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In re R.S.M.

Court of Appeals of Tennessee, Knoxville

February 27, 2015

IN RE R.S.M

Session October 2, 2014

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

Appeal from the Chancery Court for Washington County. No. 41931. John C. Rambo, Chancellor.

Keith A. Hopson, Kingsport, Tennessee, for the appellants, M.S.M. and M.W.M. L. Carter Massengill, Bristol, Tennessee, for the appellees, P.B.G. and D.R.G.

No appearance by or on behalf of A.E.M.

No appearance by Heather N. Smith, guardian ad litem for minor child, R.S.M.

CHARLES D. SUSANO, JR., C.J., delivered the opinion of the Court, in which D. MICHAEL SWINEY and THOMAS R. FRIERSON, II, JJ., joined.

Page 767

A.E.M. (Mother) surrendered parental rights with respect to her minor daughter, R.S.M. (the Child), to prospective adoptive parents, P.B.G. and D.R.G. (collectively, Respondents). M.S.M. and M.W.M. (Grandparents), the Child's maternal grandparents, filed a complaint seeking to intervene in the surrender by A.E.M. of her parental rights. At trial, the court found (1) that the burden of proof was on Grandparents to establish, by clear and convincing evidence, that it was in the Child's best interest to remove her from Respondents, and (2) that they failed to meet their burden. The court dismissed Grandparents' complaint. They appeal. We affirm.

OPINION

CHARLES D. SUSANO, JR.

I.

The Child was born to Mother in October 2010.[1] Following her birth, the Child and Mother lived with Grandparents in their Jonesborough home. Grandparents loved the Child and they shared a close relationship. On December 26, 2012, Mother told Grandparents that she was going shopping. When she left, she took the Child with her. It was the last time Grandparents saw the Child.

Page 768

A month earlier, Mother began a relationship with one Tommy Bennett. Grandparents did not approve of the relationship. After Mother left with the Child, she contacted Grandparents and told them (1) that she needed a break, (2) that the Child was not in danger, and (3) that Mr. Bennett was there to protect her and the baby. Mother later sent a text to Grandparents saying that she was not taking the Child from them and that she planned to be gone for only one week. Nearly a month passed, and Grandparents were unable to locate Mother and the Child. They were worried about the Child's safety. On January 24, 2013, Mr. Bennett's mother informed Grandparents that, according to her son, the Child was no longer with the couple and that Mother may have given her up for adoption. Days later, Grandparents filed an emergency petition in the Washington County Juvenile Court[2] seeking an ex parte order and custody. At an initial hearing in that proceeding, they learned, for the first time, that Mother had executed on January 29, 2013, a consent to adoption under North Carolina law.

On February 11, 2013, Grandparents filed a complaint in the trial court pursuant to Tenn. Code Ann. § 36-1-111(u)(2) (2014), which, in relevant part, permits " any person" to " present proof concerning the best interests of the child . . . " who is the subject of a surrender. Grandparents alleged that awarding custody of the Child to them was in the Child's best interest. They requested an order removing custody from Respondents. By way of response, Respondents moved to dismiss the complaint.[3]

Trial was held on September 5, 2013. Testimony reflected that Mother's family was excited about the Child's pending birth. After the Child was born, Grandparents supported the Child and provided her with a loving home. They attended to the Child's daily needs and helped Mother raise her. The Child called grandmother " G," and said she was " G's girl." She referred to grandfather as " Pops" and often spent time with him, playing, reading, and running errands. The Child was part of her extended family's lives. Relatives had attended the birth, helped care for the Child, and bought her presents. Grandmother arranged the Child's first birthday party, which was attended by some thirty friends and relatives. Grandparents provided Mother with an allowance and allowed Mother and the Child to live with them while Mother attended community college.

Mother testified that she had contemplated adoption since she became pregnant; however, she had not shared her thoughts with Grandparents. After she and Mr. Bennett began a relationship, she discussed adoption with him. Mr. Bennett had previously given up a child of his own and he encouraged Mother to do the same. Mother acknowledged that she later told the Respondents that Mr. Bennett did not want the Child around. Mother contacted an adoption agency and was referred to Respondents, a married couple residing in North Carolina. The Respondents had earlier adopted another child from Tennessee through this agency. After a phone conversation with Respondents on January 21, 2013, and a few text messages in the next few days, Mother decided to surrender

Page 769

the Child to Respondents. On January 24, 2013, Mother and Mr. Bennett met Respondents in a Wal-Mart parking lot in Johnson City. After brief introductions, Respondents provided Mother with gas money and a phone card, and then left with the Child. Respondents remained in Tennessee with the Child for about two weeks until they received clearance under the Interstate Compact on the Placement of Children to leave for North Carolina with the Child.

On January 29, 2013, Mother met with an attorney in Washington County for three to four hours to review and execute adoption papers. At that time, in accordance with North Carolina law, Mother executed a " Consent to Adoption and Statement of Understanding" in which she named Respondents as the prospective adoptive parents.[4] At trial, Mother testified she believed that, despite the adoption, Grandparents could receive pictures of the Child from Respondents and visit the Child later in life.

At the time of trial, grandfather was fifty-four and grandmother fifty-two, and they had been married for thirty-three years. Aside from a few physical ailments, including nerve damage to grandfather's feet, Grandparents were in good general health. They testified their health did not preclude them from caring for the Child. Grandparents both graduated from high school. They have steady work histories. Both are long-time employees of Eastman Chemical Company. They are financially stable.

Respondents testified they had been married for five years. They are both twenty-seven years old, and their adopted son, J.G., is twenty-eight months old. Respondents testified they are both in good health and have no criminal records. Respondent mother stays at home with the children, while respondent father works as a mechanic earning some $65,000 a year. Respondents testified they belong to the Mennonite faith, attend church three times a week, and their lives are centered around God and family. The family eats together every evening and spends time together on evenings and weekends. Respondent mother has a large, extended family nearby, including her parents. They interact often. She testified that Mennonites do not shun family members or others in the community who do not follow their faith. She added that if the Child decided as an adult not to continue to follow in their faith, they would still continue to love and welcome her. As to her education, the Child would attend a Mennonite school through age 16. According to respondent mother, the Child could obtain a G.E.D. to further her education, and could attend college, although it was not encouraged for Mennonites to do so. Instead, they were encouraged to learn a trade.

Respondents introduced proof of their well-kept, modern home. They testified that, at the time of trial, the Child and J.G., who were close in age, had established a brother-sister relationship; they enjoyed playing together. According to Respondents, the Child had a " sad face," and grieved for a month or two after Mother left her, but she has since adjusted well to her new home. In the first days, she had asked for " Mommy," but had never asked for Grandparents. Respondents had passed two home studies by the adoption agency, one for their son and one in

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contemplation of the Child's adoption. They had retained counsel and were ready to proceed with the adoption if permitted to do so.

Mother testified that, some eight months since she surrendered the Child, she continued to believe she acted in the Child's best interest in selecting Respondents to adopt the Child rather than Grandparents. She believed Respondents offered the best home for the Child. She supported the planned adoption.

On December 3, 2013, the trial court entered its final order dismissing Grandparents' complaint, and declining to remove the Child from Respondents' custody. The court set out its extensive factual findings and legal analysis and conclusions in a well-reasoned twenty-page order. In summary, the court found:

As a result of the decisions made by [Mother], [Grandparents], by clear and convincing evidence, must prove [the Child's] removal from the custody of [Respondents] represents the best interests of [the Child]. Such evidence must produce in the factfinder's mind a firm belief or conviction that ...

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