Adoptions In Tennessee: What You Need To Know

GENERAL INFORMATION

INFORMATION FOR BIRTH MOTHERS

INFORMATION FOR PUTATIVE FATHERS

INFORMATION FOR ADOPTIVE PARENTS

MISCELLANEOUS ADOPTION INFORMATION

TERMINATION OF PARENTAL RIGHTS

General Information

What is Adoption?

Who May Adopt In Tennessee?

Who May Be Adopted in Tennessee?

What Qualifies the Adoptive Parent To File A Petition?

What Are The Types Of Adoptions in Tennessee?

What Are the Requirements for Adoption in Tennessee?

What is Adoption?

Adoption is the legal process of transferring parental rights and responsibilities with respect to the adopted person (usually a child) from that adopted person's biological and/or legal parents to the adoptive parents just as if that adopted person had been born to the adoptive parents.

The child loses all inheritance rights from the biological family and the biological family loses inheritance rights from the child (unless the death of a birth relative happened prior to termination of parental rights on that side of the family). The child receives the right to inherit from the adoptive family as if he/she had been born into that family and the adoptive family receives the right to inherit from the child.

The biological family has the legal status of a stranger to the child following the adoption (however, after a step-parent adoption, birth grandparents may petition the Court for visitation rights with the child in very limited circumstances).

The adoptive parents are entitled to the same constitutional protection of parenting rights as if the child had been born to them and they can not be deprived of those rights except in the same manner or for the same causes as biological or legal parents or legal guardians.

Who May Adopt In Tennessee?

Any person over the age of 18 years may file a petition to adopt.
A single person may file a petition to adopt.
A married couple can file a petition to adopt; however, both the husband and wife must both join the petition to adopt (unless one spouse is the biological parent, then that parent must join in the petition only to consent to the other spouse adopting the child).
Birth parents whose rights have previously been terminated can petition to adopt their own biological child.
The prospective adoptive parents do not have to be a U.S. Citizen.

NOTE: Except in a step-parent adoption, adoptions terminate BOTH biological parents' parental rights.

Who May Be Adopted in Tennessee?

Any person may be adopted regardless of place of birth, citizenship or place of residence. It is most common that children are adopted; however, an adult can also be adopted in Tennessee.

The child being adopted does not have to live in Tennessee; however, there are special rules that apply to children being brought into Tennessee from another state for the purpose of being adopted. All 50 states in the United States have enacted the Interstate Compact for the Placement of Children (ICPC) which requires the state the child is leaving from and the state where the adoptive parents live must have a written agreement in place BEFORE the child can leave the originating state. Prospective adoptive parents MUST comply with the requirements of the ICPC before bringing a child into Tennessee to be adopted because it is illegal to move a child across state lines for an adoption without compliance.

For more information see http://icpc.aphsa.org/Home/Doc/Guidebook_2002.pdf & http://icpc.aphsa.org/Home/Doc/resources/New_ICPC_Private_and_Independent_Adoption_FAQ_Final.pdf .

Non U.S. citizens may be adopted in Tennessee by U.S. citizen adoptive parents; however, such adoption by a U.S. citizen does not automatically make the adopted person a U.S. Citizen . In order to determine immigration status of a prospective adopted person, it is best to consult an immigration attorney prior to pursuing the adoption.

What Qualifies the Adoptive Parent To File A Petition?

The prospective adoptive parents must either have custody of the child or must demonstrate to the Court that they have the right to receive custody of the child they are seeking to adopt.

The prospective adoptive parents must have lived in or maintained a regular place of abode in Tennessee for at least 6 months prior to filing the petition unless:

one of the prospective adoptive parent's is related to the child (and then they only have to be actual residents of Tennessee at the time of filing the petition), or

the prospective adoptive parent is in the military and stationed outside of Tennessee (then he or she must have lived in or maintained a regular place of abode in Tennessee for 6 consecutive months prior to entering the military ).

What Are The Types Of Adoptions in Tennessee?

Family or Relative Adoptions are adoptions where one of the prospective adoptive parents is related to the child by blood or law as a sister or brother (including half brothers and sisters), aunt or uncle, grandparents, great-grandparents or step-parent.

Step-parent Adoption is where a step-parent desires to adopt his/her step-child following marriage to the child's parent. The biological parent married to the step-parent joins in the petition for the purposes of consenting to the adoption. The rights of the other biological and/or legal parent must either be terminated or that parent must also consent to the adoption.

