Tennessee Divorce Attorney Blog

The case of In Re: Don Juan J.H., et al. No. E2010-01799-COA-R3-JV, demonstrates when a comparative fitness analysis can be bypassed by the trial court in a Tennessee adoption proceeding.

The Petitioners filed to adopt the minor child ("Child") and the Department of Children's Services ("DHS") then filed a Waiver of Guardianship that gave the department's approval of the adoption. Partial guardianship was given to the Petitioners before the trial. The Appellants here filed a Petition to Intervene, which was granted, allowing them to be added as parties. However, the actual Petition was dismissed at the trial and the adoption was finalized. An appeal followed.

The Mother executed a voluntary surrender and a home study was done on Petitioners. The foster parents filed the Motion to Intervene. After hearing evidence, the trial court ruled that the proof for the intervening petition was not sufficient and entered a dismissal on the intervention. The Appellants then appealed, arguing that the trial court refused to do a comparative fitness analysis between the two families, which was in error.

The Tennessee Supreme Court has previously ruled that when a court faced two competing adoption petitions, a comparative fitness analysis was to be used. The Appeals Court had also held that when DCS was given guardianship over a child, T.C.A. §36-1-102 and 113 allows DCS to place the child for adoption and to consent to the same. Here, the foster parents tried to intervene in the Petitioner's adoption, but the foster parents did not attempt to terminate the guardianship of DCS or the Petitioners. Therefore, the trial court here was correct in dismissing the intervening petition because the evidence did not support a finding sufficient to justify termination of the guardianships.

Therefore, if a parent surrenders their rights to a child to the adoptive parents and if the court gave partial guardianship to the adoptive parents, then the former foster parents are not entitled to a comparative fitness analysis.

In Tennessee, the parental rights of both parents must be terminated before an unrelated individual or non-stepparent may adopt. In a recent Tennessee Court of Appeals case, the Court upheld the trial court's ruling that the unrelated petitioner lacked standing to terminate the biological father's parental rights while the biological mother retained her parental rights. In re Shelby L.B., 2011 WL 1225567, (Tenn. Ct. App. March 31, 2011). In Shelby, the petitioner was a friend of the biological mother, but the two were not married, so legally he was considered a stranger to the child as he was not a stepparent. Because the petitioner was a legal stranger to the child, he lacked standing to petition for termination of the biological father's parental rights, and the trial court was correct in dismissing his petition.

The petitioner argued that he was a potential adoptive parent and therefore had standing to bring the petition to terminate. The Court disagreed. The Court determined that in order to be a potential adoptive parent, one must not only have the intention or desire to adopt, but must also have the legal capacity to do so. Because the petitioner lacked standing to terminate, he did not have the legal capacity to adopt and was not considered a potential adoptive parent.

A key consideration in the Court's determination was the fact that terminating the biological father's rights would deprive the child of another adult who had responsibilities to her. Once parental rights are terminated, the obligation of support is eliminated, so the father would no longer be required to support the child. The Court saw no reason to allow an unrelated individual to deny the child of the support of two parents.

The only situation where a biological parent can join in a petition in an adoption without automatically surrendering his or her own rights is where a stepparent is petitioning to terminate the parental rights of the other parent. So, if the petitioner and the biological mother in Shelby had been married, he would have had standing to file the petition, and she could have joined in the petition without surrendering her rights.

In April 2010, Torry Hansen placed her seven year old adopted son, Justin Hansen, on a plane to Moscow with nothing but a note stating that she did not want to be his adoptive mother anymore. She claimed that he was violent and had psychological problems. The child was only in Hansen's care for four months - two months too short to establish Tennessee as the child's home state for jurisdictional purposes.

According to the Shelbyville Times, Russian authorities have stated that Hansen owes them $2,500 per month in child support since the child is now being housed in a Russian orphanage. The Russian authorities filed in Bedford County Juvenile Court stating that they want to wait for Bedford County to rule on the child support claims filed by the adoption agency, World Association for Children and Parents, before they go forward with the case in Russia.

This case presents interesting jurisdictional issues. Hansen's former attorney argued that since Tennessee is not the child's home state and Russia is handling the termination of Hansen's parental rights over the child, Tennessee does not have jurisdiction over the child and therefore cannot make a determination as to child support. The two attorneys for the adoption agencies involved took issue with this argument. They stated, "If an adoptive parent in Tennessee could avoid their child support obligations by placing the child on an airplane to California just four months after they receive custody, then the statutes would be meaningless."

The adoption agencies' attorneys have a very good point. It would appear to completely defeat the purpose of the Tennessee child protection laws to allow a parent to place a lone child on a plane with nothing but a note and be able to avoid any responsibility for that child after he reaches he destination.