Opinion

In Re M.L.S.

Court: Court of Appeals of Tennessee
Filed: Oct 16, 2020
Status: Published
On the bench: Judge Carma Dennis McGee
Cited by: 0 cases
Authority: More cited than 12.9%

The opinion

10/16/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 21, 2020 Session

IN RE M.L.S.

Appeal from the Chancery Court for Hawkins County

No. 2018-CH-233 Douglas T. Jenkins, Chancellor

___________________________________

No. E2019-01794-COA-R9-CV

___________________________________

This appeal involves a petition to enforce a visitation order after the entry of a final decree

of adoption. The adoptive parents filed a motion to dismiss, which the trial court granted

in part and denied in part. The trial court ordered the parties to participate in depositions

to address the issue of “acquiescence” and determine “if an enforceable right of visitation

with the minor Child was acquired by the Petitioners being allowed to visit after the

adoption of the minor Child was finalized.” The adoptive parents sought and were granted

permission to file an interlocutory appeal, challenging the denial in part of their motion to

dismiss. We reverse and remand for further proceedings.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Chancery Court

Reversed and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Phillip L. Boyd, Rogersville, Tennessee, for the appellants, Renee G. and Danny G.

Rachel Ratliff, Johnson City, Tennessee, for the appellees, Penny T. and Jerry T.

OPINION

I. FACTS & PROCEDURAL HISTORY

The child at issue in this proceeding, M.L.S.,1 was born in 2013. Her biological

parents died in 2014. Although the record before us is sparse, it reflects that the Tennessee

Department of Children’s Services became involved and filed some sort of petition with

We refer to the minor child and other parties by initials to protect the child’s privacy.

regard to the child in the juvenile court of Hawkins County. After a hearing, the juvenile

court entered an order awarding temporary legal custody of the child to her maternal

grandmother and step-grandfather (“Grandparents”). According to the order, “[DCS]

reported that [Grandparents] were appropriate caregivers for the minor child and that

[DCS] would be releasing custody of the minor child to [Grandparents].” The child’s

paternal great-aunt and great-uncle (“Aunt and Uncle”) also appeared at the hearing.

According to the order, “[DCS] reported that the parties had worked out a visitation

schedule prior to the hearing and that [Aunt and Uncle] would be entitled to a minimum of

every other weekend visitation with the minor child.” The court went on to find that

Grandparents were “appropriate custodians of the minor child.” The order states that the

trial judge “advised all parties to work together to help raise [the child.]” In conclusion,

the order stated that the child was “placed in the temporary legal custody of [Grandparents]

with authority to consent to any ordinary or necessary medical, surgical, hospital,

educational, institutional, psychiatric, or psychological care.” The order states that the

matter was “hereby closed” and that no further hearings were scheduled.

On May 18, 2015, the chancery court for Hawkins County entered a final decree of

adoption permitting Grandparents to adopt the child. The decree recites that the child’s

parents were deceased, that Grandparents had “actual physical and legal care of the child,”

and that they had been awarded custody pursuant to the order of the juvenile court in the

aforementioned matter. The order also states that all parties entitled to notice were served

and that all necessary parties were before the court. The adoption decree provided that “the

relationship of parent and child is hereby established with all rights and privileges incident

thereto,” and it stated that Grandparents, as adoptive parents, would “have exclusive care,

custody and control of the said child, free from the claims or hindrances of all others[.]”

On September 26, 2018, Aunt and Uncle filed a “Petition to Enforce Visitation” in

chancery court. The petition stated that Aunt and Uncle had been awarded every other

weekend visitation by the juvenile court in 2014 pursuant to the same order that granted

temporary legal custody to Grandparents. The petition stated that Aunt and Uncle believed

that Grandparents had adopted the child sometime in 2015. However, Aunt and Uncle

stated that they had continued to have regular visitation with the child until June 2018 when

Grandparents “abruptly ended” their visitation. Aunt and Uncle alleged that a significant

bond existed between them and the minor child and that severance of the relationship

would cause emotional harm to the child. They also asserted that it was in the best interest

of the child for them to continue having a relationship with her. Thus, Aunt and Uncle

asked the court to “enter an Order to Enforce the Visitation previously Ordered between

the Plaintiffs and the minor Child.” They attached to the petition a copy of the 2014

juvenile court order.

Grandparents filed a motion to dismiss the petition to enforce visitation, asserting

that it failed to state a claim. Grandparents confirmed that they had in fact adopted M.L.S.

in 2015. They attached the adoption order to their motion. Thus, Grandparents pointed

-2-

out that they had become the child’s adoptive parents. Grandparents argued that “any prior

Order granting temporary visitation is moot and not enforceable.” They further argued that

Aunt and Uncle had no standing to seek visitation with their adopted child.

While this case was pending, Aunt and Uncle filed a separate petition to set aside

the adoption order, also in chancery court. On February 20, 2019, the trial court held a

hearing to jointly address both matters. At the conclusion of the hearing, the trial judge

announced that the separate petition to set aside the adoption order was dismissed.2

Regarding the petition to enforce visitation, the trial judge announced that he intended to

take the matter under advisement in order to research whether the visitation order

“survive[d] the adoption.”

