In Re Lorelai E.

                                                                                        12/28/2022
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                         Assigned on Briefs October 3, 2022

                                 IN RE LORELAI E.

                  Appeal from the Circuit Court for Wilson County
                  No. 2021-AD-119 Michael Wayne Collins, Judge
                      ___________________________________

                           No. M2022-00173-COA-R3-PT
                       ___________________________________

The Tennessee Department of Children’s Services sought to intervene in a private-party
termination of parental rights and adoption proceeding concerning a minor child. The trial
court permitted the intervention. The child’s mother appealed. Because the trial court
acted within its discretion in granting the Department of Children’s Services permissive
intervention pursuant to Tennessee Rule of Civil Procedure 24.02, we affirm.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                           Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and CARMA DENNIS MCGEE, J., joined.

David R. Grimmett, Franklin, Tennessee, for the appellant, Megan E.

Tiffany Dawn Hagar, Lebanon, Tennessee, for the appellee, Joshua R. E.

Jennifer L. E. Williams, Springfield, Tennessee, for the appellees, Andrew K. J. and
Brittney N. J.

Jonathan Skrmetti, Attorney General and Reporter, Amber L. Barker, Assistant Attorney
General, and Kathryn A. Baker, Senior Assistant Attorney General, for the appellee,
Tennessee Department of Children’s Services.

Nanette Uselton Clark, guardian ad litem.
                                                 OPINION

                                        I.      BACKGROUND

       Lorelai E. (“the child”) was born in the Fall of 2019 to appellant Megan E.
(“Mother”) and appellee Joshua R. E. (“Father”). The parents were the child’s primary
caregivers and equally shared parenting responsibilities.        When the child was
approximately nine weeks of age, her pediatrician observed bruising on her body.
Following the results of testing and further examination, a referral was made to the
Tennessee Department of Children’s Services (“DCS”) on January 3, 2020. The same day,
pursuant to an immediate protection agreement, the parents agreed with DCS to place the
child into another home.

       On January 8, 2020, DCS filed in the Davidson County Juvenile Court a petition to
adjudicate the child dependent and neglected and a victim of severe child abuse perpetrated
by Mother and Father. On August 6 and 7, 2020, the juvenile court conducted an
adjudicatory hearing. Following the hearing and by order entered September 8, 2020, the
juvenile court granted DCS’s petition and found by clear and convincing evidence that the
child was dependent and neglected as well as severely abused under Tennessee Code
Annotated sections 37-1-102(b)(1) and 37-1-102(b)(13)(F) and (G). By dispositional order
entered January 12, 2021, the juvenile court granted custody of the child to appellees
Andrew K. J. and Brittney N. J. (“Petitioners”). Petitioners reside in Wilson County,
Tennessee. Mother and Father appealed from the juvenile court’s order to the Davidson
County Circuit Court.

        On March 16, 2021, Petitioners commenced the proceedings underlying this appeal
by filing in the Wilson County Circuit Court (“trial court”) a petition for termination of
parental rights and adoption. As one ground supporting termination, Petitioners pled
severe child abuse, Tennessee Code Annotated section 36-1-113(g)(4).1 To support this
ground for termination, Petitioners pled the same facts as DCS had pled in its petition to
adjudicate the child dependent and neglected. Father and Mother each answered the
petition. Upon the parties’ agreement and by order entered June 22, 2021, the trial court
appointed a guardian ad litem to represent the child’s interests. The parents’ appeal from
the juvenile court’s order was stayed pending resolution of the termination and adoption
petition.

        On November 1, 2021, DCS moved to intervene in the termination and adoption

        1
          Tennessee Code Annotated section 36-1-113(g)(4) provides a ground for termination of parental
rights when “[t]he parent . . . has been found to have committed severe child abuse, as defined in § 37-1-
102, under any prior order of a court or is found by the court hearing the petition to terminate parental rights
or the petition for adoption to have committed severe child abuse against any child[.]



