In Re Lorelai E.

12/28/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 3, 2022

IN RE LORELAI E.

Appeal from the Circuit Court for Wilson County

No. 2021-AD-119 Michael Wayne Collins, Judge

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No. M2022-00173-COA-R3-PT

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The Tennessee Department of Children’s Services sought to intervene in a private-party

termination of parental rights and adoption proceeding concerning a minor child. The trial

court permitted the intervention. The child’s mother appealed. Because the trial court

acted within its discretion in granting the Department of Children’s Services permissive

intervention pursuant to Tennessee Rule of Civil Procedure 24.02, we affirm.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and CARMA DENNIS MCGEE, J., joined.

David R. Grimmett, Franklin, Tennessee, for the appellant, Megan E.

Tiffany Dawn Hagar, Lebanon, Tennessee, for the appellee, Joshua R. E.

Jennifer L. E. Williams, Springfield, Tennessee, for the appellees, Andrew K. J. and

Brittney N. J.

Jonathan Skrmetti, Attorney General and Reporter, Amber L. Barker, Assistant Attorney

General, and Kathryn A. Baker, Senior Assistant Attorney General, for the appellee,

Tennessee Department of Children’s Services.

Nanette Uselton Clark, guardian ad litem.

OPINION

I. BACKGROUND

Lorelai E. (“the child”) was born in the Fall of 2019 to appellant Megan E.

(“Mother”) and appellee Joshua R. E. (“Father”). The parents were the child’s primary

caregivers and equally shared parenting responsibilities. When the child was

approximately nine weeks of age, her pediatrician observed bruising on her body.

Following the results of testing and further examination, a referral was made to the

Tennessee Department of Children’s Services (“DCS”) on January 3, 2020. The same day,

pursuant to an immediate protection agreement, the parents agreed with DCS to place the

child into another home.

On January 8, 2020, DCS filed in the Davidson County Juvenile Court a petition to

adjudicate the child dependent and neglected and a victim of severe child abuse perpetrated

by Mother and Father. On August 6 and 7, 2020, the juvenile court conducted an

adjudicatory hearing. Following the hearing and by order entered September 8, 2020, the

juvenile court granted DCS’s petition and found by clear and convincing evidence that the

child was dependent and neglected as well as severely abused under Tennessee Code

Annotated sections 37-1-102(b)(1) and 37-1-102(b)(13)(F) and (G). By dispositional order

entered January 12, 2021, the juvenile court granted custody of the child to appellees

Andrew K. J. and Brittney N. J. (“Petitioners”). Petitioners reside in Wilson County,

Tennessee. Mother and Father appealed from the juvenile court’s order to the Davidson

County Circuit Court.

On March 16, 2021, Petitioners commenced the proceedings underlying this appeal

by filing in the Wilson County Circuit Court (“trial court”) a petition for termination of

parental rights and adoption. As one ground supporting termination, Petitioners pled

severe child abuse, Tennessee Code Annotated section 36-1-113(g)(4).1 To support this

ground for termination, Petitioners pled the same facts as DCS had pled in its petition to

adjudicate the child dependent and neglected. Father and Mother each answered the

petition. Upon the parties’ agreement and by order entered June 22, 2021, the trial court

appointed a guardian ad litem to represent the child’s interests. The parents’ appeal from

the juvenile court’s order was stayed pending resolution of the termination and adoption

petition.

On November 1, 2021, DCS moved to intervene in the termination and adoption

1

Tennessee Code Annotated section 36-1-113(g)(4) provides a ground for termination of parental

rights when “[t]he parent . . . has been found to have committed severe child abuse, as defined in § 37-1-

102, under any prior order of a court or is found by the court hearing the petition to terminate parental rights

or the petition for adoption to have committed severe child abuse against any child[.]

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proceedings commenced by Petitioners. Mother and Father each filed a response opposing

DCS’s motion to intervene. Petitioners adopted DCS’s arguments and supported DCS’s

intervention. During the January 10, 2022 hearing on DCS’s motion, DCS argued that it

should be allowed to intervene based upon both Tennessee Rule of Civil Procedure 24.01,

intervention as of right, and Rule 24.02, permissive intervention. By order entered

February 3, 2022, the trial court granted DCS’s motion “based upon Rule 24.02 of the

Tennessee Rules of Civil Procedure.” The trial court found that “the issues presented in

[DCS’s] Petition for Dependency and Neglect have a question of law or fact in common

with the instant Adoption Petition; therefore [DCS] should be allowed to intervene.” The

trial court also found that the matter should be appealed to this Court pursuant to Tennessee

Rule of Appellate Procedure 9(b).

