Johnson by Johnson v. Wilbourn

• Decision Date: 14 July 1989
• Parties: William Charles Laws JOHNSON By his next friend Charlie Marie JOHNSON, Plaintiff/Appellee, v. Ann WILBOURN, Administratrix of the Estate of Thomas David Powell, and Minnie Powell, Defendants/Appellants. 781 S.W.2d 857
• Court: Tennessee Court of Appeals

Page 857

781 S.W.2d 857

William Charles Laws JOHNSON By his next friend Charlie

Marie JOHNSON, Plaintiff/Appellee, v. Ann WILBOURN, Administratrix of the Estate of Thomas David

Powell, and Minnie Powell, Defendants/Appellants.

781 S.W.2d 857

Court of Appeals of Tennessee,

Western Section, at Jackson.

July 14, 1989.

Application for Permission to Appeal

Dismissed by Supreme

Court Oct. 30, 1989.

Rita L. Stotts, Memphis, for defendants, appellants.

R. Dan Strickland, Sr., Memphis, for plaintiff, appellee.

TOMLIN, Presiding Judge, Western Section.

Defendants have appealed from a decree entered by the Chancery Court of Shelby County declaring William Charles Laws Johnson (hereafter "William") ¹ to be the lawfully-adopted son of Thomas David Powell, deceased, (hereafter "Powell") notwithstanding the fact that Powell, a single person, had been dead for some five years at the time the decree was entered. William, by next friend, filed this declaratory judgment action against Powell's estate and his mother, who claimed to be Powell's next-of-kin and sole heir, to have himself declared Powell's adopted son and heir. The chancellor found that although no final decree of adoption had been entered, Powell had "substantially complied" with all the statutory requirements to perfect the adoption and entered an order declaring William to be Powell's legally-adopted son, with rights of inheritance. The single issue presented by this appeal is whether the chancellor erred in finding William to be Powell's legally-adopted son. We hold that he did and reverse and dismiss.

The basic facts are not in dispute. Powell never married and had no children. In 1979, Powell contacted the Tennessee Department of Human Services ("TDHS") informing it that he was interested in adopting a male child between the ages of six and thirteen. In October, 1980, Powell entered into an "adoptive placement agreement" with TDHS, pursuant to which William, then thirteen, was placed in Powell's home as a prospective adopted child. The full legal guardianship of William at that time remained in TDHS. Some areas of conflict developed between Powell and William, who was removed from Powell's home in 1981 at Powell's request. Powell and William remained in contact with one another, and William was returned to Powell's home by TDHS the following year.

Adoptions in Tennessee are governed by statute, specifically T.C.A. Sec. 36-1-101, et seq. Pursuant to Sec. 36-1-105, Powell filed a petition for adoption in the Chancery Court for Shelby County on April 5, 1983. The case was assigned to a different division of that court than the one from which this appeal is taken. It is of interest to note that the attorney who filed the adoption petition on behalf of Powell is the same attorney who filed this suit for declaratory judgment on behalf of William.

Powell's petition sought the following relief, in part:

1. That an Order of Reference be entered requiring the Tennessee Department of Human Services to report to the Court as required by law.

2. That upon the filing of the Answer, Consent and report by the Tennessee Department of Human Services, through the County Director, and (sic) Interlocutory Decree of Adoption be entered in this Court awarding the petitioner, THOMAS DAVID POWELL, the sole custody of said minor child, WILLIAM CHARLES LAWS POWELL; that in accordance with the law governing adoptions, a Final Decree of Adoption be entered at such time as determined by this Honorable Court.

Some three weeks later Powell was murdered, killed by multiple gunshot wounds. There is nothing in the record explaining why or by whom he was killed. In early May, 1983, Minnie Powell, Powell's natural mother and one of the defendants here, filed a petition in the Probate Court of Shelby County, alleging that she was Powell's sole heir and nextof-kin. She further alleged that her son died intestate and asked for the appointment of Ann Wilbourn, another co-defendant, as administratrix of Powell's estate. The appointment was made on the same day. Meanwhile, apparently unaware of Powell's death, TDHS filed a preliminary investigative report in the adoption proceeding in chancery court approving Powell's adoption of William.

In June, 1984, this suit was filed on behalf of William. The record before us shows no activity in the adoption proceedings following the filing of the TDHS report in June, 1983 until November, 1987, when the adoption petition was dismissed for failure to prosecute. The chancery court hearing in the case at bar was held on May 11, 1988, at which time the chancellor, from the bench, rendered his opinion which was subsequently incorporated into and made a part of that court's final decree. No testimony was heard at that hearing. Opposing counsel conducted oral argument and stipulated to certain facts.

