In Re Neveah W.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

March 11, 2015 Session

IN RE NEVEAH W.

Appeal from the Chancery Court for Shelby County

No. CH1407723 Kenny W. Armstrong, Chancellor

No. W2014-01531-COA-R10-CV – Filed April 2, 2015

This extraordinary appeal arises from the trial court’s placement of a minor child while the

minor child remains in the legal custody of the Tennessee Department of Children’s Services

(―DCS‖). The minor child was removed by DCS from the home of her Foster Parents, who

had cared for her almost since birth, after allegations that the Foster Parents had abused one

of their other children. The minor child’s guardian ad litem filed an emergency petition

seeking the return of the child to the Foster Parents’ home, or alternatively, for an award of

legal custody to the Foster Parents. After a hearing wherein DCS, the Foster Parents, and the

GAL presented evidence, the trial court ordered that the child be returned to the Foster

Parents’ home, but declined to remove the child from DCS’s legal custody. On appeal, we

hold that a trial court may not direct placement of a child in the legal custody of DCS. We

reverse the ruling of the trial court and remand for further proceedings.

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Chancery Court is

Reversed and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which BRANDON O.

GIBSON, J., and JOHN EVERETT WILLIAMS, Sp. J., joined.

Herbert H. Slatery, III, Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor

General; Alexander S. Rieger and Kathryn A. Baker, Assistant Attorney Generals, for the

appellant, Department of Children’s Services.

Laura D. Rogers, Memphis, Tennessee, for the appellees, Marie W. and Jason W.

W. Ray Glasgow, Memphis, Tennessee, Guardian Ad Litem.

OPINION

Background

This case, an extraordinary appeal pursuant to Tennessee Rule of Appellate Procedure

10, arises from an order of the Shelby County Chancery Court placing a minor child, who is

currently in the legal custody of DCS, back into the home of her Foster Parents, with whom

she had resided with almost since birth. Neveah W. (―Neveah‖ or ―the child‖)1 was born to

Stacy W. (―Biological Mother‖) in May 2011. No father was listed on Neveah’s birth

certificate.2 Since birth, Neveah has faced numerous developmental and cognitive obstacles

because she was born addicted to certain drugs. The record indicates that Biological Mother

had a history of prostitution and drug use; further, she had threatened to kill herself and

Neveah at some point while Neveah was still in her custody. Just a few weeks after Neveah’s

birth, on May 26, 2011, DCS filed a petition in the Shelby County Juvenile Court to

adjudicate Neveah dependent and neglected based on allegations that Biological Mother used

illegal drugs and had been diagnosed with paranoid schizophrenia, leading her to threaten the

lives of herself and Neveah. On June 6, 2011, the trial court awarded DCS temporary

custody.

Neveah’s initial foster home was unable to care for her special needs. In early June

2011, DCS contacted Marie W. (―Foster Mother‖) and Jason W. (―Foster Father,‖ together

with ―Foster Mother,‖ ―Foster Parents‖) to inquire about whether they could provide a foster

home for Neveah. Neveah was placed with Foster Parents on June 6, 2011. Foster Parents

raised Neveah in their home, undisturbed with the exception of brief visitations from

Biological Mother, for approximately three years.

At the time Neveah was placed with the Foster Parents, they had three children, all of

whom they had adopted. Foster Parents’ children were ages sixteen, thirteen, and nine. Thus,

at the time of the hearing in the trial court in this case, three other children resided in Foster

Parents home; only one of the children was in foster care, Neveah. Kara, Foster Parents’

nine-year-old, had been in Foster Parents’ home since she was three years old. Like Neveah,

Kara had been placed with the Foster Parents by DCS. However, even from an early age she

displayed violent and manipulative behavior. It is undisputed that Kara had been diagnosed

with Reactive Attachment Disorder, a condition that caused her to be manipulative and

1

In cases involving minor children, it is the policy of this Court to remove the names of minor children

and other parties in order to protect their identities.

2

The unknown father has not participated in the case at the trial level or on appeal.

