                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE

                                      IN RE: S.B., ET AL.

               Direct Appeal from the Chancery Court for Humphreys County
                          No. 24-149, Robert E. Burch, Chancellor



                    No. M1999-00140-COA-R3-CV - Decided May 12, 2000


        The trial court in this case approved the adoption of one sibling by a couple who was
unrelated to the child, but who had been caring for her. The appeal was taken by another couple,
relatives of the child, who had been caring for and were allowed to adopt, in the same proceedings,
the other sibling. Appellants assert that their petition to adopt both children should have been
granted because of the preferences for placement within a family and placement with siblings. This
court affirms the adoption as ordered by the trial court because the trial court considered all
preferences and other relevant factors presented by the facts of this case and made a determination
that the best interest of the child favored continuity of placement. The evidence does not
preponderate against that finding.

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

COTTRELL, J., delivered the opinion of the court, in which CANTRELL, P.J., M.S., and KOCH , J,
joined.

Jennifer Davis Roberts, Dickson, Tennessee, for the appellants, Kerry Mangrum and Tammy
Mangrum.

Louise R. Fontecchio, Nashville, Tennessee, for the appellees, Barry Baker and Deborah Baker.

                                             OPINION

        This case involves the adoption of siblings by different families. The children were placed
in foster care together but were separated when the younger child, R.A.B., a boy, then four months
old, was retrieved from foster care by the Mangrums, the Appellants, relatives of the children. The
foster mother turned the older child, S.B., a girl, over to another family, the Bakers, the Appellees,
non-relatives who later sought to adopt her. After terminating the parents’ rights, the trial court
allowed each family to adopt the child in its care. The Mangrums appeal the adoption of S.B. by the
Bakers and the concomitant denial of their petition to adopt S.B., claiming that the preferences for
placement within the family and for keeping siblings together dictate overturning the Bakers’
adoption of S.B.
                                                   I.

            S.B., at five months old, became the subject of a 1996 Department of Children’s Services
(DCS) investigation because of apparent neglect. S.B. was temporarily removed from the home, but
was later returned. DCS continued to work with the natural parents and to make home visits to
observe the conditions there. A visit by a caseworker after the younger child, R.A.B., was born
resulted in DCS immediately removing both children from the home because S.B. had noticeable
bruising on her face. DCS filed a petition for temporary custody, and in February 1997, the juvenile
court placed legal and physical custody of both children with DCS.

           The children, then ages thirteen months and three months, were placed in a DCS
approved foster home in February 1997. Both were hospitalized briefly early in their foster care
placement. Meanwhile, relatives of the children’s mother contacted DCS and offered to act as “a
resource” for care of the children. At that time, Ms. Mangrum, one of the appellants, and her sister,
both cousins of the mother, intended to each seek physical custody of one of the children with the
expectation that the children would eventually be returned to their parents. Only the Mangrums
followed through on their request and sought to have the boy placed in their home. After DCS
approved of this family placement, the Mangrums were awarded physical custody of the boy,
R.A.B., by court order in March 1997. Because Ms. Mangrum’s sister had withdrawn her request
to take S.B., the child remained in the foster home, and the siblings were thus separated.

             The foster mother felt that she needed help keeping S.B., especially on the weekends,
and allowed the Bakers to babysit a few weekends in March 1997 with the knowledge of DCS.1
DCS records refer to this arrangement as “respite care.” By late April or early May 1997, however,
S.B. was living with the Bakers most of the time. The extent of DCS’s knowledge of this
arrangement is disputed, but a caseworker’s log indicates that Ms. Baker advised the caseworker on
May 7 that S.B. was with the Bakers most of the time. The caseworker had called Ms. Baker to
arrange a visit with S.B.’s great-grandmother and to discuss a recent visit. Other records indicate that
during that summer the DCS caseworker routinely contacted Ms. Baker to arrange visits with S.B.’s
family members. In a progress report dated late June 1997, DCS noted that S.B. was “currently in
a home approved by the Department as respite care.” The Bakers had not been approved as foster
parents when they obtained possession of S.B., but did go through the approval process later.
             The Mangrums petitioned for custody of both children in July 1997, and the Bakers filed
a petition for custody of S.B. a few days later.2 In October 1997, the Bakers filed a petition to adopt


       1
       Ms. Baker was an LPN working in the office of the pediatrician who treated S.B.
immediately after her removal from her home. Apparently, the original offer to help came from Ms.
Baker during S.B.’s recovery from the hospitalization.
       2
         In October 1997, DCS made an effort to remove S.B. from the Bakers’ home, but the record
does not contain any information regarding the reasons. The record does contain, however, a trial
court order, issued after an emergency hearing, in which the court found that the removal of the child
                                                                                       (continued...)

