                     IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT NASHVILLE
                 ________________________________________________

AMANDA CAROL CROSLIN and
PHYLLIS CROSLIN BAKER,

       Petitioners-Appellees,
                                                     Smith Circuit No. 3536
Vs.                                                  C.A. No. 01A01-9607-CV-00297

DANNY KEITH CROSLIN, wife
BETTY JEAN CROSLIN and
STANLEY GARDNER HASKINS,

      Respondents-Appellants.
___________________________________________________________________________

                 FROM THE SMITH COURT CIRCUIT COURT
        THE HONORABLE JOHN A. TURNBULL, JUDGE, BY INTERCHANGE



                         Jessica Dawn Dugger and Gregory S. Gill of
                          Rochelle, McCulloch & Auds in Lebanon
                             For Respondents-Appellants, Croslin

                                   Hugh Green of Lebanon
                        For Petitioners-Appellees, Croslin and Baker




                                REVERSED AND REMANDED

                                        Opinion filed:



                                FILED
                                February 5, 1997             W. FRANK CRAWFORD,
                                                             PRESIDING JUDGE, W.S.
                             Cecil W. Crowson
                            Appellate Court Clerk
CONCUR:

DAVID R. FARMER, JUDGE

HOLLY KIRBY LILLARD, JUDGE

       This is an adoption case. Petitioners, Amanda Croslin and Phyllis Croslin Baker, the

adoptive child’s mother and maternal grandmother respectively, filed a petition to set aside the

adoption of the child, Danna Elisabeth Croslin, by the maternal grandfather, Danny Keith
Croslin, and his wife, Betty Jean Croslin. Also named as a defendant in the petition is Stanley

Gardner Haskins, the adoptive child’s natural father. From the order of the trial court nullifying

and setting aside the adoption, Danny Keith Croslin has appealed.1

          The petition alleges that Amanda was not in a psychological condition to understand the

ramifications of an adoption. The petitioners allege that Amanda did not have a guardian ad

litem or independent counsel, and they claim that Amanda was emotionally upset, mentally

disturbed, and legally incompetent at the time the Order of Adoption was entered. In an

amended petition filed November 17, 1994, the petitioners further allege that the Amanda did

not properly execute a consent for adoption or a surrender as required by T.C.A. § 36-1-114

(Supp. 1993). Finally, they claim that Amanda only signed the petition for adoption and the

order of adoption because of undue influence, pressure, fraud, and misrepresentation. The

answer to the petition denies the material allegations.

          The hearing on the petition was originally set for July 21, 1995 before Judge Bobby

Capers, the judge who granted the adoption. Judge Capers recused himself, however, because

he felt there might be a conflict of interest, and the case was reset for August 31, 1995. The

hearing lasted two days, August 31, 1995, and again on January 11, 1996.

          The record reveals the following: Amanda Croslin gave birth to Danna Elisabeth Croslin

on September 7, 1993 and was, at that time, almost sixteen years old and a high school junior.

Although Amanda lived with her mother, she kept her pregnancy hidden until the night of the

delivery. Amanda’s parents and Danny Croslin’s wife, Betty Jean Croslin, were present at the

hospital on the night of the delivery.

          There is a dispute in the testimony concerning the discussions in the hospital about

adoption of the child. Betty Croslin testified that Amanda told her while they were in the

emergency room that she did not want the baby, and that after the baby was born, Amanda asked

Betty if she would take the baby. Betty’s response at that time was that it was too soon to

discuss something of that nature. Betty testified that Amanda stated that she had been thinking

about it for seven months and that she wanted the baby to be adopted. Amanda, on the other


          1
              Mr. Haskins did not file any pleading in the trial court and is not a party to this
appeal.

                                                      2
hand, testified that her father and Betty asked her if they could adopt the child and insisted that

this would be the best procedure to follow. It is undisputed that both Amanda and her mother

felt that it was not possible for them to take and care for the child at that time.

