10/16/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 21, 2020 Session
IN RE M.L.S.
Appeal from the Chancery Court for Hawkins County
No. 2018-CH-233 Douglas T. Jenkins, Chancellor
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No. E2019-01794-COA-R9-CV
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This appeal involves a petition to enforce a visitation order after the entry of a final decree
of adoption. The adoptive parents filed a motion to dismiss, which the trial court granted
in part and denied in part. The trial court ordered the parties to participate in depositions
to address the issue of “acquiescence” and determine “if an enforceable right of visitation
with the minor Child was acquired by the Petitioners being allowed to visit after the
adoption of the minor Child was finalized.” The adoptive parents sought and were granted
permission to file an interlocutory appeal, challenging the denial in part of their motion to
dismiss. We reverse and remand for further proceedings.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Chancery Court
Reversed and Remanded
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
Phillip L. Boyd, Rogersville, Tennessee, for the appellants, Renee G. and Danny G.
Rachel Ratliff, Johnson City, Tennessee, for the appellees, Penny T. and Jerry T.
OPINION
I. FACTS & PROCEDURAL HISTORY
The child at issue in this proceeding, M.L.S.,1 was born in 2013. Her biological
parents died in 2014. Although the record before us is sparse, it reflects that the Tennessee
Department of Children’s Services became involved and filed some sort of petition with
1
We refer to the minor child and other parties by initials to protect the child’s privacy.
regard to the child in the juvenile court of Hawkins County. After a hearing, the juvenile
court entered an order awarding temporary legal custody of the child to her maternal
grandmother and step-grandfather (“Grandparents”). According to the order, “[DCS]
reported that [Grandparents] were appropriate caregivers for the minor child and that
[DCS] would be releasing custody of the minor child to [Grandparents].” The child’s
paternal great-aunt and great-uncle (“Aunt and Uncle”) also appeared at the hearing.
According to the order, “[DCS] reported that the parties had worked out a visitation
schedule prior to the hearing and that [Aunt and Uncle] would be entitled to a minimum of
every other weekend visitation with the minor child.” The court went on to find that
Grandparents were “appropriate custodians of the minor child.” The order states that the
trial judge “advised all parties to work together to help raise [the child.]” In conclusion,
the order stated that the child was “placed in the temporary legal custody of [Grandparents]
with authority to consent to any ordinary or necessary medical, surgical, hospital,
educational, institutional, psychiatric, or psychological care.” The order states that the
matter was “hereby closed” and that no further hearings were scheduled.
On May 18, 2015, the chancery court for Hawkins County entered a final decree of
adoption permitting Grandparents to adopt the child. The decree recites that the child’s
parents were deceased, that Grandparents had “actual physical and legal care of the child,”
and that they had been awarded custody pursuant to the order of the juvenile court in the
aforementioned matter. The order also states that all parties entitled to notice were served
and that all necessary parties were before the court. The adoption decree provided that “the
relationship of parent and child is hereby established with all rights and privileges incident
thereto,” and it stated that Grandparents, as adoptive parents, would “have exclusive care,
custody and control of the said child, free from the claims or hindrances of all others[.]”
On September 26, 2018, Aunt and Uncle filed a “Petition to Enforce Visitation” in
chancery court. The petition stated that Aunt and Uncle had been awarded every other
weekend visitation by the juvenile court in 2014 pursuant to the same order that granted
temporary legal custody to Grandparents. The petition stated that Aunt and Uncle believed
that Grandparents had adopted the child sometime in 2015. However, Aunt and Uncle
stated that they had continued to have regular visitation with the child until June 2018 when
Grandparents “abruptly ended” their visitation. Aunt and Uncle alleged that a significant
bond existed between them and the minor child and that severance of the relationship
would cause emotional harm to the child. They also asserted that it was in the best interest
of the child for them to continue having a relationship with her. Thus, Aunt and Uncle
asked the court to “enter an Order to Enforce the Visitation previously Ordered between
the Plaintiffs and the minor Child.” They attached to the petition a copy of the 2014
juvenile court order.