                                                  -2-
S.B.3 In November 1997, the Johnsons, relatives of Mr. Mangrum but unrelated to the children, filed
a petition to adopt both S.B. and R.A.B. The Johnsons were supported in their petition by the
children’s mother, who later withdrew her support. In January 1998, the Mangrums filed a petition
to adopt both children. All three cases were consolidated and heard in December 1998.

            The court held a bifurcated trial: first, to determine whether the parents’ rights would be
terminated, and second, if the rights were terminated, to determine who would adopt the children.
The children’s mother, who was divorced from the father by the time of the trial, opposed any
adoption, asserting that she wanted the children returned to her. The father appeared at the trial, but
voluntarily relinquished his parental rights. The court found that both parents had abandoned the
children by failing to visit or support them for four months. Neither parent appealed the termination
of parental rights.

           In the second phase of the trial, the Mangrums and the Bakers each showed that they had
a loving home and that the child placed with that family was thriving and happy there. The Johnsons
withdrew their petition to adopt after the other families had put on their proof.

            The Bakers asserted their willingness to adopt S.B.’s brother if the court wanted the
siblings to stay together. The Mangrums sought to adopt both children, asserting the importance of
both their blood relation to the children and of keeping the children together. The court allowed the
Bakers to adopt S.B. and allowed the Mangrums to adopt R.A.B., citing in each case the need for
continuity of placement. The court then ordered the families to provide for monthly visitation
between the children, and “encouraged” visitation between S.B. and the rest of her family.4

           The court stated:



       2
        (...continued)
was not appropriate given the circumstances and that the best interest of the child dictated that her
physical custody remain with the Bakers. The court ordered the immediate return of S.B. to the
Bakers.

       3
         The Bakers’ petition seeks adoption of both children “if the court finds it to be in the best
interest of both children to remain together.” However, the Bakers’ primary position was that each
child should remain in the home where he or she had been living and with the couple with whom he
or she had formed a parental relationship.
       4
        The Mangrums argue that the court ordered visitation between the children cannot be
enforced, and the result is that S.B. has been deprived of her relatives by the adoption. The Bakers
argue that the court ordered visitation between the children is enforceable and would serve to
maintain their relationship. Because neither party has appealed the visitation order, we need not
address its validity here.

                                                 -3-
           There are two competing issues here; one is continuity of placement and the
           other is the keeping of siblings together in a placement with family. The
           court recognizes and acknowledges the importance of keeping a family unit
           together insofar as that is possible and the large importance of keeping
           siblings together. . . . In this case it is my opinion that the continuity of
           placement takes precedence over the keeping of siblings together and
           placement with the family. Both of these children, according to the proof,
           have developed strong bonds with the homes in which they are placed. These
           children have been in the respective homes for over a year and nearly two.
           Continuity of placement is not to reward good behavior or to punish bad
           behavior. The issue is that continuity of placement is good for the child, is
           best for the child, and to disrupt that would be . . . extremely damaging to the
           child. . . . The point has been made that through some mistaken or negligent
           process of the Department of Children’s Services the Bakers came to have
           [S.B.]. I don’t think that’s contested, but the point is they do have her. . . . In
           the court’s view, to damage [S.B.] in order to correct a bureaucratic error
           would be the supreme triumph of form over substance.

                                                   II.

             Once a parent’s rights have been terminated, as here, the court must consider the best
interest of the child when granting a petition to adopt. See Sonet v. Unknown Father of Joseph
Daniel Hasty, 797 S.W.2d 1, 5 (Tenn. Ct. App. 1990). “[T]he best interest of the child is the
paramount consideration in an adoption proceeding.” Id.; see also Tenn. Code Ann. § 36-1-101(d)
(Supp. 1999) (one of the primary purposes of the statutory adoption process is to protect the best
interest of the child involved in the process). The child’s interest supersedes any conflicting interest
of an adult, and any such conflict must be resolved in favor of the child. See Sonet, 797 S.W.2d at
5; Tenn. Code Ann. § 36-1-101(d). The finding of the best interest5 of the child is a finding of fact,
 see Garner v. Garner, 773 S.W.2d 245, 246 (Tenn. Ct. App. 1989), and unless the evidence
preponderates against that finding, we must affirm the trial court’s decision, absent an error of law.
See Tenn. R. App. P. 13(d).
                                                  III.