On February 16, 2022, Mother filed a “Rule 9 Application for Interlocutory Appeal

and a Rule 3 Appeal Regarding Admission of Intervening Party.” We denied the Rule 9

application for interlocutory appeal and ordered the application to be treated as a Rule 3

notice of appeal. Mother, Father, Petitioners, and DCS filed briefs on appeal. Father’s

brief adopts by reference Mother’s brief, pursuant to Tennessee Rule of Appellate

Procedure 27(j).

II. ISSUES

The dispositive issue in this appeal is whether the trial court erred in permitting DCS

to intervene in a private parental termination proceeding pursuant to Tennessee Rule of

Civil Procedure 24.02(2).

III. STANDARD OF REVIEW

The standard of review for the denial of permissive intervention under Tennessee

Rule of Civil Procedure 24.02 is abuse of discretion. State v. Brown & Williamson Tobacco

Corp., 18 S.W.3d 186, 191 (Tenn. 2000) (citing Chaille v. Warren, 635 S.W.2d 700, 703

(Tenn. Ct. App. 1982)). “An abuse of discretion exists when the reviewing court is firmly

convinced that the lower court has made a mistake in that it affirmatively appears that the

lower court’s decision has no basis in law or in fact and is therefore arbitrary, illogical, or

unconscionable.” Id.

IV. DISCUSSION

In its motion to intervene, DCS cited Tennessee Code Annotated section 36-1-

116(k)(1) which provides that “[DCS], a licensed child-placing agency, or a licensed

clinical social worker shall have the right to intervene in the adoption proceeding at any

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time to present evidence as to the best interests of the child by filing a sworn complaint in

the adoption proceeding.” As noted in the trial court’s order and in the statement of

proceedings filed in the supplemental appellate record, during oral arguments in support of

its motion, DCS also relied on Tennessee Code Annotated section 36-1-113(h)(1)(D)

which provides, in relevant part:

The department shall file a petition to terminate the parental rights of the

child’s parents (or, if such a petition has been filed by another party, seek to

be joined as a party to the petition), and, concurrently, to identify, recruit,

process, and approve a qualified family for an adoption, under the following

circumstances:

...

(D) If a juvenile court has made a finding of severe child abuse as defined at

§ 37-1-102.

Tenn. Code Ann. § 36-1-113(h)(1)(D). On appeal, DCS clarifies that it seeks to intervene

in the termination portion of the proceedings commenced by Petitioners under section 36-

1-113(h)(1), not in the adoption portion under section 36-1-116(k)(1).

Turning now to the basis for the trial court’s ruling in DCS’s favor, Tennessee Rule

of Civil Procedure 24.02 provides as follows:

Upon timely motion any person may be permitted to intervene in an action:

(1) when a statute confers a conditional right to intervene; or (2) when a

movant’s claim or defense and the main action have a question of law or fact

in common. In exercising discretion the court shall consider whether or not

the intervention will unduly delay or prejudice the adjudication of the rights

of the original parties.

Tenn. R. Civ. P. 24.02. The trial court granted DCS’s motion to intervene under Rule

24.02(2) finding that the issues presented in DCS’s petition for dependency and neglect

have a question of law or fact in common with the termination and adoption petition. On

appeal, Mother and Father rely on In re M.J.B., 140 S.W.3d 643 (Tenn. Ct. App. 2004) for

the proposition that DCS should not have been permitted to intervene on this basis because

parental termination proceedings are separate and distinct from dependency and neglect

proceedings:

A termination of parental rights proceeding is not simply a continuation of a

dependent-neglect proceeding. It is a new and separate proceeding involving

different goals and remedies, different evidentiary standards, and different

avenues for appeal. The primary purpose of a dependent-neglect proceeding

is to provide for the care and protection of children whose parents are unable

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or unwilling to care for them. The sole purpose of the termination proceeding

under Tenn. Code Ann. § 36-1-113 is to sever irrevocably the legal

relationship between biological parents and their children.