On May 9, 2019, the trial court entered an order on Grandparents’ motion to dismiss

the petition to enforce visitation. The trial court partially granted the motion to dismiss,

“pursuant to T.C.A. § 36-1-121(f).” At the time of the adoption proceeding, that subsection

provided:

(f) The adoptive parents of a child shall not be required by any order of the

adoption court to permit visitation by any other person, nor shall the order of

the adoption court place any conditions on the adoption of the child by the

adoptive parents. Any provision in an order of the court or in any written

agreement or contract between the parent or guardian of the child and the

adoptive parents requiring visitation or otherwise placing any conditions on

the adoption shall be void and of no effect whatsoever; provided, that nothing

under this part shall be construed to prohibit “open adoptions” where the

adoptive parents permit, in their sole discretion, the parent or guardian of the

child who surrendered the child or whose rights to the child were otherwise

terminated, or the siblings or other persons related to the adopted child, to

visit or otherwise continue or maintain a relationship with the adopted child;

and provided further, that the permission or agreement to permit visitation or

contact shall not, in any manner whatsoever, establish any enforceable rights

in the parent or guardian, the siblings or other related persons.

Tenn. Code Ann. § 36-1-121(f) (2015). Citing this section, the trial court “partially

dismissed” the petition to enforce visitation. Although the trial court’s order did not

elaborate further on its reasoning, we interpret the order as holding that the juvenile court’s

order did not survive the adoption proceeding.

However, the trial court excluded one issue from its dismissal and ruled that the

parties must participate in depositions regarding whether “acquiescence” occurred.

In a related appeal, In re Adoption of M.L.S., No. E2019-01918-COA-R3-CV, this Court affirmed

the trial court’s dismissal of the petition to set aside the adoption.

-3-

Specifically, the trial court ordered depositions to determine when visitation began and

ended “and if an enforceable right of visitation with the minor Child was acquired by [Aunt

and Uncle] being allowed to visit after the adoption of the minor Child was finalized.” The

order stated that an additional hearing would be conducted after the completion of

depositions on this remaining issue of “acquired visitation rights through visitation after

the adoption of the minor Child.”

Grandparents filed a motion asking the trial court to amend its order regarding

depositions and grant their motion to dismiss in its entirety. They pointed to the final

sentence of Tennessee Code Annotated section 36-1-121(f), which provided that adoptive

parents’ “permission or agreement to permit visitation or contact shall not, in any manner

whatsoever, establish any enforceable rights in the parent or guardian, the siblings or other

related persons.” Due to this language, Grandparents insisted that Aunt and Uncle had not

acquired any enforceable right to visitation.

Aunt and Uncle filed a response, asserting that they could potentially have acquired

an enforceable right to visitation due to acquiescence and the unique facts of this case.

After an additional hearing, the trial court declined to alter its original ruling but indicated

that it would be inclined to grant Grandparents permission to seek an interlocutory appeal

should they choose to pursue one. The order further stated that Aunt and Uncle would also

be given the opportunity to pursue an interlocutory appeal if they chose to pursue one.

Thereafter, Grandparents filed a written motion for permission to seek an

interlocutory appeal to this Court regarding the partial denial of their motion to dismiss.

Grandparents maintained that Tennessee Code Annotated section 36-1-121(f) barred Aunt

and Uncle from claiming any enforceable right to visitation on the basis of acquiescence.

The trial court entered an order granting Grandparents permission to seek an interlocutory

appeal in this Court. Upon consideration of the application for permission to appeal

Grandparents filed before this Court, we entered an order granting interlocutory review of

the trial court’s order.

II. ISSUES PRESENTED

This Court’s order granting review framed the following issues to be reviewed on

appeal:

(1) Whether [Aunt and Uncle] have standing to proceed with a suit to enforce

visitation with the subject minor child under the version of Tennessee Code

Annotated § 36-1-121 in effect at the time of entry of the Final Decree of

Adoption.

(2) Whether [Aunt and Uncle] have standing to proceed with a suit to enforce

visitation with the subject minor child based upon other grounds.

-4-

However, these issues must be read in light of the procedural posture of this case. In their

brief on appeal, Aunt and Uncle raise a host of arguments regarding a wide range of issues.

For instance, in apparent relation to their separate petition to set aside the adoption, they

argue that they were guardians of the child and “had a legal interest in the child that would

have had to be terminated in order to complete the adoption.” They also argue that the

juvenile court’s order awarding them visitation rights should be construed as a

“grandparent visitation” order that would survive the adoption. However, we must bear in

mind that this is a Rule 9 appeal in which the only parties who filed an application for

permission to appeal were Grandparents. The limited ruling challenged by Grandparents

was the partial denial of their motion to dismiss based on the issue of acquiescence.

Therefore, the limited issue properly before us in this interlocutory appeal is whether the

trial court erred in partially denying Grandparents’ motion to dismiss on the basis that Aunt

and Uncle may have acquired some enforceable visitation right by acquiescence.

III. DISCUSSION

“Tennessee law recognizes no legal distinction between a biological parent and an

adoptive parent.” Brown v. Farley, No. E2018-01144-COA-R3-CV, 2019 WL 993122, at

*4 n.2 (Tenn. Ct. App. Feb. 28, 2019).

The signing of a final order of adoption . . . establishes from that date the

relationship of parent and child between the adoptive parent or parents and

the adopted child as if the adopted child had been born to the adoptive parent

or parents and the adopted child shall be deemed the lawful child of such

parent or parents, the same as if the child had been born to the parent or

parents, for all legal consequences and incidents of the biological relation of

parents and children.

Tenn. Code Ann. § 36-1-121(a). “Thus, the adoptive parents acquire all parental rights and

responsibilities[.]” In re Montana R.T., No. E2011-00755-COA-R3-PT, 2012 WL

2499498, at *5 (Tenn. Ct. App. June 29, 2012).

At the time of the adoption in this case, and through the date of the hearing on

Grandparents’ motion to dismiss, the statute further provided: