                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                           Assigned on Briefs June 28, 2011

                             IN RE MADDOX B.S., ET AL.

                Appeal from the Chancery Court for Hamilton County
               Nos. 10A044; 10A045 W. Frank Brown, III, Chancellor




               No. E2011-00645-COA-R3-PT-FILED-AUGUST 26, 2011




Lyndsey S. (“Mother”) and Trey S. (“Father”) are the biological parents (“Parents”) of
Maddox B.S. and Rylie M.S. (“Children”). Veronda S. and James S. (“Grandparents”) are
the paternal grandparents of Children. Mother, acknowledging that her consent would result
in the termination of her parental rights, sought to consent to the adoption of Children by
Grandparents. Grandparents and Mother petitioned the trial court to terminate Mother and
Father’s parental rights and allow Grandparents to adopt Children. The court accepted
Mother’s consent and terminated her parental rights. The court terminated Father’s parental
rights in a default judgment, citing abandonment as the ground for the termination of Father’s
rights. Shortly thereafter, Mother moved the court to set aside the final order of adoption,
citing fraud and duress as grounds. Father also moved the court to set aside the termination
of his parental rights and the order of adoption, citing fraud and misrepresentation as
grounds. Mother and Father subsequently alleged that the court failed to enter findings of
fact and conclusions of law as to whether the termination of Father’s parental rights was in
the best interest of Children. The trial court found that it had failed to enter sufficient
findings of fact and conclusions of law and set aside the final order of adoption. Mother then
sought to revoke her consent. The trial court allowed the revocation, finding that the final
order of adoption that had been set aside was the only document in which Mother had
consented to the termination of her parental rights and subsequent adoption. Grandparents
appeal the court’s action of setting aside the order, the allowance of Mother’s revocation of
consent, and the dismissal of the case. We affirm the decision of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                            Affirmed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.
Alan R. Beard, Chattanooga, Tennessee, for the appellants, Veronda S. and James S.

Grace E. Daniell, Chattanooga, Tennessee, for the appellees, Lyndsey S. and Trey S.

                                            OPINION

                                      I. BACKGROUND

       On August 31, 2010, Grandparents and Mother filed a petition to terminate Mother
and Father’s parental rights and to allow Grandparents to adopt Children. The petition
reflected that Mother and Father were divorced in 2009 and that Father had been ordered to
pay child support and had been granted visitation rights. Father was residing in Georgia at
the time and since the entry of divorce, had not paid child support and had only seen Children
on one occasion. Father failed to answer the petition, and Grandparents and Mother filed a
motion to enter a default judgment. On October 19, 2010, a default judgment was entered
against Father.

       Nine days later, a hearing was held in which the final order of adoption was entered.
The trial court found that Grandparents had custody of Children in excess of six months, that
Mother had consented to the termination of her parental rights and adoption by Grandparents,
and that Father had abandoned Children pursuant to Tennessee Code Annotated section 36-1-
102. The trial court also found that “[t]he adoption [was] in the best interest of [Children].”

        On November 29, 2010, Parents filed a motion to set aside the final order of adoption,
alleging fraud, intentional misrepresentation, and deceit by Grandparents to gain Mother’s
consent and Father’s inaction following the service of process for the petition and the
resulting default judgment. Mother also alleged that she was under duress and emotional
exhaustion when she signed her consent to the adoption. Parents stated that they were not
divorced at the time of the filing of the petition and that Father had not abandoned Children.
In an amended motion filed on January 7, 2011, Parents again alleged fraud, intentional
misrepresentation, and deceit by Grandparents but added the claim that the trial court had
failed to enter findings of fact and conclusions of law “concerning the grounds for
termination” of Father’s parental rights pursuant to Tennessee Code Annotated section 36-1-
113(c), (k). Parents filed other various motions not pertinent to this appeal following the
filing of their initial motion and the amended motion.

