Session May 20, 2015
Appeal from the Chancery Court for Dickson County No. 2014CV208 Robert E. Burch, Judge
Karl M. Braun, Lucas Davidson, and Joanna L. McCracken, Nashville, Tennessee, and Kendall A. Sykes, Oklahoma City, Oklahoma, for the appellants, David Sheldon Hodgin, Jr. and Kimberly Ellen Hodgin.
Herbert H. Slatery, III, Attorney General and Reporter, and Alexander S. Rieger, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.
Anita Lynn Vinson Coffinberry, Erin, Tennessee, for the appellee, John M.
Andy D. Bennett, J., delivered the opinion of the court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.
ANDY D. BENNETT, JUDGE
Factual And Procedural Background
Sonya M. was born in Nebraska in July 2004. Sonya's father, John M. ("Father"), was awarded custody of the child in 2005. He allowed the child to travel to Tennessee with one of her caregivers, and in October 2005, after the caregiver's parents contacted the sheriff's department, the child was adjudicated dependent and neglected. The Department of Children's Services ("DCS") was given custody of Sonya, and in April 2006, the child was officially placed in the home of foster parents David and Kimberly Hodgin.
In April 2006, Father was indicted on federal charges and was taken into custody. That fall, he pled guilty to the federal charge of unlawful transport of firearms and was sentenced to fifteen years in prison.
In July 2006, the Hodgins filed a petition to terminate parental rights and to adopt Sonya, in the Chancery Court of Dickson County. The chancery court terminated the rights of Sonya's mother and Father and approved her adoption by the Hodgins. Father appealed the termination of his parental rights and the adoption from prison. See In re S.J.M., No. M2009-01080-COA-R3-PT, 2009 WL 4039430, at *1 (Tenn. Ct. App. Nov. 20, 2009). This Court found that, contrary to the trial court's determination, the issue of Father's sentence as a ground for termination under Tenn. Code Ann. § 36-1-113(g)(6) had not been tried by consent of the parties. Id. at *3. Therefore, the adoption was vacated, and Sonya was returned to the legal custody of DCS. Id. at *4. DCS again placed the child with the Hodgins.
Sonya continued to live with the Hodgins until January 2014. At that time, Father was no longer in prison,  and DCS removed Sonya from the Hodgins' care and sent her to live with Father in Nebraska on a trial home visit. Sonya had not seen Father since she was an infant.
On June 6, 2014, the Hodgins filed a petition to terminate Father's parental rights and to adopt Sonya. Father filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(1) and (6) for lack of standing. DCS filed a motion for judgment on the pleadings asserting that the Hodgins lacked standing to file a petition to terminate parental rights and adopt Sonya.
On September 16, 2014, the trial court entered a memorandum opinion concluding that the Hodgins' petition should be dismissed. The court construed Tenn. Code Ann. § 36-1-113(b)(1) to mean that plaintiffs' "standing to file a termination of parental rights action depends upon their standing to file an adoption action." Because, under Tenn. Code Ann. § 36-1-115(b), the Hodgins did not have "physical custody or . . . the right to receive custody of the child sought to be adopted as provided in § 36-1-111(d)(6) [surrender] at the time the petition is filed, " the trial court concluded that they did not have standing. The Hodgins filed a motion to alter or ...