                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                               Assigned on Briefs February 3, 2010

                                     IN RE DEVON W., ET AL.

                        Appeal from the Circuit Court for Blount County
                            No. E-22811     W. Dale Young, Judge




                      No. E2009-01326-COA-R3-JV - Filed April 16, 2010


Former foster mother and her new husband filed a motion to intervene and to set aside the
adoption of three children by the current foster parents. The trial court denied the motion.
We affirm.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit 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.

Lauretta Martin-Matera and Christopher P. Matera, Kingston, Tennessee, appellants, pro se.

N. David Roberts, Jr., Knoxville, Tennessee, for the appellees, Timothy John W. and Lisa
Kaye W.

                                                OPINION

                                          I. BACKGROUND

       Three minor children - Devon P.C., Heaven L.C. and Araya S.C. (“the Children”) –
were removed from their biological parents in Anderson County by the Tennessee
Department of Children’s Services (“DCS”) on February 14, 2006. Despite attempts at
reunification, DCS ultimately filed a petition to terminate the parental rights of the biological
parents. After the parental rights were terminated,1 full legal guardianship was awarded to
DCS.


       1
           Order of termination entered on July 8, 2008.
       While in foster care, the Children were placed with Patrick Martin and Lauretta
(Laurie) Martin (“Intervenor”) on June 7, 2006. After Mr. Martin’s death in December 2007,
the Children remained with Intervenor.

       DCS subsequently determined that Intervenor had engaged in inappropriate conduct
against the Children and implemented a corrective action plan in April 2008. The plan
required Intervenor to take remedial steps concerning her conduct and behavior towards the
Children. However, DCS ultimately concluded that the corrective action plan was not being
followed by Intervenor and removed the Children from her custody on July 15, 2008. DCS
closed Intervenor’s home to further participation in foster care.

       Following the removal of the Children from Intervenor’s home, they were placed with
Timothy J. W. and Lisa K. W. (“Foster Parents”). Intervenor subsequently married
Christopher Matera (collectively with Intervenor “Appellants”).

        On January 14, 2009, Foster Parents filed a petition to adopt the Children in Blount
County Circuit Court. Omni Visions, a licensed child placing agency, prepared a confidential
report for the trial court regarding the proposed adoptions. DCS consented to the adoptions,
and a final order of adoption was entered on February 2, 2009.

       On February 13, 2009, Appellants filed a motion to intervene and to set aside the
adoption.2 Appellants asserted that Blount County was not the proper venue for the adoption
proceeding and that Foster Parents had filed the petition in Blount County to prevent
Appellants from filing an intervening petition for adoption. Intervenor claimed that DCS was
aware that she was asserting her right to custody of the Children as a result of the petition for
custody she had filed in the Juvenile Court for Anderson County on January 12, 2009.

       After conducting a hearing on May 8, 2009, the trial court denied the motion in an
order entered on May 22, 2009. The trial court held:

       Upon consideration of the argument of counsel at the hearing, the Court finds
       that the movants do not [have] standing to challenge the final order of adoption
       that was entered. . . . The Court further finds that setting aside the adoption is
       not in the best interests of the children.

Appellants filed a timely appeal.



       2
        Appellants attached an “Intervening Petition for Adoption,” in which they sought to adopt the
Children.

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                                         II. ISSUES

       The issues raised by Appellants are restated as follows:

       A. Whether Appellants were denied due process in the trial court’s allowance
       for a permissive venue.

       B. Whether Appellants, who were seeking custody for the best interests of the
       Children through other legal proceedings, were denied substantive due process
       in the trial court upholding the final adoption decree.

       C. Whether Appellants were denied fundamental rights guaranteed to foster
       parents in Tenn. Code Ann. §37-2-415(a)(1,2,4,6,11-20) in the trial court
       upholding the final adoption decree.


                              III. STANDARD OF REVIEW

       The standard of review in this appeal is de novo upon the trial court’s record with a
presumption of correctness of the court’s findings of fact unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We
review a trial court’s conclusions of law under a de novo standard upon the record with no
presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993).


                                     IV. DISCUSSION

       As we stated in In re K.A.Y., 80 S.W.3d 19 (Tenn. Ct. App. 2002),

       In Tennessee, the adoption statutes are to be strictly construed since they are
       in derogation of the common law. 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:

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                                           ***

       (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 [that] 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 [are] paramount. Accordingly, when a court is
       determining an adoption petition, its primary concern is what will serve the
       best interest of the child.

80 S.W.3d at 23-24 (internal citations omitted).


                                        A. VENUE

       Tenn. Code Ann. §36-1-114 provides as follows:

       The termination or adoption petition may be filed in the county:

       (1) Where the petitioners reside;

       (2) Where the child resides;

       (3) Where the child resided when:

              (A) The child became subject to the care and control of a public
              or private child-caring or child-placing agency; or



                                             -4-
              (B) The child became subject to partial or complete
              guardianship or co-guardianship pursuant to a surrender
              proceeding as provided in this part; or

       (4) In which is located any licensed child-placing agency or institution
       operated under the laws of this state having custody or guardianship of the
       child or to which the child has been surrendered as provided in this part.

