                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 August 15, 2011 Session

                            IN RE: DON JUAN J.H., et al.

                 Appeal from the Chancery Court for Bledsoe County
                  No. 3105    Hon. Jeffrey F. Stewart, Chancellor


             No. E2010-01799-COA-R3-JV-FILED-SEPTEMBER 7, 2011




Petitioners filed a Petition to Adopt the minor child, Don Juan J.H., and the Department of
Children's Services then filed a Waiver of Guardianship stating that DCS approved of
adoption by the petitioners. The Trial Court granted petitioners partial guardianship of the
child before trial, and the appellants filed a Petition to Intervene in the adoption proceeding
which the Trial Court granted. Upon trial of the case, the Trial Court dismissed appellants'
intervening petition and granted the adoption. Appellants appealed, arguing that the Trial
Court refused to conduct a comparative fitness analysis between petitioners and appellants
to determine the best interests of the child. We affirm the Judgment of the Trial Court
because appellants were required to contest the guardianship before they would have been
eligible to petition for adoption of the child.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and D. M ICHAEL S WINEY, J., joined.


Philip M. Jacobs, Cleveland, Tennessee, for the appellants, Nathan and Pamela Riddle.

Alice W. Wyatt, Dunlap, Tennessee, for the appellees, Kelly and Misty Thurman.

Robert E. Cooper, Jr., Attorney General and Reporter, and Marcie E. Greene, Assistant
Attorney General, Nashville, Tennessee, for the Tennessee Department of Children's
Services.
                                         OPINION

                                        Background

        Misty and Kelly Thurman, DCS, and N.H. filed a Petition for Voluntary Surrender on
August 4, 2009, alleging that the Thurmans were the foster parents of J.H. (d.o.b. 1/25/09)
and DonJuan J.H. (d.o.b. 1/17/08), and that the children had been in their custody since
January 2009. The petitioners stated that N.H. was the biological mother of the children, and
that DCS had been granted partial guardianship of the children. The petitioners stated that
the mother wished to surrender her parental rights to the foster parents so that they could
adopt the children. DCS joined in the petition to concur that the mother should surrender her
rights to the Thurmans, and that it was in the children’s best interests that the Thurmans
adopt them.

        The Thurmans then filed a Petition for Adoption on August 11, 2009, and stated the
father had already surrendered his rights to the children, and that the mother was in the
process of doing so. DCS filed a Waiver of Guardianship, stating that DCS was waiving its
rights to accept the mother’s surrender in favor of the Thurmans, and that DCS approved of
adoption by the Thurmans.

                                         The Trial

       The record contains the documents relating to the mother’s surrender of the children,
and also the home study that was completed on the Thurmans. A Motion to Intervene was
then filed by Nathan and Pamela Riddle, the former foster parents of DonJuan J.H. The
Riddles stated that they had custody of the child from the time he was removed from his
parents on June 3, 2008, until January 14, 2009, when he was removed from their home and
given to the Thurmans. The Riddles alleged that they were the adoptive parents of Gabriel,
DonJuan J.H.’s sibling, and that it was in DonJuan J.H.’s best interests to be with them.

       The Thurmans filed a Motion for Partial Guardianship, seeking to have partial
guardianship of DonJuan J.H., and J.H. because the mother had surrendered to them, and
because they had physical custody of the children. The Court granted the Thurmans partial
guardianship on September 14, 2009.

       The Thurmans filed a Response to the Riddles’ Petition, stating that DonJuan J.H.
should be with them and with his sister and not the Riddles. DCS filed a Motion to Intervene
by Right, stating that they had partial guardianship of the children, and believed the children
should be with the Thurmans and had information to provide to the Court regarding the issue.



                                              -2-
       DCS then filed a Complaint to Support Adoption and to Present Evidence for the
Children’s Best Interests, stating that DCS had not given the Riddles permission to adopt
DonJuan J.H., and that if they did so, it would take him away from his sister whom he dearly
loved. DCS argued that since DCS and the Thurmans had joint guardianship of the children,
the Riddles would either have to have the guardianship rights of DCS/Thurmans terminated
or DCS/Thurmans would have to consent to the adoption, neither of which had occurred.

        The Trial Court entered an Order, stating that it held a hearing on the intervening
petition, and heard evidence and accepted exhibits from the Riddles. The Court rendered its
Memorandum Opinion from the bench and ruled that the intervening petition did not rise to
the level of proof necessary to prevent adoption by the Thurmans, and dismissed the
intervening petition. The Riddles then filed a Motion for a new trial or to alter or amend,
which DCS and the Thurmans opposed. The Trial Court denied the Motion. The Riddles
then filed a Notice of Appeal.

       The intervenors' issue on appeal is: Did the Trial Court err in refusing to conduct a
comparative fitness analysis between the Thurmans and the Riddles to determine the best
interest of the child in this contested adoption proceeding?

                                          Analysis

       The Riddles argue that the Trial Court erred in failing to conduct a comparative fitness
analysis, and rely upon the Supreme Court’s opinion in In re: Sidney J., 313 S.W.3d 772
(Tenn. 2010), which mandates that the court conduct a comparative fitness analysis to
determine who should adopt when faced with two competing adoption petitions.