            The best interest of the child in an adoption proceeding has been described as follows:



       5
         This opinion cites several cases involving child custody incident to divorce as authority
when discussing the best interest of the child. The legislature has used the phrases“best interest” and
“best interests” in the adoption statutes and “best interest” in the child custody statutes, apparently
interchangeably. See Tenn. Code Ann. §§ 36-1-101(a)(5), 36-1-101(d) and 36-6-106. Therefore,
we are of the opinion that custody cases discussing “best interest” are relevant to a best interest
analysis in an adoption setting. Many of the same factors should be considered when deciding
between persons competing to adopt a child or between persons competing for the custody of a child.

                                                  -4-
            [It] is an elusive guideline that belies rigid definition. Its purpose is to
            maximize a child’s opportunity to develop into a stable, well-adjusted adult.
            The best interests of the child is [sic] in being raised by the best parent. But
            that is not a matter that can be ascertained by crude calculation. The factors
            to be considered in determining what is in the best interests of the child are
            legion. They vary from case to case and it is impossible to catalog all the
            factors that may be involved.

2 Am. Jur. 2d Adoption § 137 (1994).

             The trial court found that S.B.’s interests are best served by continuing and making
permanent the placement with the Bakers, with whom she has developed a close relationship and
bond, in whose care she has overcome earlier developmental delays, and who have demonstrated the
ability to provide a nurturing and stable environment. The Mangrums do not dispute that the Bakers
are fit parents or that S.B. has thrived in their care. Rather, they argue that the best interest of S.B.
is not served by severing S.B.’s ties with her brother and members of her extended family, an effect
they see as a necessary consequence of the Bakers’ adoption of S.B. At its simplest, they stated the
argument thusly: “The Trial Court should have placed more emphasis on the family ties of the
children than it did.”

          In support of this argument, the Mangrums rely on Tenn. Code Ann. § 37-2-403(a)(1)
(Supp. 1999), asserting that it establishes a preference for placement with family over placement
through adoption by non-relatives. The text of that statute reads, in pertinent part:

            Within thirty (30) days of the date of foster care placement, an agency shall
            prepare a plan for each child in its foster care. Such plan shall include a goal
            for each child of:

                    (A) Return of the child to the parent;
                    (B) Placement of the child with relatives of the child;
                    (C) Adoption, giving appropriate consideration to § 36-1-105(e)(1)
                        when applicable;
                    (D) Permanent foster care; and
                    (E) Emancipation by marriage, court order or reaching the age of
                       majority.

            The statutory list of options for placement has been interpreted to mean preference in
placement should be made in the order those options are listed. See State Dept. of Human Serv. v.
Smith, 785 S.W.2d 336, 338 (Tenn. 1990) (“The first preference is to reunite the family by returning
the child to his parents or placing the child with relatives; the second is permanent placement
through adoption.”) The preference for placement with family, by the language of the above-quoted
statute, applies at the time the agency prepares the plan for the child. While placement with relatives
may be a future goal, there is nothing in the record before us to indicate that DCS was aware that the
Mangrums or any other family members were or would be available for S.B.’s placement at the time

                                                  -5-
the plan was to be prepared. At the time of the hearing herein, S.B. had been in the Bakers’ care for
more than a year, so that any preference for a goal of family placement shortly after the removal
would have no application.

            Further support for family placement is found in Tenn. Code Ann. § 37-2-403(d) which
states:

            Whenever a child is removed from such child’s home and placed in the
            department’s custody, the department shall seek to place the child with a fit
            and willing relative if such placement provides for the safety and is in the
            best interest of the child. Notwithstanding any provision of this section or
            any other law to the contrary, whenever return of a child to such child’s
            parent is determined not to be in the best interest of the child, then such
            relative with whom the child has been placed shall be given priority for
            permanent placement or adoption of the child prior to pursuing adoptive
            placement of such child with a non-relative.

           Again, this provision addresses placement immediately after removal from the home and
a preference for adoption by relatives with whom such initial placement has been made. We find
nothing in this statute to indicate that an ongoing placement with a non-relative that is otherwise
serving the child’s best interest must be ended if a family member later seeks to adopt the child.
To the contrary, Tenn. Code Ann. § 36-1-101(a)(5) states that a purpose of the statutory adoption
process is to ensure that the proceedings are held in a manner “to enable the child to achieve
permanency, consistent with the child’s best interests, at the earliest possible date.”