Tenn. Code Ann. §36-1-114 (Supp. 2009).

       Appellants contend that DCS orchestrated the adoption in Blount County to avoid the
intervening petition that had been filed earlier in another county. They assert that venue was
proper in either the county where the Children and Foster Parents reside – Monroe – or in the
county in which the Children resided when the biological parents’ rights were terminated –
Anderson.

       In this case, DCS maintained full legal guardianship of the Children prior to their
adoption. DCS has an office located in Maryville, Blount County, Tennessee, which makes
venue proper in Blount County under Tenn. Code Ann. §36-1-114(4). There is no evidence
of record to support the contention that the adoption petition was filed in Blount County for
an improper reason.


                                    B. DUE PROCESS

       Appellants argue that they were denied substantive due process because the trial court
disregarded their attempts to seek custody of the Children. They contend it was improper to
deny Intervenor the opportunity to testify and explain how she took care of the Children for
over two years and described the bond she shared with the Children.

        The adoption statutes contemplate intervention where a third party files a petition
seeking to adopt the same child that is subject to a pending adoption petition. In re Adoption
of M.J.S., 44 S.W.3d 41, 51 (Tenn. Ct. App. 2000). In order to be eligible to file an
intervening adoption petition, a petitioner need not have physical custody of the child or the
right to receive custody of the child at the time of the filing, because the adoption statutes
specifically except such an intervenor from the statutes’ custody requirement at that point in
the proceedings. Id.

       However, in order to ultimately prevail on a petition to adopt to child, the intervening
petitioner must meet the adoption statutes’ custody requirement at a subsequent point in the

                                              -5-
adoption proceedings. Id. Although Tenn. Code Ann. §36-1-115(b) excepts an intervening
petitioner from the custody requirement at the time of filing the petition to adopt, other
provisions of the adoption statutes do not contain such an exception and contemplate that the
intervening petitioner will subsequently obtain custody of the child. Id. As further noted in
In re S.E.J., No. W2008-01354-COA-R3-PT, 2009 WL 2058790, at *3, 4 (Tenn. Ct. App.
W.S., July 16, 2009) (perm. app. granted Nov. 16, 2009):

       For instance, the adoption statutes require adoption petitions to state, among
       other things, “[t]hat the petitioners have physical custody of the child or that
       they meet the requirements of §36-1-111(d)(6), and from what person or
       agency such custody was or is to be obtained.” Tenn. Code Ann. §36-1-
       116(b)(5) (2005). Similarly, the trial court’s final order of adoption must state
       “[t]he date when the petitioners acquired physical custody of the child and
       from what person or agency or by which court order.” Tenn. Code Ann. §36-
       1-120(a)(4)(2005). In addition, Tennessee Code Annotated section 36-1-
       116(f)(1) provides:

       Upon the filing of the petition, the court shall have exclusive jurisdiction of all
       matters pertaining to the child, . . . except for allegations of delinquency,
       unruliness or truancy of the child pursuant to title 37; provided, that, unless
       a party has filed an intervening petition to an existing adoption petition
       concerning a child who is in the physical custody of the original petitioners,
       the court shall have no jurisdiction to issue any orders granting custody or
       guardianship of the child to the petitioners or to the intervening petitioners or
       granting an adoption of the child to the petitioners or to the intervening
       petitioners unless the petition affirmatively states, and the court finds in its
       order, that the petitioners have physical custody of the child at the time of the
       filing of the petition, entry of the order of guardianship, or entry of the order
       of adoption, or unless the petitioners otherwise meet the requirements of §36-
       1-111(d)(6).

       When faced with interpreting this statute in In re Adoption of M.J.S., this Court
       stated:

       Although the foregoing statute is not a model of clarity, we interpret this
       statute to mean that, in cases where an intervening adoption petition has been
       filed, neither the original petitioners nor the intervening petitioners will be
       granted an adoption of the child unless the trial court finds that the petitioners
       have either physical custody of the child or the right to receive custody of the
       child pursuant to a validly executed surrender.

                                               -6-
       44 S.W.3d at 52.

2009 WL 2058790, at *3,4 (footnote omitted). Accordingly, the trial court would not be
authorized to grant Appellants an adoption of the Children unless the court found that the
Appellants had physical custody or the right to receive custody of the Children at some point
during the adoption proceedings. See Tenn. Code Ann. §§36-1-116(f)(1), 36-1-120(a)(4).

       At the time of the filing of the adoption petition on January 14, 2009, the Children had
not resided in Intervenor’s home for twelve or more consecutive months immediately
preceding the filing of the adoption petition. Accordingly, Appellants were not entitled to
the statutory first preference. See Tenn. Code Ann. §36-1-115(g)(1). Additionally, as
revealed in the proposed intervening petition for adoption, an approved adoptive home study
had not occurred in Appellants’ home. Intervenor states as follows in the petition:

       That due to the previous foster parent relationship and the fact that the Minor
       Children resided with the Intervenor, Laurie Martin-Matera for over two (2)
       years, that the six-month waiting period, order of reference, preliminary home
       study, order of guardianship or custody, supervision, and preliminary and final
       court reports be waived pursuant to Tennessee Code Annotated §36-1-119(a)
       and (b), and that the Department do a background check on the new resident
       in the home, Chris Martin-Matera, prior to entering an Order of Adoption.