2

oftentimes violent. Kara had been abused, neglected, and sexually molested prior to entering

foster care, causing her to act out in sometimes violent and sexual ways. After being taken

into custody by DCS, Kara was placed in foster care, but because of her past abuse and

Reactive Attachment Disorder, Kara had significant behavioral problems. Accordingly,

Kara’s stays with foster families were often short-lived. Foster Parents were Kara’s fifth

foster family in approximately six years. Because Kara moved from foster family to foster

family, her inability to attach to a family was compounded. Still, Foster Parents believed they

could provide a loving home for Kara and subsequently adopted Kara prior to the events in

this case.

During Neveah’s time in the care of Foster Parents, DCS made several attempts

towards the reunification of Neveah and Biological Mother. The record, including the trial

transcript, is not clear on the precise dates of visitations or trial home placements with

Biological Mother; however, it is clear that DCS put forth efforts to offer Biological Mother

an opportunity to visit with Neveah. Between May 2011 and March 2012, Biological Mother

visited with Neveah two times. As of March 2012, the recommended duration and frequency

of the visits was four hours every month. On June 6, 2013, DCS attempted a trial home

placement with Biological Mother. Sixty days later, the placement was disrupted, and Neveah

was returned to Foster Parents. Despite the failure of the first trial home placement, DCS

attempted another trial home placement with Biological Mother sometime in late 2013 or

early 2014. Again, this trial home placement failed when Biological Mother again returned to

a psychiatric treatment facility.

The court-appointed Guardian ad Litem (―GAL‖) filed a Petition to Terminate

Biological Mother’s Parental Rights in the Shelby County Chancery Court on April 23,

2014.3 During the pendency of the termination petition, DCS began investigating Foster

Parents’ home based on allegations of abuse made by Kara. Ultimately, in April 2014, Foster

Parents surrendered their rights to Kara, as discussed below, based on her failure to bond

with their family due to her Reactive Attachment Disorder. Shortly thereafter, on May 15,

2014, Foster Parents intervened in the GAL’s petition to terminate by filing their own

Petition to Terminate Biological Mother’s Parental Rights and for Adoption under the same

docket number. At some point after the filing of the GAL’s petition, DCS increased

Biological Mother’s visitation from four hours per month to four hours per week.

DCS concluded its investigation of Foster Parents’ home on July 14, 2014. At that

time, DCS removed Neveah from the home and ultimately placed her with a different foster

family. DCS also revoked Foster Parents’ license to serve as a foster home in the future. DCS

based its revocation on Foster Parents’ breach of the foster parent contract, which occurred

3

The record indicates that GAL filed his petition at the urging of the Foster Care Review Board.

3

when Foster Mother conceded she had used corporal punishment on Neveah by ―smacking‖

her hand and when Foster Parents filed their petition to terminate Biological Mother’s

parental rights. DCS did not provide prior notice to Foster Parents or to Neveah’s GAL. That

same day, the GAL filed an Emergency Ex Parte Petition for Injunctive Relief seeking return

of Neveah to the home of Foster Parents. Foster Parents did not file their own emergency ex

parte motion. On July 15, 2014, counsel for all parties appeared in court. During the hearing,

the trial court declined to address the issue of returning Neveah to Foster Parents’ home, and

it set that matter for hearing on August 11, 2014. The trial court did rule on an issue

concerning visitation with Biological Mother, however, entering a written order enjoining

DCS from increasing the duration or frequency of the visitations.4

On August 11, 2014, the parties appeared for an evidentiary hearing on the GAL’s

Emergency Ex Parte Petition. The following witnesses testified at the hearing: Carolyn

Nathaniel, the lead investigator with DCS’s Special Investigations Unit; Regina Stigler, a

case manager for DCS; Beverly Williams, a case manager for DCS; Tawanna L. Leland, a

team coordinator for DCS; Dr. Marwyn Benemerito, Neveah’s occupational therapist; and

Foster Parents.

