Natasha S. v. Madison M.

04/14/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 3, 2021 Session

NATASHA S. ET AL. V. MADISON M.

Appeal from the Circuit Court for Montgomery County

No. CC-2019-CV-675 William R. Goodman, III, Judge

No. M2020-00668-COA-R3-CV

Adoptive parents filed a petition to terminate their child’s visitation with her biological

grandmother on the grounds that the grandmother violated the terms of the agreed order

setting visitation. The trial court terminated the grandmother’s visitation based upon its

determination that continued visitation presented a risk of substantial harm to the child.

Because the trial court failed to analyze the case under the legal standards applicable to a

modification of visitation, we vacate the order of the trial court and remand for the entry

of an order with the necessary findings of fact and conclusions of law.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and

Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which THOMAS R. FRIERSON,

II, and W. NEAL MCBRAYER, JJ., joined.

Irene Regina Haude, Nashville, Tennessee, for the appellant, Madison M.

Sharon T. Massey, Clarksville, Tennessee, for the appellees, Natasha S. and Jason S.

OPINION

This case involves a petition to terminate grandparent visitation. The minor child,

Hannah S., was born in December 2009 to Ashley M. The child’s biological father is

Hector N., who was convicted of two counts of statutory rape, one against the child’s

biological mother and one against another 14-year-old girl. Hector N. was later convicted

of especially aggravated exploitation of a minor and was sentenced to eight years in prison;

he was released from incarceration in 2016 after serving six years.

Ashley M. and the child lived with Jason and Natasha S. (“Adoptive Parents”)

beginning in January 2014. Adoptive Parents petitioned to adopt Hannah in June 2014,

and Ashley joined in the petition. Ashley died in October 2014. The child’s maternal

grandmother, Madison M. (“Grandmother”) filed an intervening petition seeking custody

of the child. In December 2014, Adoptive Parents and Grandmother entered into an agreed

order “as a full and final settlement of all issues” in Grandmother’s intervening petition.

Pursuant to the agreed order, Grandmother had visitation with the child every other

weekend, two weeks in the summer, and on certain holidays. The agreed order included

the following conditions:

Hannah is not to have any communication or contact with Hector [N.] or his

family through action by [Grandmother] and she shall not arrange, facilitate

or act as any conduit to allow Hannah and Mr. [N.] or any of his family

members to speak or visit nor shall [Grandmother] encourage Hannah to seek

out Mr. [N.] or his family. [Grandmother] is not to discuss with the child

either Mr. [N.’s] relationship to the child or Mr. [N.’s] relationship to the

child’s mother.

In September 2016, the trial court terminated Hector N.’s parental rights and

approved the adoption. Hector N. appealed the termination of his parental rights, and the

trial court’s decision was affirmed by this court in January 2018. See In re Hannah C., No.

M2016-02052-COA-R3-PT, 2018 WL 558522 (Tenn. Ct. App. Jan. 24, 2018). Thus,

Adoptive Parents’ adoption of Hannah became final.

In March 2019, Adoptive Parents filed a petition for the termination of

Grandmother’s visitation, contempt, and a restraining order. They alleged that

Grandmother violated the terms of the agreed order by allowing contact between Hannah

and Hector N. The trial court issued a temporary restraining order holding Grandmother’s

visitation in abeyance pending further orders of the court. In her answer, Grandmother

admitted that Hector N. “was in [Grandmother’s] home on two brief occasions, but

[Grandmother] did not arrange or facilitate contact between him and Hannah.” She

admitted referring to Hector N. as “Uncle Henry” in order to protect Hannah from knowing

his identity as the child’s biological father. Grandmother also filed a counterclaim alleging

that Adoptive Parents had violated the agreed order.

The parties engaged in discovery. Grandmother filed a motion to make the child

available to her expert, and the trial court denied the motion. The final hearing took place

over two days in January 2020. After the hearing, Grandmother filed a motion to dismiss

for lack of subject matter jurisdiction or to stay modification pending dispute resolution.

On February 12, 2020, the trial court entered a memorandum opinion stating findings of

fact and conclusions of law. In its final order, entered in April 2020, the trial court

discontinued Grandmother’s scheduled visitation and ordered that any visitation “shall be

at the discretion and direction” of Adoptive Parents. Further, the court dismissed all

contempt petitions and denied any pending motions.

