In re: Adoption of Heather Christine Hatcher

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

FILED

December 17, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN RE: )

)

ADOPTION OF HEATHER )

CHRISTINE HATCHER, a child )

under the age of eighteen (18) years, )

)

JAMES HATCHER and ) Appeal No.

VELMA CHRISTINE HATCHER ) M1999-01843-COA-R7-CV

)

Plaintiffs/Appellants, ) Dickson Juvenile

)

VS. )

)

HEATHER PATTERSON, )

)

Defendant/Appellee. )

APPEALED FROM THE JUVENILE COURT OF DICKSON COUNTY

AT CHARLOTTE, TENNESSEE

THE HONORABLE A. ANDREW JACKSON, JUDGE

WILLIAM H. FARMER

STEPHEN A. COBB

PAULA A. FLOWERS

511 Union Street, Suite 2100

Nashville, Tennessee 37219-8966

Attorneys for Plaintiffs/Appellants

JACK L. GARTON

110 Mathis Drive

Dickson, Tennessee 37056-0190

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Attorney for Defendant/Appellee

AFFIRMED IN PART; REVERSED IN PART;

AND REMANDED

BEN H. CANTRELL,

PRESIDING JUDGE, M.S.

CONCUR:

KOCH, J.

CAIN, J.

OPINION

Fifteen months after granting the adoption of an infant child, the

Juvenile Court of Dickson County voided the adoption for a host of substantive and

procedural problems – including the subject matter jurisdiction of the court and the

failure of the biological mother to sign the surrender. The adopting parents urge us

to hold that Tenn. Code Ann. § 36-1-122(b)(1) cures all defects in the former

proceeding after the adoption order becomes final. We reject that contention, but

hold that the biological mother effectively surrendered the child. We therefore

affirm the lower court’s order setting the adoption aside, but we reverse the order

returning custody of the child to the biological mother.

I.

Heather Patterson, a pregnant unwed teenager, sought a couple to

whom she could surrender the baby for adoption. Through mutual friends she was

introduced to James and Christine Hatcher of Waverly. She visited the Hatchers

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with her parents, and kept in touch with them by telephone. At some point she told

the Hatchers that she wanted them to adopt the baby when it was born.

Mr. and Mrs. Hatcher had talked about adopting a child, and upon

becoming acquainted with Ms. Patterson and her family, they agreed to adopt the

child when they were asked to do so. In the fall of 1997, they contacted the

licensed pregnancy and counseling service that was providing services to Ms.

Patterson and asked the agency to conduct the home study required for them to

adopt the child. The agency agreed, and scheduled an interview with the Hatchers

in early January of 1998.

In the meantime, the Hatchers’ relationship with Ms. Patterson

continued to develop. They took her to some of her medical appointments, and

spent some time with her at Christmas in 1997. They were present when the baby

was born on February 6, 1998, and they took the baby home with them when she

was released from the hospital on February 14, 1998.

The Hatchers hired a lawyer to assist them with the adoption, but for

some reason not explained in the record, the legal system completely failed the

Hatchers in their attempt. The lawyer apparently drew up a petition for adoption,

the surrender forms for the mother and the adopting parents, a waiver of interest of

the putative father, and a final order of adoption. Then he sent the Hatchers by

themselves to get the court’s approval for the adoption, ignoring all the procedural

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steps usually required.

The petition is addressed to the Chancery Court of Dickson County

and the final order directs the “Clerk and Master to complete the forms necessary

for the state to issue a new birth certificate for the child.” The signature line,

however, refers to the Juvenile Judge of Dickson County by name and title.

Whether a petition was ever filed in the Chancery Court is still a mystery. In this

record the word “Chancery” is marked out of the petition and the word “Juvenile”

is written in. Why the juvenile judge accepted the petition and signed the order of

adoption is not explained in the record either.

The Hatchers executed the petition for adoption on February 12, 1998.

The petition contained the following two paragraphs:

8. Petitioners would state that there has been full

compliance with the law in regards to the surrender of the

child to your Petitioners and that all parties’ pursuant to

law have received a copy [of] said surrender.

9. Petitioners would state that the biological mother

has given her consent and does hereby execute this

Petition for Adoption further evidencing her consent and

that she is under no undue influence and that no

consideration has been given to them for the purposes of

agreeing to said adoption. Petitioners would further state

that the biological mother understands that the entry of an

Order confirming the parental consent, without revoking

the parental consent prior to the entry of such an Order

would terminate that parents parental rights to the child

forever and that the parents will have no legal rights to the

custody, or control of the child in the future. Further

Petitioners would state that the biological father has signed

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a Waiver of Interest.

Ms. Patterson executed the petition under oath before the juvenile

judge of Dickson County on March 4, 1998. The oath she took states that “she has

read the foregoing Petition for Adoption and that the facts set forth herein are true

to the best of her knowledge, information and belief . . . .”

