               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               November 22, 2016 Session

                                        IN RE C.H.

         Interlocutory Appeal from the Juvenile Court for Jefferson County
                   No. 15-00926 Dennis (Will) Roach, II, Judge


             No. E2016-00702-COA-R9-PT-FILED-JANUARY 31, 2017
                      _________________________________


This is a Tenn. R. App. P. 9 interlocutory appeal. Biological grandparents of a child at
issue in a termination of parental rights action sought to intervene in the termination
proceeding. The child had lived in the grandparents‟ home with them and the child‟s
parents. The Department of Children‟s Services removed the child from that home and
later sought to terminate the parental rights of the child‟s parents. The grandparents filed
a motion to intervene. The trial court denied their motion, but granted their request for an
interlocutory appeal. Thereafter, we also granted their request for interlocutory review.
We affirm the decision of the trial court and now remand this case to the trial court for
further proceedings.

      Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Juvenile Court
                             Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

John T. Sholly, Knoxville, Tennessee, for the appellants, J.H. and S.J.

Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, and Kathryn A. Baker, Assistant Attorney General, Nashville, Tennessee, for
the appellee, Tennessee Department of Children‟s Services.

Linda G. Larson, Dandridge, Tennessee, for the appellee, K.J.




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                                              OPINION

                                                    I.

       J.H. (grandmother) and S.J. (grandfather) are the maternal grandparents of the
child at issue, C.H. The child was born in May 2010 to K.J. (mother) and R.H. (father).
Since 2010, the child had lived with his grandparents. The same house was also shared
by the child‟s parents, aunt, and older cousin. DCS removed the child from the home in
November 2014 due, in part, to the parents‟ drug use.

       DCS filed a dependency and neglect action against the child‟s parents in the trial
court. The grandparents sought to intervene, but their application was denied. On
October 16, 2015, DCS filed a petition to terminate the parental rights of the child‟s
parents. The grandparents again moved to intervene. Along with their motion, they
attached three affidavits1 asserting that the grandparents, rather than the parents, looked
after the child, providing him with food, shelter, clothing, and transportation, among
other things. The trial court dismissed the motion to intervene, stating:

                this matter, including a hearing on the merits, has previously
                been heard on September 2, 2015, in the Dependence and
                Neglect case filed in this court on November 26, 2014, and
                nothing has changed regarding the [grandparents‟]
                circumstances since then.

The grandparents then asked the trial court to permit them to pursue a Tenn. R. App. P. 9
interlocutory appeal. The trial court granted their request. It listed the following reasons
for its action:

                Having given consideration to the severity of potential injury
                to the [grandparents], the probability of its occurrence and the
                probability that review upon entry of final judgment will be
                ineffective, this Court believes this Order is appealable due to
                the need to prevent irreparable injury.




        1
           The grandparents‟ motion to intervene states that “five (5) notarized affidavits from friends,
family, neighbors, and teachers” are attached to the document. Only three affidavits – from, respectively,
the child‟s grandmother, the child‟s aunt, and family friend, Michelle Durand – are attached to the motion
in the record.


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             The [grandparents] are seeking permission to Intervene in a
             Termination of Parental Rights action with a view to
             obtaining visitation with and/or custody of their grandson, the
             minor child in the case. If they are not allowed to intervene at
             this time, they will be unable to appeal the final judgment as
             they would not be parties to the case. If their daughter‟s
             rights are terminated, [the grandparents] will forever be
             deprived of a legal relationship with the child, which is an
             irreparable injury. Even if they do not prevail in their petition
             for custody, if [the grandparents] are allowed to intervene
             they would at least have the opportunity to seek visitation
             with their grandson during the pendency of this matter until
             he is adopted.

             For purposes of judicial efficiency and economy, and to
             prevent the need for additional filings by [the grandparents,]
             which might delay permanent placement of the child, which
             would not be in his best interest, this Court believes the
             appeal should be permitted.

(Paragraph numbering in original omitted.)

                                             II.

      In the order granting this appeal, we certified the following question:

             Whether the Trial Court erred in denying the motion to
             intervene as parties filed by the applicant/grandparents in the
             termination of parental rights proceeding below.