The testimony of the witnesses for DCS centered on the investigation into the home of

Foster Parents based on the allegations made by Kara. As stated above, DCS’s investigation

began after Kara made allegations that she had been abused by Foster Parents. Ms. Nathaniel,

the lead investigator for DCS, testified that Kara had reported to a third party that she had

been locked in her bedroom and forced to urinate and defecate in the room. She also stated

that Kara asserted that she had been hit with a wooden spoon. Ms. Nathaniel was unaware of

Kara’s psychological issues, including her Reactive Attachment Disorder, and had no

knowledge of the efforts Foster Parents had made to treat Kara’s issues, see discussion of

Foster Mother’s testimony, supra. Similarly, Ms. Stigler testified that she had never met

Kara, but that she did interview Foster Mother, who revealed to Ms. Stigler that she had

locked Kara’s door at night only ―as a last resort.‖ In addition, Ms. Stigler testified that

Neveah reported being hit on the leg. Ms. Stigler did concede that, other than Kara, there was

no evidence that Foster Parents had ever locked a child in his or her bedroom.

Like Ms. Stigler, none of the DCS case workers who testified had ever interviewed

Kara. However, the DCS employees testified that, before Neveah had been removed, the

allegations made by Kara had been ―substantiated‖ pursuant to DCS policy. None of the

witnesses for DCS offered an explanation as to the investigative process for substantiating

4

The GAL’s petition does not specifically seek this relief, but his petition does include factual allegations that

Neveah ―has been recently forced to attend visits at the biological mother’s home, to which she has reacted

with uncontrollable anxiety, sobbing, and pleading not to be forced away from her foster home.‖ The trial

court’s decision with regard to visitation with Biological Mother is not an issue in this appeal.

4

abuse allegations made by a young child. However, the DCS employees indicated that it was

problematic that Foster Parents had surrendered their rights to Kara and stated that they

feared Foster Parents would act similarly toward Neveah, who also displayed psychological

issues. Further, the DCS employees testified that Neveah had also reported being hit on the

leg, as punishment that is in violation of a DCS internal policy by which Foster Parents

agreed to abide pursuant to their contract with DCS.5 Notably, one DCS witness admitted

that, despite DCS’s internal ―Resource Home Corrective Action Plan,‖ which permits DCS to

take corrective steps with Foster Parents, DCS declined to utilize this plan before removing

Neveah. Witnesses for DCS testified that DCS did not ever discuss utilizing the ―Resource

Home Corrective Action Plan‖ prior to removing Neveah from Foster Parents’ home. When

questioned by the trial court about their refusal to utilize their own procedures for correcting

issues without resorting to the drastic measure of removing the child from her home, the DCS

workers gave differing explanations. One witness for DCS said that corrective action was not

considered based on the severity of the allegations made by Kara. Another witness for DCS

stated that DCS did not take corrective action because the investigation into Foster Parents’

home was ongoing. Still another witness for DCS testified that DCS did not take corrective

action because it had received enough evidence after the investigation to warrant removal.

The DCS employees testified that, after being removed from Foster Parents’ home, Neveah

had been placed in a prospective adoptive home.

Dr. Marwyn Benemerito, an occupational therapist who treated both Neveah and Kara,

testified about the children’s psychological issues. According to Dr. Benemerito, Kara’s

Reactive Attachment Disorder presented a ―difficult case,‖ and he explained that children

with the disorder are often dishonest and manipulative. Regarding Neveah, Dr. Benemerito

testified that, although he had made some progress with her, she began to regress around the

same time that DCS increased visits between Neveah and Biological Mother. Dr. Benemerito

testified that his office continued to keep a standing appointment time open for her. However,

after Neveah had been removed from the Foster Parents’ home, DCS did not take Neveah to

her occupational therapy appointments, despite her known psychological issues.

Last, Foster Parents testified. Much of their testimony revolved around Kara’s

allegations. Foster Parents denied that they abused Kara and offered explanations for the

methods they used in dealing with Kara’s Reactive Attachment Disorder. Both explained that

their reason for adopting Kara was to provide her with a loving home; however, Kara was

unable to bond with Foster Parents, and her anger increased as she got older. Eventually,

Foster Parents testified that they began to fear her and did not know what harm she was

capable of inflicting. They stated that Kara often acted violently or inappropriately, such as

touching other children, physically abusing family members or the family pet, and

5

The record on appeal does not include the contract between DCS and Foster Parents.

5

purposefully urinating and defecating in Foster Parents’ home. Foster Mother testified that

they took numerous steps to help Kara overcome her issues, including play therapy,

attachment therapy, occupational therapy, speech therapy, equine therapy, sports, and music.