Grandparents filed a motion to dismiss the petition to enforce visitation, asserting
that it failed to state a claim. Grandparents confirmed that they had in fact adopted M.L.S.
in 2015. They attached the adoption order to their motion. Thus, Grandparents pointed
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out that they had become the child’s adoptive parents. Grandparents argued that “any prior
Order granting temporary visitation is moot and not enforceable.” They further argued that
Aunt and Uncle had no standing to seek visitation with their adopted child.
While this case was pending, Aunt and Uncle filed a separate petition to set aside
the adoption order, also in chancery court. On February 20, 2019, the trial court held a
hearing to jointly address both matters. At the conclusion of the hearing, the trial judge
announced that the separate petition to set aside the adoption order was dismissed.2
Regarding the petition to enforce visitation, the trial judge announced that he intended to
take the matter under advisement in order to research whether the visitation order
“survive[d] the adoption.”
On May 9, 2019, the trial court entered an order on Grandparents’ motion to dismiss
the petition to enforce visitation. The trial court partially granted the motion to dismiss,
“pursuant to T.C.A. § 36-1-121(f).” At the time of the adoption proceeding, that subsection
provided:
(f) The adoptive parents of a child shall not be required by any order of the
adoption court to permit visitation by any other person, nor shall the order of
the adoption court place any conditions on the adoption of the child by the
adoptive parents. Any provision in an order of the court or in any written
agreement or contract between the parent or guardian of the child and the
adoptive parents requiring visitation or otherwise placing any conditions on
the adoption shall be void and of no effect whatsoever; provided, that nothing
under this part shall be construed to prohibit “open adoptions” where the
adoptive parents permit, in their sole discretion, the parent or guardian of the
child who surrendered the child or whose rights to the child were otherwise
terminated, or the siblings or other persons related to the adopted child, to
visit or otherwise continue or maintain a relationship with the adopted child;
and provided further, that the permission or agreement to permit visitation or
contact shall not, in any manner whatsoever, establish any enforceable rights
in the parent or guardian, the siblings or other related persons.
Tenn. Code Ann. § 36-1-121(f) (2015). Citing this section, the trial court “partially
dismissed” the petition to enforce visitation. Although the trial court’s order did not
elaborate further on its reasoning, we interpret the order as holding that the juvenile court’s
order did not survive the adoption proceeding.
However, the trial court excluded one issue from its dismissal and ruled that the
parties must participate in depositions regarding whether “acquiescence” occurred.
2
In a related appeal, In re Adoption of M.L.S., No. E2019-01918-COA-R3-CV, this Court affirmed
the trial court’s dismissal of the petition to set aside the adoption.
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Specifically, the trial court ordered depositions to determine when visitation began and
ended “and if an enforceable right of visitation with the minor Child was acquired by [Aunt
and Uncle] being allowed to visit after the adoption of the minor Child was finalized.” The
order stated that an additional hearing would be conducted after the completion of
depositions on this remaining issue of “acquired visitation rights through visitation after
the adoption of the minor Child.”
Grandparents filed a motion asking the trial court to amend its order regarding
depositions and grant their motion to dismiss in its entirety. They pointed to the final
sentence of Tennessee Code Annotated section 36-1-121(f), which provided that adoptive
parents’ “permission or agreement to permit visitation or contact shall not, in any manner
whatsoever, establish any enforceable rights in the parent or guardian, the siblings or other
related persons.” Due to this language, Grandparents insisted that Aunt and Uncle had not
acquired any enforceable right to visitation.
Aunt and Uncle filed a response, asserting that they could potentially have acquired
an enforceable right to visitation due to acquiescence and the unique facts of this case.
After an additional hearing, the trial court declined to alter its original ruling but indicated
that it would be inclined to grant Grandparents permission to seek an interlocutory appeal
should they choose to pursue one. The order further stated that Aunt and Uncle would also
be given the opportunity to pursue an interlocutory appeal if they chose to pursue one.
Thereafter, Grandparents filed a written motion for permission to seek an
interlocutory appeal to this Court regarding the partial denial of their motion to dismiss.
Grandparents maintained that Tennessee Code Annotated section 36-1-121(f) barred Aunt
and Uncle from claiming any enforceable right to visitation on the basis of acquiescence.
The trial court entered an order granting Grandparents permission to seek an interlocutory
appeal in this Court. Upon consideration of the application for permission to appeal
Grandparents filed before this Court, we entered an order granting interlocutory review of
the trial court’s order.