                                             III.

       With respect to intervention as a matter of right, we review the trial court‟s
decision de novo with no presumption of correctness. Gonzalez v. State Dept. of
Children’s Servs., 136 S.W.3d 613, 616 (Tenn. 2004) (citing State v. Brown &
Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn. 2000)). “When there is no basis
for intervention as of right, the decision to allow intervention is a matter within the
discretion of the trial court. This decision should not be reversed by an appellate court
absent a showing of abuse of discretion.” Shelby Cty. Deputy Sheriff’s Ass’n v. Gilless,
972 S.W.2d 683, 685 (Tenn. Ct. App. 1997) (citing Tenn. R. Civ. P. 24.02; Ballard v.

                                              3
Herzke, 924 S.W.2d 652, 658 (Tenn. 1996)). We review the trial court‟s factual findings,
if any, de novo with a presumption of correctness, unless the evidence preponderates
against those findings. Tenn. R. App. P. 13(d).

                                                  IV.

                                                   A.

       The grandparents sought to intervene as a matter of right and, alternatively, via
permission pursuant to Tenn. R. Civ. P. 24. In Tennessee, chancery, circuit, and juvenile
courts have concurrent jurisdiction to terminate parental rights. Gonzalez, 136 S.W.3d at
617 (citing Tenn. Code Ann. § 36-1-113(a)). As a result,

                [b]ecause the Rules of Civil Procedure concerning
                intervention would apply in both chancery and circuit court
                proceedings to terminate parental rights, and because their
                application would not compromise the efficacy of juvenile
                proceedings, we find that standing to intervene in a
                termination proceeding in juvenile court should be analyzed
                under Rule 24 of the Rules of Civil Procedure. See Tenn. R.
                Civ. P. 1 (2003). Accordingly, we expressly overrule any
                holding to the contrary.

Id. (internal citations omitted).2 Tenn. R. Civ. P. 24 provides that the authority to
intervene may be conferred expressly by statute. Gilless, 972 S.W.2d at 685. Without
such express authority, “determining whether a party is entitled to judicial relief „requires
the court to decide whether the party has a sufficiently personal stake in the outcome of
the controversy to warrant the exercise of the court‟s power on its behalf.‟ ” Id. (quoting
Metro. Air Research Testing Auth. (MARTA) v. The Metro. Gov’t of Nashville, 842
S.W.2d 611, 615 (Tenn. App. 1992)).

                                                   B.

        Tenn. R. Civ. P. 24.01 provides when intervention by right is permitted:


        2
          DCS and the grandparents acknowledge on appeal that as of July 1, 2016, Tenn. R. Juv. P. 304
provides for intervention by right or by permission in juvenile court. The parties agree, as does this
Court, that the current action should proceed under Tenn. R. Civ. P. 24 because this matter began prior to
July 1, 2016.


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              Upon timely application anyone shall be permitted to
              intervene in an action: (1) when a statute confers an
              unconditional right to intervene; or (2) when the applicant
              claims an interest relating to the property or transaction which
              is the subject of the action and the applicant is so situated that
              the disposition of the action may as a practical matter impair
              or impede the applicant‟s ability to protect that interest,
              unless the applicant‟s interest is adequately represented by
              existing parties; or (3) by stipulation of all the parties.

       The grandparents rely on subpart (2) of the above rule. They assert that “[t]heir
interest in the future and well-being of their grandson is obvious[.]” DCS argues that
interest is “too attenuated” to allow intervention by right. Under our case law, “the
precise nature of the interest required to intervene as of right has eluded exact definition.”
In re Brian M., No. E2014-00941-COA-R3-PT, 2015 WL 78179, at *4 (Tenn. Ct. App.,
filed Jan. 6, 2015). Still, the required interest “does not include a mere contingent,
remote, or conjectural possibility of being affected as a result of the suit, but must involve
a direct claim on the subject matter of the suit such that the intervenor will either gain or
lose by direct operation of the judgment.” Id. (quoting State v. Brown & Williamson
Tobacco Corp., 18 S.W.3d 186, 192 (Tenn. 2000)). For the reasons set forth below, we
hold that the grandparents have not established an interest sufficient to permit
intervention by right in this termination proceeding.

