                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  December 13, 2001 Session


                                  In re: K.A.Y. and A.M.Y.

                      Appeal from the Chancery Court for Knox County
                          No. 145426-3   Sharon Bell, Chancellor

                                       FILED FEBRUARY 28, 2002

                                 No. E2001-00398-COA-R3-CV



Wayne and Mary Stuart (“Stuarts”), as foster parents, had physical custody of a set of twins
(“Children”) for approximately a year and a half when the Department of Children’s Services
(“DCS”) removed the Children from the Stuarts’ home and placed them with Paul and Susan Young
(“Youngs”). The Stuarts later filed a petition in Knox County Juvenile Court seeking custody of the
Children. While the custody matter was pending, the Youngs filed an adoption petition in the Trial
Court which was granted. The Stuarts filed a motion to intervene and to set aside the adoption
decree. The Trial Court granted this motion. The Youngs filed a Motion for Summary Judgment
and cited three grounds in support of their motion: (1) the requirement that adoptive parents have
custody of the child; (2) DCS’s consent to the adoption; and (3) the statutory foster parent preference
for adoption. Without deciding the Stuarts’ petition for custody, the Trial Court granted summary
judgment as a matter of law to the Youngs. The Stuarts appeal. We affirm.


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and CHARLES D. SUSANO, JR., J., joined.

Scarlett A. Beaty, Knoxville, Tennessee, for the Appellants, Wayne and Mary Stuart.

Dawn Coppock, Strawberry Plains, Tennessee, for the Appellees, Paul and Susan Young.

Paul G. Summers and Douglas Earl Dimond, Nashville, Tennessee, for the Appellee, State of
Tennessee.
                                            OPINION

                                           Background

               The Children were born in September 1995. The Children are twins and have
biological half-siblings who also are twins. Sometime prior to the proceedings in this matter, the
Stuarts adopted the Children’s half-siblings. From May 1996, through November 1998, the Stuarts
had physical custody of the Children through foster care. For reasons not clear from the record on
appeal, the Department of Children’s Services (“DCS”) removed the Children from the Stuarts’
home and, thereafter, placed the Children with the Youngs in December 1998. The parental rights
of the Children’s biological mother were terminated in August 1998.

                In May 1999, the Stuarts filed a petition in Knox County Juvenile Court seeking
custody (“Custody Petition”) of the Children. The record on appeal shows that DCS filed a motion
to dismiss the Stuarts’ Custody Petition which the Juvenile Court denied by Order entered in July
1999. The Juvenile Court’s Order also granted a motion for discovery filed by the Stuarts and
ordered visitation between the Children, who then were living with the Youngs, and their biological
half-siblings, who were living with their adoptive parents, the Stuarts.

                The Juvenile Court entered an order in October 1999 terminating the Children’s
biological father’s parental rights and granting custody and guardianship to DCS. The Stuarts’
Custody Petition had not been adjudicated by the Juvenile Court when this October 1999 Order was
entered.

               In December 1999, the Youngs filed a petition for adoption of the Children (“Petition
for Adoption”) in Knox County Chancery Court (“Trial Court”) alleging that the Children had
continuously resided with them for a twelve-month period since December 1998. In their Petition
for Adoption, the Youngs also stated they had no information regarding any custody proceeding
other than the Stuarts’ pending custody matter in Juvenile Court. The Youngs also alleged that
besides the DCS Putative Father Registry, they knew of no other persons entitled to notice of their
petition under Tenn. Code Ann. § 36-1-117.

                 On the same date that the Petition for Adoption was filed, the Trial Court entered a
Final Decree of Adoption (“Adoption Decree”) granting the Youngs’ petition, holding that the
Children’s adoption by the Youngs would serve the Children’s best interests. The Trial Court also
stated, in its Adoption Decree, that while it was aware of the Stuarts’ pending custody action in
Juvenile Court, the Youngs had physical custody of the Children for twelve months and, therefore,
were entitled to the statutory preference for adoption of the Children provided by Tenn. Code Ann.
§§ 36-1-115(g) and 37-2-415(a)(20). The Trial Court also stated in the decree that all persons
entitled to notice of the adoption proceedings had been given notice and that consent to the adoption
by the Children’s guardian, DCS, had been given.

