in the child’s welfare, and the trial

court’s duty to protect the child’s best interests. In light of this statutory scheme, we conclude that

the trial court did not err in allowing Langston to proceed with her petition for adoption while

refusing to permit the Snyders to pursue their intervening adoption petition.

We also affirm the trial court’s final decree of adoption wherein the court found that

Langston’s proposed adoption was in the child’s best interests. As required by Tennessee’s adoption

statutes, the trial court found in its final decree of adoption that Langston was a fit person to have

the care and custody of the child, that Langston was financially able to provide for the child, that the

child was suitable for adoption, that the adoption was in the best interests of the child, and that

Langston had met all of the statutory requirements for adopting the child. See Tenn. Code Ann. §

36-1-120(a)(10)–(13), (d) (1996).

Our review of the trial court’s final decree of adoption is governed by rule 13(d) of the

Tennessee Rules of Appellate Procedure. See Sonet v. Unknown Father of J.D.H., 797 S.W.2d 1,

5 (Tenn. Ct. App. 1990). Rule 13(d) requires this court, in conducting a de novo review of the

record, to presume that the trial court’s factual findings are correct, unless the evidence in the record

preponderates otherwise. See Tenn. R. App. P. 13(d). In applying this standard of review, we are

mindful that “the findings of the trial court as to the credibility of the witnesses are entitled to great

weight.” Sonet, 797 S.W.2d at 5.

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Applying the foregoing standard of review, we conclude that the evidence does not

preponderate against the trial court’s finding that Langston’s proposed adoption of the child was in

the child’s best interests. This evidence showed that, when the final adoption hearing was held in

February 1999, the child had been in Langston’s custody for over eight of the fourteen months of the

child’s life. The child had developed a strong emotional bond with Langston, and he called Langston

“Mama.” Langston was forty years of age, had a college degree in mathematics, and had worked for

the same employer for over twenty years. She earned in excess of $70,000 per year and was

financially able to provide for the child. While Langston was at work, a nanny took care of the child.

According to Langston, the nanny and the child got along well, and they loved each other. Langston

had completed the state’s training courses for adoptive parents, and Anne McGinnis, the licensed

clinical social worker who performed the home study on Langston’s home, gave Langston a

favorable recommendation.

In contending that the trial court erred in finding that Langston’s adoption was in the child’s

best interests, the Snyders focus primarily on two factors: (1) the nontraditional structure of

Langston’s home, and (2) Langston’s credibility problems as evidenced by her failure to divulge

certain information during a July 1998 deposition. Regarding the first factor, the evidence showed

that Langston had resided with the same woman for over seven years. At the time of trial, the two

women lived together in a house that they owned jointly. Langston testified that she and her

roommate were “close committed friends” and that they intended “to live together forever.”

Langston and her roommate acknowledged that they had a prior sexual relationship, but the

roommate testified that, since the child came into the home, this sexual relationship had ceased and

they were “evaluating that relationship.” As the result of artificial insemination, Langston’s

roommate gave birth to a son in December 1998. Langston, her roommate, the roommate’s infant

son, and the child all lived together in a four-bedroom, two-bathroom house where each had his or

her own bedroom.

As for the issue of Langston’s credibility, the evidence showed that, when Langston was

asked during a July 1998 deposition where she lived, she testified that she lived in a house on

Tunbridge Place and that the house was titled in her name. Langston did not divulge, however, that

she had sold the house just days prior to her deposition and that she soon would be moving to a new

home that she had purchased jointly with her roommate. During the July 1998 deposition, Langston

also did not fully disclose the nature of her relationship with her roommate, and she did not divulge

that she was considering hiring a new nanny for the child.

Despite these arguably negative factors, we decline to second-guess the trial court’s finding

that Langston’s proposed adoption was in the child’s best interests. Many of the asserted credibility

problems with Langston’s testimony stemmed, not from Langston’s affirmative misrepresentations,

but from her failure to voluntarily disclose certain information. Although the Snyders’ counsel

attempted to impeach Langston by referencing her July 1998 deposition testimony, Langston

explained, apparently to the trial court’s satisfaction, that she accurately identified her place of

residence, the identity of her roommate, and the identity of the child’s nanny when she was asked

these questions during the deposition. Significantly, the record contains no evidence that Langston

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attempted to conceal these details from Anne McGinnis, the licensed clinical social worker who

performed the home study. To the contrary, McGinnis testified that she was fully aware of

Langston’s living arrangements and the nature of Langston’s relationship with her longtime

roommate.