Department of Children's Services Adoption (DCS) is an adoption where the State of Tennessee has legal custody of the child usually due to the child having been removed from the home of the biological (and/or legal) parent(s) and the attempts by DCS to reunify the child with the parent(s) have failed. The child has usually lived with State-approved foster parents prior to the termination of the biological parents' rights. Foster parents are given first preference for adoption of the child if the child has been in their home for 12 or more consecutive months.

Agency Adoption is where a licensed adoption agency makes the arrangements between the biological and/or legal parents of the child and the prospective adoptive parents. If the biological and legal parents of the child have already surrendered their parental and custodial rights or had them terminated, then the Agency must consent to the adoption.

Legal Guardian Adoption is an adoption by the person or married couple who have been given custody or guardianship of a child through a Court proceeding. If the biological parents' rights have not been surrendered or terminated, that must occur first or the parent(s) must consent to the adoption.

Adult Adoption is the adoption of a person over the age of 18. The parental rights of the birth parents will be terminated upon granting of the adoption. An adult adoption requires only the consent of the adoptive parents and the adult to be adopted. The birth parents must be given notice unless they are deceased. If the adopted adult was 21 years old or older at the time of the adoption, the adoptive parents must specifically name that person in their Will or other estate planning documents.

International Adoption is the adoption of a child from a country other than the U.S. where the adoptive parents receive custody or guardianship of the child in the foreign country, but do not complete the adoption there. An agency is usually involved and handles the immigration details. However, if no agency is involved, it is wise to seek the services of an immigration attorney.

International Re-adoption is where the adoption of a child was finalized in another country and the child entered the U.S. using an IR-4 visa. A re-adoption in the U.S. must take place to make that child a U.S. citizen. If the child adopted in another country enters the U.S. on an IR-3 visa a re-adoption is not required, but it does not hurt and is recommended because a Tennessee Certificate of Foreign Birth and a Tennessee Final Order of Adoption is issued making it easier to prove the adoption in the U.S.

Independent Adoption is the category for all other types of adoptions. These are adoptions by third parties not related to the child by blood or marriage and no agency, State or private, is involved. The parental rights of the biological parents must be surrendered, terminated or consent given by them for this adoption to occur.

What Are the Requirements for Adoption in Tennessee?

Adoptive parents are required to have at minimum a Preliminary Home Study conducted by a licensed child-placing agency, a licensed clinical social worker or by the Department of Children's Services (for DCS adoptions or in approved circumstances for indigent adoptive parents in other types of adoptions) which was conducted no more than 30 days prior to accepting the surrender of a child, accepting the guardianship of a child or filing a petition to adopt a child. A full Home Study will ultimately be required. The Home Study is a full investigation into the lives of the adoptive family to determine their appropriateness as adoptive parents. It includes a medical investigation for determination that the adoptive parents have a normal life expectancy and no diseases that could be transmitted to the child; a financial investigation to determine the adoptive parents' financial responsibility and their resources to provide financially for the child; criminal background checks; sex offender registry checks; home visits to determine the safety of the home; contacting of references and interviews of the adoptive parents to determine their parenting skills, stability of their marriage; general psychological health and general lifestyle investigation to help with determining the best interest of the child. NOTE: The requirement of a home study can be waived by the Court for relative and step-parent adoptions unless the child is surrendered by the biological parents to the adoptive parents.

Termination of Parental Rights. The parental rights of all biological and/or legal parents and putative fathers must be terminated for an adoption to take place. This termination can be done as a separate proceeding or as part of the Petition for Adoption. The termination can be voluntary (by consent, waiver of interest of birthfather or surrender) or involuntary by the adoptive parents pleading and proving grounds.

A Petition for Adoption is filed (in the county where the adoptive parents reside; where the child resides; where the child resided when he or she was placed in the custody of a public or private agency or where the agency is located who has custody of the child) and notice is given to all interested parties such as known putative fathers, legal or biological parents whose rights have not been previously terminated or surrendered; to persons who have custody or visitation rights with the child and/or agencies with custody of the child.

If the adoptive parents do not already have legal custody of the child the Court may issue an Order of Guardianship pending the finalization of the adoption upon the adoptive parents filing the preliminary home study. NOTE: The requirement of custody or guardianship orders can be waived by the Court for relative and step-parent adoptions.