Due to failing to provide the trial court with an approved adoptive home study and DCS’s
closing of Intervenor’s home, Appellants did not meet the requirements imposed upon
persons seeking to adopt children in the custody of DCS. Thus, Appellants did not meet the
requirements of either prong (g)(1) or (g)(2) of Tenn. Code Ann. §36-1-115.3 The trial court
did not err in refusing to allow Appellants to proceed with the intervening petition because


       3
           Tenn. Code Ann. §36-1-115(g) provides:

       (1) 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 adoption of 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.

       (2) In becoming adoptive parents, the foster parents shall meet all requirements otherwise
       imposed on persons seeking to adopt children in the custody of the department, and shall be
       subject to all other provisions of this part.

Tenn. Code Ann. §36-1-115(g)(2005).

                                                      -7-
they cannot meet the custody requirement at all times pertinent to the adoption proceeding.

        Additionally, Appellants have not established that even if the court were to vacate the
final adoption decree, they could otherwise prevail in adopting the Children. Appellants
would have to take the following steps, at a minimum, to adopt the Children if the final order
of adoption were vacated: (1) Become approved foster parents able to seek custody (since
you must first have physical custody in order to adopt a child), see Tenn. Code Ann. 36-1-
115(b); (2) File a petition for custody and be awarded physical custody of the Children; (3)
Present an approved adoptive home study to a trial court showing suitability for adoption,
after first obtaining physical custody (due to DCS’s closing of Intervenor’s home, this home
study would have to be submitted by a licensed child-placing agency); (4) Seek termination
of the guardianship rights of DCS for one of the statutory grounds set forth at Tenn. Code
Ann. §36-1-113(g)(1)-(9). If Appellants were unable to terminate the guardianship rights of
DCS, they would be unable to adopt the Children without the voluntary consent of DCS. The
agency will not give its voluntary consent to a home which it has closed for cause.
Accordingly, even if the trial court set aside the final order of adoption, Appellants could not
prevail in adopting the Children.

       We note further that Tenn. Code Ann. §36-1-117(a)(1) and (d) list the necessary
parties to an adoption proceeding and the parties who are entitled to notice of the matter.
Former foster parents, such as Intervenor, are not listed. See In re K.A.Y., 80 S.W.3d at 24.
Foster parents in Tennessee have no state or federal statutory rights comparable to natural
parents.

       The relevant adoption statute only required two parties be joined in the adoption
proceeding. One required party was the petitioners – Foster Parents – seeking the adoption
of the Children, and the other party required to be joined would be any person with “parental
or guardianship rights to the [C]hild[ren].” See Tenn. Code Ann. §36-1-117(a)(1). Former
foster parents are not included among the individuals entitled to notice. Even other
biological or legal “relatives” of the Children are not entitled to notice of the adoption
proceeding if they have no parental or guardianship rights to the Children. Tenn. Code Ann.
§36-1-117(d)(1). The only persons entitled to notice are legal guardians or any public or
private agency having custody or complete or partial guardianship of the Children. In this
case, DCS was the only “person” having custody or complete or partial legal guardianship
of the Children. DCS had proper notice, a representative appeared at the proceedings, and
the agency participated in the adoption proceedings by giving consent pursuant to its
guardianship rights of the Children.

       In this matter, Mr. Matera was clearly not entitled to notice, as he was never a foster
parent to any of the Children, never resided with them, and has no relationship or connection

                                              -8-
with them. He is not an approved adoptive parent for the Children. As for Intervenor, the
Children were removed from her care by DCS for legal cause. At the time of the hearing,
she had neither parental rights nor guardianship rights to the Children. Thus, she was not
entitled to any notice of the adoption proceedings.


                            C. RIGHTS OF FOSTER PARENTS

         The rights of foster parents, contained at Tenn. Code Ann. §37-2-415, provide that
“[t]o the extent not otherwise prohibited by state or federal statute, the department shall,
through promulgation of rules in accordance with the Uniform Administrative Procedures
Act . . .” implement certain rights for foster parents. Tenn. Code Ann. §37-2-415(a) (Supp.
2009). A foster parent is afforded the right to an administrative hearing if he or she believes
that his or her rights have been denied under the statutory rights. In this case, Intervenor filed
the administrative pleading to assert a grievance; however, due to multiple requests for
continuances made by her or her counsel, the administrative grievance became moot when
the adoption was granted to Foster Parents. The Administrative Law Judge dismissed the
administrative action in an order entered March 5, 2009. Thus, the statute does not provide
any remedy that will assist Appellants.


                                      V. CONCLUSION

       The judgment of the trial court is affirmed. Costs on appeal are taxed to Appellants,
Christopher Matera and Lauretta Martin-Matera. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of that court’s judgment.


                                                     _________________________________
                                                     JOHN W. McCLARTY, JUDGE




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