At night, Kara would be afraid, and Foster Mother stated that Kara felt more comfortable

with a baby gate across her bedroom door. Still, Kara kept sneaking out of her room at night,

causing Foster Parents to be fearful of what she would do. Foster Parents attempted to put an

alarm on the gate and bells, but Kara was still able to sneak out. Eventually, Foster Parents

began locking Kara’s bedroom door at bedtime6 to prevent her from wandering their home at

night unsupervised and hurting herself or the other children, particularly Neveah.

Unfortunately, Kara’s anger and behavior worsened with age. Eventually, Foster Parents

made the decision to surrender their parental rights to her. Foster Mother explained that they

found an agency in Murfreesboro that would assist in helping Kara find a new family she

would be able to bond with:

We’ve never done this before. It’s never been on our radar. . . .

If we do this, it has to be the perfect family. Kara has a ton of

special needs. . . . They found - - they found [a family for Kara].

No, it was not the correct fit for her, based on what they told us.

And then they found another family. And I’m telling you, this

family was above and beyond everything we had asked for her. .

. . And they had been studying for two years, two years, on

Reactive Attachment Disorder, because they knew they wanted

to go overseas and get a child just Kara’s age. . . . This was the

perfect family.

Regarding Neveah, Foster Mother admitted that she had tapped Neveah on the hand to

stop her from reaching for something, but denied ever being abusive. On the contrary, Foster

Father stated:

I mean, we have been with Neveah for over three years, 24/7, as

her mommy and daddy. You know, through them pulling her out

of our house for trial visits; comes home after disruption; we’re

there to pick up the pieces. If she has a rough day with visits,

we’re there to pick up the pieces. 24/7, we’re here to pick up the

pieces. And we’re sitting on trial for nothing. And it’s just - -

it’s disheartening.

6

Foster Parents indicated that they locked Kara’s door for about a month before they surrendered their rights to

Kara.

6

Additionally, Foster Father stated that neither the current foster parent nor DCS has contacted

Foster Parents to gather Neveah’s clothes or toys or to inquire about Neveah’s daily schedule.

Foster Parents testified that Neveah was initially upset when she was removed from their

home, but DCS later informed them that she had calmed down. Foster Mother stated that they

were willing to take complete legal custody of Neveah and be responsible for all of her

financial needs.

After hearing the evidence presented at trial, the trial court orally ruled that Neveah

would remain in DCS’s legal custody, but that she must be returned to the home of Foster

Parents by 12:30 p.m. on August 12, 2014. Finding that DCS’s removal of Neveah was not in

her best interest, the trial court orally found:

But I really worry about [DCS] taking steps that end up being

adverse to the person that you’re supposed to be protecting. And

I really have a problem with seeing that - - that everything that’s

been done in this case is for the protection of Neveah. I really

have a problem with it. . . . On top of that, I have - - . . . real

concerns about, now you’re losing a couple, like [Foster

Parents], as Foster Parents . . . because of certain findings that

have been made, from what I think, without sufficient proof . . .

.

DCS requested a stay of the trial court’s order, but the request was denied. Accordingly, on

August 12, 2014, DCS filed an emergency motion in this Court seeking a stay of the trial

court’s order pending its extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of

Appellate Procedure.

On August 15, 2014, we granted DCS’s motion and stayed the trial court’s order. Also

on August 15, 2014, DCS filed its application for extraordinary appeal. Finally, the trial court

entered its written order on August 29, 2014. The trial court found that, ―Upon the filing of

the adoption Petition by Foster Parents, this Court obtained exclusive jurisdiction over all

matters pertaining to the child pursuant to Tenn. Code Ann. § 36-6-116(f).‖ Next, the trial

court found that DCS’s allegations of abuse against Foster Parents were unfounded. The trial

court found both Foster Parents and Dr. Benemerito to be credible witnesses. However, the

trial court did not make a finding regarding the credibility of any of witnesses testifying on

behalf of DCS. The trial court further found that Neveah was not at risk of danger and her

removal from Foster Parents’ home was not in her best interest. The trial court also

specifically found that DCS ―has taken steps that are adverse to Neveah’s best interests.‖

Ultimately, the trial court ordered that Neveah be placed back in the Foster Parents’ home;

however, the trial court specifically declined to change legal custody of Neveah to Foster

7

Parents ―at this time.‖7

Shortly thereafter, on September 10, 2014, we granted DCS’s application for

extraordinary appeal.8 Our order specifies that our review is limited to the following issue:

Does Tennessee Code Annotated Section 37-1-129 authorize a trial court to direct placement

of a child within the custody of DCS?