-2-

Grandmother appeals the trial court’s decision and raises the following issues:

1. Whether this case should be dismissed rather than remanded.

2. Whether the trial court incorrectly applied the law and this court should make a

de novo determination as to the applicable law.

3. Whether the agreed order is an enforceable contract and Adoptive Parents should

be estopped from attacking the order.

4. Whether the agreed order is a valid post-adoption contact agreement under Tenn.

Code Ann. § 36-1-145 and the trial court erred in failing to apply it.

5. Whether the trial court’s failure to allow Grandmother’s expert to see the child

caused the court to resolve the case on a clearly erroneous assessment of the

evidence.

6. Whether the trial court decided the case on a clearly erroneous assessment of the

evidence.

7. Whether the trial court’s comments and evidentiary rulings mandate recusal in

the event of a remand.

8. Whether Grandmother is entitled to attorney fees on appeal.

STANDARD OF REVIEW

We review a trial court’s findings of fact de novo upon the record, affording the trial

court a presumption of correctness unless the evidence preponderates otherwise. TENN. R.

APP. P. 13(d); Manning v. Manning, 474 S.W.3d 252, 256 (Tenn. Ct. App. 2015). On

issues of law, including statutory construction, our review is de novo, with no presumption

of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011).

ANALYSIS

I. Modification of grandparent visitation.

We begin with Grandmother’s argument that the trial court applied an incorrect

legal standard.

In the relevant section of the trial court’s memorandum opinion, the court stated:

“In considering grandparent visitation in this case the Court looks to T.C.A. § 36-6-306,

which in section (b)(1) provides, ‘In considering a petition for grandparent visitation, the

court shall first determine the presence of a danger of substantial harm to the child.’”1 The

trial court later reached the following conclusions:

1

The trial court also stated: “In considering any claim for grandparent visitation it is recognized that in

proceedings on grandparent visitation, there is a presumption that a fit parent is acting in the child’s best

interest and that a court is to accord special weight to the parent’s determination.”

-3-

In consideration of the criminal history of Hector [N.], Mr. [N.’s] placement

on the sex offender registry and the apparent place Mr. [N.] holds in the

household or circle of acquaintances of [Grandmother], the Court finds such

conditions and contact with [N.] to present a danger of substantial harm to

the child. . . . The Court does not find there is sufficient evidence to establish

either substantial harm or severe emotional harm would likely occur as a

result of a cessation of visitation with the child by [Grandmother].

Based upon these conclusions, the trial court terminated Grandmother’s visitation with

Hannah.

The trial court’s analysis shows that it treated this case as if it involved a

grandparent’s petition for visitation. This case does not, however, involve a petition for

grandparent visitation. Rather, Adoptive Parents have requested the termination of the

grandparent visitation ordered by the trial court in December 2014 during a contested

adoption. Because this case involves the modification of grandparent visitation, and not

an initial order of visitation, we follow the guidance of our Supreme Court in Lovlace v.

Copley, 418 S.W.3d 1 (Tenn. 2013).

In Lovlace, the child’s mother, Beth Copley, obtained a divorce from the child’s

biological father, and the mother’s new husband, Timothy Copley, filed a petition to adopt

the child. Lovlace, 418 S.W.3d at 8. The child’s paternal grandparents, the Lovlaces, filed

a petition for grandparent visitation in April 2006. Id. On the day of the hearing, the parties

announced that they had reached an agreement, and the trial court entered an agreed order

granting the Lovlaces grandparent visitation. Id. at 8-9. In March 2007, the Lovlaces filed

a petition for contempt alleging that the Copleys had violated the agreed order. Id. at 9. In

an amended petition filed in April 2009, the Lovlaces also requested modification of the

agreed order to give them additional visitation. Id. at 10. The Copleys filed a counter-

petition to terminate the Lovlaces’ visitation. Id. (With the consent of the biological father,

Mr. Copley adopted the child pursuant to an order entered in March 2009 in a different

county. Id.) After a hearing on the parties’ competing petitions in June 2010, the trial

court found no basis for an increase or a termination of the Lovlaces’ visitation. Id. at 12.

The court did, however, modify the agreed order to specify the dates and times for regular

visitation and “to take that discretion out of the mother and the adoptive father’s hands.”

Id.

The Lovlaces’ appeal to this court resulted in a decision including various

concurring and dissenting opinions; the majority decision “vacated the trial court’s order

concerning all matters related to the Lovlaces’ visitation with the minor child.” Id. at 14

(citing Lovlace v. Copley, No. M2011-00170-COA-R3-CV, 2012 WL 368221, at *1 (Tenn.