       A grandparent‟s biological relationship with a child, in and of itself, is not enough
to establish a right to intervene in a termination case brought against a child‟s parents.
Gonzalez, 136 S.W.3d at 620. In Gonzalez, the Supreme Court analyzed the “varying
conclusions” reached by other state courts “regarding the right of grandparents to
intervene in dependency and neglect and termination of parental rights proceedings.” Id.
at 618-20. The Court determined that “[a]lthough it is conceivable that a grandparent
may adduce evidence sufficient to support intervention as of right in a parental
termination hearing, we agree with the majority of jurisdictions which hold that the
grandparental relationship does not alone support intervention.” Id. at 620 (emphasis
added). In support, the Gonzalez court noted that grandparents are not included in the list
of the parties who are mandatory participants in a termination proceeding under Tenn.
Code Ann. § 36-1-117(a) (2014). Further, subsection (d) of the same statute provides
“[o]ther biological or legal relatives of the child . . . are not necessary parties to the
proceeding unless they are legal guardians as defined in § 36-1-102 or legal custodians of
the person of the child . . . at the time the petition is filed.” Id. Here, the grandparents
were neither the guardian nor custodian of the child at the time the petition was filed.



                                              5
        The grandparents point out that, in contrast to the grandparents in Gonzalez, they
have a relationship with the child beyond that of a biological one. Gonzalez, 136 S.W.3d
at 615, 620. The child, with his parents, had lived in the grandparents‟ home until his
removal by DCS. Grandmother asserts by affidavit that she and grandfather had
“assumed almost all parental responsibility for [the child],” while his parents “were not
interested or capable of caring for their son.” The grandparents argue that their role in
caring for the child establishes their right to intervene in the current suit. In support, they
point out that this Court previously held that a legally-protected interest sufficient to
allow intervention by a non-parent in a termination action may arise through “the actual
exercise of significant parental duties, control, or responsibilities for the child‟s benefit.”
Skerrett v. The Ass’n for Guidance, No. M2002-00218-COA-R3-JV, 2003 WL
21634412, at *2 (Tenn. Ct. App., filed July 11, 2003) overruled by Gonzalez 136 S.W.3d
at 617, n.8. However, the grandparents‟ reliance on Skerrett is misplaced. The Skerrett
court, at the outset of its analysis, held that Tenn. R. Civ. P. 24 is not applicable to
juvenile court proceedings. 2003 WL 21634412, at *2. Our Supreme Court expressly
overruled that holding, stating that “standing to intervene in a termination proceeding in
juvenile court should be analyzed under Rule 24 of the Rules of Civil Procedure.”
Gonzalez 136 S.W.3d at 617, n.8. Instead of applying Tenn. R. Civ. P. 24, the Skerrett
court “look[ed] elsewhere for the rules and principles that should be used to determine
whether a party should be permitted to intervene in a proceeding to terminate parental
rights.” Id. As previously noted, pursuant to Gonzaelz, we must determine whether
intervention is proper under Tenn. R. Civ. P. 24. Because Skerrett did not proceed under
Tenn. R. Civ. P. 24, we decline to follow it here.

       The grandparents rely upon language from the “visitation rights of grandparents”
statutory scheme codified at Tenn. Code Ann. § 36-6-306(b)(2) (2015),3 to establish that
the bond they have with their grandchild is “significant.” If the grandparents cite this
statute to establish an interest sufficient to allow intervention in this termination

       3
           This portion of Tenn. Code Ann. § 36-6-306(b) provides:

                 (2) For purposes of this section, a grandparent shall be deemed to have a
                 significant existing relationship with a grandchild if:
                          (A) The child resided with the grandparent for at least
                          six (6) consecutive months;
                          (B) The grandparent was a full-time caretaker of the
                          child for a period of not less than six (6) consecutive
                          months; or
                          (C) The grandparent had frequent visitation with the
                          child who is the subject of the suit for a period of not
                          less than one (1) year.



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proceeding as a matter of right, their reliance is misplaced. The plain language of Tenn.
Code Ann. § 36-6-306(b)(2) indicates that the description only applies “[f]or purposes of
this section[.]” (Emphasis added.) Simply stated, the statute has absolutely nothing to do
with a grandparent‟s attempt to intervene in a termination case. This is shown by the
express language of the statute.

