Facts: Child’s mother died in 2016 from chronic drug abuse. In 2019, three weeks before Child’s father also died from drug abuse, Paternal Aunt obtained custody of Child through a dependency and neglect petition. The juvenile court found that Paternal Aunt had been caring for Child for three years and was an appropriate custodian.

Two months later—and a little over a month after Father’s death—Maternal Grandmother petitioned the juvenile court for custody or grandparent visitation. Paternal Aunt and Maternal Grandmother signed a temporary agreed order giving Maternal Grandmother visitation with Child on alternating weekends and certain holidays.

One week later, in chancery court, Maternal Grandmother filed an emergency ex parte petition for guardianship over Child’s person and estate. The Chancery Court entered an ex parte order to that effect.

A few days later, with no notice to Paternal Aunt, Maternal Grandmother petitioned to adopt Child. The petition alleged that she had custody of Child and was aware of no other person with legal or physical custody of Child. Four days later, in uncontested hearing, the trial court entered a final order granting Maternal Grandmother’s petition to adopt Child.

About a week later, Paternal Aunt learned of the adoption. She immediately moved to intervene and have the adoption order set aside. Paternal Aunt also filed her own petition to adopt Child.

Acting on its own, the trial court set aside the adoption order. The trial court determined that Maternal Grandmother failed to reveal the existence of an open juvenile court case and failed to notify Paternal Aunt of the adoption petition as required because, according to juvenile court, she was Child’s custodian.

The trial on the competing adoption petitions took two days. The guardian ad litem announced that Child requested to speak privately to the trial court judge. The judge was reluctant to interview Child alone in chambers, but granted the request with the consent of the parties, stating:

But I will come back out—if we all agree that’s the way to do it, I will come back out and express exactly what was expressed to me so that everybody knows and it’s on the record. That’s fine, I’ll talk to her privately, then I’ll come back out and put it on the record so that everybody knows what was said.

At the end of the first day of trial, the trial court judge interviewed Child in chambers without counsel or a court reporter present. Afterward, the trial court announced:

I’m going to change what I said we would be doing earlier…. [Until trial resumes on the next scheduled date] I’m not going to express what was said to me in chambers. This is just so little [Child] doesn’t have any stress or pressure about what was said to me in between because I don’t know how long it will take for us to reschedule. One way or the other, somebody’s feelings will be hurt.

On the second day of trial, Maternal Grandmother presented the rest of her case, and counsel presented their closing arguments. The trial court took the case under advisement.

The trial court issued its written ruling three weeks later granting Paternal Aunt’s petition to adopt Child. Maternal Grandmother was awarded visitation for nine hours every other Sunday. About Child’s testimony, the trial court wrote:

[Child] was a credible witness…. [Child] is intelligent and well-spoken. She struggles with being caught in the middle of this litigation. [Child] strongly desires to be adopted by Paternal Aunt. [Child] considers Paternal Aunt to be her mother and the other girls in the home her sisters…. [Child] stated that she has been lying to Maternal Grandmother for over a year about her preferences. [Child] was very nervous about her Maternal Grandmother knowing her real feelings. [Child] loves Maternal Grandmother but does not want to live with her…. [Child] has a very strong bond with Paternal Aunt….

Maternal Grandmother appealed.

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

Tennessee law requires trial courts to consider the reasonable preference of a child at least 12 years old and allows trial courts to consider the preference of younger children upon request.

The trial judge may interview a child outside the courtroom when it’s in the child’s best interest. When that occurs, however, the child must be examined in the presence of attorneys for each side. While a court reporter is not always required, it is highly recommended that a court reporter be present so a transcript can be available to the appellate court if necessary.

If a judge interviews the child with no one else present, it must disclose to the parties what occurred during the interview so the parties can rebut statements made during the interview.

The Court held it was reversible error for the trial court to interview Child without disclosing what Child said:

Inasmuch as the trial court did not announce the content of Child’s testimony prior to making its final ruling, we must determine whether the other evidence, apart from Child’s testimony, preponderated so strongly in favor of Paternal Aunt that Maternal Grandmother could not have been prejudiced by her lack of knowledge of the testimony and accompanying inability to offer countervailing proof….

[The Court then proceeded to analyze the best-interest factors.]

Upon careful review, we determined that Child’s testimony influenced the trial court’s best-interest analysis to the point that we cannot find that the other evidence in the record definitely would have preponderated in favor of the court’s judgment in favor of Paternal Aunt without Child’s testimony. The evidence in this case for each party is simply too close to discern that the outcome would’ve been the same if the court had not interviewed Child. For this reason, we conclude that it was reversible error for the court to withhold its announcement of the substance of Child’s testimony until the court issued its memorandum opinion when the parties no longer had an opportunity to offer evidence in response to the testimony.

We recognize and respect the trial court’s concern for Child’s “struggles with being caught in the middle of this litigation.” However, we also note that in the trial court’s announcement after hearing Child’s testimony, the court stated: “I’m going to hold until we have our next hearing, and I will then announce what was said to me.” Although it is clear that the parties agreed to have Child interviewed by the trial court judge in private, it is not at all clear from the record that the parties agreed to be uninformed as to the content of Child’s testimony until it was written into the final judgment. For this reason and because failure to object does not insulate the trial court from committing reversible error, we find Paternal Aunt’s argument regarding the parties’ agreement to Child’s testimony unavailing….

We also see no reason in this case why Child’s in camera testimony as previously presented to the trial court and subsequently memorialized in the court’s judgment cannot stand as evidence, provided that the parties are offered an opportunity to present evidence in response to Child’s testimony. Child therefore need not testify again.

The Court of Appeals vacated the trial court’s judgment granting the adoption to Paternal Aunt and remanded the case to the trial court for an evidentiary hearing solely to allow the parties to present evidence in response to Child’s testimony.

K.O.’s Comment: Maternal Grandmother also challenged the trial court’s ability to set aside a final judgment of adoption. This post would be twice as long if I included that issue, and it’s long enough already. If your practice includes adoptions, it’s worth your time to read this opinion’s discussion on that issue. For the rest of you, you’re welcome.

In re Lyric N. (Tennessee Court of Appeals, Eastern Section, July 29, 2022).

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