There is a six month waiting period from the date the Petition is filed until the adoption can be finalized. NOTE: The six month waiting period can be waived by the Court for relative and step-parent adoptions, or in other adoptions if the child has been in the physical custody and home of the adoptive parents for more than six months at the filing of the petition.

The Putative Father Registry must be checked within 10 days of filing the Petition for Adoption to determine whether or not a putative father has registered and is entitled to notice of the proceedings. The response from the Registry must be filed with the Court.

An Order of Reference will be issued by the Court referring the case to a licensed agency or DCS for investigation, supervision and a recommendation. The agency will submit a preliminary court report, any supplemental court reports and a final court report regarding the suitability of the adoptive family to adopt the child and the child's suitability to be adopted. NOTE: The Order of Reference and all Court reports can be waived for relative and step-parent adoptions.

Disclosure of Fees and Expenses must be made to the Court. All parties must disclose whether they have paid or promised to pay any money, fees, contributions or other remuneration or thing of value in connection with the birth, placement or the adoption of the child, and if so, to whom, the specific amount and the specific purpose for which these payments were paid or promised. Buying or selling a child is ILLEGAL and only certain specific payments are allowed by statute. Payments to anyone other than a licensed child placing agency are limited to the following: agency fees, birth related medical expenses, reasonable counseling fees, reasonable legal services related to adoption of the child, reasonable and actual expenses for the birth-mother's housing, maternity clothes, child's clothing, utilizes, food and transportation. The payment of these fees and expenses shall not exceed 90 days prior to the birth of the child or 45 days after birth or surrender of the child. Keep all receipts of payments made.

Consent of child 14 years old or older must be made before an adoption of that child will be finalized. The consent must be in writing and filed with the Court with the Petition. Also, at the hearing the child must meet privately with the Judge to give his/her consent.

Documents needed to file with Petition include the child's original birth certificate, the adoptive parents marriage certificate, the adoptive parents previous divorce decrees (if they have been married before), the death certificate of either biological parent if either is deceased and copies of any orders terminating parental rights, waiver of interest or surrender of legal and/or birth parents.

Compliance with the Indian Child Welfare Act (ICWA) is required. The Petition must state that the child is not subject to the Indian Child Welfare Act if the child's family is not an existing Indian family. If the child's family is an existing Indian family (enrolled in an American Indian tribe or Alaskan Eskimo tribe or eligible to be enrolled in such tribes) then compliance with the ICWA is required and notice must be given to the Tribe and the Tribe can intervene in the adoption at any time to take jurisdiction.

Information For Birth Parents

Birth parents are entitled to legal representation during the process of terminating their parental rights and placing their child for adoption and the adoptive parents are obligated to pay for the representation if requested by the birth parents. It is advisable for the birth parents to speak to an attorney who represents only their interests to make sure they are making an informed decision.

Birth parents are entitled to social or psychological counseling during the process of terminating their parental rights and placing their child for adoption and the adoptive parents are obligated to pay for this counseling if requested by the birth parents. It is advisable for the birth parents to receive counseling because of the extreme emotional stress that can be caused by making the decision to place a child for adoption. Counseling will provide the needed support in either confirming the decision to place the child for adoption or in helping the birth parents explore other options.

Birth parents should, and in most cases are required to, fill out a social and medical history record giving information about themselves and information about their families. This information is passed on to the adoptive family (in a closed adoption the identifying information is removed) to give them a history of the child for future use.

Adoptive parents can, and are often required, to pay for qualified expenses on behalf of the birth parents. Qualified expenses which can be paid for the birth parents include:

Medical expenses related to the birth of the child;

Legal expenses related to the adoption;

Social or psychological counseling expenses related to the adoption (limited to a total of one year); and

Reasonable and actual living expenses for housing, food, maternity clothes, child's clothing, utilities and transportation for a period not to exceed 90 days prior to or 45 days following the birth or surrender of the child or parental consent to the adoption.

Payment for anything other than what is listed above is a Class C felony punishable by 3 to 5 years in prison and a fine not to exceed $10,000 because it is considered as "buying/selling" the child which is illegal.

Anonymity can be a problem in independent adoptions because there is no agency working as an intermediary between the birth parents and adoptive parents. There is no statute which provides a way to maintain anonymity between the parties. In a surrender , the birth parent(s) as the surrendering parent(s) and the adoptive parents as the receiving parents have all of their identifying information on the documents because T.C.A. 36-1-111(g) prohibits leaving any names on the form blank or using pseudonyms.