        On September 9, 1993, Mr. and Mrs. Danny Croslin; Amanda’s mother, Phyllis Croslin

Baker; and the father of the child, Stanley Haskins, met with attorney Jim Dance to discuss an

adoption. At that meeting, Dance explained to the persons present the ramifications of the

adoption and the legal obligations of the parties and then agreed to prepare the adoption petition.

On September 13, 1993, all the parties, including Amanda, met in Dance’s office to sign the

adoption petition. Dance testified that at this meeting he explained the effect of the adoption to

Amanda and Haskins and told them that they would have no legal rights to visitation. Dance

stated that there was no indication that Amanda was under any stress or any indication that she

did not understand what he was telling her. As Dance explained, the family and Haskins seemed

to be happy with the solution to the problem, and that it seemed apparent that Amanda would

continue to be a part of the child’s life.

        All of the concerned parties joined in and signed the adoption petition, and it was filed

in the Circuit Court for Smith County on October 8, 1993. On that same day, a hearing was held.

On October 12, 1993, an order for adoption signed by all concerned parties was entered granting

the adoption to Danny Keith Croslin and wife, Betty Jean Croslin. The order specifically

provided that consent to the adoption was given by the joinder of all necessary parties in the

petition, and that no interlocutory decree of adoption is necessary because the petitioner, Danny

Keith Croslin, is the grandfather of the adoptive child.

        Judge Capers testified that at the adoption hearing he explained to Amanda and Stanley

Haskins, the natural parents of the child, that they were giving up their rights as parents and

asked them if they understood the nature of the proceeding. Judge Capers testified that they

appeared to understand that their rights as parents would be terminated. Stanley Haskins

testified that they were told their rights would be terminated. Amanda testified, however, that

she understood that she would have visitation rights with the child.

        Amanda testified that she was scared to tell her mother about the pregnancy, and didn’t

want to hurt or embarrass her. Amanda testified that she was scared and in pain in the

                                                 3
emergency room prior to delivery. She stated that she was ashamed and told Betty Jean Croslin

that she didn’t want the baby. After the delivery when Amanda was in her hospital room, Betty

and Danny Croslin both asked her if they could adopt the baby. Amanda testified that Betty and

Danny Croslin were actively seeking to adopt a child before they learned about her pregnancy,

and that they said it would make them very happy if they could adopt hers. She claims that they

told her that she would always be a part of the child’s life, and that the child would know who

she was.

       Amanda testified that her father told her that if she kept the baby she would have to drop

out of school and sign up for welfare. She also claims that her father told her that he would not

give her assistance or support in raising the child. Amanda stated that she consented to the

adoption because it was what everybody wanted, it was making her father happy, and she

thought it would bring them closer together. Amanda stated that her mother would not give her

any advice or support in her decision.

       Phyllis Croslin Baker testified that she had no way to take the child into her home after

the child was born and was anxious for the adoption to take place. She indicates in her testimony

that she let her daughter know that she was strongly in favor of the adoption and perhaps that

influenced her daughter in agreeing to the adoption. She states that her daughter understood that

an adoption terminated parental rights, but that her daughter was of the impression that she

would be a part of the child’s life. Throughout September 1993 until February 1994, Amanda

visited the baby approximately once a week and called two or three times a week to check on the

baby. Ms. Baker testified that in February 1994, Betty and Danny Croslin began to have marital

problems, and they were subsequently divorced by final decree entered August 5, 1994.

However, they remarried eighteen days later. She testified that for a good part of the time while

the Croslins were separated she and Amanda took care of Danna every day for the entire day

while Danny Croslin was working. At the end of August 1994, when Amanda returned to

school, Danny Croslin told Amanda that she could see Danna every other weekend instead of

the previous rather unlimited visitation she had experienced. This precipitated the filing of the

instant petition on September 19, 1994. Ms. Baker also testified that Amanda was usually quite

calm and reserved but that following the birth of the child, Amanda became highly emotional

                                               4
and on occasions became so angry and upset that she had to call Danny Croslin to come over and

assist in calming her down. She states that Amanda was greatly upset and in a highly emotional

state for a long period after the child was born.