              Thereafter, in April 2000, the Stuarts filed a Motion to Intervene and to Set Aside
Final Adoption Order (“Motion to Intervene”). As grounds for their Motion to Intervene, the Stuarts

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alleged that the Adoption Decree should be set aside under Tenn. R. Civ. P. 60.02 due to the
Youngs’ misconduct, fraud and misrepresentation. The Stuarts alleged the Youngs did not inform
the Trial Court about a number of matters, including the Stuarts’ pending custody action in Juvenile
Court and the Stuarts’ previous adoption of the Children’s biological half-siblings. Thereafter, the
Stuarts filed an amended Motion to Intervene stating that since filing their first motion, they had
learned that the Youngs had informed the Trial Court of the Stuarts’ pending custody action.1

               In July 2000, the Youngs filed a motion to dismiss the Stuarts’ Motion to Intervene.
In August 2000, the Stuarts filed a second amended Motion to Intervene in which the Stuarts
challenged the constitutionality of several adoption statutes, including Tenn. Code Ann. §§ 36-1-108,
36-1-115, 36-1-116 and 36-1-117.2 Due to the constitutional challenge raised by the Stuarts in their
second amended Motion to Intervene, the State Assistant Attorney General filed a Notice of
Appearance for the limited purpose of defending the constitutionality of the Tennessee statutes
placed in question.

                 In October 2000, the Trial Court filed an Opinion holding that the Stuarts should be
allowed to intervene in the adoption matter pursuant to Tenn. R. Civ. P. 19. The Trial Court also
set a pre-trial hearing to take place the following month at which the Trial Court would determine
both whether the Adoption Decree should be set aside and the Stuarts’ constitutional challenge to
the foster parent preference found at Tenn. Code Ann. § 36-1-115(g)(1). The Trial Court entered
an Order in November 2000, reflecting the findings contained in its Opinion.

                The Trial Court held the pre-trial hearing in November 2000, and, thereafter, entered
a Pre-Trial Order in which it suspended the Adoption Decree pending further order of the Trial
Court; reinstated DCS’ guardianship of the Children; and allowed the Youngs to maintain physical
custody of the Children. The Pre-Trial Order also provided that the parties stipulated that DCS
consented to the Youngs’ adoption of the Children but had not consented to the adoption of the
Children by the Stuarts. The Pre-Trial Order also provided that the Youngs would file a motion for
summary judgment based upon the following issues:

                 [a] The Stuarts can not [sic] prosecute an action to adopt without physical
                 custody of the children.

                 [b] The unavailability of the Tennessee Department of Children’s
                 Services’ consent [to the Stuarts], which is required pursuant to
                 T.C.A. § 36-1-117(a)(1).




        1
           The record on appeal shows that the Trial Court entered an agreed order allowing the Stuarts’ amendment
to their Motion to Interven e.
        2
            The record on appeal does not contain an order allowing the second amendment to the S tuarts’ M otion to
Interv ene. This issu e, however, w as no t raised at either the T rial Co urt level or on appeal.

                                                        -3-
               [c] Whether the statutory foster parent preference found at T.C.A. §
               36-1-115(g)(1) precludes any other person from being considered as
               adoptive parents.

                The Pre-Trial Order also stated that the parties agreed these matters could be resolved
without the offering of proof. Moreover, the Pre-Trial Order provided that the Stuarts’ constitutional
challenge to Tenn. Code Ann. § 36-1-115(g)(1), “shall be heard only if necessary after the resolution
of the other issues raised in the motion for summary judgment.”

                Thereafter, the Youngs filed a Motion for Summary Judgment covering the above-
outlined issues. The Stuarts filed a Response to Motion for Summary Judgment in which they
argued, among other things, that the issue before the Trial Court was not whether the Stuarts should
be granted an adoption of the Children. Instead, the Stuarts contended that while adoption of the
Children is their ultimate goal, the issue for the Trial Court’s determination was whether the Stuarts’
pending custody matter should be adjudicated before the Youngs’ Petition for Adoption was decided.
In February 2001, the Trial Court entered Judgment granting the Youngs’ motion on all three
grounds. The Trial Court, in its Judgment, reinstated the Adoption Decree.

                The Stuarts appeal. We affirm.