Ct. App. Feb. 3, 2012)). When the case reached our Supreme Court, the Court considered,

for the first time, the appropriate standards to apply “where a grandparent and a parent seek

to modify and terminate, respectively, court-ordered grandparent visitation.” Id. at 22. The

-4-

Court noted that the grandparent visitation statute, Tenn. Code Ann. §§ 36-6-306–307, and

related caselaw “addressed initial requests for visitation, not petitions to modify or

terminate court-ordered grandparent visitation.” Id. at 26-27.

To determine the standards applicable to modification of grandparent visitation, the

Lovlace Court relied upon its decision in Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002),

a case involving modification of grandparent custody. Lovlace, 418 S.W.3d at 27-28. In

Blair, the Court “rejected the father’s reliance on the superior parental rights doctrine,” id.

at 27, and held that, “[A] natural parent seeking to modify a custody order that grants

custody to a non-parent must show that a material change in circumstances has occurred,

which makes a change in custody in the child’s best interests.” Blair, 77 S.W.3d at 139. In

Lovlace, the Court found “the analysis, reasoning, and conclusions of the Blair majority

persuasive and equally applicable to proceedings to modify or terminate court-ordered

grandparent visitation.” Lovlace, 418 S.W.3d at 29. The Lovlace Court likewise stated

that its “conclusion remains the same, even when . . . grandparent visitation rights derive

from an agreed order.” Id. Thus, the Court concluded:

The burden of proof is upon the party seeking modification or termination to

demonstrate, by a preponderance of the evidence, that a material change in

circumstances has occurred which makes the requested modification or

termination of grandparent visitation in the child’s best interests. In

determining the best interests of the child, courts shall consider the factors

enumerated in the Grandparent Visitation Statute.

Id. at 30.

In light of the foregoing analysis, we agree with Grandmother’s argument that the

trial court in the present case applied an erroneous legal standard by failing to determine

whether there had been a material change in circumstances and whether modification of

Grandmother’s visitation was in the best interest of the child. Having reached this

conclusion, we must determine the appropriate course of action in this appeal.

II. Findings of fact and conclusions of law.

Adoptive Parents, who take the position that the trial court applied the proper legal

standard, assert that the trial court made sufficient findings of fact and conclusions of law.

Grandmother argues that, despite the trial court’s application of an erroneous legal

standard, this court should “soldier on” and conduct a de novo review to determine where

the preponderance of the evidence lies.

In this case, the trial court did not make sufficient findings of fact and conclusions

of law because it was proceeding under an erroneous legal standard. Instead of considering

whether there had been a material change of circumstances and whether a modification of

-5-

visitation was in the best interest of the child, the trial court determined that further

visitation presented “a danger of substantial harm to the child” and that a cessation of

visitation was not likely to cause substantial harm to the child. We have previously outlined

the available options in appeals where the trial court’s factual findings are insufficient:

When confronted with insufficient findings of fact, an appellate court is not

without alternatives. One alternative is to vacate the decision and remand so

that the trial court can make specific findings of fact and conclusions of law.

[Lovlace, 418 S.W.3d] at 36. Another alternative is to conduct a de novo

review of the record to determine where the preponderance of the evidence

lies. Id. The appropriate alternative depends on the particular circumstances

of the case, including the adequacy of the record, the fact-intensive nature of

the case, and whether witness credibility determinations must be made. See

id. (declining to conduct a de novo review because credibility determinations

were necessary to resolve factual disputes); Town of Middleton v. City of

Bolivar, No. W2011-01592-COA-R3-CV, 2012 WL 2865960, *26 (Tenn.

Ct. App. July 13, 2012) (stating that independent review is appropriate when

the case involves a legal issue or the court’s decision is “readily

ascertainable”); see also State v. King, 432 S.W.3d 316, 328 (Tenn. 2014)

(considering the adequacy of the record, the fact-intensive nature of the case,

and the ability to request supplementation of the record in determining

whether to conduct a de novo review in the context of a criminal case).

Burnett v. Burnett, No. M2014-00833-COA-R3-CV, 2015 WL 5157489, at *5 (Tenn. Ct.

App. Aug. 31, 2015).