The record contains the filled-out forms for the surrender of the child

directly to the adoptive parents, but the forms are not signed by the Hatchers nor by

Ms. Patterson. The executed Waiver of Interest by the putative father is in the

record.

The final order of adoption recites that it came on to be heard on the

petition and, among other things, upon the “surrender of a child by the natural

parents directly to the adoptive parents.” The order was signed by the juvenile

judge and dated March 11, 1998. The order in this record does not contain any

information about where or when it was filed in the records of the juvenile clerk. No

one has offered an explanation why the petition is stamped filed by the juvenile clerk

on April 3, 1998 – three weeks after the juvenile judge signed the order of adoption.

On February 16, 1999, Ms. Patterson filed a petition to set aside the

adoption because “this court lacks jurisdiction to grant an adoption, that no home

study was ever completed, and that no surrender and acceptance was executed.”

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At a hearing on June 30, 1999, the court heard only an argument about

the legal issues involved. Apparently convinced that the adoption order was fatally

defective, the court ordered the adoption set aside and the child returned to Ms.

Patterson the next day. The court did not inquire about Ms. Patterson’s parental

fitness or the effect that such an abrupt change of custody would have on the child,

her biological mother, or the adoptive parents. We stayed the June 30 order and

directed the parties to work out a mutually acceptable visitation plan for Ms.

Patterson.

II.

The Hatchers do not assert on appeal that the Juvenile Court of

Dickson County had subject matter jurisdiction over adoptions or that the

proceedings in that court conformed to the statutory requirements for adoptions.

They also concede that a judgment rendered by a court without subject matter

jurisdiction is void, see New River Lumber Co. v. Tennessee Ry. Co., 210 S.W. 639

(Tenn. 1919), and that subject matter jurisdiction cannot be conferred by waiver or

consent, see Riden v. Snider, 832 S.W.2d 341 (Tenn. Ct. App. 1991).

Nevertheless, the Hatchers insist Tenn. Code Ann. § 36-1-122 (b)(1) prevents the

parties to the adoption from raising the jurisdictional question after the order

becomes final. That section provides:

(b)(1) After the final order of adoption is entered, no

party to an adoption proceeding, nor anyone claiming

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under such party, may later question the validity of the

adoption proceeding by reason of any defect or

irregularity therein, jurisdictional or otherwise, but shall be

fully bound by the order, except for such appeal as may

be allowed by law.

If one reads Tenn. Code Ann. § 36-1-122(b)(1) literally and in isolation

the Hatchers’ contention has some merit. We think however that the statute should

be read as a whole, because statutes similar in subject matter must be construed so

as to make the legislative scheme operate in a consistent manner. Davis v. Beeler,

207 S.W.2d 343 (Tenn. 1948). Reading the Act as a whole, we note that subsection

b(1) was part of the statute passed in 1951. See 1951 Tenn. Pub. Acts Ch. 202. In

1995 the legislature overhauled the adoption law, passing a seventy-four page bill

that re-enacted portions of the prior law with new provisions tucked in at

appropriate places. See 1995 Tenn. Pub. Acts Ch. 532. That Act added section

(b)(2). Now the two sections stand adjacent to each other.

(b)(1) After the final order of adoption is entered, no

party to an adoption proceeding, nor anyone claiming

under such party, may later question the validity of the

adoption proceeding by reason of any defect or

irregularity therein, jurisdictional or otherwise, but shall be

fully bound by the order, except for such appeal as may

be allowed by law.

(b)(2) In no event, for any reason, shall an adoption be

overturned by any court or collaterally attacked by any

person or entity after one (1) year from the date of entry

of the final order of adoption by a court of competent

jurisdiction. This provision is intended as a statute of

repose.

If subsection (b)(1) had the meaning for which the Hatchers contend,

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then subsection (b)(2) would have been completely unnecessary – at least as to

parties to the adoption. Under their version of (b)(1) parties could not attack the

adoption order for any reason thirty-one days after the court signed it.

Nevertheless, the legislature passed (b)(2) in 1995 saying that no person could

launch a collateral attack on an adoption order signed “by a court of competent

jurisdiction” after one year had passed. Under (b)(2), if the court does not have

subject matter jurisdiction, the order may be attacked even beyond the one year

period. This result is more consistent with the traditional view that a judgment

rendered without subject matter jurisdiction may be attacked at any time. See 47

Am.Jur.2d Judgments § 838; Hughes v. Aetna Casualty & Surety Company, 383

P.2d 55 (Or. 1963). Earlier adoption cases in Tennessee stand for the same

proposition. See Crocker v. Balch, 55 S.W. 307 (Tenn. 1900); Redmond v.

Wardrep, 257 S.W. 394 (Tenn. 1923).