II. ISSUES PRESENTED
This Court’s order granting review framed the following issues to be reviewed on
appeal:
(1) Whether [Aunt and Uncle] have standing to proceed with a suit to enforce
visitation with the subject minor child under the version of Tennessee Code
Annotated § 36-1-121 in effect at the time of entry of the Final Decree of
Adoption.
(2) Whether [Aunt and Uncle] have standing to proceed with a suit to enforce
visitation with the subject minor child based upon other grounds.
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However, these issues must be read in light of the procedural posture of this case. In their
brief on appeal, Aunt and Uncle raise a host of arguments regarding a wide range of issues.
For instance, in apparent relation to their separate petition to set aside the adoption, they
argue that they were guardians of the child and “had a legal interest in the child that would
have had to be terminated in order to complete the adoption.” They also argue that the
juvenile court’s order awarding them visitation rights should be construed as a
“grandparent visitation” order that would survive the adoption. However, we must bear in
mind that this is a Rule 9 appeal in which the only parties who filed an application for
permission to appeal were Grandparents. The limited ruling challenged by Grandparents
was the partial denial of their motion to dismiss based on the issue of acquiescence.
Therefore, the limited issue properly before us in this interlocutory appeal is whether the
trial court erred in partially denying Grandparents’ motion to dismiss on the basis that Aunt
and Uncle may have acquired some enforceable visitation right by acquiescence.
III. DISCUSSION
“Tennessee law recognizes no legal distinction between a biological parent and an
adoptive parent.” Brown v. Farley, No. E2018-01144-COA-R3-CV, 2019 WL 993122, at
*4 n.2 (Tenn. Ct. App. Feb. 28, 2019).
The signing of a final order of adoption . . . establishes from that date the
relationship of parent and child between the adoptive parent or parents and
the adopted child as if the adopted child had been born to the adoptive parent
or parents and the adopted child shall be deemed the lawful child of such
parent or parents, the same as if the child had been born to the parent or
parents, for all legal consequences and incidents of the biological relation of
parents and children.
Tenn. Code Ann. § 36-1-121(a). “Thus, the adoptive parents acquire all parental rights and
responsibilities[.]” In re Montana R.T., No. E2011-00755-COA-R3-PT, 2012 WL
2499498, at *5 (Tenn. Ct. App. June 29, 2012).
At the time of the adoption in this case, and through the date of the hearing on
Grandparents’ motion to dismiss, the statute further provided:
(f) The adoptive parents of a child shall not be required by any order of the
adoption court to permit visitation by any other person, nor shall the order of
the adoption court place any conditions on the adoption of the child by the
adoptive parents. Any provision in an order of the court or in any written
agreement or contract between the parent or guardian of the child and the
adoptive parents requiring visitation or otherwise placing any conditions on
the adoption shall be void and of no effect whatsoever; provided, that nothing
under this part shall be construed to prohibit “open adoptions” where the
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adoptive parents permit, in their sole discretion, the parent or guardian of the
child who surrendered the child or whose rights to the child were otherwise
terminated, or the siblings or other persons related to the adopted child, to
visit or otherwise continue or maintain a relationship with the adopted child;
and provided further, that the permission or agreement to permit visitation
or contact shall not, in any manner whatsoever, establish any enforceable
rights in the parent or guardian, the siblings or other related persons.
Tenn. Code Ann. § 36-1-121 (2015) (emphasis added).
Grandparents relied on the italicized portion of the statute in support of their position
that Aunt and Uncle could not acquire any enforceable right to visitation through
“acquiescence.” The trial court rejected their argument and ordered the parties to conduct
discovery to determine “if an enforceable right of visitation with the minor Child was
acquired by the Petitioners being allowed to visit after the adoption of the minor Child was
finalized.” We respectfully disagree with the trial judge’s conclusion that Aunt and Uncle
could potentially acquire an enforceable visitation right by “being allowed to visit after the
adoption.” At the time of the adoption decree, throughout the subsequent period of
visitation, and at the time of the hearing below, Tennessee Code Annotated section 36-1-
121(f) (2015) provided that the adoptive parents’ permission or agreement to permit
visitation would not in any manner whatsoever establish enforceable rights in the related
person permitted to visit. See, e.g., In re M.E.W., No. M2003-01739-COA-R3-PT, 2004
WL 865840, at *14 (Tenn. Ct. App. Apr. 21, 2004) (recognizing that a biological mother
“would have no enforceable right” to visitation after adoption “if the adoptive parents
changed their minds”).
