                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                    APRIL 20, 2000 Session

                                In re: ADOPTION OF M.J.S.
                 Direct Appeal from the Chancery Court for Shelby County
           Nos. A5151-1; A5153-3(1); The Honorable Walter L. Evans, Chancellor



                    No. W1999-00197-COA-R3-CV - Filed October 5, 2000




ALAN E. HIGHERS, J., CONCURRING SEPARATELY


       I concur in the majority opinion authored by Judge Farmer. I write separately, however,
because I am concerned that the dissenting opinion has overstated the issue presented in this case
and has based its argument entirely upon premises unwarranted under Tennessee Law.

        The issue in this case is not whether the members of this court approve the homosexual
lifestyle or the adoption of children by homosexuals, but rather whether the adoption of this child
by this prospective parent is in the child’s best interest. As in any adoption case, the determinative
issue was and remains what is in the child’s best interest.

        In the present case, the Chancellor was faced with the serious and difficult decision of
whether or not it was in this child’s best interest to be adopted by Debra Sue Langston. Rather than
ignoring the evidence regarding Ms. Langston’s relationship with Angela Craig, the Chancellor
appeared concerned about this evidence and he specifically inquired into the details of the
relationship. Despite this inquiry, no evidence was presented showing that Ms. Langston’s
propensities would have any negative effects on this child. It is important to note that this is a matter
of proof and is not the type of evidence of which we or the Chancellor can take judicial notice. See
Maradie v. Maradie, 680 So.2d 538, 541-542 (Fla. Dist. Ct. App. 1996); Doe v. Doe, 284 S.E.2d
799, 805 (Va. 1981).

        States generally have followed either the nexus test or the per se rule in assessing the best
interests of the child. See Karla J. Starr, Note, Adoption by Homosexuals: A Look at Differing State
Court Opinions, 40 Ariz. L. Rev. 1497, 1501 (1998). In the nexus test, the court considers fitness,
character, and conduct, including sexual behavior, on the part of the prospective parent and examines
whether any of these factors will have an adverse effect on the child. Under this analysis, proof is
required to establish the various elements that relate to best interests.

        The per se rule divests the trial court of any discretion in the case of specific individuals so
that they are considered unfit per se regardless of their individual circumstances. See, e.g. Fla. Stat.
Ann. 63.042(3), stating that “[n]o person eligible to adopt under this statute may adopt if that person
is a homosexual.” This is the approach postulated by the dissent in the case sub judice. It must fail,
however, because (1) Tennessee is not a per se jurisdiction; and, (2) the record in this case is devoid
of proof establishing a nexus or casual connection between Ms. Langston’s status and harm to the
subject child.

        The reality in this case is that Ms. Langston was the adoptive parent chosen by the birth
mother to raise her child. By the time of trial, the child had been in Ms. Langston’s custody for over
one-half of his life, and he knew Ms. Langston as his mother. The evidence was undisputed that Ms.
Langston was a loving parent who had the financial means to provide for this child. Regardless of
any personal beliefs that members of this court may harbor about Ms. Langston’s lifestyle, the record
simply contains no evidence as to what effects, if any, these factors may have on the child in the
future.

        I recognize that state legislatures and courts have reached different conclusions on the issue
of adoption by homosexuals. I am not convinced, however, that a majority of other jurisdictions
have expressed blanket disapproval of adoption by homosexuals as the dissent suggests. Some of
the activity in this area in recent years, for instance, has consisted merely of proposed legislation that
did not pass. Under the nexus analysis, the conduct and behavior of the prospective adoptive parent
will always be relevant. Courts will always have the duty to examine such evidence as may be
introduced relating to any harmful or adverse effect that such conduct may have upon the best
interests of the child. But in the absence of such proof, as here, courts may not presume what the
proof does not show.

        Like Judge Tomlin, I am greatly concerned about the future of this young child. Based on
the evidence before him, however, I do not see how the Chancellor could have reached a different
conclusion without taking judicial notice of evidence that is not in the record. Like the Chancellor,
this court’s consideration of the best interests of the child is necessarily limited by what is contained
in the record. Based on the evidence presented, I concur with the majority opinion affirming the
Chancellor’s final decree of adoption.




                                                         ___________________________________
                                                         ALAN E. HIGHERS, JUDGE


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