        Notably, despite having lived with the child, the grandparents lacked standing to
file a termination petition under Tenn. Code Ann. § 36-1-113(b)(1) (2015). Under that
statute, “prospective adoptive . . . parents, including extended family members caring for
a related child . . . shall have standing to file” a termination petition against the child‟s
parents. “[P]rospective adoptive parents” are defined as

              non-agency . . . 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[.]

Tenn. Code Ann. § 36-1-102(41) (2015). The grandparents have not established that they
“have made application with” a licensed child-placing agency, a licensed clinical social
worker, or DCS for approval to adopt the child, nor that they have previously received
such approval. Significantly, a “prospective adoptive parent” is one who has “the legal
capacity and ability” to file a petition for adoption. In re Sonya M., No. M2015-00064-
COA-R3-PT, 2015 WL 4381567, at *3 (Tenn. Ct. App., filed July 16, 2015) (quoting In
re Shelby L.B., No. M2010-00879-COA-R9-PT, 2011 WL 1225567, at *10 (Tenn. Ct.
App., filed March 31, 2011)). “[P]ersons filing for adoption must have physical custody
of the child or the right to receive physical custody pursuant to a valid surrender.” In re
Sonya M., 2015 WL 4381567, at *3 (citing 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)). Tenn. Code Ann. § 36-1-
115(b) (2014) reserves an exception to the physical custody requirement at the time of
filing if a party is “filing an intervening petition seeking to adopt the child.” The child
before us has been in DCS custody since November 2014. The grandparents have not
filed a petition for termination or for adoption, nor have they filed a petition to intervene
in an adoption proceeding. Without meeting the definition of “prospective adoptive
parents,” they would not have standing to file for termination.

      The grandparents assert that their “interest” will disappear “if the current action
ends with the rights of the parents being terminated and the child being adopted[.]”

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(Emphasis added.) However, “[t]he sole purpose of the termination proceeding under
Tenn. Code Ann. § 36-1-113 is to sever irrevocably the legal relationship between
biological parents and their children.” In re M.J.B., 140 S.W.3d 643, 651 (Tenn. Ct.
App. 2004). Should the court terminate a parent‟s rights to the care and custody of a
child,

              the court may award guardianship or partial guardianship of
              the child to a licensed child-placing agency or the department.
              Such guardianship shall include the right to place the child for
              adoption and the right to consent to the child‟s adoption.
              Upon termination of parental or guardian rights, the court
              may award guardianship or partial guardianship to any
              prospective adoptive parent or parents with the right to adopt
              the child, or to any permanent guardian who has been
              appointed pursuant to title 37, chapter 1, part 8.

Tenn. Code Ann. § 36-1-113(m). “[W]hen partial guardianship has been granted to DCS
or any party, the guardianship carries certain rights that must be dealt with before another
party can adopt the child.” In re Don Juan J.H., No. E2010-01799-COA-R3-JV, 2011
WL 8201843, at *3 (Tenn. Ct. App., filed Sept. 7, 2011). If DCS is awarded
guardianship at the conclusion of a termination action, “Tenn. Code Ann. § 36-1-102 and
113 grant DCS the right to place the child for adoption, and to consent to the adoption.”
Id. at *3 (citing In re E.M., II, No. W2006-00663-COA-R3-CV, 2006 WL 3007511
(Tenn. Ct. App., filed Oct. 24, 2006)). The child in this case will not be adopted as of the
conclusion of the current termination action.

        Considering other jurisdictions, the Gonzalez court found “[i]n the majority of
cases . . . grandparents are not allowed to intervene in termination cases either because
their interests are adequately represented by the parent‟s attorney or guardian ad litem, or
because they are deemed to have no interest in the outcome of the proceedings.”
Gonzalez, 136 S.W.3d at 619. In In re Brian M., this Court considered grandparents‟
request to intervene in a termination of parental rights case brought by DCS against the
child‟s parents. 2015 WL 78179, at *1. There, the father was a convicted felon, serving
a long prison sentence. Id. The children‟s paternal grandparents filed a motion to
intervene, but were denied. Id. at *1-2. On appeal, we affirmed, finding, in part,

              [t]he pending custody petition . . . did not warrant
              intervention when Father was capable of adequately
              representing their interest in the termination proceeding. The
              parties and the court were apprised of the situation regarding

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              Grandparents‟ desire to adopt the Children. Indeed, Father
              testified to that fact during the proceeding.