As for the nontraditional structure of Langston’s home, the Snyders’ counsel was permitted

to fully explore the details of Langston’s living arrangements in his cross-examination of Langston,

Langston’s roommate, and Anne McGinnis.5 The trial court specifically considered this evidence,

but ultimately the court found that the proposed adoption was in the child’s best interests. We agree

that, just as a parent’s lifestyle is a factor for the trial court to consider in making a custody decision,

see In re Parsons, 914 S.W.2d 889, 894 (Tenn. Ct. App. 1995), the lifestyle of a proposed adoptive

parent is certainly a factor that the trial court should consider in determining whether a proposed

adoption is in a child’s best interests, see Hale v. Brewer, No. 03A01-9301-CV-00054, 1993 WL

328061, at *2 (Tenn. Ct. App. Aug. 18, 1993) (no perm. app. filed). By itself, however, this factor

does not control the outcome of custody or adoption decisions, particularly absent evidence of its

effects on the child. See Parsons, 914 S.W.2d at 894.

After reviewing the entire record in this case, and particularly the evidence presented at the

final adoption hearing, we decline to disturb the trial court’s finding that Langston’s proposed

adoption was in the child’s best interests. Although the Snyders questioned Langston’s living

arrangements and her ability to raise a male child in that environment, the record contains little

evidence as to what, if any, effects this factor might have on the child. The evidence showed that

Langston and her roommate maintained separate bedrooms and had ceased their sexual relationship

since the child came into the home. They did not rule out the possibility of resuming their sexual

relationship at some future date, but their present focus was on parenting their respective children.

Langston acknowledged the child’s need for interaction with adult males, and she expressed her

commitment to providing opportunities for such interaction. Anne McGinnis opined that such

interaction was a concern any time a single parent undertook to raise a child, regardless of the

parent’s sexual orientation.

The Snyders also contend that the trial court erred in accepting the home study report

prepared by Anne McGinnis and in approving her recommendation that Langston was fit to adopt

the child. The Snyders contend that McGinnis’s home study report failed to comply with the order

of reference appointing her because McGinnis failed to investigate and report all of the

circumstances and conditions which had a bearing on the adoption and of which the trial court

should have been apprised. In particular, the Snyders criticize McGinnis’s report because it failed

to divulge the full extent and nature of Langston’s relationship with her roommate. The Snyders also

criticize McGinnis’s report and recommendation because, in terms of parental fitness, McGinnis

During the adoption hearing, the trial court indicated that it also would allow the Snyders “to take the stand

and testify as to why they [felt] it [was] not in the best interest of this child to be placed with Ms. Langston;” however,

the Snyders d id not take ad vantage of this o pportunity. W e also note tha t the Snyders faile d to prese nt any other

evidence to this effect, either by la y or expert tes timony.

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rated Langston a “ten” on a scale of one to ten, and McGinnis testified that her assessment of

Langston’s fitness to adopt the child was not affected by the sexual nature of Langston’s relationship

with her roommate.

Contrary to the Snyders’ contention, we conclude that the trial court was not required to

reject Anne McGinnis’s home study report and adoption recommendation. The Snyders’ objections

on appeal relate, not to the admissibility of McGinnis’s report and recommendation, but to the

weight that should have been given this evidence. See Cates v. Better-Bilt Aluminum Prods. Co.,

607 S.W.2d 476, 478 (Tenn. 1980); Estate of Jessee v. White, 633 S.W.2d 767, 769 (Tenn. Ct. App.

1982); see also Plunk v. Illinois Cent. R.R., No. 02A01-9707-CV-00167, 1998 WL 227772, at *17

(Tenn. Ct. App. May 8, 1998), perm. app. denied (Tenn. Oct. 19, 1998) (indicating that weaknesses

in expert’s opinion bear on weight of evidence rather than its admissibility). On cross-examination,

the Snyders’ counsel had ample opportunity to impeach McGinnis regarding the contents of her

report and the bases for her recommendation. See Plunk, 1998 WL 227772, at *17; Boye v. Moore,

No. 03A01-9812-CV-00424, 1999 WL 1068699, at *8 (Tenn. Ct. App. Nov. 24, 1999) (no perm.

app. filed). As the trier of fact, the trial court was in the best position to adjudge the credibility of

McGinnis’s testimony and to determine the weight to give her report and recommendation. See

Williams v. Steward, No. 02A01-9712-CV-00311, 1998 WL 408795, at *2 (Tenn. Ct. App. July 22,

1998) (no perm. app. filed); York v. York, No. 01A01-9104-CV-00131, 1992 WL 181710, at *4

(Tenn. Ct. App. July 31, 1992) (no perm. app. filed).