Open adoptions , where the parties exchange information prior to the adoption and they make arrangements for post adoption contact between the birth parent(s) and child, is becoming very popular in Tennessee. However, it is very important for birth parents to know that any agreement reached, even if in writing, regarding future contact between the birth parents and the child are not legally enforceable. There can be NO CONDITIONS placed on the adoptive parents to require visitation between the adopted child and any other party. Any such conditions or orders in the Final Order of Adoption have no effect whatsoever and shall be void and unenforceable against the adoptive parents.

Birth parents must understand that upon the finalization of an adoption, the legal status of that birth parent to the child is that of a stranger. There are no rights retained to the child by the birth parents.

Information For Putative Fathers

A "putative father" is a man who may be a child's father, but who was not married to the child's mother before the child was born and has not established that he is the father in a court proceeding or signed a Voluntary Acknowledgement of Paternity. To ensure the receipt of notice of a pending lawsuit to terminate the putative father's parental rights to the child and/or for the adoption of the child, the putative father must register with the Putative Father Registry prior to the birth of the child or within 30 days following the birth. It is also the putative father's responsibility to update the Registry of any change of his address or phone number.

The putative father can request a form for registration with the Putative Father Registry at http://www.state.tn.us/youth/adoption/notice_cs-0439.pdf or by contacting:

Registrar, Putative Father Registry

Tennessee Department of Children's Services
Cordell Hull Building-8th Floor
436 Sixth Avenue, North
Nashville, TN 37243-1290
Tel: 615-741-9699 or 615-532-5637

The information maintained by the Putative Father Registry is:

Name and address of the putative father, the child, and the birth mother for whom an order of parentage has been entered, and those for whom the registrar has a record that any acknowledgment of parentage was executed.
Names of persons who have filed a notice of intent to claim paternity
Names of persons who have been adjudicated by any court to be the father of a child born out of wedlock
Names of persons who have filed with the registry of this or any other State an acknowledgment of paternity
Any other information that identifies the child or the child's whereabouts

The putative father may revoke a notice of intent to claim parentage at any time in writing. Such revocation is effective as of the date it is filed.

Any notice of intent to claim paternity may be used as evidence by any other party in any proceeding in which the parentage of a child may be relevant.

If a putative father has not registered with the Putative Father Registry but otherwise receives notice of pending proceedings for termination of his parental rights and/or for the adoption of the child by another, he has 30 days from receipt of notice to file a lawsuit to establish his parentage or to intervene in the adoption proceedings or termination of parental rights proceedings for the purpose of establishing a claim to parentage of the child or to present a defense to the termination or adoption case. Failure to act shall be grounds for the Court where the adoption or termination proceedings are pending to terminate the parental rights of the putative father.

Information For Adoptive Parents

If adoptive parents do not want the birth parents to know who they are or any information about them, then the adoptive parents should proceed with adoption through an adoption agency. Anonymity can be a problem in independent adoptions because there is no agency working as an intermediary between the birth parents and adoptive parents. There is no statute which provides a way to maintain anonymity between the parties in an independent adoption. In a surrender , the birth parent(s) as the surrendering parent(s) and the adoptive parents as the receiving parents have all of their identifying information on the documents because T.C.A. 36-1-111(g) prohibits leaving any names on the form blank or using pseudonyms.

Adoptive parents must be aware that they can be required to pay the expenses for the birth parents to receive social or psychological counseling related to the adoption of the child for up to one year if the birth parents request such counseling. The counseling benefits the birth parent(s) in making and carrying out the adoption plan or in identifying a biological parent that can not complete the adoption plan. Early identification of such birth parent is in everyone's best interest before too much time and emotional energy is devoted to that parent giving up his/her child.

If a birth parent requests legal representation the adoptive parents will be required to pay for the birth parent's attorney. It is important to note that even though the adoptive parents are paying for the services of the attorney for the birth parent(s), there is no attorney-client relationship created between the adoptive parents and the birth parent's attorney. If a birth parent does not initially request legal representation it is advisable for the adoptive parents to offer it anyway. Having the birth parent represented reduces the risk that the birth parent will have a claim for fraud or duress in making the decision to place the child for adoption. It is also advisable in cases where the birth parent is under a disability such as being unable to speak and understand English, intellectually limited, illiterate or very young birth parent without the support of parents or other adults. Having the birth parent(s) represented also facilitates the exchange of the required information.