                                             Discussion

                 On appeal and although not exactly stated as such, the Stuarts raise the following
issues: (1) whether the Stuarts were entitled to notice of the Youngs’ Petition for Adoption and to
be joined as parties to the Youngs’ adoption action under Tenn. R. Civ. P. 19; (2) if the Stuarts were
entitled to be joined as parties in the Youngs’ adoption matter, whether the Trial Court should have
set aside the first Adoption Decree under Tenn. R. Civ. P. 60 and decided the Stuarts’ pending
Custody Petition before it adjudicated the Youngs’ Petition for Adoption; (3) whether the Trial Court
erred in granting summary judgment to the Youngs before determining whether the Stuarts’ Custody
Petition should have been joined with the Youngs’ Petition for Adoption and before the Custody
Petition was adjudicated; and (4) whether the statutory preference for foster parents in adoption
proceedings provided by Tenn. Code Ann. § 36-1-115(g)(1) is an unconstitutional violation of the
Equal Protection guarantees of the United States and Tennessee Constitutions. Central to the
Stuarts’ issues on appeal is whether or not the Trial Court was required to decide the Stuarts’
Custody Petition before it decided the Youngs’ Motion for Summary Judgment. Accordingly, while
the judgment from which the Stuarts appealed is one granting summary judgment, the Stuarts, in
effect, do not contest the correctness of the Trial Court’s grant of summary judgment as a matter of
law to the Youngs if the Trial Court was not required first to decide the Custody Petition.

                The Youngs contend the Stuarts’ Custody Petition was suspended when the Youngs
filed their Petition for Adoption. The Youngs also argue, on appeal, that the Stuarts were not
necessary parties to the adoption matter and were not entitled to notice of their Petition for Adoption.
The State, on appeal, contends that the Stuarts’ arguments regarding whether they were entitled to
notice of the adoption proceedings and to be joined as parties and whether the Adoption Decree

                                                  -4-
should have been set aside are moot. The State argues these issues are moot because the Stuarts
were, indeed, allowed to intervene as parties in the Youngs’ adoption proceeding and the Trial Court
did suspend the initial Adoption Decree and reinstated the Adoption Decree only after the Stuarts
were allowed to intervene and participate.

               In Tennessee, the adoption statutes are to be strictly construed since they are in
derogation of the common law. Johnson ex rel. Johnson v. Wilbourn, 781 S.W.2d 857, 859 (Tenn.
Ct. App. 1989). Tenn. Code Ann. § 36-1-101(a) sets forth the purpose of the adoption statutory
scheme, and provides, in pertinent part, as follows:

               (a) The primary purpose of this part is to provide means and
               procedures for the adoption of children and adults that recognize and
               effectuate to the greatest extent possible the rights and interests of
               persons affected by adoption, especially those of the adopted persons,
               . . . and to those ends seek to ensure, to the greatest extent possible,
               that: . . .

                      (2) Children are placed only with those persons who have
               been determined to be capable of providing proper care and a loving
               home for an adopted child;

                       (3) The rights of children to be raised in loving homes which
               are capable of providing proper care for adopted children and that the
               best interests of children in the adoptive process are protected;

                       (4) The adoptive process protects the rights of all persons who
               are affected by that process and who should be entitled to notice of
               the proceedings for the adoption of the child;

                       (5) The adoption proceedings are held in an expeditious
               manner to enable the child to achieve permanency, consistent with the
               child’s best interests, at the earliest possible date. . . .

Tenn. Code Ann. § 36-1-101(a) demonstrates that the best interests of the child whose adoption is
at issue is paramount. Accordingly, when a court is determining an adoption petition, its primary
concern is what will serve the best interest of the child. See In re Adoption of A.K.S.R., No. M2000-
03081-COA-R3-CV, 2001 Tenn. App. LEXIS 766, at * 4 (Tenn. Ct. App. Oct. 12, 2001), appl.
perm. app. denied 2/11/02.

               Initially, we will determine the Stuarts’ first two issues on appeal. The Stuarts argue
they were entitled to notice of the Youngs’ adoption action and were entitled to be joined as parties
to the adoption proceeding under Tenn. R. Civ. P. 19. Next, the Stuarts contend the Trial Court
should have set aside the first Adoption Decree and decided their Custody Petition before deciding
the Youngs’ Petition for Adoption.