        In re: Sidney J. concerned a child whose father had shot and killed her mother, and
after her father was taken into custody, her maternal grandparents took custody of her. Id.
Both the maternal grandparents and the paternal grandparents petitioned to adopt her, and the
trial court did a comparative fitness analysis and determined that the paternal grandparents
should adopt. Id.

        The maternal grandparents appealed, and this Court reversed, finding that the paternal
grandparents did not meet the physical custody requirements of the adoption statute. Id. The
Supreme Court held, however, that Tenn. Code Ann. §36-1-115 stated that an adoption
petition could only be filed by a party who had physical custody of the child or who had the
right to receive custody, unless they were filing an intervening petition. Id. The Court held
that the other provisions in the statute relating to physical custody did not apply when there
was an intervening petition involved, and that the trial court did not err in considering the
intervening petition even though the paternal grandparents did not have physical custody.

                                              -3-
Id.

       The Supreme Court then discussed the trial court’s analysis of the two competing
petitions, and said:

       One stated purpose of Tennessee's adoption statutes is to protect “[t]he 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.” Tenn. Code Ann. § 36–1–101(a)(3) (2005). Although Tennessee's
       adoption statutes do not outline a specific procedure by which a trial court evaluates
       two competing adoption petitions, a comparative fitness analysis furthers the purpose
       of ensuring that a child is placed in the best possible home. Indeed, trial courts
       currently engage in a comparative fitness analysis to determine which parent is the
       more fit custodian. In re C.K.G., 173 S.W.3d at 732; Parker v. Parker, 986 S.W.2d
       557, 562 (Tenn. 1999); see Tenn. Code Ann. § 36–6–106 (2005 & Supp. 2009).

In re: Sidney J., 313 S.W.3d 772, 776 (Tenn. 2010).

       In response, the Thurmans and DCS argue that In re: Sidney is not applicable because
the Riddles and the Thurmans were not on equal footing in this case. They argue that
because they had guardianship of the children, they would either have to consent to the
adoption or have their guardianship rights terminated pursuant to Tenn. Code Ann. §36-1-
113, before the Riddles could possibly seek to adopt DonJuan J.H. Further, they argue that
Sidney is not factually similar, because there was no indication in Sidney that there had been
any order of guardianship entered, so both sets of grandparents were equally situated.

       Tenn. Code Ann. §36-1-113 is the statutory provision which governs termination of
parental rights, and it expressly states that it also applies to terminate guardianship rights as
well.1 Accordingly, unless guardianship rights are voluntarily relinquished by the guardian,
they must be terminated in the same manner as parental rights. We have previously held that,
when former foster parents filed an intervening petition to adopt a child that DCS had
guardianship rights over, the former foster parents would have to (among other things) seek
to terminate the guardianship rights of DCS pursuant to Tenn. Code Ann. §36-1-113 before
they could adopt the children without the voluntary consent of DCS. In re: Devon W., 2010



       1
        For example, it states: “chancery and circuit courts shall have concurrent jurisdiction
with the juvenile court to terminate parental or guardianship rights to a child in a separate
proceeding, or as a part of the adoption proceeding by utilizing any grounds for termination
of parental or guardianship rights permitted in this part”. Tenn. Code Ann. §36-1-113(a).)

                                               -4-
WL 1526306 (Tenn. Ct. App. Apr. 16, 2010).

        This Court has also held that when DCS has been granted guardianship of a child,
Tenn. Code Ann. §36-1-102 and 113 grant DCS the right to place the child for adoption, and
to consent to the adoption. In re E.M., II, 2006 WL 3007511 (Tenn. Ct. App. Oct. 24, 2006).
Thus, we held that where the trial court disagreed with DCS’ choice of a potential adoptive
parent (because she was a single mother) and terminated the biological parents’ rights but
ordered that DCS find a dual-parent home for the child, the trial court exceeded its authority.
Id. It is clear based upon these cases and the plain wording of the statute, that when 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 this case, the Riddles
sought to intervene to adopt DonJuan J.H., but did not seek to terminate the guardianship
rights of DCS or the Thurmans, and neither DCS nor the Thurmans consented to the Riddles’
request to adopt. Accordingly, the Trial Court properly found, presumably based on a lack
of evidence sufficient to justify termination of the guardianships,2 that the Riddles' evidence
“does not rise to the level of proof necessary to prevent the adoption of the child DonJuan
by Mr. and Mrs. Thurman”, and dismissed the intervening petition.

        In sum, where a parent chooses to surrender his or her parental rights directly to the
adoptive parents, and where the Court has additionally granted partial guardianship of the
child to the adoptive parents, as was done here, the adoptive parents (the Thurmans) are
clearly not in the same legal position as the former foster parents (the Riddles),who had
custody of the child removed from them for reasons not set forth in this record. Neither DCS
nor the Thurmans, the legal guardians of the child, have consented to allow the Riddles to
adopt, and the Riddles were not entitled to require the Trial Court to apply a comparative
fitness analysis in this case.

        We affirm the Judgment of the Trial Court in dismissing the Riddles' Petition. The
case is remanded with the cost of the cause assessed to Nathan and Pamela Riddle.




                                                         _________________________________
                                                         HERSCHEL PICKENS FRANKS, P.J.


        2
          There is no transcript of the hearing on May 5 wherein the Trial Court received evidence from the
Riddles, thus, we must presume there was proof to uphold the Court's findings.

                                                   -5-
