                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  November 6, 2000 Session

                 EDDIE JOE DORRIS, ET AL. v. JEFFERY CRISP

                   Appeal from the Chancery Court for Rutherford County
                            No. 99D-938   Don Ash, Chancellor



                      No. M2000-02170-COA-R3-CV - Filed June 1, 2001


Over four months after signing a surrender of her parental rights and consent for her minor child to
be adopted, Appellee filed a Petition to Set Aside Surrender on the basis of a procedural defect. The
Chancellor held that Appellee had abandoned the child, that the surrender executed by Appellee on
June 24, 1999 should be set aside because there was no home study performed prior to the surrender,
and dismissed the petitions for adoption. The Chancellor ordered the child returned to the custody
of Appellee, which order was stayed by this Court September 19, 2000. The adoptive parents appeal
raising the following issues for consideration: (1) Whether the mother has standing to attack the
surrender on the basis of a lack of a home study, (2) whether the surrender is valid, and (3) whether
the trial court was limited to the criteria set forth in Tennessee Code Annotated section 36-1-113(h)
in determining whether termination of parental rights was in the child’s best interests. We reverse
and find the surrender valid.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S. and
PATRICIA J. COTTRELL , J., joined.

Louise R. Fontecchio, Nashville, Tennessee, for the appellants, Eddie Joe Dorris and Linda Faye
Dorris.

Paul A. Rutherford and L. R. DeMarco, Nashville, Tennessee, for the appellee, Chasity Holmes
Crisp.

                                            OPINION

        Devin Crisp (hereinafter “child”), was born to Appellee on January 7, 1999. In the spring
following his birth, Appellee went through a separation from her husband, the child’s biological
father. Appellee and her husband had two children together. Appellee has custody of the older child.
        Appellee testified that she placed the younger child, Devin Crisp, in the care of others
because she was financially unable to support him. The child stayed with several people prior to his
placement with Appellants. Appellee, after keeping the child only a couple of months, sent the child
to stay with the child’s maternal grandmother, from the middle of March until May 1999.

      In May 1999, Appellee placed the child with Mrs. Tims. The child remained with Mrs. Tims
over Memorial Day weekend 1999. Then, the Appellee placed the child with the Pruitts, where he
remained for a week.

        Appellee’s father arranged a meeting between the parties in this lawsuit. Appellee met the
Appellants and interviewed them as potential adoptive parents for the child. Appellee chose
Appellants to adopt the child. A time was scheduled for Appellants to pick the child up. Appellee
did not provide the child at the first scheduled time. Prior to the child ultimately being placed with
Appellants, he stayed with the maternal grandmother for a few days, then stayed with Joy Dorris,
Appellant Linda Dorris’ sister-in-law, until June 17, 1999. Thereafter, the child stayed with
Appellants.

       On June 24, 1999, in the Chancery Court for Rutherford County, Appellee appeared and
executed a surrender of her parental rights and consent for the child to be adopted by Appellants.
Appellants filed a Petition to Adopt and an Order of Guardianship was entered. Thereafter, a home
study was completed by the Court Appointed Special Advocates’ (“CASA”) office. CASA is not a
licensed child-placing agency. At the time the surrender was executed, no home study had been
performed.

        The parties had contact prior to the initiation of this lawsuit in October 1999. In July 1999,
Appellee phoned Appellants requesting a visit with the child. Appellants agreed. At the meeting,
Appellee did not indicate an intention to visit the child again or any desire to have the child returned
to her.

        Appellee called Appellants on September 8, 1999 to ask about the child. Appellee did not
express any indication she wanted the child back. On October 11, 1999, Appellee called again to
inquire about the child.

       On October 27, 1999, Appellee filed a Petition to Set Aside the Surrender on the grounds that
no home study was performed prior to the execution of the surrender on June 24, 1999 as required
by Tennessee Code Annotated section 36-1-111(a)(1)-(2) and (d)(1). In December 1999, Miriam’s
Promise, a licensed child-placing agency, performed a home study. The first time Appellee paid any
support for the child was in December of 1999.