In the present case, we have determined that we cannot “soldier on.” It is the

province of the trial court to make findings of fact and conclusions of law concerning

whether there has been a material change of circumstances and whether modification of

visitation is in the best interest of the child. Although we might conclude that the trial

court’s factual findings support the conclusion that there was a material change of

circumstances, the trial court’s failure to address the best interest factors necessitates a

remand. Thus, we remand for the trial court to make the determinations regarding material

change of circumstances and the best interest of the child under the proper legal standards.

III. Agreed order as enforceable contract.

Grandmother asserts that the agreed order is a valid contract and should be enforced.

Adoptive Parents argue that, once the adoption occurred, Grandmother no longer had a

legally enforceable right to visitation. For the reasons stated below, we conclude that the

trial court properly relied upon the agreed order as the source of Grandmother’s enforceable

visitation rights.

-6-

The agreed order in the present case provides: “In the event of an adoption in the

future, the [Grandmother] shall continue to exercise her visitation.” Grandmother and

Adoptive Parents reached the agreement incorporated into the agreed order during a

contested adoption in which both Adoptive Parents and Grandmother were attempting to

adopt the child. In asserting that Grandmother’s visitation rights as set forth in the agreed

order ended with the adoption, Adoptive Parents cite Tenn. Code Ann. § 36-1-121(f).

When the trial court entered the agreed order, Tenn. Code Ann. § 36-1-121(f) stated:

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.

As Adoptive Parents emphasize, adoptive parents acquire all the same parental rights and

responsibilities “as if the adopted child had been born to the adoptive parent or parents.”

Tenn. Code Ann. § 36-1-121(a). Thus, under Tenn. Code Ann. § 36-1-121(f), adoptive

parents “shall not be required by any order of the adoption court to permit visitation by any

other person.”2

The case before us does not involve adoptive parents being required by the court to

allow visitation. Rather, Adoptive Parents agreed to give Grandmother visitation rights to

settle a contested adoption. We find instructive the case of In re Adoption of D.P.M., 90

S.W.3d 263, 264 (Tenn. Ct. App. 2002), which involved competing petitions for adoption

by maternal and paternal grandparents. The trial court ordered that the maternal

grandparents be permitted to adopt the child and that, “by agreement of the [maternal

2

The relevant version of Tenn. Code Ann. § 36-1-121(f) also invalidated any agreements between the

child’s parents or guardians and the adoptive parents “requiring visitation or otherwise placing conditions

on the adoption.” This case does not involve such an agreement or an open adoption.

-7-

grandparents]” and pursuant to the court’s findings,3 the paternal grandparents would have

visitation with the child. Id. at 265. On appeal, the maternal grandparents argued that,

pursuant to Tenn. Code Ann. §§ 36-6-306–307,4 the trial court erred in granting visitation

to the paternal grandparents after the adoption. Id. at 266. In rejecting the maternal

grandparents’ argument, this court reasoned as follows:

In pertinent part, Tenn. R. App. P. 36(a) provides: “Nothing in this rule shall

be construed as requiring relief be granted to a party responsible for an error

or who failed to take whatever action was reasonably available to prevent or

nullify the harmful effect of an error.” It is clear from the Final Judgment

that [the maternal grandparents] agreed to [the paternal grandparents] having

visitation with D.P.M. Regardless of whether the Grandparent Visitation

Statute is applicable, the parties were free to agree to visitation if they so

desired-and they clearly did. If there was any error in granting the visitation,

[the maternal grandparents] were responsible for the error and took no action

to prevent or nullify any harmful effect from this alleged error. This issue is

without merit. See Tenn. R. App. P. 36(a). We, therefore, need not and

expressly decline to decide whether the Grandparent Visitation Statute has

any application under the facts of this case.

Id. (emphasis added). Applying the same reasoning, we conclude that Grandmother and

Adoptive Parents freely entered into an agreement allowing Grandmother to have visitation

after the Adoptive Parents’ adoption of the child. Tennessee Code Annotated section 36-

1-121(f) does not invalidate such an agreement, and the trial court properly relied upon the

parties’ agreement in recognizing the enforceability of Grandmother’s visitation rights.5

3

The trial court in In re Adoption of D.P.M. found that substantial harm would result to the child if the

paternal grandparents did not have “ongoing contact” and that visitation was in the best interest of the child.

In re Adoption of D.P.M., 90 S.W.3d at 265.

