Facts: Mother was the unmarried parent of Child. Following the birth, Mother and Child lived with Grandparents in their home for over two years. Grandparents loved the child and they shared a close relationship.

One day Mother told Grandparents she was going shopping. When she left, she took Child with her. It was the last time Grandparents saw Child.

One month earlier, Mother began a relationship with a new boyfriend. After she left, Mother sent a text message to Grandparents saying she was not taking Child from them and she planned to be gone only one week.

After nearly a month, Grandparents had been unable to locate Mother and Child. They were worried about Child’s safety.

Mother’s boyfriend’s mother informed Grandparents that, according to her son, Child was no longer with the couple and that Mother may have given Child up for adoption.

Days later, Grandparents filed an emergency petition in juvenile court seeking custody of Child. At the initial hearing in that proceeding, they learned for the first time that Mother had already consented to the adoption of Child.

Grandparents then filed a petition in Chancery Court challenging Mother’s voluntary surrender of parental rights that precipitated the adoption. Grandparents alleged that awarding custody of Child to them was in Child’s best interest. They requested an order removing custody from the adoptive parents.

The trial court held Grandparents must prove by clear and convincing evidence that the removal of Child from the adoptive parents was in Child’s best interest. The trial court found Grandparents had not satisfied this burden of proof. In other words, the trial court held Grandparents did not have to prove the surrender or adoption was not in Child’s best interest; instead, they had to prove, by clear and convincing evidence, the removal of Child from the adoptive parents was in Child’s best interest.

Grandparents appealed.

On Appeal: The Court of Appeals affirmed the trial court.

In the context of adoptions involving a surrender or parental consent, Tennessee’s adoption laws permit biological parents to surrender their parental rights to a child in favor of a particular person or agency. The statutes allow a biological parent to surrender a child directly to a prospective adoptive parent chosen by the biological parent.

Although a biological parent has the right to make the initial choice of his or her child’s adoptive parent, the biological parent’s right to choose child’s adoptive parent is not absolute. In filing an adoption petition, the prospective adoptive parent must allege, among other things, that he or she is a fit person to have custody of the child and that it is in the best interest of the child for the adoption to occur. The trial court must then find the adoption is in the child’s best interest. Thus, the biological parent’s choice of an adoptive parent is always subject to the trial court’s determination that the proposed adoption is in the child’s best interests.

Tennessee’s adoption statutes contemplate different types of intervention by interested parties.

In cases involving a child who is the subject of a surrender, parental consent, or guardianship order, Tennessee’s adoption laws — specifically Tennessee Code § 36-1-111(u)(2) — authorize any person to intervene in a surrender or adoption proceeding for the purpose of presenting evidence regarding the best interests of the child.

After a trial, if the trial court finds by clear and convincing evidence that such action is in the best interests of the child, the trial court may enter an order removing the child from the prospective adoptive parents. In that event, the trial court may award custody of the child to any person.

Tennessee Code § 36-1-111(v)(4) provides in relevant part:

Upon the final hearing, and based upon clear and convincing evidence that the action is in the best interests of the child, the court shall have jurisdiction to enter an order removing the child from the prospective adoptive parents . . . and may award temporary legal custody giving any person . . . the care and custody of the child….

Grandparents argued the trial court erred in making them prove the surrender and proposed adoption of Child was not in Child’s best interest. Instead, they argued the trial court should have conducted a straightforward “best interest” analysis comparing their fitness to that of the adoptive parents. Grandparents’ argument turned on the meaning of the word “action” in the statute quoted above. Grandparents argued the statute placed the burden on them to show their complaint (i.e., “action”) and relief requested was in Child’s best interest and, therefore, that they need only show that awarding custody to them is in Child’s best interest.

The Court rejected this argument, explaining:

It is clear to us that the word “action” refers to the removal of the child from the prospective adoptive parents. In construing the provisions of Tennessee Code § 36-1-111(v)(4), we note that the introductory clause “based upon clear and convincing evidence that the action is in the best interests of the child” contemplates not the complaint or the cause of action alleged in that document, but rather the “order removing the child from the prospective adoptive parents.” That is the possible “action” granted to the trial court by statute. Thus, as the trial court correctly concluded, the burden was on Grandparents to show, by clear and convincing evidence, that it was in the best interest of the Child to remove her from the custody of the prospective adoptive parents.

As the trial court emphasized, Grandparents, despite their close relationship with the Child, are not on equal footing with [the adoptive parents] with respect to custody of the Child. As it stands, as a result of Mother’s choice to surrender the Child to [the adoptive parents] for adoption, Grandparents, as interested third parties, are saddled with the burden of proving that it is best for the Child to be removed from the prospective parents Mother has chosen for the Child. Stated differently, the law does not contemplate that Grandparents can easily “undo” Mother’s decision by simply asserting that it is best for the Child to be placed with them.

The trial court articulated and correctly applied the appropriate burden of proof with respect to Grandparents’ complaint. We reject Grandparents’ argument to the contrary….

[Mother] chose [the adoptive parents] to raise [Child]. It is harsh, but [Mother] made a second choice — she deliberately declined to select her own family, the family to which she was most familiar. [Mother] chose not to select the couple who raised her. The law in Tennessee allows a biological parent to offer the parent’s child to another family. The law does not require the biological parent to include or consult with extended family regarding this choice. The law requires the Court to give deference to the biological mother’s choice, unless by clear and convincing evidence the best interests of the child are fulfilled by disrupting this choice.

Accordingly, the trial court was affirmed.

K.O.’s Comment: This case illustrates well the painful emotional issues inherent in family law matters and how those emotions often must yield to the law.

In re R.S.M. (Tennessee Court of Appeals, Eastern Section, February 27, 2015).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.