       On February 9, 2011, by Memorandum Opinion and Order the trial court set aside the
final order of adoption. The court stated, “No where does the final decree state that the
termination of the parents’ rights were in the child[ren]’s best interest . . .” and “. . .there was
no specific evidence [recalled] on the best interest of the child[ren] presented on October 28,

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2010.” The trial court concluded that it had failed to enter findings of fact and conclusions
of law as to whether the termination of Mother and Father’s parental rights was in the best
interest of Children.

       The trial court subsequently entered an amended order, providing that it was not
required to issue findings of fact and conclusions of law as to whether the termination of
Mother’s parental rights was in the best interest of Children because Mother was a co-
petitioner and had consented to her termination of parental rights and the resulting adoption
by Grandparents. However, the trial court upheld its original ruling that the final order of
adoption should be set aside because it had failed to enter findings of fact and conclusions
of law regarding whether the termination of Father’s parental rights was in the best interest
of Children.

       On February 21, 2011, Mother filed a revocation of her parental consent to the
adoption of Children. On March 4, 2011, the trial court dismissed the case, finding that its
action of setting aside the final order of adoption “had the legal effect of setting aside the
order of confirmation of [Mother’s] consent.” This timely appeal followed.

                                        II. ISSUES

       We consolidate and restate the issues raised by the petitioners as follows:

       A. Whether the trial court erred in setting aside the final order of adoption as
       to Father based on its failure to set forth findings of fact and conclusions of
       law as to whether the termination of Father’s parental rights was in the best
       interest of Children.

       B. Whether the trial court erred in setting aside the final order of adoption as
       to Mother and in allowing Mother to revoke her consent to the adoption
       proceedings.

                             III. STANDARD OF REVIEW

       We will review the trial court’s action of setting aside the final order of adoption
pursuant to Rule 60 of the Tennessee Rules of Civil Procedure under an abuse of discretion
standard. Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn. 2000); Underwood v.
Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993). The trial court’s allowance of Mother to
revoke her consent to the adoption and subsequent dismissal of the case is subject to a de
novo review with no presumption of correctness because we are reviewing the trial court’s



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conclusions of law. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008); Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

                                     IV. DISCUSSION

                                          A. Father

                                       1. Jurisdiction

       Grandparents contend that the trial court lacked subject matter jurisdiction to consider
the claim that it failed to enter findings of fact and conclusions of law that the termination
of Father’s parental rights was in the best interest of Children. They alternatively contend
that even if the trial court had subject matter jurisdiction to consider this issue, the motion
asserting this ground for dismissal was not timely filed pursuant to Rule 59.04 of the
Tennessee Rules of Civil Procedure. Parents respond that the court had jurisdiction to
consider their motion pursuant to Rule 59.04 and 60.02 of the Tennessee Rules of Civil
Procedure. They further respond that their motion was timely filed under either rule.

       Rule 60.02 of the Tennessee Rules of Civil Procedure provides, in pertinent part,

       On motion and upon such terms as are just, the court may relieve a party or the
       party’s legal representative from a final judgment, order or proceeding for . .
       . any [] reason justifying relief from the operation of the judgment.

Relief under this rule is considered “an exceptional remedy.” Nails v. Aetna Ins. Co., 834
S.W.2d 289, 294 (Tenn. 1992). The function of the rule is to “strike a proper balance
between the competing principles of finality and justice.” Banks v. Dement Const. Co., Inc.,
817 S.W.2d 16, 18 (Tenn. 1991) (quoting Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn.
1976)). Motions seeking relief under this rule must be “made within a reasonable time.”
Tenn. R. Civ. P. 60.02.

