In re K.A.Y.

• Decision Date: 28 February 2002
• Citation: 80 S.W.3d 19
• Parties: In re K.A.Y. and A.M.Y.
• Court: Tennessee Court of Appeals

80 S.W.3d 19

In re K.A.Y. and A.M.Y.

Court of Appeals of Tennessee. Eastern Section, at Knoxville.

February 28, 2002.

Application for Permission to Appeal Denied by Supreme Court July 1, 2002.

Scarlett A. Beaty, Knoxville, Tennessee, for the Appellants, Wayne and Mary Stuart.

Dawn Coppock, Strawberry Plains, Tennessee, for the Appellees, Paul and Susan Young.

Paul G. Summers and Douglas Earl Dimond, Nashville, Tennessee, for the Appellee, State of Tennessee.

OPINION

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J., and CHARLES D. SUSANO, JR., J., joined.

Wayne and Mary Stuart ("Stuarts"), as foster parents, had physical custody of a set of twins ("Children") for approximately a year and a half when the Department of Children's Services ("DCS") removed the Children from the Stuarts' home and placed them with Paul and Susan Young ("Youngs"). The Stuarts later filed a petition in Knox County Juvenile Court seeking custody of the Children. While the custody matter was pending, the Youngs filed an adoption petition in the Trial Court which was granted. The Stuarts filed a motion to intervene and to set aside the adoption decree. The Trial Court granted this motion. The Youngs filed a Motion for Summary Judgment and cited three grounds in support of their motion: (1) the requirement that adoptive parents have custody of the child; (2) DCS's consent to the adoption; and (3) the statutory foster parent preference for adoption. Without deciding the Stuarts' petition for custody, the Trial Court granted summary judgment as a matter of law to the Youngs. The Stuarts appeal. We affirm.

Background

The Children were born in September 1995. The Children are twins and have biological half-siblings who also are twins. Sometime prior to the proceedings in this matter, the Stuarts adopted the Children's half-siblings. From May 1996, through November 1998, the Stuarts had physical custody of the Children through foster care. For reasons not clear from the record on appeal, DCS removed the Children from the Stuarts' home and, thereafter, placed the Children with the Youngs in December 1998. The parental rights of the Children's biological mother were terminated in August 1998.

In May 1999, the Stuarts filed a petition in Knox County Juvenile Court seeking custody ("Custody Petition") of the Children. The record on appeal shows that. DCS filed a motion to dismiss the Stuarts' Custody Petition which the Juvenile Court denied by Order entered in July 1999. The Juvenile Court's Order also granted a motion for discovery filed by the Stuarts and ordered visitation between the Children, who then were living with the Youngs, and their biological half-siblings, who were living with their adoptive parents, the Stuarts.

The Juvenile Court entered an order in October 1999 terminating the Children's biological father's parental rights and granting custody and guardianship to DCS. The Stuarts' Custody Petition had not been adjudicated by the Juvenile Court w hen this October 1999 Order Was entered.

In December 1999, the Youngs filed a petition for adoption of the Children ("Petition for Adoption") in Knox County Chancery Court ("Trial Court") alleging that the Children had continuously resided with them for a twelve-month period since December 1998. In their Petition for Adoption, the Youngs also stated they had no information regarding any custody proceeding other than the Stuarts' pending custody matter in Juvenile Court. The Youngs also alleged that besides the DCS Putative Father Registry, they knew of no other persons entitled to notice of their petition tinder Tenn.Code Ann. § 36-1-117

On the same date that the Petition for Adoption was filed, the Trial Court entered a Final Decree of Adoption ("Adoption Decree") granting the Youngs petition, holding that the Children's adoption by the Youngs would serve the Children's best interests. The Trial Court also stated, in its Adoption Decree, that while it was aware of the Stuarts' pending custody action in Juvenile Court, the Youngs had physical custody of the Children for twelve months and, therefore, were entitled to the statutory preference for adoption of the Children provided by Tenn.Code Ann. § 36-1-115(g) and 37-2-415(a)(20). The Trial Court also stated in the decree that all persons entitled to notice of the adoption proceedings had been given notice and that consent to the adoption by the Children's guardian, DCS, had been given.