The chancellor found and ruled that: (1) William was declared to be the legally-adopted child of the deceased, Powell; (2) Powell "did all he could do to adopt the child"; (3) except for the fact that Powell died, he would have adopted William; (4) he, as chancellor, would have approved the adoption had it been presented to him; and (5) in reaching such a decision the court declared as done what should have been done.

I. THE NATURE OF ADOPTIONS IN TENNESSEE

The current adoption statutes, except as subsequently amended, were enacted by our General Assembly in 1951. However, this state had adoption statutes dating back to Thompson's Shannon's Code. In 1917, in the case of In re Knott, 138 Tenn. 349, 197 S.W. 1097 (1917), our Supreme Court was called upon to consider the nature of the adoption statutes then in effect. Citing cases from other jurisdictions, the Court stated:

The right of adoption is not a natural one. It contravenes common right, and originated with the statute. It was unknown to the common law, although it was practiced by the ancients of Greece and Rome, and probably other ancient people, and is of the remotest antiquity.

....

The sections of the Code [Thompson's Shannon's] above set out are in derogation of the common law, and must be strictly construed.

Id. at 352-53, 197 S.W. at 1098 (citations omitted).

The courts of this state have continued to so hold following the enactment of the current adoption statute. In Clements v. Morgan, 201 Tenn. 94, 296 S.W.2d 874 (1956), our Supreme Court ruled as follows:

We are of the opinion that this statute must be complied with in all things.

The right of adoption is not a natural one and was unknown to the common law. Rogers v. Baldridge, 18 Tenn.App. 300, 76 S.W.2d 655.

The adoption of a child is governed by statute and to effect a legal adoption it must be strictly complied with. Coonradt v. Sailors, 186 Tenn. 294, 209 S.W.2d 859, 2 A.L.R.2d 880; In re Knott, 138 Tenn. 349, 197 S.W. 1097.

Id. at 97, 296 S.W.2d at 875 [emphasis added].

In a companion case styled In re Clements' Petition, 201 Tenn. 98, 105-06, 296 S.W.2d 875, 879 (1956), our Supreme Court elaborated upon their earlier position by stating:

Section 36-120, T.C.A., among other things provides that:

"Until the final order is made, the child shall be a ward of the court having jurisdiction. The petitioning adopting parents, however, shall act as guardian ad litem or next friend of the child in any suit for injuries done by a third party to the child while the child is in the care and custody of the said petitioning parents."

This provision as well as others that might be found in the Code clearly show that until the court has finally adjudicated that the petitioners for adoption are suitable ones and that it is for the best interest of the child to be placed with them for adoption that no legal rights attach to either of the parties until said adoptive statutes are carried out. We in effect approved this principle when this Court in Coonradt v. Sailors, 186 Tenn. 294, 209 S.W.2d 859, 861, 2 A.L.R.2d 880, said:

"By the great weight of authority, the adoption of a child is governed by statute and to effect a legal adoption it must be strictly complied with."

Another case emphasizing the strict compliance doctrine regarding adoptions is In re Van Huss' Petition, 207 Tenn. 168, 338 S.W.2d 588 (1960). The only flaw in that adoption proceeding was that the husband of the petitioning couple, from the time of the filing of the adoption petition up to the date of the hearing, had served in the U.S. Navy aboard ship away from Tennessee. As a result, he had not been physically present in the state for one year next preceding the filing of the petition as then required by T.C.A. Sec. 36-105. Notwithstanding that the petitioner was a man of good character, financially able to rear and educate the child, and that the Department of Public Welfare had recommended the adoption as being for the best interest and welfare of the child, the trial court denied the petition. In affirming, our Supreme Court stated:

Since there is no common law right of adoption, as observed in Clements v. Morgan, supra, no right of adoption exists in Tennessee, except such as is given by statute. As the law now stands that right is given only by the 1959 statute carried at 36-105 1959 T.C.A. Supplement. If the Court is to ignore the provisions of that statute, then the right of adoption will not exist in Tennessee. If the 1959 statute is not to be ignored, then its requirements "must be strictly complied with." Id. at 173, 338 S.W.2d at 590-91.

See also Scott v. Pulley, 705 S.W.2d 666 (Tenn.App.1985); In re Adoption of Edman, 48 Tenn.App. 375, 348 S.W.2d 345 (1961).

Looking at the case at bar in the light of the above-cited cases, this Court observes that several sections of our adoption statute have not been complied with. We note that Sec. 36-1-101 recites that "(a) The primary purpose of this chapter is to protect children from unnecessary separation from parents who might give them good homes and loving care...."

Section 36-1-115 provides in substance...