Id. at *4. Here, DCS argues that if the grandparents established an interest in the current
action, that interest would be “adequately represented” by the parents. Under Tenn. R.
Civ. P. 24.01(2) intervention is inappropriate where “the applicant‟s interest is adequately
represented by existing parties.” The grandparents maintain that if they are “allowed to
intervene, their testimony will be against the interests of the parents[.]” However, mother
expressed support for the grandparents‟ position in a brief she filed in the current appeal.
She stated that she “does not refute that [the grandparents] and [the child] were extremely
bonded” and expressed her desire for the child to be returned to their home. We find that
mother would adequately represent any interest the grandparents have in the termination
action. As a result, intervention as a matter of right is not appropriate under Tenn. R.
Civ. P. 24.01.

                                             C.

       We also must consider the grandparents‟ request for permissive intervention:

              Upon timely application anyone may be permitted to
              intervene in an action: . . . (2) when an applicant‟s claim or
              defense and the main action have a question of law or fact in
              common. In exercising discretion the court shall consider
              whether or not the intervention will unduly delay or prejudice
              the adjudication of the rights of the original parties.

Tenn. R. Civ. P. 24.02(2). “Where . . . a common question of law or fact is established,
the decision to allow intervention is a matter entrusted to the trial court‟s discretion, and
the decision should not be reversed by an appellate court absent a showing of abuse of
discretion.” Ballard, 924 S.W.2d at 658. “An abuse of discretion exists when the
reviewing court is firmly convinced that the lower court has made a mistake in that it
affirmatively appears that the lower court‟s decision has no basis in law or in fact and is
therefore arbitrary, illogical, or unconscionable.” Brown, 18 S.W.3d at 191 (citing
Ballard, 924 S.W.2d at 661). Here, the grandparents do not address how the trial court
abused its discretion. Instead, they simply state that they raised a common question –
“that of [C.H.]‟s future” and a desire to “vigorously pursue [the child]‟s best interest.” In
In re Brian M., this Court affirmed a trial court‟s denial of a motion to intervene despite
concluding that “[t]he proceedings admittedly had a question of law or fact in common,
namely the best interest of the [c]hildren.” 2015 WL 78179, at *4. There, we affirmed



                                             9
after finding the trial court did not abuse its discretion or act against logic in concluding
intervention was not proper under Tenn. R. Civ. P. 24.02. Id.

        We find that the gravamen of the grandparents‟ argument is in support of their
position that they are entitled to visitation with or custody of the child. To this point, the
trial court stated the grandparents seek permission to intervene “with a view to obtaining
visitation with and/or custody of their grandson[.]” In the current appeal, the
grandparents seek to intervene in a termination of parental rights proceeding, which has
the “sole purpose” under Tenn. Code Ann. § 36-1-113 of “sever[ing] irrevocably the
legal relationship between biological parents and their children.” In re M.J.B., 140
S.W.3d at 651. “Permissive intervention is generally not proper when the intervenor
seeks to raise new claims or issues against the existing parties.” Brown, 18 S.W.3d at
191(citing Ariz. v. Calif., 460 U.S. 605, 614 (1983)). We find any efforts by the
grandparents to obtain visitation through intervention in a termination proceeding are
misplaced. For the reasons set forth above, we find no abuse of discretion in denying the
grandparents‟ motion to intervene.

      “This ruling, made at this interlocutory stage of the proceedings, does not leave
the [grandparents] without a remedy. They may participate in the termination
proceedings as witnesses,” pursue adoption, or seek other appropriate options. Gonzalez,
136 S.W.3d at 620.

                                             V.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant grandparents, J.H. and S.J. This case is remanded to the trial court for further
proceedings consistent with this opinion.


                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




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