       Danny Croslin testified that he did not influence his daughter to consent to the adoption

but to the contrary told her it was her decision. He admitted that he told her that if she decided

to keep the baby she would probably have to go on welfare and leave school. He stated that he

told her he would help her as much as he could financially. He categorically denied that he told

her that he would not give her any financial support. In his opinion, she did not appear to be

under stress to the extent that she did not understand what she was doing and that she readily

consented to the adoption.

         The trial court’s judgment entered February 14, 1996, set aside the order of adoption.

The judgment states:

               1. The adoption of Danna Elisabeth Croslin is hereby set aside
               and nullified on the grounds that:

               a. The Court lacked jurisdiction to grant said adoption and it is
               therefore void because the adoptive child’s natural mother,
               Amanda Carol Croslin, was incompetent to consent to said
               adoption and no measures were taken to cure her incompetency;

               b. In addition to the above or in the event that the Court is
               mistaken on the issue of jurisdiction, this adoption is hereby
               nullified because undue influence rising to the level of intrinsic
               fraud was asserted on the natural mother at the time of the
               adoption, therefore the court relieves the plaintiff, Amanda Carol
               Croslin, from the Order of Adoption herein complained of
               pursuant to T.R.C.P. 60.02.

        The judgment provided that Danny and Betty Croslin would retain custody of the child

pending any change in circumstances as related to them. The judgment also established

visitation rights for Amanda and ordered her to pay child support.

        Appellant presents two issues on appeal:

               1. Whether the trial court erred in holding that the surrender of
               and adoption of the child did not comply with the requirements
               of the adoption statutes in effect in the State of Tennessee at the
               time of the adoption?

               2. Whether the trial court erred in holding that the mother’s
               consent to the adoption was obtained by undue influence.

        Appellant asserts in his first issue that the trial court erred in holding that the parties

                                                5
failed to comply with the adoption statutes.

       Adoption in Tennessee is governed by statute, T.C.A. § 36-1-101 et seq., and to effect

a legal adoption, there must be strict compliance with the statutes. Clements v. Morgan, 201

Tenn. 94, 296 S.W.2d 874 (1956). Initially, we must point out that the paramount consideration

in adoption cases is the welfare of the child, not the interests and rights of the adults. In re

Petition to Adopt Glenda Sue Clements, 201 Tenn. 98, 296 S.W.2d 875 (1956).

       Appellees assert that the trial court did not comply with the provision of T.C.A. § 36-1-

114 (Supp. 1993)2 providing for the surrender of the child for adoption. Appellant contends that

pursuant to T.C.A. § 36-1-108 (a)(1991)3, compliance with § 36-1-114 is not required. The trial

court found that there was no compliance with T.C.A. § 36-1-108 (a)(1991) because a guardian

ad litem was not appointed for Amanda. T.C.A. § 36-1-108 (a)(1991) provides:

                 36-1-108. Parties to proceedings - consent of parent or
                 guardian - Service of process. - (a) Except as provided in this
                 part and if they are living and have not released all rights to the
                 child and have not consented to adoption as provided in this part,
                 the parents or surviving parent or guardian of the person of the
                 child must be a party or parties of record to the proceeding or
                 must give written consent to the adoption, which written consent
                 must be filed with the petition. If a parent is incompetent to give
                 consent, then a guardian ad litem shall be appointed for the
                 incompetent parent to give or withhold consent, unless prior
                 thereto in an independent prodeeding in the circuit or chancery
                 court a representative of the department or the director of a
                 license child-placing agency has been appointed guardian of the
                 person of the child with the authority to consent to the adoption
                 in loco parentis. If parents are divorced, both parents shall have
                 notice of the hearing, either by service of process or by
                 publication. When the child is by blood a grandchild, a nephew
                 or niece of one (1) of the petitioners or is the stepchild of the
                 petitioner and the natural parent(s) joins in the petition to adopt
                 for the purpose of giving consent to the adoption and signs the
                 petition as a co-petitioner, no further consent of, or surrender by,
                 the natural parent(s) shall be required as the act of joining in the
                 petition shall be deemed to be a complete consent and surrender.