                                                     -2-
proceedings commenced by Petitioners. Mother and Father each filed a response opposing
DCS’s motion to intervene. Petitioners adopted DCS’s arguments and supported DCS’s
intervention. During the January 10, 2022 hearing on DCS’s motion, DCS argued that it
should be allowed to intervene based upon both Tennessee Rule of Civil Procedure 24.01,
intervention as of right, and Rule 24.02, permissive intervention. By order entered
February 3, 2022, the trial court granted DCS’s motion “based upon Rule 24.02 of the
Tennessee Rules of Civil Procedure.” The trial court found that “the issues presented in
[DCS’s] Petition for Dependency and Neglect have a question of law or fact in common
with the instant Adoption Petition; therefore [DCS] should be allowed to intervene.” The
trial court also found that the matter should be appealed to this Court pursuant to Tennessee
Rule of Appellate Procedure 9(b).

       On February 16, 2022, Mother filed a “Rule 9 Application for Interlocutory Appeal
and a Rule 3 Appeal Regarding Admission of Intervening Party.” We denied the Rule 9
application for interlocutory appeal and ordered the application to be treated as a Rule 3
notice of appeal. Mother, Father, Petitioners, and DCS filed briefs on appeal. Father’s
brief adopts by reference Mother’s brief, pursuant to Tennessee Rule of Appellate
Procedure 27(j).


                                     II.   ISSUES

       The dispositive issue in this appeal is whether the trial court erred in permitting DCS
to intervene in a private parental termination proceeding pursuant to Tennessee Rule of
Civil Procedure 24.02(2).


                              III.     STANDARD OF REVIEW

       The standard of review for the denial of permissive intervention under Tennessee
Rule of Civil Procedure 24.02 is abuse of discretion. State v. Brown & Williamson Tobacco
Corp., 

 (Tenn. 2000) (citing Chaille v. Warren, 

(Tenn. Ct. App. 1982)). “An abuse of discretion exists when the reviewing court is firmly
convinced that the lower court has made a mistake in that it affirmatively appears that the
lower court’s decision has no basis in law or in fact and is therefore arbitrary, illogical, or
unconscionable.” 

                                     IV.   DISCUSSION

       In its motion to intervene, DCS cited Tennessee Code Annotated section 36-1-
116(k)(1) which provides that “[DCS], a licensed child-placing agency, or a licensed
clinical social worker shall have the right to intervene in the adoption proceeding at any

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time to present evidence as to the best interests of the child by filing a sworn complaint in
the adoption proceeding.” As noted in the trial court’s order and in the statement of
proceedings filed in the supplemental appellate record, during oral arguments in support of
its motion, DCS also relied on Tennessee Code Annotated section 36-1-113(h)(1)(D)
which provides, in relevant part:

       The department shall file a petition to terminate the parental rights of the
       child’s parents (or, if such a petition has been filed by another party, seek to
       be joined as a party to the petition), and, concurrently, to identify, recruit,
       process, and approve a qualified family for an adoption, under the following
       circumstances:
       ...

       (D) If a juvenile court has made a finding of severe child abuse as defined at
       § 37-1-102.

(h)(1)(D). On appeal, DCS clarifies that it seeks to intervene
in the termination portion of the proceedings commenced by Petitioners under section 36-
1-113(h)(1), not in the adoption portion under section 36-1-116(k)(1).

       Turning now to the basis for the trial court’s ruling in DCS’s favor, Tennessee Rule
of Civil Procedure 24.02 provides as follows:

       Upon timely motion any person may be permitted to intervene in an action:
       (1) when a statute confers a conditional right to intervene; or (2) when a
       movant’s claim or defense and the main action have a question of law or fact
       in common. In exercising discretion the court shall consider whether or not
       the intervention will unduly delay or prejudice the adjudication of the rights
       of the original parties.

Tenn. R. Civ. P. 24.02. The trial court granted DCS’s motion to intervene under Rule
24.02(2) finding that the issues presented in DCS’s petition for dependency and neglect
have a question of law or fact in common with the termination and adoption petition. On
appeal, Mother and Father rely on In re M.J.B., 

 (Tenn. Ct. App. 2004) for
the proposition that DCS should not have been permitted to intervene on this basis because
parental termination proceedings are separate and distinct from dependency and neglect
proceedings:

       A termination of parental rights proceeding is not simply a continuation of a
       dependent-neglect proceeding. It is a new and separate proceeding involving
       different goals and remedies, different evidentiary standards, and different
       avenues for appeal. The primary purpose of a dependent-neglect proceeding
       is to provide for the care and protection of children whose parents are unable

                                            -4-
       or unwilling to care for them. The sole purpose of the termination proceeding
       under 

 is to sever irrevocably the legal
       relationship between biological parents and their children.