       The Chancellor heard the Petition to Set Aside Surrender on January 21, 2000 and took it
under advisement. The Chancellor granted Appellee visitation rights pending the ruling. Also on
January 21, 2000, Appellants filed an Amended Petition for Adoption on the basis of abandonment.



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       The Chancellor held that the surrender was ineffective. On March 17, 2000, an Order was
entered stating:

              1.     There is no dispute that no home study was conducted and no court
       report based upon a home study was submitted within the time constraints of
       Tennessee Code Annotated § 36-1-111(a)(2).

              2.    The surrender performed on June 24, 1999, in the chambers of Circuit
       Judge Royce Taylor should be set aside because of the failure of the Petitioner to
       conduct a home study prior to the surrender.

              3.      The Order of Guardianship shall remain in effect.

               4.     The Amended Petition for Adoption will remain a pending matter
       before this Court.

              5.      The Motion to Reestablish Visitation will require a further hearing.

               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the
       Petition to Set Aside the Surrender is granted, and the surrender of June 24, 1999, is
       hereby set aside and for nothing held.

       The case was tried on August 17 and 29, 2000. The Chancellor held that the child had been
abandoned, but that clear and convincing evidence had not established a basis for termination of
Appellee’s parental rights.

       The final order was entered on September 6, 2000 stating:

                1.     That the Petitioners have proven by clear and convincing evidence
       that the natural mother, Chasity Holmes Crisp, intentionally abandoned the minor
       child, Devon Joseph Crisp, pursuant to the definition of abandonment in In Re:
       Swanson 2.SW.3d (180) and In Re: Adoption of Bowling 631 .SW.2d (386).
                2.     That the Petitioners have failed to carry the burden of proof in
       showing that the termination of the natural mother’s parental rights would be in the
       child’s best interest pursuant to T.C.A. § 36-1-113(c)(2). There is no proof to
       contradict that the natural mother now lives in a home that would be a safe
       environment for the minor child. The natural mother has maintained regular
       visitation or other contact with the minor child. The natural mother attempted to
       keep in telephone contact at least for some limited purpose during the three (3) or
       four (4) months from the time of the surrender until October 1999, and then she
       attempted once again to try and establish visitation. There has been a meaningful
       relationship between the natural mother and the minor child. There is not sufficient
       proof in the record to show that harm would be permanent or long lasting to the child


                                                -3-
       by changing the caretaker to the natural mother. There is no proof that the natural
       mother has any mental condition that would be unsafe for the minor child. The
       natural mother has paid support before the termination petition was filed.
               3.     That the Petition for Adoption, Amended Petition for Adoption, and
       Second Amended Petition for Adoption should be dismissed.
               4.     That the natural mother shall have visitation privileges with the minor
       child for every weekend until September 12, 2000, from Friday at 5:00 p.m. until
       Sunday at 5:00 p.m. The minor child shall be returned to the natural mother on a
       permanent basis on September 12, 2000. . . .

       The determinative issue on appeal is whether the Chancellor erred in setting the surrender
aside because of the failure of a licensed child-placing agency to perform a home study. Appellee
maintains that the June 24, 1999 surrender was not made in accordance with Tennessee Code
Annotated section 36-1-111(a)(1)-(2), and that pursuant to Tennessee Code Annotated section 36-1-
111(d)(1), the surrender is invalid. A surrender is defined as:

               “Surrender” means a document executed under the provisions of § 36-1-111
       or under the laws of another state or territory or country, by the parent or guardian of
       a child, by which that parent or guardian relinquishes all parental or guardianship
       rights of that parent or guardian to a child, to another person or public child care
       agency or licensed child-placing agency for the purposes of making that child
       available for adoption;

Tenn. Code Ann. § 36-1-102(45)(2000).