                 Although Amanda was a minor (sixteen years of age) at the time of the adoption,




       2
       The petition in this case was filed on September 19, 1994; therefore, this case is
governed by Tennessee’s adoption statutes in place at that time. T.C.A. § 36-1-114 (Supp.
1993) has since been repealed.
       3
           T.C.A. § 36-1-108 (1991) has been transferred to T.C.A. § 36-1-117 (1996).

                                                  6
she was competent to give her consent to the adoption. T.C.A. § 36-1-109 (1991)4 provides:

                         36-1-109. Parent under eighteen -- Consent. -- A parent
                 who has not reached eighteen (18) years of age shall have legal
                 capacity to give consent to adoption and to release such parent’s
                 rights in a child, and shall be as fully bound thereby as if the
                 parent had attained eighteen (18) years of age.

       Appellees argue that the trial court based its finding of incompetency on Amanda’s

condition of suffering from severe emotional distress, depression, and postpartum depression,

not because of her age.

        We do not believe that the record establishes that Amanda was incompetent because of

her emotions. There was no expert proof introduced that Amanda was not cognizant of what she

was doing, nor does Amanda dispute that she knew that she was surrendering her parental rights.

Amanda contends that she was led to believe that she would have unlimited visitation rights with

the child, and the record establishes that as long as these visitation rights were granted she did

not protest or in any way question the adoption proceedings. We do not dispute that Amanda

was probably depressed or emotionally distraught following this rather traumatic experience, but

it is not unusual for there to be depression and distress following the birth of a child, even under

the best of circumstances. If emotional distress meant that a parent was always incompetent to

consent to an adoption, we would rarely have adoptions in this state.

        Since we do not believe that Amanda was incompetent at the time of the adoption, we

disagree with the trial court that a guardian ad litem was required. We believe that the adoption

was in compliance with T.C.A. § 36-1-108, and therefore, compliance with T.C.A. § 36-1-114

was not required. No further consent of Amanda was required because she joined in the original

petition. Amanda’s act of joining in the petition “shall be deemed to be a complete consent and

surrender.” T.C.A. § 36-1-108(a).

        However, even if Amanda was incompetent to consent, she could not challenge the

procedural aspect of the adoption now that the order is final. T.C.A. § 36-1-127 (1991)5 provides

in pertinent part:

                        36-1-127. Binding effect of adoption. --
                        (b) After the final order of adoption is signed, no party to
                 an adoption proceeding, nor anyone claiming under such a party,

       4
           T.C.A. § 36-1-109 (1991) has been transferred to T.C.A. § 36-1-110 (1996).
       5
           T.C.A. § 36-1-127 (1991) has been transferred to T.C.A. § 36-1-122 (1996).

                                                 7
                  may later question the validity of the adoption proceeding by
                  reason of any defect or irregularity therein, jurisdictional or
                  otherwise, but shall be fully bound thereby, save for such appeal
                  as may be allowed by law.

In this case, the final order of adoption has been signed by all parties and has been made final.

Amanda Croslin and Phyllis Baker did not appeal that final order within thirty days of its entry,

but instead, 11 months later they filed a petition to set aside the adoption that questioned the

validity of the proceeding. The statute does not allow a later collateral attack, even if the defect

is jurisdictional.

        The policy behind T.C.A. § 36-1-127 is expressed in T.C.A. § 36-1-101 (1991)6 which

states, “The primary purpose of this part is to: . . . (3) protect [children] from interference, long

after they have become properly adjusted to their adoptive homes, by natural parents who may

have some legal claim because of a defect in the adoption procedure.” See also Brown v.

Raines, 611 S.W.2d 594, 596 (Tenn. App. 1980). We cannot agree with the trial court’s finding

that Amanda was incompetent to consent to the adoption, and we find that there was compliance

with the statutory provisions pertaining to adoption.

        In the second issue for review, appellant asserts that the trial court erred in finding that

there was “undue influence rising to the level of intrinsic fraud . . . asserted on the natural

mother.”