                                                 -5-
                The record on appeal shows that the Trial Court did suspend the Adoption Decree and
granted the Stuarts’ Motion to Intervene as parties to the adoption proceeding. With respect to the
Stuarts’ argument that they were entitled to notice of the adoption action, we look to Tenn. Code
Ann. §§ 36-1-117(a)(1) and (d) which list the necessary parties to an adoption proceeding and the
parties who are entitled to notice of the matter. Former foster parents, such as the Stuarts, are not
listed by these statutes. See id.3 Nevertheless, the record on appeal shows that the Stuarts were
allowed to intervene as parties by the Trial Court. The State contends on appeal that because the
Trial Court allowed the Stuarts to intervene in the adoption matter and did set aside the initial
Adoption Decree, the Stuarts have already received their requested relief, and therefore, these issues
are moot. We agree, and accordingly, hold that the Stuarts’ first two issues on appeal are without
merit.

                Next, we address the Stuarts’ argument that the Trial Court erred in granting the
Youngs’ Motion for Summary Judgment before determining whether the Stuarts’ pending Custody
Petition should have been joined with the Petition for Adoption and before adjudicating the Custody
Petition. We first note that, as discussed, the Trial Court allowed the Stuarts to join the Youngs’
adoption matter pursuant to Tenn. R. Civ. P. 19. In addition, the record on appeal shows that the
Trial Court had before it only the Stuarts’ Motion to Intervene and did not have before it the Custody
Petition filed in Juvenile Court. The Stuarts’ Motion to Intervene and subsequent amendments
thereto are not clear as to whether the Stuarts were intervening for the purpose of obtaining custody
or for the purpose of contesting that the adoption of the Children by the Youngs was in the
Children’s best interests. At any rate, the crux of the Stuarts’ argument on appeal is that the Trial
Court erred in failing first to decide and grant their Custody Petition before adjudicating the Youngs’
Motion for Summary Judgment. The Stuarts, in effect, do not argue on appeal that, if the Trial Court


       3
           Tenn. Code Ann. § 36-1-117(a)(1), provides, in pertinent part, the following:

                 Unless the parent, the legal parent, or the guardian, or, . . . the putative biological father of
                 the child has surrendered parental or guardianship rights to the child, has executed a parental
                 consent which has been confirmed by the court, has waived such person’s rights pursuant
                 to § 36-1 -111 (w), or u nless such person’s rights have been terminated by the order of a co urt
                 . . . , the legal parent(s), guardian of the person of the child or of an adult, and the biological
                 parents of the child mu st be m ade parties to the adop tion proceeding or to a sep arate
                 proceeding seeking the termination of those rights, and their rights to the child must be
                 terminated by a court to authorize the court to order the adoption of the child or adult by
                 other pe rsons.

       Tenn. Cod e An n. § 36 -1-11 7(d) provides:

                 (1) Other biological or legal relatives of the child or the adult are not necessary
                 parties to the proceeding and shall not be entitled to notice of the adoption
                 proceedings unless they are legal guardians as defined in § 36-1-102 or legal
                 custodians of the person of the child or adult at the time the petition is filed.

                 (2) The legal custodian of the child may only receive notice of the proceeding and
                 may only presen t evidenc e as to the child’s best interests.

                                                           -6-
was correct in first deciding the Youngs’ Motion for Summary Judgment, the Trial Court erred in
granting that Youngs’ motion. Therefore, we need decide only whether the Trial Court erred in
failing to decide the Stuarts’ Custody Petition before it decided the Youngs’ Motion for Summary
Judgment.

                 The Youngs argue on appeal that the adoption statutes do not provide for such a “first
filed, first decided” rule concerning the Stuarts’ Custody Petition. We agree. 4 Under the relevant
adoption statute, the Youngs’ Petition for Adoption had priority over the Stuarts’ pending Custody
Petition. Under Tenn. Code Ann. § 36-1-116(f)(2), the filing of the Petition for Adoption suspended
the Stuarts’ pending custody matter. Tenn. Code Ann. § 36-1-116(f)(2) provides as follows:

                  Except for proceedings concerning allegations of delinquency,
                  unruliness, or truancy of the child under title 37, any proceedings
                  which may be pending seeking the custody or guardianship of the
                  child who is in the physical custody of the [adoption] petitioners on
                  the date the petition is filed, or where the petitioners meet the
                  requirements of § 36-1-111(d)(6), shall be suspended pending the
                  courts’ orders in the adoption proceeding, and jurisdiction of all
                  other pending matters concerning the child and proceedings
                  concerning establishment of the paternity of the child shall be
                  transferred to and assumed by the adoption court; provided, that until
                  the adoption court enters any orders affecting the child’s custody or
                  guardianship as permitted by this part, all prior parental or guardian
                  authority, prior court orders regarding custody or guardianship, or
                  statutory authority concerning the child’s status shall remain in effect.