       Tennessee Code Annotated section 36-1-111(a)(1)-(2) and (d)(1) provide:

               (a)(1) Prior to receiving a surrender by a parent of a child or prior to the
       execution of a parental consent by a parent in a petition for adoption, the prospective
       adoptive parents may request that a licensed child-placing agency, a licensed clinical
       social worker, or, if indigent under federal poverty guidelines, the department, to
       conduct a home study or preliminary home study for use in the surrender, or parental
       consent proceeding, or in the adoption.
               (2) A court report based upon the home study or preliminary home study must
       be available to the court or, when using a Tennessee surrender form, to the persons
       under subsection (h), (i), or (j), and, before the surrender to prospective adoptive
       parents is executed, the court report must be reviewed by the court or persons under
       those subsections in any surrender proceeding in which the surrender is not made to
       the department or a licensed child-placing agency. When a parental consent is
       executed, the court report based upon the home study or preliminary home study
       must be filed with the adoption petition, and must be reviewed by the court before
       the entry of an order of guardianship giving the prospective adoptive parents
       guardianship of the child.


                                                 -4-
               ....
               (d)(1) No surrender or any parental consent shall be valid which does not
        meet the requirements of subdivision (a)(2).

Tenn. Code Ann. § 36-1-111(a)(1)-(2), (d)(1) (2000) (emphasis added).

       When a surrender has been executed, it may be revoked within ten days. Tenn. Code Ann.
§ 36-1-112(a)(1)(A)(2000).

       A home study was not performed prior to the June 24, 1999 surrender. A home study is
defined as:

                “Home study” means the product of a preparation process in which
        individuals or families are assessed by themselves and the department or licensed
        child-placing agency, or a licensed clinical social worker as to their suitability for
        adoption and their desires with regard to the child they wish to adopt. The home
        study shall conform to the requirements set forth in the rules of the department and
        it becomes a written document which is used in the decision to approve or deny a
        particular home for adoptive placement. The home study may be the basis on which
        the court report recommends approval or denial to the court of the family as adoptive
        parents. A court report based upon any home study conducted by a licensed
        child–placing agency, licensed clinical social worker or the department which has
        been completed or updated within six (6) months prior to the date of the surrender
        or order of reference shall be accepted by the court for purposes of §§ 36-1-111 and
        36-1-116. The home study shall be confidential, and at the conclusion of the
        adoption proceeding shall be forwarded to the department to be kept under seal
        pursuant to § 36-1-126, and shall be subject to disclosure only upon order entered
        pursuant to § 36-1-138;

Tenn. Code Ann. § 36-1-104(24)(2000) (emphasis added).

        The “home study” definition does not mention the surrendering natural parent and has no
purpose except to assure the fitness of the adopting parents. The purpose of a home study is to
protect the child, not the biological mother.

        In Hatcher v. Patterson, 16 S.W.3d 792 (Tenn. Ct. App. 1999), this Court addressed a trial
court’s finding of voiding an adoption for substantive and procedural problems including the failure
of the biological mother to sign a surrender and the failure to complete a home study. Hatcher is
applicable to the present case. In Hatcher, a pregnant, unwed teenager sought a couple to adopt her
unborn child. Hatcher, 16 S.W.3d 792, 793 (Tenn. Ct. App. 1999). She chose a couple to adopt the
child. The adoptive parents took the child home with them after the child was released from the
hospital. A petition for adoption was executed under oath before the juvenile judge. Approximately
a year after the child’s birth, the biological mother filed a Petition to Set Aside the Adoption because,


                                                  -5-
among other procedural defects, no home study was completed. The trial court ordered the adoption
set aside and ordered the return of the child to the biological mother. Id.

       With regard to the surrender in Hatcher, this Court stated:

               We are satisfied, however, that Ms. Patterson effectively surrendered the
       child. The Juvenile Court of Dickson County does have jurisdiction to accept her
       surrender, Tenn. Code Ann. § 36-1-111(b), and Ms. Patterson did everything
       necessary to surrender the child except sign the surrender document. She selected the
       Hatchers as the persons she wished to adopt her child. She appeared in court before
       the juvenile judge and signed the adoption petition under oath.
               ....
               At oral argument counsel for Ms. Patterson conceded that Ms. Patterson
       intended to permit the Hatchers to adopt the child and that she has no basis to
       challenge the adoption other than the defects and oversights in the preparation and
       execution of the forms. Counsel also conceded that Ms. Patterson made the decision
       to surrender the child with full understanding of her options and the consequences
       of her decision. There is no evidence in the record that she felt any remorse about her
       decision or that she attempted to revoke her surrender within the time provided by
       Tenn. Code Ann. § 36-1-112 (1996).
               ....
               Undoubtedly other unfulfilled requirements lurk in the labyrinthine provisions
       of the adoption laws, but as a consequence of her surrender Ms. Patterson no longer
       has the standing to raise them.