Except in step-parent and relative adoptions, birth parents are required to fill out a social and medical history record giving information about themselves and about their families which will aid the adoptive parents in caring for their new child.

Birth parents need to find out from their health insurance providers when they can add the child to their health insurance policy, what coverage is included (such as birth expenses), when the coverage takes effect and what, if anything, will not be covered. Timing can be critical depending on the insurance company. The birth mother may have health insurance which will cover the birth expenses; however, if a pre-birth Guardianship Order is entered, that may affect the birth mother's coverage for the child.

Adoptive parents can, and are often required, to pay for qualified expenses on behalf of the birth parents. Qualified expenses which can be paid for the birth parents include:

Medical expenses related to the birth of the child;
Legal expenses related to the adoption;
Social or psychological counseling expenses related to the adoption (limited to a total of one year); and
Reasonable and actual living expenses for housing, food, maternity clothes, child's clothing, utilities and transportation for a period not to exceed 90 days prior to or 45 days following the birth or surrender of the child or parental consent to the adoption.

The adoptive parents are not entitled to reimbursement of money paid for expenses on behalf of the birth parents if the adoption does not finalize, unless there is a finding of fraud on part of the birth parent(s).

There can be no requirement of visitation between the birth parents, or their families, and the adopted child after the adoption is final even if there is a written agreement signed prior to the adoption. No such agreement or order is legally enforceable; however, there is a limited exception to this for grandparents in some situations.

Miscellaneous Adoption Information

Name Change. The adoptee can, but does not have to, change his/her name in the adoption.

Once the adoption is final a new Birth Certificate can be applied for to reflect the new relationship(s) and name change (if changed). DCS, if they are involved, or the attorney handling the adoption will help prepare the application for the adoptive parents to sign. In Tennessee the cost of a new birth certificate is currently $27.00 for the first copy and $4.00 for each additional copy ordered at the same time. If the child was not born in Tennessee, the birth certificate request will be made to the State where the child was born. If the child was born outside the U.S., Tennessee will provide a Certificate of Foreign Birth at the adoption or re-adoption, but not an actual birth certificate. Upon finalization of the adoption the original birth certificate of the child will be sealed. So if a parent wants a copy of the original birth certificate for sentimental or historical reasons, it must be requested prior to finalizing the adoption.

If the child already has a Social Security Card , the child's name can be changed on the current card, or a request for a new card can be made to change the number. Many adoptive parents desire to change the number to eliminate the birth family from having a way to locate the child and to eliminate the use of that child's previous number by the birth family in any kind of identity theft. If the child never had a social security number, a card can be applied for upon receipt of the birth certificate.

Tennessee recognizes open adoptions where the adoptive parents permit, in their sole discretion, the former guardian, parent or other relatives of the biological family to maintain contact with the child. However, no such relationship (even if in writing) establishes any enforceable rights in the biological family to the adopted child. There can be NO CONDITIONS placed on the adoptive parents to require visitation between the adopted child and any other party. Any such conditions or orders in the Final Order of Adoption have no effect whatsoever and shall be void and unenforceable against the adoptive parents.

The termination of parental rights and subsequent adoption of the child by the adoptive parents changes the inheritance rights between the parties. Upon termination of parental rights, the biological family has no intestacy rights to inherit from the child and the child has no intestacy rights to inherit from the biological family from that point forward. Upon the adoption of the child by the adoptive family, the legal relationship created is the same as if the child was born into the family give the child the intestacy rights to inherit from the adoptive family and the adoptive family the intestacy rights to inherit from the child.

The termination of parental rights and subsequent adoption of the child has no effect upon child support arrearages owed by an obligor parent that existed prior to the termination of parental rights or to that child's adoption. No Court Order can waive child support arrearages. The effect of trying to waive child support arrearages as a condition of a parent (obligated to pay child support) consenting to termination of his/her parental rights is that of selling the child, which is a crime.

In all agency (public or private) and non-relative adoptions a medical and social history form must be completed and provided to the adopting parents. The information to be released includes non-identifying information relating to the child's ancestral medical and social history.