In re M.J.B., 

. In In re M.J.B., while faced with a record containing
“many extraneous documents,” this Court reviewed the procedural differences between
dependency and neglect proceedings and termination of parental rights proceedings so as
to instruct what was properly includable in the appellate record in termination cases. In re
M.J.B., 140 S.W.3d at 651–52. The goal of the instruction was to dispel the “mistaken”
notions “that a termination case is simply a continuation of a dependent-neglect case and
that the process for appealing to this court from a final judgment in a termination
proceeding is the same as the process used to perfect a de novo appeal to the circuit court
in a dependent-neglect case.” 

.

        Mother presses that DCS should not be permitted to intervene pursuant to Rule
24.02(2) because “the questions of fact and issues of law in the dependency and neglect
proceeding are vastly different compared to the instant termination proceeding.” However,
in the instant petition to terminate parental rights, Petitioners alleged the ground of severe
child abuse based on the same facts as those that DCS alleged in its dependency and neglect
petition. As DCS correctly notes, the severe abuse ground for termination references the
definition of severe child abuse that is applied in dependency and neglect cases. See 

(g)(4) (allowing for termination if the parent “committed severe
child abuse, as defined in § 37-1-102”); In re Kailey A., No. E2021-00801-COA-R3-PT,

, at *8–10 (Tenn. Ct. App. Mar. 14, 2022) (termination proceeding using
dependency and neglect severe abuse statute, § 37-1-102, for the severe child abuse ground
in § 36-1-113(g)(4)); In re S.J., 

 (Tenn. Ct. App. 2012) (applying the
definition of severe child abuse under § 37-1-102 in a dependency and neglect proceeding).
The record before us shows that DCS’s claims in the dependency and neglect proceedings
pending in the juvenile court and Petitioners’ termination action have both a question of
law and questions of fact in common: the legal question of whether the parents committed
severe child abuse based on the same facts that DCS claims to have discovered in an
investigation not involving Petitioners and as alleged in DCS’s dependency and neglect
petition. With the foregoing considerations in mind, we find no abuse of discretion in the
trial court’s ruling permitting DCS to intervene pursuant to Tennessee Rule of Civil
Procedure 24.02(2).

       We agree with Petitioners and DCS that Tennessee Code Annotated section 36-1-
113(h)(1)(D) is another avenue by which the trial court could have granted DCS’s
intervention. See Tenn. R. Civ. P. 24.01 (“Upon timely motion any person shall be
permitted to intervene in an action: (1) when a statute confers an unconditional right to
intervene[.]”). Again, the statute provides, in relevant part:

       The department shall file a petition to terminate the parental rights of the

                                            -5-
        child’s parents (or, if such a petition has been filed by another party, seek to
        be joined as a party to the petition), and, concurrently, to identify, recruit,
        process, and approve a qualified family for an adoption, under the following
        circumstances:
        ...

        (D) If a juvenile court has made a finding of severe child abuse as defined at
        § 37-1-102.

(h)(1)(D) (emphasis added).2 Here, the juvenile court made a
finding of severe child abuse against the parents. Additionally, considering the substance
over the form of its motion, DCS is essentially seeking to be joined as a party to Petitioners’
petition to terminate parental rights. Our holding above pretermits further discussion of
this issue.


                                        V.       CONCLUSION

      For the foregoing reasons, we affirm the judgment of the trial court. The case is
remanded for such further proceedings as may be necessary and consistent with this
opinion. Costs of the appeal are taxed to the appellant, Megan E.


                                                         _________________________________
                                                         JOHN W. McCLARTY, JUDGE




        2
          Subsection (h)(2) of section 36-1-113 gives DCS the “option” not to file or join a petition to
terminate parental rights when certain circumstances exist, even if a juvenile court has made a finding of
severe child abuse. See 

(h)(2); In re Zayne P., No. W2017-01590-COA-R3-
PT, 

, at *4 (Tenn. Ct. App. Apr. 30, 2018); In re D.M., No. M2009-00340-COA-R3-PT,

, at *3 n.5 (Tenn. Ct. App. Aug. 12, 2009).



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