Hatcher v. Patterson, 16 S.W.3d 792, 796-97 (Tenn. Ct. App. 1999).

       In the present case, a copy of the surrender is not contained in the record on appeal. As in
Hatcher, Appellee does not deny that she willingly and with full understanding of what she was
doing, went before the judge and surrendered the child. At the hearing, Appellee testified as follows:

               Q.      Do you remember being asked by the judge if you were sure this is
                       what you wanted to do?
               A.      Yes.
               Q.      And were you under oath?
               A.      Yes.
               Q.      Did you understand the importance of what you were doing?
               A.      Yes.
               Q.      And did you tell the judge that, yes, you wanted to give up all parental
                       rights and responsibilities for this child?
               A.      Yes.
               Q.      Did you understand that if you did this, the child was not going to be
                       yours anymore?


                                                 -6-
                   A.        Yes.
                             ....
                   Q.        And the judge explained to you at that time that if you changed your
                             mind you needed to do it within ten days, didn’t he?
                   A.        Yes, he did.
                   Q.        And did you understand that?
                   A.        Yes.
                   Q.        But you didn’t do anything within ten days, did you?
                   A.        No. I couldn’t. I wasn’t financially able at the time.
                   Q.        Well, did the judge tell you that you needed a lawyer or did he just
                             tell you you needed to come up here to court and see anybody in - -
                   A.        I was not financially able to take care of Devin.
                   Q.        Okay. So you weren’t able to care for him then?
                   A.        Financially, no.
                   Q.        All right. You have another child?
                   A.        Yes, I do.
                   Q.        And you’re providing a home for him?
                   A.        Yes.

        Applying a literal construction of Tennessee Code Annotated section 36-1-111(a)(1) and (2),
the trial judge felt he was compelled to invalidate the surrender. He then went on to hold that
Appellee had willfully abandoned the child. Further, feeling himself bound by the factors of
Tennessee Code Annotated section 36-1-113(c), he held that Appellants had failed to prove by clear
and convincing evidence that termination of parental rights was in the best interests of the child. On
this basis, he dismissed the petition to terminate parental rights and the adoption petition, and
ordered the child returned to Appellee.1 In acting as he felt the law compelled him to do, the learned
Chancellor made certain observations which are well to repeat in order to focus on the human side
of his dilemma.

                         THE COURT: Mr. and Mrs. Dorris, let me tell you what my choices
         are. I either do what I want to in my heart or what I want to in my head. Those are
         my choices.
                         Obviously, you two are fine people. Obviously, you came into the
         situation where you were going to help somebody and that’s something I think is a
         very good thing. But I also took the oath when I took this to follow what the law is
         in Tennessee.
                         And I can disregard what the law is in Tennessee and let the child stay
         with you all and they’ll appeal and, in my opinion, you’ll lose the appeal. So I just
         drag and tag you on for another year or two. And I’m not going to do that. I’m not.



         1
                   The portion of the order of the trial court com pelling the retur n of the child to the appellee was stayed
by this Court in an order entered September 19, 2000.