All adoption records are confidential and kept under seal upon entry of the final order of adoption; the entry of an order dismissing an adoption case; entry of an order revoking a surrender or parental consent; entry of an order dismissing a termination of parental rights case filed in connection with an adoption or upon the conclusion of all termination of parental rights proceedings filed in conjunction with an adoption case. Effective July 1 1996 legislation was enacted to allow certain persons the right to request access to adoption records, sealed records and post adoption records of adoptions which were attempted or occurred on or after March 16 1951 through the Advance Notice Registry. For more information see http://www.state.tn.us/youth/adoption/advanceregistry.htm .

There is an adoption tax credit available to persons adopting a minor child or a child of any age who is a US citizen or resident alien and is physically or mentally incapable of caring for himself of herself, and who paid "qualified adoption expenses" out of their own pocket which were not reimbursed through employment programs, government programs or other organizations. "Qualified adoption expenses" are those that are reasonable and necessary for the adoption such as adoption fees, legal fees, court costs and travel expenses. The adoption tax credit can also be available for failed adoption attempts. The adoption tax credit is not available for adoptions in connection with surrogacy arrangements, step-parent adoptions or adult adoptions. NOTE: Talk to a tax attorney or CPA for specific eligibility and see http://www.irs.gov/taxtopics/tc607.html for more information on this topic. The IRS Form 8839, Qualified Adoption Expenses, can be found at http://www.irs.gov/pub/irs-pdf/f8839.pdf .

Tennessee Adoption Agency Fee Schedules can be found at http://www.state.tn.us/youth/adoption/2006AdoptionFeeSchedule.pdf .

If a birth parent surrenders or the father signs a waiver of interest and their parental rights are subsequently terminated, if the receiving party is the State of Tennessee, the parents are obligated to support the child until that child is adopted.

Termination Of Parental Rights

There are a number of ways a persons' parental rights can be terminated. Termination can be either voluntary or involuntary.

A VOLUNTARY TERMINATION is where the birth parent agrees to terminate his/her rights to the child. Voluntary terminations include:

A Surrender of parental rights which take place in a private place before a Judge in the chancery court, circuit court, juvenile court, or a juvenile court referee. A Surrender can not occur before the 4 th day following the birth of the child. Only the Judge, the birth parent and the birth parent's attorney is present to prevent the birth parent from surrendering the child under duress. The adoptive parents or agency representative enter after the birth parent has signed in order to sign their acceptance of the child. If the child is being surrendered to adoptive parents, their preliminary home study must be provided to the Judge. Both the surrendering parent and the receiving party must had identification to present when asked by the Judge. The paperwork to be completed is very lengthy and should be filled out prior to meeting with the Judge except for the signatures which must be signed at the time of the surrender. The surrendering parent will be asked if he or she has had or would like counseling and/or legal representation. The surrender will not take place unless the parent gets both if requested. Following a surrender, the birth parent has 10 calendar days to revoke the surrender, unless the 10 th day falls on a Saturday, Sunday or legal holiday, then the last day to revoke is the next business day. The revocation must be in the Court and before the same Judge that took the original Surrender. Upon revocation, the child returns to pre-surrender status. If the birth parent had the right to custody at the time of the Surrender, the child must be returned to that parent within 5 days.

Parental Consent is another form of voluntary termination and again can not occur before the 4 th day following the birth of the child. Parental consents are revocable until confirmed by the Court by appearing before the Court where the Petition is filed and signing the appropriate revocation form. The parental consent is different for relative/step-parent adoptions than it is for non-relative adoptions. There is a confirmation hearing in non-relative adoptions and the consenting parent must attend. Forms must be completed at the hearing which are similar to the Surrender forms. In relative/step-parent adoptions, there is no confirmation hearing, and the Final Decree of Adoption simply declares the parental consent confirmed. In relative/step-parent adoptions there is no requirement of a court report or home study as there is that requirement in non-relative adoptions. NOTE: if the biological parent signs a consent, but there is never confirmation and the adoption does not get finalized, that parent's rights have not been terminated and the obligation for support of the child continues.

A Waiver of Interest form can be signed by any father who is not a legal father (married to the birth mother or declared the legal father by signing a voluntary acknowledgement of paternity form), and he is not listed on the birth certificate as the child's father. The waiver of interest must be signed under oath by the possible father and can be signed either before or after the birth of the child. Once signed it is immediately irrevocable. While the waiver may not be revoked, the birth father's rights are not terminated until the entry of the Final Decree of Adoption. Until his rights are terminated he is still obligated to support the child (and if the guardian of the child is the State of Tennessee, the obligation to support continues until the adoption of that child is final).