       Parents filed their initial motion on November 29, 2010, within 30 days of the entry
of the final order. The amended motion, which cited Rule 60.02, was filed on January 7,
2011, within 90 days of the entry of the final order. Accordingly, we conclude that Parents
sought relief pursuant to this rule within a reasonable amount of time. Additionally, we
believe that consideration of this issue was important to ensure the finality of the court’s
order. “A trial court’s failure to comply with [Tennessee Code Annotated section] 36-1-
113(k) fatally undermines the validity of a termination order.” In re S.M., 149 S.W.3d 632,
639 (Tenn. Ct. App. 2004); see also Tenn. Code Ann. § 36-1-113(k) (“The court shall enter
an order that makes specific findings of fact and conclusions of law within thirty (30) days

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of the conclusion of the hearing.”). If the court had failed to make the requisite findings, the
appellate court may have vacated the order terminating the parental rights and granting the
adoption and “remand[ed] the case to the trial court with directions to file written findings
of fact and conclusions of law.” White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App.
2004). Thus, we also conclude that the trial court’s consideration of this issue was proper.

                                          2. Finding

        Grandparents contend that the trial court erred in setting aside the final order of
adoption because the required finding that the termination of Father’s parental rights was in
the best interest of Children was implicit in the court’s actual finding that the adoption was
in the best interest of Children. Grandparents further relate that the court’s finding was
“legally sufficient” because “termination is a condition precedent to adoption.” Parents
respond that the trial court’s finding was insufficient because the court “did not even mention
in its order whether it was in the best interest of [Children] for [Father’s] parental rights to
be terminated.”

       Tennessee Code Annotated section 36-1-113(c) provides,

       (c) Termination of parental or guardianship rights must be based upon:

              (1) A finding by the court by clear and convincing evidence that
              the grounds for termination of parental or guardianship rights
              have been established; and

              (2) That termination of the parent’s or guardian’s rights is in the
              best interests of the child.

Accordingly, “a court must determine that clear and convincing evidence proves not only that
statutory grounds exist [for the termination] but also that termination is in the child’s best
interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). If the court fails to make the
requisite findings, the appellate court may vacate the order terminating the parental rights and
granting the adoption and “remand the case to the trial court with directions to file written
findings of fact and conclusions of law.” White, 171 S.W.3d at 192.

       Here, the court failed to make the requisite finding that the termination of Father’s
parental rights was in the best interest of Children. While the court found that the adoption
was in the best interest of Children, such a finding is not sufficient pursuant to Tennessee
Code Annotated section 36-1-113. See In re Adoption of T.L.H., No. M2008-01408-COA-
R3-PT, 2009 WL 152475, at *5 (Tenn. Ct. App. Jan. 21, 2009). Indeed, the finding that the

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adoption was in the best interest of Children was not equivalent to the necessary finding that
the termination of Father’s parental rights was in the best interest of Children. See L.D.N.
v. R.B.W., No. E2005-02057-COA-R3-PT, 2006 WL 369275, at *4 (Tenn. Ct. App. Feb. 17,
2006). The adoption may be in the best interest of Children; however, terminating Father’s
parental rights may not be in the best interest of Children. “‘Termination of a person’s rights
as a parent is a grave and final decision, irrevocably altering the lives of the parent and child
involved and severing forever all legal rights and obligations of the parent.’” Means v.
Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Brown v. Rogers, No. M2000-
01277-COA-R3-CV, 2001 WL 92083, at *2 (Tenn. Ct. App. 2001)). ‘“[F]ew consequences
of judicial action are so grave as the severance of natural family ties.”’ M.L.B. v. S.L.J., 519
U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)). Accordingly,
we conclude that the trial court did not err in setting aside the final order of adoption because
it failed to issue findings of fact and conclusions of law as to whether the termination of
Father’s parental rights was in the best interest of Children.

        Because we are concluding that the trial court’s setting aside of the final order was
appropriate on this ground, we will not analyze Parents’ alternative responses that the final
order of adoption should have been set aside because the proof presented at the hearing was
not “sufficient to support a finding of abandonment for the termination of [Father’s] parental
rights,” because Children had not lived in Grandparents’ home for the requisite period of
time, and because a guardian ad litem was not appointed.

                                           B. Mother

        Grandparents contend that the trial court erred in setting aside the final order as to
Mother and allowing Mother to revoke her consent to the adoption. Grandparents assert that
Mother’s consent as evidenced by her signing of the petition constituted a complete surrender
of her rights pursuant to Tennessee Code Annotated section 36-1-117(f) and that as reflected
in the language of the petition, she could not revoke her consent after the final order had been
entered. Parents respond that once the final order had been set aside, Mother had the right
to revoke her consent.