Discussion9

This case involves the interpretation of Tennessee statutes. It presents a question of

law, which we review de novo with no presumption of correctness. Tenn. R. App. P. 13(d).

The Tennessee Supreme Court has outlined the applicable principles that apply to the

question of statutory interpretation:

When dealing with statutory interpretation . . . our primary

objective is to carry out legislative intent without broadening or

restricting the statute beyond its intended scope. Houghton v.

Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In

construing legislative enactments, we presume that every word

7

During its oral ruling the trial court indicated that he was not ruling on the issue of custody, only placement.

The trial court specifically stated, in response to counsel for DCS’s query, that Neveah would remain in

DCS’s legal custody.

8

Our order entered on August 15, 2014 provides that the trial court’s order of August 11, 2014 was temporarily

stayed. At that time, the trial court had only orally ruled that Neveah be placed back into the home of Foster

Parents. When we granted DCS’s application for extraordinary appeal on September 10, 2014, we additionally

stayed the trial court’s written order entered August 29, 2014, which memorialized its oral ruling of August 11,

2014.

9

We note that Tennessee law is clear that the Shelby County Chancery Court properly retained jurisdiction in

this case. In addition to DCS counsels’ concession that the chancery court had jurisdiction over this matter,

Tennessee law, specifically Tennessee Code Annotated Section 36-1-116(f)(1) provides: ―[U]pon the filing of

[a petition for adoption], the court shall have exclusive jurisdiction of all matters pertaining to the child . . . .‖

Additionally, Tennessee Code Annotated Section 37-1-103(c) provides, in relevant part:

This subsection (c) does not establish concurrent jurisdiction for any other

court to hear juvenile cases, but permits courts exercising domestic

relations jurisdiction to make custody determinations in accordance with

this part.

Tenn. Code Ann. § 37-1-103(c)(emphasis added). Chancery courts in Tennessee obtain ―jurisdiction,

concurrent with the circuit court, of all proceedings for divorce and . . . the adoption for children‖ by virtue of

Tennessee Code Annotated Section 16-11-110.

8

in a statute has meaning and purpose and should be given full

effect if the obvious intention of the General Assembly is not

violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn.

2005). When a statute is clear, we apply the plain meaning

without complicating the task. Eastman Chem. Co. v. Johnson,

151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is simply to

enforce the written language. Abels ex rel. Hunt v. Genie

Indus., Inc., 202 S.W.3d 99, 102 (Tenn. 2006).

Estate of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn. 2011). Furthermore,

statutes that are part of a broad statutory scheme should be interpreted in pari materia, so as

to make that scheme consistent in all its parts. Wells v. Tenn. Bd. of Regents, 231 S.W.3d

912, 917 (Tenn. 2007); Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn. 1994); State v. Allman,

68 S.W.2d 478, 479 (Tenn. 1934). Courts are required to construe a statute, or set of statutes,

―so that the component parts are consistent and reasonable.‖ In re Sidney J., 313 S.W.3d

772, 775 (Tenn. 2010) (quoting Cohen v. Cohen, 937 S.W.2d 823, 827 (Tenn. 1996)). We

also have a duty to interpret a statute in a manner that makes no part inoperative. In re

Sidney J., 313 S.W.3d at 775–76 (citing Tidwell v. Collins, 522 S.W.2d 674, 676 (Tenn.

1975)). ―Statutes that relate to the same subject matter or have a common purpose must be

read in pari materia so as to give the intended effect to both.‖ In re Kaliyah S., --- S.W.3d ---

, 2015 WL 273659, at *11 (Tenn. 2015). The issue in this case requires us to compare and

harmonize two titles of the Tennessee Code, the juvenile title and the domestic relations title,

as they apply in a termination proceeding coupled with an adoption.