        A final order of adoption is subject to the provisions of Tenn. R. Civ. P. 60.02, and

proven fraud or undue influence is good grounds for vacating an adoption order. In re Bishop,

678 S.W.2d 471, 472 (Tenn. App. 1984). The parent who consented to the adoption must

present clear and convincing evidence of undue influence in order to set aside the adoption order.

Id. In Scott v. Pulley, 705 S.W.2d 666 (Tenn. App. 1985), this Court defined undue influence:

                  Undue influence has been defined as that influence which
                  controls the mental operations of the one influenced by
                  overcoming his power of resistance and thus obliging him to
                  adopt the will of another, thereby producing a disposition of
                  property or the performance of some act by the influenced person
                  which he otherwise would not have done.

Scott, 705 S.W.2d at 669 (quoting 50 A.L.R.3d 918, 920 (1973)).

        While we believe that this was a trying time for Amanda, we respectfully disagree with




        6
            T.C.A. § 36-1-101 (1991) has since been amended.

                                                 8
the trial court that she has presented clear and convincing evidence of undue influence. Amanda

testified that it was not possible for her to take the



child home after the birth. She said that, realistically, her only choices were to give the child up

for adoption or quit school and try to raise her on her own. While she stated she had faith she

could raise the child, Amanda also admitted that it would be very difficult for her to be the full-

time parent: “Right now, to do that, it would be hard for me to bite off the job of taking care of

her, you know, full-time right now. But as long as this adoption is intact, when I do feel that I

can take the job, I don’t have any rights.” We do not believe that Amanda’s “power of

resistance” was overcome, nor that she was forced to “adopt the will of another.” Scott, 705

S.W.2d at 669. At the time of the birth, her choices were somewhat limited due to the

circumstances of her life, not because of the influence of her father. In Scott, this Court

addressed pressing circumstances:

                There is little doubt that there is always ‘duress of circumstances’
                present causing a natural parent to consent to surrender and/or
                place for adoption that parent’s child. However, as was said in
                Barwin v. Reidy, 62 N.M. 183, 307 P.2d 175 (1957), ‘What
                natural parent would ever consent to the adoption of his or her
                child in the absence of duress of circumstances.’

Scott, 705 S.W.2d at 670.

        In In re Bishop, 678 S.W.2d 471, this Court faced a similar question. The natural mother

petitioned the court to set aside an order of adoption. The child had been adopted by his

grandparents. Id. This Court stated, “Plaintiff’s testimony that she was distressed and that her

mother urged the adoption does not constitute evidence of fraud or undue influence sufficient

to set aside the adoption under T.R.C.P. No. 60.02(2).” Id. at 472. The Court also stated that

“the fact that plaintiff now has her life ‘in order’ is an insufficient basis to set aside the adoption

under T.R.C.P. No. 60.02(5).” Id.

        We do not find from this record clear and convincing evidence that undue influence was

asserted on Amanda to influence the adoption. We must respectfully disagree with the trial

court’s finding in that regard. Accordingly, the judgment of the trial court is reversed7, and this


        7
        When Danny Croslin and Betty Croslin were divorced, the decree specifically
provided that by consent of Betty Croslin her parental rights to the adoptive child, Danna,
terminated. Although Betty Croslin was a party to the trial court proceedings in this case, she

                                                  9
case is remanded to the trial court for such further proceedings as are necessary. Costs of the

appeal are assessed against the appellees.

                                                     _________________________________
                                                     W. FRANK CRAWFORD,
                                                     PRESIDING JUDGE, W.S.

CONCUR:


_________________________________
DAVID R. FARMER, JUDGE

_________________________________
HOLLY KIRBY LILLARD, JUDGE




did not appeal. Therefore, she is not before this Court and this Court has no jurisdiction
insofar as she is concerned. Town of Carthridge, Tennessee v. Smith County, No. 01-A-01-
9308-CH00391, 1995 WL92266, (Tenn. App. M.S. Mar. 8, 1995) see also Torres v. Oakland
Scavenger Co., 487 U.S. 312, 314, 108 S.Ct. 2405, 2407 (1988). The effect of the provision
in the divorce decree was not an issue before this Court.

                                              10