We recognize that on March 22, 2019, after the hearing was conducted in the trial
court below, Tennessee Code Annotated section 36-1-121(f) was amended to provide:
(f) A final order of adoption of a child cannot require the adoptive parent to
permit visitation by any other person, nor can the final order of adoption
place any conditions on the adoption of the child by the adoptive parent. This
statute does not prohibit the entry of an order enforcing or modifying a
contract for post-adoption contact pursuant to § 36-1-145.
Tenn. Code Ann. § 36-1-121 (2019). However, this amendment does not alter our
conclusion in this case. Although the specific italicized language above no longer appears
in the current version of the statute as amended, the result is the same under the facts of
this case. The parent-child relationship was established between Grandparents and the
child in 2015, “the same as if the child had been born to the parent or parents, for all legal
consequences and incidents of the biological relation of parents and children.” Tenn. Code
Ann. § 36-1-121(a). Although we recognize that Aunt and Uncle want to have a
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relationship with the child, we are not aware of any legal basis for them to have possibly
acquired enforceable visitation rights based on “acquiescence” in visitation after the
adoption.3
IV. CONCLUSION
For the aforementioned reasons, the trial court’s partial denial of the motion to
dismiss is hereby reversed, and we remand for dismissal of the petition to enforce visitation
in its entirety. Costs of this appeal are taxed to the appellees, Penny T. and Jerry T., for
which execution may issue if necessary.
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CARMA DENNIS MCGEE, JUDGE
3
As previously noted, Aunt and Uncle argued on appeal that the juvenile court’s 2014 order
granting them every other weekend visitation “should be considered to fall under a grant of visitation
pursuant to the grandparent visitation statute.” Aunt and Uncle do not appear to argue that the
“acquiescence” issue that remained pending in the trial court had anything to do with the grandparent
visitation statute. However, to the extent that their argument could be construed in that manner, we reject
the suggestion that they could have acquired any enforceable grandparent visitation rights. Aunt and Uncle
claim to fall within the definition of a “grandparent” pursuant to the grandparent visitation statute because
they “act more so in a grandparent role to the child than their actual biological role of great-uncle and -
aunt.”
“The Grandparent Visitation Statute applies only to persons who satisfy the statutory definition of
the term ‘grandparent.’” Lovlace v. Copley, 418 S.W.3d 1, 17 (Tenn. 2013). The statute provides that “the
word ‘grandparent’ includes, but is not limited to: (1) A biological grandparent; (2) The spouse of a
biological grandparent; (3) A parent of an adoptive parent; or (4) A biological or adoptive great-grandparent
or the spouse thereof.” Tenn. Code Ann. § 36-6-306(e). In Lovlace, the Tennessee Supreme Court held
that this definition was expansive enough to include a biological father’s adoptive parent and step-parent.
418 S.W.3d at 18. However, the Court noted, “In reaching this holding, we have not considered the extent
or quality of the Lovlaces’ relationship with the minor child, as this is not a relevant consideration in
determining whether a petitioner satisfies the statutory definition of ‘grandparent.’” Id. at 19 n.7. Thus,
we reject the contention that Aunt and Uncle should be considered grandparents within the meaning of the
statute on the basis that they act “in a grandparent role to the child.” See In re Claire C., No. M2019-00986-
COA-R3-JV, 2020 WL 755174, at *7 (Tenn. Ct. App. Feb. 14, 2020) perm. app. denied (Tenn. June 3,
2020) (concluding that a great uncle and great aunt did not meet the definition of a grandparent in the
grandparent visitation statute and explaining that “the statute does not authorize a court to determine that a
petitioner qualifies as a ‘de facto grandparent’ based upon his or her relationship with a child”); In re Dayton
R., No. W2014-01904-COA-R3-JV, 2015 WL 1828039, at *4 (Tenn. Ct. App. Apr. 21, 2015) (“[T]he
Legislature’s wording in Section 36-6-306(e)(1) indicates an intent to provide standing to lineal ancestors,
or grandparents who are biologically related to the child.”)
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