In re M.J.B., 140 S.W.3d at 651. In In re M.J.B., while faced with a record containing

“many extraneous documents,” this Court reviewed the procedural differences between

dependency and neglect proceedings and termination of parental rights proceedings so as

to instruct what was properly includable in the appellate record in termination cases. In re

M.J.B., 140 S.W.3d at 651–52. The goal of the instruction was to dispel the “mistaken”

notions “that a termination case is simply a continuation of a dependent-neglect case and

that the process for appealing to this court from a final judgment in a termination

proceeding is the same as the process used to perfect a de novo appeal to the circuit court

in a dependent-neglect case.” Id. at 651.

Mother presses that DCS should not be permitted to intervene pursuant to Rule

24.02(2) because “the questions of fact and issues of law in the dependency and neglect

proceeding are vastly different compared to the instant termination proceeding.” However,

in the instant petition to terminate parental rights, Petitioners alleged the ground of severe

child abuse based on the same facts as those that DCS alleged in its dependency and neglect

petition. As DCS correctly notes, the severe abuse ground for termination references the

definition of severe child abuse that is applied in dependency and neglect cases. See Tenn.

Code Ann. § 36-1-113(g)(4) (allowing for termination if the parent “committed severe

child abuse, as defined in § 37-1-102”); In re Kailey A., No. E2021-00801-COA-R3-PT,

2022 WL 773617, at *8–10 (Tenn. Ct. App. Mar. 14, 2022) (termination proceeding using

dependency and neglect severe abuse statute, § 37-1-102, for the severe child abuse ground

in § 36-1-113(g)(4)); In re S.J., 387 S.W.3d 576, 587 (Tenn. Ct. App. 2012) (applying the

definition of severe child abuse under § 37-1-102 in a dependency and neglect proceeding).

The record before us shows that DCS’s claims in the dependency and neglect proceedings

pending in the juvenile court and Petitioners’ termination action have both a question of

law and questions of fact in common: the legal question of whether the parents committed

severe child abuse based on the same facts that DCS claims to have discovered in an

investigation not involving Petitioners and as alleged in DCS’s dependency and neglect

petition. With the foregoing considerations in mind, we find no abuse of discretion in the

trial court’s ruling permitting DCS to intervene pursuant to Tennessee Rule of Civil

Procedure 24.02(2).

We agree with Petitioners and DCS that Tennessee Code Annotated section 36-1-

113(h)(1)(D) is another avenue by which the trial court could have granted DCS’s

intervention. See Tenn. R. Civ. P. 24.01 (“Upon timely motion any person shall be

permitted to intervene in an action: (1) when a statute confers an unconditional right to

intervene[.]”). Again, the statute provides, in relevant part:

The department shall file a petition to terminate the parental rights of the

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child’s parents (or, if such a petition has been filed by another party, seek to

be joined as a party to the petition), and, concurrently, to identify, recruit,

process, and approve a qualified family for an adoption, under the following

circumstances:

...

(D) If a juvenile court has made a finding of severe child abuse as defined at

§ 37-1-102.

Tenn. Code Ann. § 36-1-113(h)(1)(D) (emphasis added).2 Here, the juvenile court made a

finding of severe child abuse against the parents. Additionally, considering the substance

over the form of its motion, DCS is essentially seeking to be joined as a party to Petitioners’

petition to terminate parental rights. Our holding above pretermits further discussion of

this issue.

V. CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. The case is

remanded for such further proceedings as may be necessary and consistent with this

opinion. Costs of the appeal are taxed to the appellant, Megan E.

_________________________________

JOHN W. McCLARTY, JUDGE

2

Subsection (h)(2) of section 36-1-113 gives DCS the “option” not to file or join a petition to

terminate parental rights when certain circumstances exist, even if a juvenile court has made a finding of

severe child abuse. See Tenn. Code Ann. § 36-1-113(h)(2); In re Zayne P., No. W2017-01590-COA-R3-

PT, 2018 WL 2041573, at *4 (Tenn. Ct. App. Apr. 30, 2018); In re D.M., No. M2009-00340-COA-R3-PT,

2009 WL 2461199, at *3 n.5 (Tenn. Ct. App. Aug. 12, 2009).

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