        Grandparents’ initial contention that the court erred in setting aside the final order of
adoption as to Mother is misplaced. We acknowledge that the court was not required to enter
findings of fact and conclusions of law as to whether the termination of Mother’s parental
rights was in the best interest of Children because Mother was a co-petitioner and consented
to the adoption. However, because the trial court failed to enter findings of fact and
conclusions of law as to whether the termination of Father parental rights was in the best
interest of Children, the court had the authority to set aside the order pursuant to Rule 60.02
of the Tennessee Rules of Civil Procedure. The court stated that it would not accept consent

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from one parent without terminating the rights of the other parent. Indeed, the adoption
could not be completed without the termination of Father’s parental rights. Accordingly, we
conclude that the trial court did not err in setting aside the order.

        Relative to Grandparents’ contention that the court erred in allowing Mother to revoke
her consent once the order had been set aside, we acknowledge that a parent’s act of “joining
in the adoption petition” constitutes a complete surrender of his or her parental rights. Tenn.
Code Ann. § 36-1-117(f). However, the

       act of signing the adoption petition shall not terminate the parental rights of
       such parent until the court . . . has entered an order confirming the parental
       consent and until the court shall have required such parent to answer, under
       oath, each of the questions required of parents [].

Tenn. Code Ann. § 36-1-117(g)(2) (emphasis added). Once a parent has signed the adoption
petition, the court must provide ten “calendar days’ written notice . . . of the appearance date
for the required response to the court pursuant to [section] 36-1-111 before entry of the order
confirming the parental consent is entered by the court.” Tenn. Code Ann. § 36-1-117(g)(3).
Following the appearance date at which the parent satisfactorily answers the questions,

       the court shall enter an order that confirms the parental consent, and the court
       shall then, and only then, be authorized to enter an order terminating such
       parent’s rights to the child []; provided, that a parental consent may be revoked
       at any time prior to the entry of an order of confirmation of the parental
       consent by the court executing a revocation form as provided in [section] 36-1-
       112, and such revocation shall negate and void the parental consent.

Tenn. Code Ann. § 36-1-117(g)(4). Indeed, Tennessee Code Annotated section 36-1-
112(a)(2)(A) provides that “[a] parental consent may be revoked at any time prior to the entry
of an order of confirmation of the parental consent by the court.” Once a parent has revoked
his or her consent, the child’s legal status is returned “to that which existed before the
surrender was executed.” Tenn. Code Ann. § 36-1-112(e)(1).

        Once the final order of adoption that confirmed Mother’s consent had been set aside,
that order had “no continuing legal effect.” See generally Edwards v. Banco Lumber Co.
Inc., 101 S.W.3d 69, 75 (Tenn. Ct. App. 2002) (affirming the trial court’s denial of the
plaintiff’s motion to set aside an order that was superceded by the final order). It was as if
the final order of adoption that confirmed Mother’s consent had never been entered.
Consequently, Mother had the right to revoke her consent prior to the entry of a subsequent
final order of adoption. When Mother revoked her consent prior to the hearing, Grandparents

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were then tasked with terminating both Mother and Father’s parental rights without Mother’s
consent. Accordingly, we conclude that the trial court did not err in allowing Mother to
revoke her consent and in dismissing the case.




                                    V. CONCLUSION

       The judgment of the trial court is affirmed, and the cause is remanded for such further
proceedings as necessary. Costs of the appeal are taxed to the appellants, Veronda S. and
James S. Parents have asked this court to award them appellate attorney fees. An award of
such fees is a matter within our sound discretion. Archer v. Archer, 907 S.W.2d 412, 419
(Tenn. Ct. App. 1995). Exercising that discretion, we respectfully decline to award them
appellate attorney fees.


                                           ______________________________________
                                           JOHN W. McCLARTY, JUDGE




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