(emphasis added). In addition, Tenn. Code Ann. § 36-1-116(f)(1) provides that the trial court in
which an adoption petition is filed has “exclusive jurisdiction of all matters pertaining to the child,
including the establishment of paternity . . . except for allegations of delinquency, unruliness or
truancy of the child . . . .” In re M.J.S., 44 S.W.3d 41, 52 (Tenn. Ct. App. 2000).

               Under Tenn. Code Ann. § 36-1-116(f)(2), the pending Custody Petition was
suspended upon the Youngs’ filing of their Petition for Adoption. Therefore, we hold that the Trial
Court was not required to decide the Stuarts’ Custody Petition before it decided the Youngs’ Motion
for Summary Judgment. In making this determination, in addition to Tenn. Code Ann. § 36-1-
116(f)(2), we are guided by the legislative intent of the adoption statutes, outlined by Tenn. Code
Ann. § 36-1-101(a), especially the interest of “achiev[ing] permanency, consistent with the child’s


         4
            The Young s also contend on appeal that even before they filed their adoption petition, the Stuarts’ pending
custody matter was superceded by the Juvenile Court’s grant of full guardianship of the Children to DCS in October
1999, citing Tenn. Code Ann. § 36-1-113(n). The language of the statute, however, provides that an order of full or
partial guardianship superced es “prior orders of custody or guardianship. . . .” The record on appeal shows that the
Stuarts’ Custody Petition had not been adjudicated when DCS obtained the order granting it guardianship of the
Children.

                                                          -7-
best interests, at the earliest possible date . . .” Tenn. Code Ann. § 36-1-101(a)(5). We are also
guided by this Court’s determination that the adoption statutes are to be strictly construed. Johnson
ex rel. Johnson v. Wilbourn, 781 S.W.2d at 859.

                Next, we review the Stuarts’ final argument on appeal in which they challenge the
constitutionality of the statutory foster parent preference provided by Tenn. Code Ann. § 36-1-
115(g)(1). The Stuarts do not challenge that the Youngs, as the Children’s foster parents, fit this
statutory preference but rather challenge the constitutionality of the statute. The Trial Court granted
the Youngs’ Motion for Summary Judgment, in part, because of this statutory preference.5 Tenn.
Code Ann. § 36-1-115(g)(1) states as follows:

                  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.

                The Stuarts contend on appeal that this statutory preference violates the Equal
Protection guarantees of the United States and Tennessee Constitutions. U.S. Const. art. XIV, § 1;
Tenn. Const. art. XI, § 8. Under Tennessee law, however, “courts do not decide constitutional
questions unless resolution is absolutely necessary for determination of the case and the rights of the
parties.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). Courts should avoid deciding
constitutional matters if the case can be resolved on non-constitutional grounds. Id. As discussed,
we have affirmed the Trial Court and decided this appeal on other non-constitutional grounds,
finding no error in the Trial Court’s failure to decide and grant the Stuarts’ Custody Petition before
deciding the Youngs’ Motion for Summary Judgment in their favor so that the result would be the
same even if no such preference existed. Since this matter was resolved by this Court on other non-
constitutional grounds, the Stuarts’ constitutional issue is pretermitted.




                                                   Conclusion




         5
           In granting the Youngs’ Motion for Summ ary Judgment, the Trial Court held that this statutory preference
precluded any other person from being considered as ado ptive parents. This Court held, howev er, that the statutory
preference in fa vor of foster parents is not co nclusive. See In re Adoption of A.K.S.R., 2001 Tenn. App. LEXIS 766,
at * 7.

                                                        -8-
                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion and for
collection of the costs below. The costs on appeal are assessed against the Appellants, Wayne and
Mary Stuart, and their surety.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




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