The parties rely on two separate and distinct titles from the Tennessee Code to support

their respective arguments. DCS argues that Title 37, which contains the statutes concerning

juveniles and the authority of DCS, limits the trial court’s power over the placement of

children who are in DCS custody. Specifically, DCS points to Tennessee Code Annotated

Section 37-1-129(e)(1) and (2), which provides:

(e)(1) Any order of the court that places custody of a child with

the department shall empower the department to select any

specific residential or treatment placements or programs for the

child according to the determination made by the department, its

employees, agents or contractors.

(2) The court may review the residential or treatment placement

of a child placed in the department’s custody, and within ninety

(90) days of the placement, the court may, on its own motion,

order a hearing to receive evidence and testimony with regard to

the appropriateness of the child’s residential or treatment

9

placement. . . . The court shall issue a placement

recommendation based on a preponderance of the evidence to

the department within ten (10) days after the conclusion of the

hearing. Upon receiving the court’s recommendation, the

department shall issue a determination as to the child’s

placement within fifteen (15) days. . . .

Tenn. Code Ann. § 37-1-129. DCS argues that the plain language in Section 37-1-129(e)

empowers DCS, and not the court, to make specific placement decisions for a child within

DCS custody. Additionally, DCS contends that the trial court’s role is limited to ―issu[ing] a

placement recommendation,‖ see Tenn. Code Ann. § 37-1-129(e)(2), and that the trial court

in this matter erred when it purportedly ordered that Neveah be returned to Foster Parents’

home—even though the trial court specifically stated that legal custody was to remain with

DCS.

Conversely, Foster Parents and the GAL contend that the chancery court’s power falls

outside the purview of Tennessee Code Annotated Section 37-1-129 when it obtains

jurisdiction of a termination proceeding pursuant to Section 36-1-11310 or an adoption

proceeding pursuant to Section 36-1-116.11 As discussed above, the chancery court here

undisputedly obtained jurisdiction when Foster Parents filed their Petition for Adoption. See

Tenn. Code Ann. § 36-1-116(f)(1). As such, Foster Parents and the GAL assert that the

domestic relations statutes found in Title 36 of the Tennessee Code apply, specifically

Chapter 1 concerning adoption. Within the domestic relations title of the Tennessee Code,

Section 36-1-116(f)(1) provides, in relevant part: ―Upon the filing of the [adoption] petition,

the court shall have exclusive jurisdiction of all matters pertaining to the child. . .‖

(Emphasis added). Additionally, Section 36-1-116(k)(2)(A) purports to grant a similarly

broad power, providing: ―Subject to subsection (f), the court may make any necessary

orders . . . for the protection and welfare of the child.‖ Tenn. Code Ann. § 36-1-116(k).

According to Foster Parents and the GAL, Subsection (f)(1)’s use of the phrase ―exclusive

jurisdiction of all matters pertaining to the child‖ and Subsection (k)(2)(A)’s use of the

phrase ―any necessary orders‖ confers plenary power to the chancery court when it acquires

an adoption proceeding coupled with a termination proceeding. They argue that the juvenile

statutes cannot restrict the chancery court’s exercise of absolute jurisdiction because it ―was

not the intention of the Legislature that the present and future life of a child should be left to

the arbitrary will and possible caprice of anybody, be it the natural parent or any child-caring

10

Tennessee Code Annotated Section 36-1-113 governs the termination of parental rights, including notice

requirements and the specific required findings to be made by the court.

11

Tennessee Code Annotated Section 36-1-116 governs the filing of adoption petitions, including the pre-

petition home study, contents of the petition, and the effect of filing an adoption petition.

10

agency.‖ Young v. Smith, 231 S.W.2d 365, 368 (Tenn. 1950). As such, the GAL and Foster

Parents argue that while a juvenile court in a dependency and neglect proceeding may only be

entitled to make recommendations to DCS regarding the placement of a child in DCS

custody, the adoption statutes give a chancery court presiding over an adoption case far more

power to enter orders regarding the child, so long as those orders are in the child’s best

interest.