As previously stated, our review of this matter is de novo upon the record of the trial court,

accompanied by a presumption of correctness of the trial court’s findings of fact, unless the

preponderance of the evidence is otherwise. Rule 13(d) Tenn. Rule App. P. This court is limited

to the facts in the record before us. We are unable to find any evidence in this record that the rearing

of this child by Ms. Langston will have an adverse effect on the child. We do not feel that this court

can take judicial notice of this.

We further conclude that the Snyders’ constitutional attacks on the adoption statutes do not

provide a basis for reversing the final decree of adoption. The Snyders first complain that the

adoption statutes are unconstitutional because they fail to provide a child’s biological relatives with

notice of the child’s impending adoption. In fact, the adoption statutes contain a specific provision

dispensing with such notice. The challenged provision states that

[o]ther biological or legal relatives of the child or the adult are not necessary

parties to the proceeding and shall not be entitled to notice of the adoption

proceedings unless they are legal guardians as defined in § 36-1-102 or legal

custodians of the person of the child or adult at the time the petition is filed.

Tenn. Code Ann. § 36-1-117(d)(1) (Supp. 1998). The Snyders also complain that the adoption

statutes are unconstitutional because they fail to contain a provision requiring the appointment of a

guardian ad litem to represent the child’s best interests in an adoption proceeding.

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The law is well-established that “[a] person has no standing to contest the constitutionality

of a statutory provision unless the provision he claims to be deficient has been used to deprive him

of his rights.” State v. Johnson, 762 S.W.2d 110, 118 (Tenn. 1988), cert. denied, 489 U.S. 1091

(1989); State v. Vanzant, 659 S.W.2d 816, 819 (Tenn. Crim. App. 1983); accord State v. Perry, 13

S.W.3d 724, 741 (Tenn. Crim. App. 1999); State v. Purkey, 689 S.W.2d 196, 201 (Tenn. Crim. App.

1984). In accordance with this principle, the courts of this state “have refused to permit an

individual to question the constitutionality of a statute in the absence of a showing that he or she has

been adversely affected by it.” In re Adoption of Taylor, 678 S.W.2d 69, 73 (Tenn. Ct. App. 1984).

In In re Adoption of Taylor, for example, we held that an adoptive child’s grandparents

lacked standing to challenge the constitutionality of Tennessee’s adoption statutes because the

grandparents failed to demonstrate that their rights or interests had been adversely affected by the

challenged provisions. Taylor, 678 S.W.2d at 73. In Scott v. Pulley, 705 S.W.2d 666, 670-71

(Tenn. Ct. App. 1985), we held that an adoptive child’s biological mother lacked standing to

challenge the constitutionality of a provision that established a ninety-day period for revoking

surrenders. Inasmuch as the biological mother waited almost eleven months to attempt to revoke

her surrender, we reasoned that she had not been adversely affected by the statute’s ninety-day

limitation period. See Scott, 705 S.W.2d at 671.

We conclude that the Snyders lacked standing to raise the foregoing constitutional challenges.

The Snyders had notice of the child’s adoption proceedings, and they were permitted to participate

in the proceedings for the purpose of litigating the child’s best interests. Under these circumstances,

the Snyders cannot claim that either they or the child were adversely affected by the challenged

provision dispensing with notice to the child’s biological relatives.

We similarly reject the Snyders’ contention that the adoption statutes are constitutionally

infirm because they fail to contain a provision requiring the appointment of a guardian ad litem in

adoption proceedings. Although the adoption statutes do not contain such a requirement, the statutes

also do not prohibit the appointment of a guardian ad litem in adoption proceedings. Inasmuch as

the Snyders did not ask the trial court to appoint a guardian ad litem for the child, and inasmuch as

the Snyders were permitted to intervene in the adoption proceedings for the purpose of litigating the

child’s best interests, we fail to see how they or the child were prejudiced by the absence of such a

statutory requirement.

The Snyders additionally challenge the adoption statutes on equal protection grounds,

contending that the statutes violate equal protection principles because they fail to contain provisions

requiring the trial court to consider placing a child with relatives before placing the child with non-

relatives. In support of this argument, the Snyders cite Tennessee’s guardianship statutes, which

direct the trial court, in appointing a guardian for a child, to consider the following persons in the

order listed:

(1) The parent or parents of the minor;

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(2) The person or persons designated by the parent or parents in a will or