Thereafter, in April 2000, the Stuarts filed a Motion to Intervene and To Set Aside Final Adoption Order ("Motion to Intervene"). As grounds for their Motion to Intervene, the Stuarts alleged that the Adoption Decree should be set aside under Tenn. R. Civ. P. 60.02 due to the Youngs' misconduct, fraud and misrepresentation. The Stuarts alleged the Youngs did not inform the Trial Court about a number of matters, including the Stuarts' pending custody action in Juvenile Court and the Stuarts' previous adoption of the Children's biological half-siblings. Thereafter, the Stuarts filed an amended Motion to Intervene stating that since filing their first motion, they had learned that the Youngs had informed the Trial Court of the Stuarts' pending custody action.¹

In July 2000, the Youngs filed a motion to dismiss the Stuarts' Motion to Intervene. In August 2000, the Stuarts filed a second amended Motion to Intervene in which the Stuarts challenged the constitutionality of several adoption statutes, including Tenn.Code Ann. §§ 36-1-108, 36-1-115, 36-1-116 and 36-1-117.² Due to the constitutional challenge raised by the Stuarts in their second amended Motion to Intervene, the State Assistant Attorney General filed a Notice of Appearance for the limited purpose of defending the constitutionality of the Tennessee statutes placed in question.

In October 2000, the Trial Court filed an Opinion holding that the Stuarts should be allowed to intervene in the adoption matter pursuant to Tenn. R. Civ. P. 19. The Trial Court also set a pre-trial hearing to take place the following month at which the Trial Court would determine both whether the Adoption Decree should be set aside and the Stuarts' constitutional challenge to the foster parent preference found at Tenn.Code Ann. § 36-1-115(g)(1). The Trial Court entered an Order in November 2000, reflecting the findings contained in its Opinion.

The Trial Court held the pre-trial hearing in November 2000, and, thereafter, entered a Pre-Trial Order in which it suspended the Adoption Decree pending further order of the Trial Court; reinstated DCS' guardianship of the Children; and allowed the Youngs to maintain physical custody of the Children. The Pre-Trial Order also provided that the parties stipulated that DCS consented to the Youngs' adoption of the Children but had not consented to the adoption of the Children by the Stuarts. The Pre-Trial Order also provided that the Youngs would file a motion for summary judgment based upon the following issues:

[a] The Stuarts can not [sic] prosecute an action to adopt without physical custody of the children.

[b] The unavailability of the Tennessee Department of Children's Services' consent [to the Stuarts], which is required pursuant to T.C.A. § 36-1-117(a)(1).

[c] Whether the statutory foster parent preference found at T.C.A. § 36-1-115(g)(1) precludes any other person from being considered as adoptive parents.

The Pre-Trial Order also stated that the parties agreed these matters could be resolved without the offering of proof. Moreover, the Pre Trial Order provided that the Stuarts' constitutional challenge to Tenn.Code Ann. § 36-1-115(g)(1), "shall be heard only if necessary after the resolution of the other issues raised in the motion for summary judgment."

Thereafter, the Youngs filed a Motion for Summary Judgment covering the above-outlined issues. The Stuarts filed a Response to Motion for Summary Judgment in which they argued, among other things, that the issue before the Trial Court was not whether the Stuarts should be granted an adoption of the Children. Instead, the Stuarts contended that while adoption of the Children is their ultimate goal, the issue for the Trial Court's determination was whether the Stuarts' pending custody matter should be adjudicated before the Youngs' Petition for Adoption was decided. In February 2001, the Trial Court entered Judgment granting the Youngs' motion on all three grounds. The Trial Court, in its Judgment, reinstated the Adoption Decree.

The Stuarts appeal. We affirm.

Discussion

On appeal and although not exactly stated as such, the Stuarts raise the following issues: (1) whether the Stuarts were entitled to notice of the Youngs' Petition for Adoption and to be joined as parties to the Youngs' adoption action under Tenn. IL Civ. P. 19; (2) if the Stuarts were entitled to be joined as parties in the Youngs' adoption matter, whether the Trial Court should have set aside the first Adoption Decree under Tenn, R. Civ. P. 60 and decided the Stuarts' pending Custody Petition before it adjudicated the Youngs' Petition for Adoption; (3) whether the Trial Court erred in granting summary judgment to the Youngs before determining whether the Stuarts' Custody Petition should have been joined with the Youngs' Petition for Adoption and before the Custody Petition was adjudicated; and (4) whether the statutory preference for foster parents in adoption proceedings provided by Tenn.Code Ann. § 36-1-115(g)(1) is an unconstitutional violation of the Equal Protection guarantees of the United States and Tennessee Constitutions. Central to the Stuarts' issues on appeal is whether or not the Trial Court was required to decide the Stuarts' Custody Petition before it decided the Youngs' Motion for Summary Judgment. Accordingly, while the judgment from which the Stuarts appealed is one granting summary judgment, the Stuarts, in effect, do not contest the correctness of the Trial Court's grant of...