4

Tennessee Code Annotated section 36-6-306(d)(2) states: “If a person other than a relative or a stepparent

adopts a child, any visitation rights granted pursuant to this section before the adoption of the child shall

automatically end upon such adoption.” (Emphasis added). Pursuant to Tenn. Code Ann. § 36-6-306(a), a

trial court must consider a request for grandparent visitation rights, “when presented in a petition for

grandparent visitation,” under certain circumstances. We again note that, in the present case,

Grandmother’s visitation rights were established in the context of a contested adoption, not pursuant to the

statute.

5

Adoptive Parents’ reliance upon In re M.L.S., No. E2019-01794-COA-R9-CV, 2020 WL 6129179 (Tenn.

Ct. App. Oct. 16, 2020), is misplaced. Our opinion in that case clarified that “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.” In re M.L.S., 2020 WL 6129179, at *3. Because we have determined that the agreed order

in the present case established enforceable visitation rights, we need not consider the collateral estoppel

arguments raised by Grandmother.

-8-

IV. Applicability of Tenn. Code Ann. § 36-1-145.

Grandmother further argues that the agreed order constitutes “a valid post adoption

contact agreement under Tenn. Code Ann. § 36-1-145.” We disagree.

When interpreting a statute, we consider the plain meaning of the words used: “‘The

text of the statute is of primary importance, and the words must be given their natural and

ordinary meaning in the context in which they appear and in light of the statute’s general

purpose.” Friedmann v. Marshall Cnty., 471 S.W.3d 427, 433 (Tenn. Ct. App. 2015)

(quoting Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012)). The statute at issue,

which took effect in March 2019 and was amended in March 2020, allows for contracts

regarding post-adoption contact under certain circumstances and contains the following

pertinent provisions:

(a) A prospective adoptive parent or an adoptive parent and a biological

parent; or a prospective adoptive parent or an adoptive parent, a biological

parent, and a child who is fourteen (14) years of age or older who is being

adopted or who has been adopted, may voluntarily enter into a written

contract for post-adoption contact that permits continued contact between

legal relatives and the child. Unless expressly designated as a moral

agreement only and that the agreement is not intended to be legally

enforceable, a written agreement executed in accordance with this section is

a contract for post-adoption contact, and is enforceable pursuant to this

section. A subject child fourteen (14) years of age or older is a necessary

party to a contract for post-adoption contact and is deemed to have the

capacity to enter into a contract for purposes of this section.

....

(d) As used in this section, “parties” means the prospective adoptive parent

or adoptive parent, the biological parent, and the child if the child is fourteen

(14) years of age or older at the time of the contract, but excludes any third-

party beneficiary to the contract.

By its terms, Tenn. Code Ann. § 36-1-145(a) governs contracts for post-adoption contact

between “[a] prospective adoptive parent or an adoptive parent and a biological parent; or

a prospective adoptive parent or an adoptive parent, a biological parent, and a child who is

fourteen (14) years of age or older who is being adopted or who has been adopted.”

Similarly, subsection (d) defines “parties” to mean “the prospective adoptive parent or

adoptive parent, the biological parent, and the child if the child is fourteen (14) years of

age or older at the time of the contract, but excludes any third-party beneficiary to the

-9-

contract.” Tenn. Code Ann. § 36-1-145(d). Contrary to Grandmother’s assertion, the

statute does not apply to agreements between adoptive parents and grandparents.6

V. Denial of request for expert to interview child.

Grandmother argues that the trial court erred in denying her motion to make the

child available to Grandmother’s expert. In its order denying the motion, the trial court

stated:

The issue in this Case is not the psychological issues of the child, and it

appears that the issues relate to the potential psychological condition of

[Grandmother], and therefore, the Motion to Make the child available to an

expert for [Grandmother] is denied.

Grandmother asserts that this ruling caused the court to “resolve the case on a clearly

erroneous assessment of the evidence.”

The motion at issue was a discovery motion—a motion to compel Adoptive Parents

to allow Grandmother’s expert to examine the child. A trial court’s decision granting or

denying a discovery request is reviewed under the abuse of discretion standard. Powell v.

Cmty. Health Sys., Inc., 312 S.W.3d 496, 503-04 (Tenn. 2010); Lee Med., Inc. v. Beecher,

312 S.W.3d 515, 524 (Tenn. 2010). Our Supreme Court has recently stated:

“An abuse of discretion occurs when a court strays beyond the applicable

legal standards or when it fails to properly consider the factors customarily

used to guide the particular discretionary decision. A court abuses its

discretion when it causes an injustice to the party challenging the decision by

(1) applying an incorrect legal standard, (2) reaching an illogical or

unreasonable decision, or (3) basing its decision on a clearly erroneous

assessment of the evidence.”