            The Mangrums also rely on the Tennessee courts’ stated preference for keeping siblings
together. See Baggett v. Baggett, 512 S.W.2d 292, 293-94 (Tenn. Ct. App. 1973) (“there is merit
in the proposition that children should not be separated by a custody order”). That preference is
simply a factor for the court to consider in determining the best interest of the child, however. See
In the Matter of M.W.A., Jr., C.D.A., P.C.A., K.M.A. and A.K.A., 980 S.W. 2d 620, 623 (Tenn. Ct.
App. 1998) (keeping siblings together was only one of the three factors the court used in determining
the children’s best interest). It is not a controlling factor. Courts have previously separated siblings
if that separation was in the best interest of the child before the court. See, e.g., Rice v. Rice, 983
S.W.2d 680, 684 (Tenn. Ct. App. 1998) As this court stated in Rice, “Generally speaking, it is not
appropriate to separate siblings by a custody order, but this principle is not inflexible. It must give
way to other considerations if the best interest of a child so dictates.” In addition, in the case before
us, the siblings were separated when the Mangrums were granted custody of the boy and S.B.
remained in the foster home, when the children were ages fourteen months and four months.

            Thus, while the courts and the legislature have recognized that a child’s best interest is
often served by placement with and adoption by family members and by remaining with siblings,
those considerations are only some of the factors which should be weighed by a court in determining
a particular child’s best interest in a particular situation. Even in situations where the preferences
relied upon by the Mangrums are directly applicable, they are not determinative.

                                                  -6-
                                                 IV.

           The Mangrums also argue that “family rights” should be given a status similar to parental
rights, equating the adoption by non-family members to “termination of family rights.” They
correctly assert that termination of parental rights requires clear and convincing evidence that
grounds for termination exist, see Tenn. Code Ann. § 36-1-113(c)(1) (Supp. 1999), but their
argument that due process requires the same heightened standard to be applied before the rights of
other family members are severed must fail. A biological parent’s rights are constitutionally based,
see Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626 (1923); In re Adoption of Female Child
(Bond v. McKenzie), 896 S.W.2d 546, 547-48 (Tenn. 1995), but there is no such origin for any rights
of non-parents.

             Similarly, the Mangrums’ claim that a showing of harm6 should have been made before
the court proceeded to a best interest analysis for S.B. has no basis in current law.7 In effect, the
Mangrums ask this court to expand the law in Tennessee to give all family members the same rights
to a relationship with children as the parents have, or at least to allow family members to step into
the shoes of biological parents upon a termination of the parent’s rights. This we decline to do.8 The
trial court terminated the parents’ rights, and that order was not appealed. After the termination, the


       6
         We interpret this argument to mean that the trial court should have determined that allowing
S.B. to be placed in a relative’s custody or to maintain relationships with family members would
result in substantial harm to S.B. as a prerequisite to considering adoption by a non-relative.
       7
         The adoption statutes clearly give precedence to the child’s interest above any other’s and
do not require the kind of finding advocated by the Mangrums. See Tenn. Code Ann. § 36-1-101(d).
       8
         The parent-child relationship enjoys a unique status in the law. See Hawk v. Hawk, 855
S.W.2d 577 (Tenn. 1993). Our Supreme Court has held that parents have a constitutional right to
privacy in their child rearing decisions, absent a showing of significant harm to the child. See id. at
581. In so holding, the Court found the Grandparents’ Visitation Act unconstitutional under Article
I, Section 8 of the Tennessee Constitution, “as applied to this married couple, whose fitness as
parents is unchallenged.” Id. at 577. Thus, the Hawks, a married couple and fit parents, had a right
to raise their children without interference or visits from the grandparents, absent a showing of
significant harm to the child. The parental right to privacy found in Hawk has been extended to
families in which the parents are no longer married. See Simmons v. Simmons, 900 S.W.2d 682, 684-
85 (Tenn. 1995). A later incarnation of the Act, the statute captioned: “Visitation rights of parents
of deceased or divorced parents” has also been found to violate parental privacy rights under the state
constitution. See Ellison v. Ellison, 994 S.W.2d 623 (Tenn. Ct. App. 1998). The above-cited cases
show that our courts have held parents’ rights to privacy in their child rearing decisions to be
superior to a grandparent’s right to even visit the child, absent a showing of harm. With these
precedents in mind, we cannot agree that the rights of other family members should be given a status
similar to the rights of the parents upon the termination of a parent’s rights.

