               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 May 20, 2015 Session

                                  IN RE: SONYA M.

                Appeal from the Chancery Court for Dickson County
                   No. 2014CV208       Robert E. Burch, Judge




                 No. M2015-00064-COA-R3-PT – Filed July 16, 2015


The issue in this case is whether former foster parents have standing to bring an action for
termination of parental rights and adoption of children formerly in their care. We hold, as
did the trial court, that former foster parents do not have standing to do so.

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

ANDY D. BENNETT, J., delivered the opinion of the court, in which RICHARD H. DINKINS
and W. NEAL MCBRAYER, JJ., joined.

Karl M. Braun, Lucas Davidson, and Joanna L. McCracken, Nashville, Tennessee, and
Kendall A. Sykes, Oklahoma City, Oklahoma, for the appellants, David Sheldon Hodgin,
Jr. and Kimberly Ellen Hodgin.

Herbert H. Slatery, III, Attorney General and Reporter, and Alexander S. Rieger, Assistant
Attorney General, for the appellee, Tennessee Department of Children‟s Services.

Anita Lynn Vinson Coffinberry, Erin, Tennessee, for the appellee, John M.

                                        OPINION

                       FACTUAL AND PROCEDURAL BACKGROUND

       Sonya M. was born in Nebraska in July 2004. Sonya‟s father, John M. (“Father”),
was awarded custody of the child in 2005. He allowed the child to travel to Tennessee
with one of her caregivers, and in October 2005, after the caregiver‟s parents contacted the
sheriff‟s department, the child was adjudicated dependent and neglected. The Department
of Children‟s Services (“DCS”) was given custody of Sonya, and in April 2006, the child
was officially placed in the home of foster parents David and Kimberly Hodgin.

       In April 2006, Father was indicted on federal charges and was taken into custody.
That fall, he pled guilty to the federal charge of unlawful transport of firearms and was
sentenced to fifteen years in prison.

       In July 2006, the Hodgins filed a petition to terminate parental rights and to adopt
Sonya, in the Chancery Court of Dickson County. The chancery court terminated the
rights of Sonya‟s mother1 and Father and approved her adoption by the Hodgins. Father
appealed the termination of his parental rights and the adoption from prison. See In re
S.J.M., No. M2009-01080-COA-R3-PT, 2009 WL 4039430, at *1 (Tenn. Ct. App. Nov.
20, 2009). This Court found that, contrary to the trial court‟s determination, the issue of
Father‟s sentence as a ground for termination under Tenn. Code Ann. § 36-1-113(g)(6) had
not been tried by consent of the parties. Id. at *3. Therefore, the adoption was vacated,
and Sonya was returned to the legal custody of DCS. Id. at *4. DCS again placed the
child with the Hodgins.

       Sonya continued to live with the Hodgins until January 2014. At that time, Father
was no longer in prison,2 and DCS removed Sonya from the Hodgins‟ care and sent her to
live with Father in Nebraska on a trial home visit. Sonya had not seen Father since she
was an infant.

       On June 6, 2014, the Hodgins filed a petition to terminate Father‟s parental rights
and to adopt Sonya. Father filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(1)
and (6) for lack of standing. DCS filed a motion for judgment on the pleadings asserting
that the Hodgins lacked standing to file a petition to terminate parental rights and adopt
Sonya.

       On September 16, 2014, the trial court entered a memorandum opinion concluding
that the Hodgins‟ petition should be dismissed. The court construed Tenn. Code Ann.
§ 36-1-113(b)(1) to mean that plaintiffs‟ “standing to file a termination of parental rights
action depends upon their standing to file an adoption action.” Because, under Tenn.
Code Ann. § 36-1-115(b), the Hodgins did not have “physical custody or . . . the right to
receive custody of the child sought to be adopted as provided in § 36-1-111(d)(6)
[surrender] at the time the petition is filed,” the trial court concluded that they did not have

       1
         Sonya‟s mother did not appear or defend the termination of her parental rights, and she is
not involved in the current appeal.
       2
         Father testified that his sentence was reduced from fifteen to seven and one-half years for
his cooperation in a homicide investigation. In re S.J.M., 2009 WL 4039430, at *2.
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standing. The Hodgins filed a motion to alter or amend. On October 3, 2014, the trial
court entered its final order dismissing the termination and adoption petition. The motion
to alter or amend was denied on October 28, 2014.

       On appeal, the only issue is whether the trial court erred in determining that the
Hodgins lacked standing to file a petition to terminate Father‟s parental rights and for
adoption.

                                 STANDARD OF REVIEW

       Making a determination regarding standing under Tenn. R. Civ. P. 12.02(6) is a
question of law; therefore, our review is de novo with no presumption of correctness.
Town of Collierville v. Town of Collierville Bd. of Zoning Appeals, No.
W2013-02752-COA-R3-CV, 2015 WL 1606712, at *3 (Tenn. Ct. App. Apr. 7, 2015). If
“matters outside the pleadings are presented to and not excluded by the court, the motion
[to dismiss pursuant to Tenn. R. Civ. P. 12.02(6)] shall be treated as one for summary
judgment . . . .” Tenn. R. Civ. P. 12.02. Because we are faced with a question of law, the
standard of review is the same: de novo with no presumption of correctness.