We cannot ignore the obvious intent of the legislature, City of Oak

Ridge v. Morgan, 381 S.W.2d 901 (Tenn. 1964), but we should not interpret a

statute in a way that leads to an absurd result. Epstein v. State, 366 S.W.2d 914

(Tenn. 1963). If we interpret section (b)(1) literally we would have to ignore section

(b)(2), the more recent legislative enactment. We think the legislature would be

startled to find that a court without subject matter jurisdiction (a traffic court, for

instance) could nullify all the safeguards the legislature has built into the adoption

statutes, and the adoption could not be set aside thirty-one days after the order was

signed. Therefore, we hold that Tenn. Code Ann. § 36-1-122(b)(1) does not bar

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an attack on an adoption order entered by a court lacking subject matter jurisdiction. 1

The order of adoption entered by the Juvenile Court of Dickson

County was, and is, a nullity.

III.

We are satisfied, however, that Ms. Patterson effectively surrendered

the child. The Juvenile Court of Dickson County does have jurisdiction to accept

her surrender, Tenn. Code Ann. § 36-1-111(b), and Ms. Patterson did everything

necessary to surrender the child except sign the surrender document. She selected

the Hatchers as the persons she wished to adopt her child. She appeared in court

before the juvenile judge and signed the adoption petition under oath. The petition

alleged that “there has been full compliance with the law in regards to the surrender

of the child . . . and that all parties pursuant to law have received a copy of said

surrender.” A copy of a formal surrender form is in the record although it is not

signed by Ms. Patterson. The petition prayed for a final order of adoption by the

Hatchers and alleged:

9. Petitioners would state that the biological mother

has given her consent and does hereby execute this

Petition for Adoption further evidencing her consent and

that she is under no undue influence and that no

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consideration has been given to them for the purposes of

agreeing to said adoption. Petitioners would further state

that the biological mother understands that the entry of an

Order confirming the parental consent, without revoking

the parental consent prior to the entry of such an Order

would terminate that parents parental rights to the child

forever and that the parents will have no legal rights to the

custody, of control of the child in the future.

At oral argument counsel for Ms. Patterson conceded that Ms.

Patterson intended to permit the Hatchers to adopt the child and that she has no

basis to challenge the adoption other than the defects and oversights in the

preparation and execution of the forms. Counsel also conceded that Ms. Patterson

made the decision to surrender the child with full understanding of her options and

the consequences of her decision. There is no evidence in the record that she felt

any remorse about her decision or that she attempted to revoke her surrender within

the time provided by Tenn. Code Ann. § 36-1-112 (1996).

Under all the circumstances, we are convinced that the proceedings in

this case substantially complied with the statutory requirements for a valid

surrender, see Brown v. Raines, 611 S.W.2d 594 (Tenn. Ct. App. 1980). Tenn.

Code Ann. § 36-1-111(k)(1)(C)(i)(Supp. 1999) states that as an alternative to

witnessing the mother’s signature on the surrender form, the court may “witness the

actual act of surrender . . . by questioning the parent on the matters required by this

part before the entry of an order of confirmation of the parental consent.” Ms.

Patterson does not contend that the Juvenile Judge failed to ask the questions “

required by this part,” and as we have pointed out, she was knowledgeable about

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and comfortable with her decision at the time of the surrender.

Undoubtedly other unfulfilled requirements lurk in the labyrinthine

provisions of the adoption laws, but as a consequence of her surrender Ms.

Patterson no longer has the standing to raise them.

We affirm the order below setting the adoption aside. We reverse the

order returning custody of the child to Ms. Patterson. Tax the costs on appeal

equally to Ms. Patterson and the Hatchers.

_______________________________

BEN H. CANTRELL,

PRESIDING JUDGE, M.S.

CONCUR:

____________________________

WILLIAM C. KOCH, JR., JUDGE

____________________________

WILLIAM B. CAIN, JUDGE

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IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

IN RE: )

)

ADOPTION OF HEATHER )

CHRISTINE HATCHER, a child )

under the age of eighteen (18) years, )

)

JAMES HATCHER and ) Appeal No.

VELMA CHRISTINE HATCHER ) 01-A-01-9907-JV-00397

)

Plaintiffs/Appellants, ) Dickson Juvenile

)

VS. )

)

HEATHER PATTERSON, )

)

Defendant/Appellee. )

JUDGMENT

This cause came on to be heard upon the record on appeal from the Juvenile Court of

Dickson County, briefs and argument of the parties; upon consideration whereof, we affirm

that portion of the trial court’s order setting the adoption aside and reverse that portion

returning custody of the child to Ms. Patterson.

In accordance with the opinion of the Court filed herein, it is, therefore, ordered and

adjudged by this Court that the order of the trial court is affirmed in part and reversed in

part. The cause is remanded to the Juvenile Court of Dickson County for further

proceedings consistent with the opinion and for the collection of the costs accrued below.

Costs of this appeal are taxed one-half against Mr. and Mrs. Hatcher and one-half

against Ms. Patterson, for which execution may issue if necessary.

_______________________________

BEN H. CANTRELL,

PRESIDING JUDGE, M.S.

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_______________________________

WILLIAM C. KOCH, JR., JUDGE

_______________________________

WILLIAM B. CAIN, JUDGE

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