                                                 -7-
court properly proceeded to a determination of the children’s best interest and found that the best
interest of each child was served by remaining with the family that the child had come to know. The
court was not required to find harm to S.B. before permitting the Bakers to adopt her.

                                                   V.

           The Bakers have cited the statutory preference for adoption by foster parents who have
kept the child for twelve months or more, Tenn. Code Ann. § 36-1-115(g)(1) (Supp. 1999), to
support their argument that S.B.’s continuity of placement favors them as the adoptive parents.9
That statute reads:

            When a child is placed in a foster home by the department or otherwise, and
            becomes available for adoption due to the termination or surrender of all
            parental or guardianship rights to the child, those foster parents shall be given
            first preference to adopt the child if the child has resided in the foster home
            for twelve (12) or more consecutive months immediately preceding the filing
            of an adoption petition.

             S.B. was placed in the Bakers’ care “by the department or otherwise.” Tenn. Code Ann.
§ 36-1-115(g)(1). She then became available for adoption “due to the termination or surrender of
all parental or guardianship rights to the child.” Id. The Bakers, though, were not foster parents10
with whom S.B. had resided “for twelve or more consecutive months immediately preceding the
filing of an adoption petition.” Id. At the time the petition was filed, S.B. had been in the home for
approximately six months, not the twelve months required for the statute to control the adoptive
placement.

            While the statute does not control the placement in this case, it expresses the legislature’s
recognition of the importance of stability in a child’s life. See Tenn. Code Ann. § 36-1-115(g)(1).
Our courts have expressed similar recognition. See Taylor v. Taylor, 849 S.W.2d 319, 328 (Tenn.
1993) (recognizing the child’s need for stability when considering whether to allow the custodial
parent to move the child to another state). Our Supreme Court stated in Taylor, “[T]he collective
wisdom of both the courts and child psychologists [reflect] that children . . . need stability and
continuity in relationships most of all. This recognition has led to a strong presumption in favor of
continuity of placement.” Taylor, 849 S.W.2d at 328.


       9
        The Bakers do not argue that the statute controls this case, merely that it indicates a
preference for the child’s continuity of placement.
       10
          When the Bakers first began providing weekend and other respite care for S.B., and when
S.B. initially began to spend the majority of her time with them, the Bakers had not been approved
by DCS as foster parents. It is not clear whether the statute’s preference can be triggered by
including time before the custodian is approved as a foster parent. Since we have found the statute
inapplicable on other grounds, however, we need not reach this question.

                                                  -8-
            A best interests determination depends upon a true assessment of the
            emotional bonds between parent and child, upon inquiry into the ethical,
            emotional, and intellectual guidance a parent gives to the child throughout his
            [or her] formative years, and often beyond. It must reflect also a factual
            determination of how best to provide continuity of attention, nurturing, and
            care. Thus, crucial to a best interests determination is the importance of
            stability and continuity in the life of the child, and the harm that may result
            from disruption of established patterns of care and emotional bonds.

2 Am. Jur. 2d Adoption, § 137 (1994).

                                                 VI.

            The court considered three general preferences established by the legislature and the
courts: the preference for family placement, the preference for keeping siblings together, and the
preference for continuity of placement. All three preferences relate to the best interest of the child,
and none is controlling in the case before us. We find no error in the trial court’s considering each
preference, as well as other factors, and making a best interest determination for S.B. favoring the
continuity of placement.11

                                                 VII.

             We affirm the order granting the Bakers’ petition to adopt S.B. and remand the case to
the trial court for any further proceedings as may be required. Costs of this appeal are taxed to the
Mangrums, for which execution may issue if necessary.




       11
          The Mangrums object to the court’s reliance on continuity of S.B.’s placement on the basis
that the placement was allowed to develop and/or continue through mistakes of DCS and by action
of a chancellor sitting by interchange for the juvenile court judge in ordering S.B.’s return to the
Bakers home in October of 1997. See fn. 2. The same chancellor recused himself just before the
trial in December 1998, having just then realized that he was acquainted with Mr. Baker’s brother.
The record is devoid of any evidence or implication of impropriety on the part of the chancellor in
the October 1997 ruling.

                                                 -9-
