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IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
February 12, 2004 Session JOSEPH AND JEAN GONZALEZ v. STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES, IN THE MATTER OF A.J.H.
Interlocutory Appeal by Permission from the Court of Appeals, Middle Section Juvenile Court for Davidson County No. 2219-68191 Betty Adams Green, Judge

No. M2003-02405-SC-S09-JV - Filed June 17, 2004

In this interlocutory appeal, we consider whether and under what circumstances grandparents may intervene in proceedings brought to terminate the parent-child relationship. In this case, the grandparents filed a motion in the juvenile court to intervene in a termination of parental rights proceeding. The juvenile court denied the motion, and the grandparents moved for interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9. The trial court granted the motion. Following the Court of Appeals' denial of the grandparents' application for permission to appeal, they filed an application for permission to appeal to this Court; we granted the application. After a thorough review of the record and relevant legal authority, we conclude that the motion filed in juvenile court seeking intervention in the termination of parental rights case is to be analyzed under Tennessee Rule of Civil Procedure 24. Using this analysis, we find no error and affirm the denial of the motion to intervene. Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Juvenile Court Affirmed; Case Remanded to the Juvenile Court for Davidson County ADOLPHO A. BIRCH , JR ., J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J., and E. RILEY ANDERSON , JANICE M. HOLDER , and WILLIAM M. BARKER, JJ., joined. Thomas H. Miller, Franklin, Tennessee, for the appellants, Joseph and Jean Gonzalez. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Elizabeth C. Driver, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services. Opinion I. Facts and Procedural History

A.J.H.1 was born on May 11, 2002, in Davidson County, Tennessee, to Malisa and Donald Hall. The appellants, Jean and Joseph Gonzalez, are the paternal grandmother and step-grandfather, respectively, of A.J.H. On May 16, 2002, the Tennessee Department of Children's Services ("the agency") filed in the Juvenile Court of Davidson County a petition for custody and emergency removal of A.J.H. According to the petition, the agency had information from a Michigan protective service agency that Malisa Hall's parental rights to her four older children had been terminated in Michigan based on allegations that Donald Hall had molested two of them.2 The petition alleged also that the Halls had lived in Michigan and had come to Tennessee for A.J.H.'s birth because they believed that they would be able to keep the child in their care and custody were the birth to occur outside of Michigan. Based on the petition, the Juvenile Court issued an Emergency Protective Custody Order on May 16, 2002, and the child was placed in the foster home in which he now resides. On May 20, 2002, the petition was heard. The court found that A.J.H. was a dependent and neglected child as defined in Tennessee Code Annotated section 37-1-102(b)(1), -102(b)(12)(B), 102(b)(12)(F), and -102(b)(12)(G). Thus, the court found that custody of A.J.H. should remain with the agency and ordered the agency to prepare a "Plan of Care." This "Plan of Care," or permanency plan, was developed on May 31, 2002. It was hoped that the child would be returned to the parents. The plan made no reference to other relatives. A second permanency plan was developed on May 8, 2003, with the same goal. Again, there was no mention of relatives. On May 15, 2003, the agency filed a petition to terminate parental rights. On August 18, 2003, the Gonzalezes filed a motion to intervene in the parental termination case.3 In that motion, the Gonzalezes stated their "wish to adopt their grandson." At the hearing on the petition to intervene, Mrs. Gonzalez testified that she did not know that A.J.H. was in foster care until Donald Hall, her son and the father of A.J.H., called her in mid-June. She acknowledged that she knew that Malisa Hall was pregnant and that the Halls had gone to Tennessee, but she stated that she did not know how to reach them. According to Gonzalez, Donald Hall would call periodically, but he did not disclose where he was or that A.J.H. was not in his custody. At the time of the hearing, she had not seen her grandson and acknowledged that she had not gone to Tennessee to visit him.

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The record in this case has been sealed, and the child will be identified by the initials "A.J.H."