Harmon v. Hickman Cmty. Healthcare Servs., Inc., 594 S.W.3d 297, 305 (Tenn. 2020)

(quoting Lee Med., 312 S.W.3d at 524 (citations omitted)).

In making her argument, Grandmother points to the trial court’s comment in its

memorandum opinion that her expert, Dr. David McMillan, had not interviewed the child.

Further, Grandmother emphasizes Dr. McMillan’s testimony that it would have been

helpful for him to observe the interactions between Grandmother and the child. The fact

that Dr. McMillan had not met with the child affected the weight the trial court accorded

his opinions. Grandmother has not, however, pointed to any basis for finding an abuse of

6

In light of this result, we need not consider Grandmother’s argument that the statute should be given

retroactive application.

- 10 -

discretion in the trial court’s decision not to allow Dr. McMillan to examine the child. As

the trial court stated in its order denying Grandmother’s motion, the psychological

wellbeing of the child was not at issue. Rather, the trial court was tasked with deciding

whether Grandmother’s behavior in allowing contact between the child and the biological

father constituted a material change in circumstances and whether continued visitation was

in the best interest of the child. It was the role of the trial court to assess the credibility of

the witnesses, including Dr. McMillan and the child, and we give the trial court’s

determinations on credibility great deference. See Woodward v. Woodward, 240 S.W.3d

825, 828 (Tenn. Ct. App. 2007).

We find no abuse of discretion in the trial court’s discovery ruling.7

VI. Recusal.

Grandmother asserts that, in the event of a remand, the trial judge should be recused

based upon certain comments and evidentiary rulings. The record shows, however, that

Grandmother failed to file a motion or request recusal of the trial judge prior to this appeal.

A party seeking the recusal of a judge must raise the issue promptly after the relevant

facts become known. See Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn. 2009); Davis v.

Tenn. Dep’t of Emp’t Sec., 23 S.W.3d 304, 313 (Tenn. Ct. App. 1999). Failure to object in

a timely manner generally results in the waiver of a party’s right to question the judge’s

impartiality. Davis, 23 S.W.3d at 313; Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct.

App. 1998); see Dupuis v. Hand, 814 S.W.2d 340, 342 (Tenn. 1991) (“An objection to a

judge’s competence cannot be made for the first time on appeal.”).

We consider this issue waived.

VII. Attorney fees on appeal.

Grandmother requests an award of her attorney fees on appeal on the grounds that

“the errors of the trial court were numerous and serious and that she was treated

wrongfully.”

7

We further reject Grandmother’s short argument that the trial court erred by deciding the case on a “clearly

erroneous assessment of the evidence.” She asserts that “the only proof of meaningful contact with the

terminated biological father came from the child” and that the child’s testimony was inconsistent. We

disagree. Although there were inconsistencies among the various witnesses regarding the amount of contact

that occurred between the child and the biological father, Grandmother’s expert acknowledged that there

had been sufficient contact to make an impression on the child and that Grandmother exercised poor

judgment regarding the child’s exposure to the biological father and in her failure to inform Adoptive

Parents. As previously stated, it was the trial court’s duty to assess the credibility of the child and the other

witnesses.

- 11 -

The American Rule as to attorney fees establishes that “litigants pay their own

attorney’s fees absent a statute or an agreement providing otherwise.” State v. Brown &

Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000). Our Supreme Court has

stated that the American Rule is “firmly established in this state.” Id. The American Rule

is based on the notion “that public policy is best served by litigants bearing their own legal

fees regardless of the outcome of the case.” House v. Estate of Edmondson, 245 S.W.3d

372, 377 (Tenn. 2008). Thus, pursuant to the American Rule, “a party in a civil action may

recover attorney fees only if: (1) a contractual or statutory provision creates a right to

recover attorney fees; or (2) some other recognized exception to the American [R]ule

applies . . . .” Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308

(Tenn. 2009).

Grandmother fails to cite any contractual or statutory basis for an award of attorney

fees in this appeal. We decline to award Grandmother her attorney fees for this appeal.

CONCLUSION

The judgment of the trial court is vacated and remanded for further proceedings

consistent with this opinion. Costs of this appeal are assessed one-half against Natasha and

Jason S. and one-half against Madison M., and execution may issue if necessary.

_/s/ Andy D. Bennett_______________

ANDY D. BENNETT, JUDGE

- 12 -