With the relevant statutes in mind, we turn to the trial court’s order. In its final order

returning Neveah to Foster Parents, the trial court agreed with the interpretation of its

jurisdiction and power as presented by the GAL and Foster Parents. However, rather than

awarding both legal and physical custody to Foster Parents, the trial court’s order awards

physical custody to Foster Parents, while continuing DCS’s legal custody. Upon our review

of the relevant statutes, we find the trial court’s order problematic. First, the specific statute

cited by the trial court for its decision, Tennessee Code Annotated Section 37-1-129(e)(1),

states that DCS is empowered, rather than the court, to direct placement of children in its

custody. Instead, Tennessee Code Annotated Section 37-1-129(e) specifically limits the trial

court’s power to merely making a recommendation concerning DCS’s placement based on

the best interest of the child. See Tenn. Code Ann. § 37-1-129(e). The trial court went beyond

making a mere recommendation regarding the placement of the child; it entered an order

directing DCS to place the child with specific individuals. Clearly, then, the statute cited by

the trial court does not support its action in this case.

This conclusion does not end the inquiry, however, as an appellate court is not always

bound by the ground relied upon by the trial court in its written order. Indeed, it is well-

settled that this Court may affirm a decree of the trial court that is correct in result, although

rendered upon different or erroneous grounds. See Hopkins v. Hopkins, 572 S.W.2d 639,

641 (Tenn. 1978). Here, the GAL and the Foster Parents argue that the trial court’s power to

direct the placement of Neveah stems not from Title 37, but from the statutes governing

adoption proceedings. Accordingly, we turn to the relevant statutes to determine whether the

General Assembly intended that a chancery court presiding over an adoption proceeding

would have the power to direct the placement of a child in DCS custody, where juvenile

courts presiding over dependency and neglect cases are expressly deprived of such power.

Although both parties champion the application of one statutory title over the other,

statutes ―must be read in relationship to one another to effectuate the intent of the statutory

scheme as a whole.‖ Silliman v. City of Memphis, 449 S.W.3d 440, 460 (Tenn. Ct. App.

2014) (citing 82 C.J.S. Statutes § 474). Because both Title 36 and Title 37 concern the same

subject matter—the best interests of children—we must construe them in pari materia, See

In re Kaliyah S., --- S.W.3d ---, 2015 WL 273659 (Tenn. 2015). As our Supreme Court

recently explained:

11

―[T]he construction of one such statute, if doubtful, may be

aided by considering the words and legislative intent indicated

by the language of another statute.‖ Graham v. Caples, 325

S.W.3d 578, 582 (Tenn. 2010) (quoting Wilson v. Johnson

Cnty., 879 S.W.2d 807, 809 (Tenn. 1994)). We seek to adopt the

most ―reasonable construction which avoids statutory conflict

and provides for harmonious operation of the laws.‖ Carver v.

Citizen Utils. Co., 954 S.W.2d 34, 35 (Tenn. 1997).

Kaliyah, 2015 WL 273659, at *15. Additionally, we must presume that, in enacting the

relevant adoption statutes, the legislature is presumed to know both its prior enactments and

the state of the law when passing new legislation. See Dixon v. Holland, 70 S.W.3d 33, 37

(Tenn. 2002) (citing State v. Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997)).

As discussed above, the GAL and Foster Parents argue that the power to direct

placement of the child in this case derives not from Title 37, but from the adoption statutes,

specifically Tennessee Code Annotated Section 36-1-116(f)(1). Subsection (f)(1) provides

that the chancery court, upon the filing of the adoption petition, ―shall have exclusive

jurisdiction of all matters pertaining to the child . . . .‖ (emphasis added). Additionally,

Subsection (k)(2)(A) purports to allow the trial court to enter ―any necessary orders . . . for

the protection and welfare of the child.‖ As stated above, Foster Parents and the GAL assert

that this provision confers upon the chancery court the right to direct the placement of a

child. We respectfully conclude that their suggested interpretation relies on an overly broad

interpretation of this provision.

The GAL and Foster Parents’ interpretation seemingly requests this Court to discount

the specific provisions of the juvenile statutes. This we cannot do. As previously discussed,

the above language from Title 36 may not be read in a vacuum, but must be considered in

conjunction with the provisions of Title 37 relating to the same subject matter. Accordingly,

we must consider both the relevant provisions of Title 36 and Title 37 to determine this issue.