        Statutory interpretation is an issue of law which we review de novo on appeal,
granting the trial court‟s interpretation no deference. In re Kaliyah S., 455 S.W.3d 533,
552 (Tenn. 2015) (citing Mills v. Fulmarque, 360 S.W.3d 362, 366 (Tenn. 2012)). When
interpreting a statute, we strive to “„ascertain and give effect to the legislative intent
without unduly restricting or expanding a statute‟s coverage beyond its intended scope.‟”
Id. (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). We are to presume that
every word used in a statute has meaning and serves a purpose. Nye v. Bayer
Cropscience, Inc., 347 S.W.3d 686, 694 (Tenn. 2011). The most important feature of a
statute is the language used. In re Kaliyah S., 455 S.W.3d at 552.

                                        ANALYSIS

        Both terminations of parental rights and adoptions are governed exclusively by
statute in Tennessee. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); In re Shelby L.
B., No. M2010-00879-COA-R9-PT, 2011 WL 1225567, at *5 (Tenn. Ct. App. Mar. 31,
2011). Tennessee Code Annotated section 36-1-113(b)(1) designates the parties who
have standing to file a petition to terminate parental rights. That subsection provides, in
pertinent part:

      The prospective adoptive parent or parents, including extended family
      members caring for a related child, any licensed child-placing agency having
      custody of the child, the child‟s guardian ad litem, or the department shall
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       have standing to file a petition pursuant to this part or title 37 to terminate
       parental or guardianship rights of a person alleged to be a parent or guardian
       of the child. . . . The prospective adoptive parents . . . shall have standing
       to request termination of parental or guardianship rights in the adoption
       petition filed by them pursuant to this part.

Tenn. Code Ann. § 36-1-113(b)(1) (emphasis added). The Hodgins claim that they are
“prospective adoptive parents.”

      The term “prospective adoptive parents” is defined in Tenn. Code Ann.
§36-1-102(41) as follows:

       [A] non-agency person or persons who are seeking to adopt a child and who
       have made application with a licensed child-placing agency or licensed
       clinical social worker or the department for approval, or who have been
       previously approved, to receive a child for adoption, or who have received or
       who expect to receive a surrender of a child, or who have filed a petition for
       termination or for adoption;

(Emphasis added). The Hodgins assert that they were “previously approved” by DCS to
adopt Sonya. In making this argument, the Hodgins rely upon a foster care review
summary from March 2010 showing a permanency goal of adoption by the Hodgin family
and the termination of Father‟s parental rights. This foster care review occurred almost
four years prior to the filing of the Hodgins‟ petition in June 2014. By that time, however,
DCS had changed its permanency goals for Sonya, removed Sonya from the Hodgins‟ care,
and placed her with Father. Thus, by the time they filed their petition for termination and
adoption, the Hodgins‟ classifcation as “previously approved” to adopt Sonya was
nullified by DCS‟s subsequent actions.

        Further, as the trial court emphasized, the Hodgins cannot be prospective adoptive
parents unless they have standing to file a petition for adoption. In the case of In re Shelby
L.B., 2011 WL 1225567, at *10, this Court construed the legislative scheme for
termination and adoption “as contemplating that a „prospective adoptive parent‟ is one who
not only harbors the intention or desire to adopt, but who also has the legal capacity or
ability to do so.” Tennessee Code Annotated section 36-1-115(b) imposes the following
requirements for persons filing an adoption petition:

       The petitioners must have physical custody or must demonstrate to the court
       that they have the right to receive custody of the child sought to be adopted as
       provided in § 36-1-111(d)(6) [statute regarding surrender/parental consent]
       at the time the petition is filed, unless they are filing an intervening petition
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       seeking to adopt the child.

        Thus, a person or persons filing for adoption must have physical custody of the child
or the right to receive physical custody pursuant to a valid surrender. Tenn. Code Ann. §
36-1-111(d)(6); see In re Adoption of M.J.S., 44 S.W.3d 41, 49 (Tenn. Ct. App. 2000)
(discussing adoption statutes). In this case, when they filed their petition, the Hodgins did
not have custody of Sonya, and they did not have the right to receive custody pursuant to a
surrender.

        While we recognize the harsh consequences of this decision, we must agree with the
trial court that the Hodgins lacked standing to bring an adoption or a parental termination
action. As a result, the trial court did not err in granting Father‟s motion to dismiss and
DCS‟s motion for judgment on the pleadings.

                                       CONCLUSION

       The judgment of the trial court is affirmed. Costs of appeal are assessed against the
appellants, and execution may issue if necessary.


                                                            _________________________
                                                            ANDY D. BENNETT, JUDGE




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