According to the record, Malisa Hall has five children: daughter A.S., born on May 15, 1996; daughter S.S., born on January 15, 1999; daughter A.H., born on M ay 10, 2000; son D.W .H., born on April 11, 2001; and son, A.J.H. (the subject of this case) born on May 11, 2002. Donald Hall was not the biological father of the two oldest daughters, A.S. and S.S. The testimony is unclear, but apparently Hall was accused of molesting A.S. and S.S., and under an agreement in which the charges were not prosecuted, he voluntarily surrendered his parental rights to his biological daughter, A.H. It appears also that Hall was the biological father of son D.W .H. and that his parental rights to D.W .H. were also terminated. Since he was taken into State custody, A.J.H. has been in the custody of foster parents, Edward and Cynthia LaBonne. The LaBonnes also filed a petition to intervene in the termination proceedings.
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Mrs. Gonzalez testified that she had not known of the pregnancy, birth, or voluntary surrender of another grandchild, a girl, until several months after the child had been adopted.4 She stated that Donald Hall had told her that he had to sign away his rights to the baby girl because he had been accused of child molestation. She claimed that she had not known about that child until after the child had been placed in a foster home. Finally, she testified that had she known about A.J.H., she would have come to Tennessee sooner. Donald Hall maintained that from the time the child was removed until the time the termination petition was filed, the agency case workers did not ask him about his Michigan relatives. He testified that he did not want the child to be placed with his mother, Mrs. Gonzalez, because he believed that he could regain custody of A.J.H. by meeting the case worker's requirements. Additionally, he stated that he wanted to show his parents that he was responsible by dealing with the problem himself. Moreover, an agency case manager, Angela Hilliard, testified that the case worker who was initially involved in the removal of the child from the hospital had asked Donald Hall to identify other family members "in Nashville," but he disclosed neither the names nor locations of any family members in Nashville. (And indeed, there were none in Nashville.) Hilliard never contacted the Halls' Michigan relatives because she was not aware of their existence. She acknowledged that she knew about an aunt and uncle in Kentucky and a non-biological "sister." She stated, however, that Donald Hall never mentioned Mrs. Gonzalez and that she never asked him about her. According to Hilliard, Donald Hall stated that he did not get along with his family. After the hearing on the motion to intervene, the trial court found that even though the agency "did not actively pursue other relatives," the case workers had nevertheless met their statutory obligation to seek placement within the family. Specifically, the court stated: "Could the Department have done more? Certainly. However, at some point, a parent must step up and contribute to the process." The trial court noted that although Donald Hall was specifically questioned about his relatives, he offered no names or phone numbers of individuals who might be able to take care of the child. In addition, according to the trial court, Donald Hall stated that he "didn't have anything to do with his parents and they did not get along." The trial court also found that the Gonzalezes had known that Donald Hall did not have the means to care for the child, had done nothing to "follow up with regard to the care of the child," and had previously lost one grandchild because they did not know about the termination proceedings. The court ruled that a third party must demonstrate a "legally protected interest" in the care and custody of a child before intervention is allowed in a parental termination proceeding. The trial court concluded: The Court would have permitted the grandmother to intervene if she had demonstrated either that she was entitled to intervene by virtue of a statute or prior

A.H. was born on May 10, 2000. A Michigan court terminated Donald Hall's parental rights to A.H. by order on March 12, 2001. Donald Hall also filed a voluntary "Release of Child by Parent" on that same date. Malisa Hall's parental rights with regard to A.H. were terminated on July 19, 2001.

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court order or that she had exercised significant control and responsibility regarding the child, neither of which has been established. The Gonzalezes immediately filed an application for interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. The trial court granted permission to file the interlocutory appeal. The Court of Appeals denied the application for permissive interlocutory appeal. This Court granted an interlocutory appeal. II. Standard of Review The issue before the Court is whether the trial court erred in denying the Gonzalezes' motion to intervene as of right. For denial of intervention as of right (for a reason other than the timeliness of the application), review is de novo. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn. 2000). Conclusions of law are reviewed de novo upon the record with no presumption of correctness while our "review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." Tenn. R. App. P. 13 (d) (2003); see also Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re Valentine, Jr., 79 S.W.3d 539, 546 (Tenn. 2002); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). III. Analysis To determine whether the trial court correctly denied the Gonzalezes' motion to intervene, we must first determine which rules apply to intervention in juvenile court proceedings. A. Third Party Intervention in Parental Rights Termination Proceedings The petition to terminate parental rights was filed in Juvenile Court. Although standing to file a petition to terminate parental rights is statutorily restricted to those persons designated in Tennessee Code Annotated section 36-1-113(b) (2001 & Supp. 2003),5 intervention in such

Tennessee Code Annotated section 36-1-113(b) (2001 & Supp. 2003) provides: The prospective adoptive parent or parents of the child, including extended family members caring for related children, any licensed child-placing agency having custody of the child, the child's guardian ad litem, a court appointed special advocate (CASA) agency, or the department shall have standing to file a petition pursuant to this part or pursuant to title 37 to terminate parental or guardianship rights of a person alleged to be a parent or guardian of such child. The prospective adoptive parents, including extended family members caring for related children, shall have standing to request termination of parental or guardianship rights in the adoption petition filed by them pursuant to this part.

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proceedings is not addressed by statute or by the Rules of Juvenile Procedure.6 The legislature has provided, however, that jurisdiction to terminate parental or guardianship rights resides concurrently in the chancery, circuit, and juvenile courts. Tenn. Code Ann.

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