Considering both the specific limitation on the court’s power to direct the placement of a

child in DCS custody in Title 37 and the broad grant of power established in Title 36, we

must conclude that the limitation expressed in Title 37 is controlling in this situation.

A well-settled canon of statutory interpretation provides that specific statutory

provisions control over conflicting general provisions. Arnwine v. Union Cnty. Bd. of Educ.,

120 S.W.3d 804, 809 (Tenn. 2003). As such, the specific provisions of the juvenile statutes

serve as a limitation to a trial court’s exercising jurisdiction in termination cases coupled with

adoption proceedings where DCS remains the legal custodian of the child. While the

adoption statute confers ―exclusive jurisdiction‖ upon the trial court to preside over all

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matters related to the child at issue, the trial court’s order must still comport with the juvenile

statutes relating to the trial court’s power to direct placement of a child in DCS custody

pursuant to the doctrine of in pari materia. See In re Kaliyah S., 2015 WL 273659, at *15.

From our review of the relevant statutes, nothing in the adoption statutes confers any

additional power on the chancery court to direct placement of a child in DCS custody, while

a juvenile court is merely allowed to make recommendations in a similar situation. Clearly, in

both the adoption context and the dependency and neglect context contemplated in Title 37,

the paramount consideration is the best interests of the child. See Tenn. Code Ann. § 37-1-

101 et seq. Thus, these statutes must be construed so as to give effect to all their terms.

Silliman v. City of Memphis, 449 S.W.3d at 460. To grant the chancery court a superior

power over a juvenile court to direct the placement of a child in DCS custody simply because

an adoption petition has been filed giving the chancery court jurisdiction does not comport

with the well-settled doctrine of in pari materia. See In re Kaliyah S., 2015 WL 273659, at

*11. We decline to conclude that our interpretation of the statutes at issue would vary

depending on which court is exercising jurisdiction.

Furthermore, we reject the GAL’s and the Foster Parents’ assertion that vesting the

chancery court with exclusive jurisdiction over adoption proceedings permits the chancery

court unbounded power to enter orders concerning the child, where the General Assembly

has indicated that such action is beyond the court’s power. Black’s Law Dictionary defines

―subject matter jurisdiction‖ as ―[j]urisdiction over the nature of the case and the type of

relief sought.‖ Black’s Law Dictionary 931 (9th ed. 2009). In contrast, ―power‖ is defined as

―[t]he legal right or authorization to act or not to act[.]‖ Black’s Law Dictionary 1288 (9th ed.

2009). Thus, while a court may have broad jurisdiction over a case or controversy, the court’s

orders must still comply with all applicable laws on the issue. If this were not the case, no

court properly exercising jurisdiction could ever err in its exercise of power. Here, Tennessee

Code Annotated Section 37-1-129(e) expressly limits the court’s power to direct the

placement of a child in DCS custody.12 Nothing in the broad grant of jurisdiction to the

chancery court exempts the chancery court from this limitation on the court’s power.

Accordingly, we must reverse the order of the chancery court directing the placement of

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Nothing in this Opinion should be construed as precluding or limiting a trial court’s power to change a minor

child’s legal custody pursuant to Tennessee Code Annotated Section 36-1-116(f)(3) (permitting a court

presiding over an adoption to enter an order vesting legal custody or guardianship with pre-adoptive parents).

At various points in these proceedings, all parties have recognized that the trial court maintains the power to

award legal custody of a child to pre-adoptive parents like the Foster Parents in this case. While the GAL and

Foster Parents requested this relief in the trial court, the trial court declined to grant their request. Whether the

trial court erred in refusing to change custody of the child to Foster Parents was not designated as an issue in

this extraordinary appeal.

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Neveah while she remains in the legal custody of DCS.

Conclusion

The judgment of the Shelby County Chancery Court is reversed and remanded to the

trial court for further proceedings as may be necessary and are consistent with this Opinion.

Costs of this appeal are taxed to the Appellees, Marie W. and Jason W., for all of which

execution may issue if necessary.

_________________________________

J STEVEN STAFFORD, JUDGE

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