                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                Assigned on Briefs June 26, 2012

                                        IN RE: HAILY A. S.

                    Appeal from the Chancery Court for Putnam County
                          No. 201119A     John Maddux, Judge


                     No. M2011-02760-COA-R3-CV - Filed July 30, 2012


Mary G. (“Foster Mother”) filed a petition in the Chancery Court for Putnam County (“the
Trial Court”) to adopt Haily A. S. (“the Child”)1 , then under the guardianship of the
Tennessee Department of Children’s Services (“DCS”). The Child’s paternal grandparents,
Marvin S. and Sandra S. (“the Grandparents”), filed an intervening petition to adopt the
Child and shortly thereafter filed a motion to intervene. DCS filed a motion to dismiss the
Grandparents’ petition. After a hearing at which the parties’ respective counsels made their
arguments, the Trial Court granted DCS’s motion to dismiss the intervening petition for
adoption. The Grandparents appeal, arguing that the Trial Court should have permitted them
to present evidence on the issue of the Child’s best interest. We hold that because DCS, the
Child’s guardian, did not consent to the Grandparents’ adoption of the Child, the
Grandparents’ intervening petition properly was dismissed. We affirm the judgment of the
Trial Court.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P . F RANKS,
P.J ., and J OHN W. M CC LARTY, J., joined.

Jason F. Hicks, Cookeville, Tennessee, for the appellants, Marvin S. and Sandra S.

Robert E. Cooper, Jr., Attorney General and Reporter; and, Alexander S. Rieger, Assistant
Attorney General; for the appellee, the Tennessee Department of Children’s Services.




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         Foster Mother also sought to adopt the Child’s half-sister. Only the Child is at issue in this appeal,
and our focus accordingly is confined to her.
                                         OPINION

                                        Background

               The Child’s father died in 2010. In May 2011, Foster Mother filed a petition
to adopt the Child in the Trial Court. In her petition, Foster Mother alleged that DCS had the
parental rights of the Child’s mother terminated in 2011. The Child then entered the
guardianship of DCS. Foster Mother also alleged that she had obtained physical custody of
the Child, that a home study had been conducted of her by DCS, and that she desired a
parental relationship with the Child.

              In June 2011, the Grandparents filed an intervening petition to adopt the Child.
The Grandparents alleged that it was in the Child’s best interest that they adopt her. Also in
June 2011, the Grandparents, relying on Rule 24 of the Tennessee Rules of Civil Procedure,
filed a motion to intervene in Foster Mother’s adoption petition. The Grandparents sought
to present evidence on the Child’s best interest and the relative fitness of Foster Mother’s
home. DCS filed a motion to dismiss the intervening petition. DCS argued that the
Grandparents had no basis for an intervention and that they had not demonstrated that
adoption of the Child by Foster Mother was contrary to the Child’s welfare.

               In December 2011, following a hearing at which the opposing sides’ respective
counsels made arguments, the Trial Court entered its order granting DCS’s motion to
dismiss, stating:

              This matter came to be heard on the 3rd day of November 2011, before
       the Honorable John Maddux, Judge of the Circuit Court of Putnam County,
       Tennessee, sitting by interchange for the Chancellor of the Chancery Court of
       Putnam County, Tennessee for a hearing on the Tennessee Department of
       Children’s Services’ Motion to Dismiss the Intervening Petition for Adoption
       of a Related Child.

              Upon the argument of counsel and the record as a whole, the Court
       finds that the Motion is well taken and should be granted based upon the
       following findings of fact. The child who is the subject of the Intervening
       Petition, [Haily A. S.], is in the full guardianship of the Department of
       Children’s Services. The Department does not consenting [sic] to the adoption
       of [Haily A. S.] by Intervening Petitioners, [Marvin S.] and [Sandra S.]. Tenn.
       Code Ann. § 36-1-113 applies to guardianship rights unless relinquished. The
       Department is not voluntarily relinquishing its guardianship rights to the
       Intervening Petitioners. The Intervening Petitioners do not have custody of the

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       child and have not sought to terminate the Department’s guardianship rights.

             It is therefore ORDERED that the Intervening Petition for Adoption
       of a Related Child filed by [Marvin S.] and [Sandra S.] on June 3, 2011 is
       dismissed.

The Grandparents appeal.

                                          Discussion

               We restate the issues that the Grandparents raise on appeal as follows: whether
the Trial Court erred in granting DCS’s motion to dismiss the Grandparents’ intervening
petition for adoption of the Child.