                                                             -7-
                I’ve got to follow what the law is. And I’m sorry about that. I wish
I didn’t. But it’s not fair to you if I don’t follow the law.
                So, first of all, as Ms. Fontecchio said, it is a two-prong test. First,
I’ve got to find by clear and convincing evidence whether or not one of the asserted
grounds for termination is this, that’s the Code Section 36-1-113.
                I’m going to find that this lady intentionally abandoned this child.
That’s In re: Swanson 2 S.W.2d - - 3d 180 and In re: Adoption of Bowling at 631
S.W.2d 386. And the language there says in Swanson: Abandonment comports any
conduct on the part of the parent which evidences a settled purpose to forego all
parental duties and relinquish all parental claims to the child.
                Obviously, ma’am, you did that. You may get up here and say today
you didn’t do it, but when you went up there in front of Judge Taylor and surrendered
that child, you did that.
                Also, there was an actual desertion accompanied with an intent to
entirely sever so far as is possible to do so the parental relationship and throw off all
obligations growing out of that. You did that.
                 I’m sorry that whoever’s responsible for doing that home study or
getting that done when these people went up there to surrender that child didn’t do
their job. They didn’t. And because of that you’re suffering. I can’t go back in time
and fix that. I wish they would’ve done what they should have done, but they didn’t.
                 Mrs. Fonetecchio and - - I agree, whether that part needs to be
followed or not, I think it does. But, I also think that this lady’s intent on that day
was to abandon the child and she continued with that intent. She did that for three
or four months, while you all were basically raising her child, taking on that
responsibility.
                 Like you said, going to church, feeding the child every day, changing
the diapers, all those things. So that’s the first prong of the test. And I’m going to
find by clear and convincing evidence that on that day she did abandon.
                 The second part of the test, Mr. and Mrs. Dorris, though, is where you
will not be successful.
                 ....
                 Based upon all that, I’m going to dismiss the petition for termination,
dismiss the petition for adoption. Tell Mr. and Mrs. Dorris I’m sorry, that the child
needs to be returned to the natural mother.
                 And, ma’am, you’ve not done well on this. These people came to that
child’s rescue when nobody else was there, when you weren’t there.
                 And, Mr. and Mrs. Dorris, I’m sorry I’ve got to do this. I don’t want
to do this. But I’ve got to follow what the law is in Tennessee. Like I said, I’m
deeply, deeply sorry.
                 I believe fine people like you that come to the rescue - - especially of
children - - there’s a place in heaven for them. I believe that. And, like I said, I’m
very sorry I’ve got to do this.



                                          -8-
        As the Chancellor so correctly observed, this record discloses a child having no stability
through the first six months of his life and then finding a stable and loving environment with Eddie
Joe and Linda Faye Dorris as prospective adoptive parents. The home study report of Miriam’s
Promise reported on March 1, 2000, confirms the observations of the trial judge relating to the
fitness of Mr. and Mrs. Dorris.

        This Court has observed: “No parent has the right to abandon all responsibility, yet insist that
the child be fed, housed, clothed, and nurtured by others but remain available to be claimed as an
offspring to be visited at the whim of a derelict parent who would thereby deny the child the security
and stable environment of an adoption.” Derryberry v. Martin, 686 S.W.2d 94, 97 (Tenn. Ct. App.
1984).

        It may be an overstatement in this record to refer to Appellee as a derelict parent, but the fact
remains that she was content for Appellants to assume the responsibility for all care of this child,
develop a loving parental attachment to the child, and then seek to use provisions of the adoption
statutes, never intended for her benefit, but rather for the benefit of the child, to belatedly reassert
her parental claim.

        As in Hatcher, we are satisfied that Ms. Crisp effectively surrendered the child and made no
attempt to revoke her surrender within the time limit provided by Tennessee Code Annotated section
36-1-112 (2000). The surrendering parent cannot expand the statutory time limit for withdrawing
the surrender by use of a procedural defect that was not designed to protect that parent.

       To paraphrase Hatcher, undoubtedly other unfulfilled requirements lurk in the labyrinthine
provisions of the adoption laws, but as a consequence of her surrender, Ms. Crisp no longer has the
standing to raise them.

       Since we reverse the findings of the Chancellor relative to the surrender of the child, finding
the surrender to be valid under the criteria of Hatcher, it is unnecessary to address the issue of
abandonment and termination of parental rights. We reverse the action of the trial court in
dismissing the adoption petition and remand the case for further proceedings thereon.

        Costs of the cause are assessed to the Appellee.




                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE




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