                Our Supreme Court addressed intervening petitions for adoption in the opinion
of In re: Sidney J., 313 S.W.3d 772 (Tenn. 2010), an opinion neither party cites, perhaps
because of factual differences in that case and the case now before us. In In re: Sidney J.,
a father killed the mother of his child. Id. at 773. After the father was taken into custody, the
child entered the temporary custody of her maternal grandparents, who later petitioned to
adopt the child. Id. The child’s paternal grandparents filed an intervening petition to adopt
the child. Id. The trial court applied a comparative fitness analysis and allowed the paternal
grandparents to adopt the child. Id. at 774. This Court reversed the trial court on appeal,
holding that the paternal grandparents could not file an intervening petition as they lacked
physical custody of the child. Id. The Supreme Court reversed this Court, holding that Tenn.
Code Ann. § 36-1-116(f)(1) contained an exception to the physical custody requirement for
petitioners who filed an intervening petition and when the child “to be adopted is in the
physical custody of the original petitioners.” Id. at 773. The Supreme Court reinstated the
result of the trial court in its entirety, allowing the paternal grandparents to adopt the child.
Id.

               Thus, according to In re: Sidney J., at first blush it would appear that when
confronted with competing petitions to adopt, a comparative fitness analysis should be
applied to determine which petitioners should adopt the child, subject to that child’s best
interest. However, a recent opinion from this Court is more in line with the facts of the
instant appeal. In In re: Don Juan J.H., et al., No. E2010-01799-COA-R3-JV, 2011 WL
8201843, at *1 (Tenn. Ct. App. September 7, 2011), no appl. perm. appeal filed, DCS and
petitioners shared guardianship of the minor child at issue. Intervening petitioners attempted
to prevent the original petitioners from completing the adoption. Id. at *1. After an adoption
hearing, the trial court dismissed the intervening petition and granted petitioners the
adoption. Id. at *2. In affirming the trial court, this Court held that the intervening

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petitioners were not entitled to a comparative fitness analysis. Id. at *3. Neither DCS nor
the original petitioners, the legal guardians of the child, consented to an adoption by the
intervening petitioners, nor did the intervening petitioners seek to terminate the existing
guardianship. Id.

               In the instant case, the Child was under the guardianship of DCS. Unlike in
In re: Sidney J., the Child is not in a temporary custody situation. Rather, as in In re: Don
Juan J.H., the Child is under a guardianship regime, here with DCS having full guardianship
rights. Tenn. Code Ann. § 36-1-113 (2010), the statute regarding termination of parental
rights, states that it pertains to the termination of guardianship rights as well. The
Grandparents have not had DCS’s guardianship rights to the Child terminated, nor have they
even attempted to do so. Instead, the Grandparents have argued that they should be able to
present evidence regarding the Child’s best interest. Respectfully, such an enterprise is not
warranted under the law, as DCS, with its guardianship of the Child, has the right to proceed
with placing the child for adoption, and it specifically did not consent to an adoption of the
Child by the Grandparents.

               The Grandparents cite law regarding intervention that is purportedly favorable
to their alleged right to intervene:

               The watchword of all courts in such things as adoptions and custody of
       children is the welfare of the child. We do not perceive that any court would
       deny a grandparent, or even a stranger, to intervene in a proceeding if the
       welfare of the child required it. By the same token, we see no compelling
       reason for them to be permitted to intervene just for the sake of being a party
       to the proceedings.

In re: Adoption of Taylor, 678 S.W.2d 69, 72 (Tenn. Ct. App. 1984). We certainly agree
with our previous assertion that “[t]he watchword of all courts in such things as adoptions
and custody of children is the welfare of the child.” Id. There is, however, nothing in the
record before us that even suggests the Child’s welfare requires permitting the Grandparents
to intervene.

              The Grandparents do not have an unconditional right to intervene, and we are
apprised of no governing law to the contrary. Regarding intervention as of right, the rules
provide:

       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

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       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.

Tenn. R. Civ. P. 24.01.

              Regarding permissive intervention, the rules provide:

       Upon timely application anyone may be permitted to intervene in an action: (1)
       when a statute confers a conditional right to intervene; or (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.

             At best, the Grandparents could seek to intervene under Rule 24.02 of the
Tennessee Rules of Civil Procedure, subject to the Trial Court’s discretion. The Trial Court
dismissed the Grandparents’ petition. We conclude that the Trial Court did not err in so
doing.

                In summary, the Child was under DCS guardianship, and DCS had the right
to place the child for adoption. The Grandparents have not sought to terminate DCS’s
guardianship rights, and DCS does not consent to an adoption of the Child by the
Grandparents. In keeping with the rationale of our previous opinion, In re: Don Juan J.H.,
and as distinguished from the facts of In re: Sidney J., we hold that the Grandparents were
not entitled to intervene in this matter, and their intervening petition properly was dismissed.
The judgment of the Trial Court is affirmed.


                                          Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellants, Marvin S. and Sandra S., and their surety, if any.




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      _________________________________
      D. MICHAEL SWINEY, JUDGE




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