An INVOLUNTARY TERMINATION of parental rights happens when a parent does not consent to the termination of his or her parental rights, but someone who has standing is asking the Court to do so.

Termination of parental rights requires clear and convincing proof of at least one of the grounds listed in the statue AND a finding that the termination of parental rights is in the best interest of the child .

Standing is someone who has the right to ask the Court to do something. The Tennessee adoption statutes are very specific in who has standing to bring a termination of parental rights action. T.C.A. 36-1-113(b) provides standing to "the prospective adoptive 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 (person appointed by the court to represent the child's best interest), a court appointed special advocate (CASA) agency, or the department (DCS)..." NOTE: the other biological parent does NOT have standing to bring an action to terminate parental rights of the other parent.

A parent's parental rights can not be terminated unless that parent has been given notice and an opportunity to be heard. This notice is known as service of process . If the parent's whereabouts are known, notice must be by personal service of a Summons along with the Petition for Termination of Parental Rights. If there is not actual knowledge of the whereabouts of the parent, then a diligent search for that parent must be made to locate that parent for personal service. If personal service is unattainable an affidavit to the Court can be presented by the petitioner stating, under oath, the reasonable efforts made to locate the parent and a request for service by publication can be made. The US Constitution requires that service of process on a defendant, in any type of case, be the best possible under the circumstances and reasonably calculated to give actual notice. Not adhering to this requirement can be grounds to overturn the termination

Grounds against legal parent or legal guardian. At least one of the following statutory grounds for termination of parental rights of a LEGAL PARENT OR GUARDIAN must be proven:

In general terms Abandonment means: (i) general abandonment - that the parent or guardian has willfully failed to visit or willfully failed to support or willfully failed to make reasonable payments toward the support of the child for a period of 4 consecutive months; (ii) abandonment of dependent and neglected children - the child has been removed from the parent or guardian's home as a result of a petition filed in Juvenile Court in which the child was found to be a dependent and neglected child and there is a finding that reasonable efforts to prevent the removal were made by the agency or DCS and for a period of 4 months following the removal efforts were made to assist the parent or guardian to establish a suitable home, but that the parent or guardian has made no reasonable effort to provide a suitable home and has demonstrated a lack of concern for the child to such a degree that it appears unlikely that a suitable home will be provided for the child at an early date; (iii) pre-birth abandonment - a biological or legal father has either willfully failed to visit or willfully failed to make reasonable payments toward the support of the child's mother during the 4 months immediately preceding the birth of the child; (iv) abandonment by incarcerated parents - the parent or guardian is incarcerated at the time of the action or preceding to declare the child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the 4 months immediately preceding the institution of such action or proceeding, and either willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for 4 consecutive months immediately preceding such parent or guardian's incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child; OR (v) abandoned infant - the child, as a newborn infant aged 72 hours or less was voluntarily left at a facility by the infant's mother and for a period of 30 days after the date of voluntary delivery the mother failed to visit or seek contact with that child.

Substantial noncompliance to the responsibilities in a permanency plan by the parent or guardian despite reasonable efforts having been made by DCS.

The child has been removed from the home of the parent or guardian for a period of 6 months and there has been a failure to remedy the conditions that led to the removal as follows: (i) the conditions which led to the removal or other conditions which would in all probability cause harm to the child still persist; (ii) there is little likelihood that the conditions will be remedied at an early date so the child can be safely returned, and (iii) the continuation of the parent or guardian and child relationship greatly diminishes the child's chances of early integration into a safe, stable and permanent home.

The parent or guardian has been found to have committed severe child abuse against the child, any sibling or half-sibling or any other child residing temporarily or permanently in the home of such parent or guardian.

The parent or guardian has committed severe child abuse and been sentenced to more than 2 years imprisonment - against the child, any sibling or half-sibling or any other child residing temporarily or permanently in the home of such parent or guardian.

The parent has been confined in a correctional facility of any type as a result of a criminal act for a sentence of 10 or more years and the child is 8 years old at the time of the sentencing.

The parent has been convicted of or found civilly liable for the intentional and wrongful death of the child's other parent or legal guardian.

The parent is mentally incompetent with a continued inability to care for the child. This is only if it is unlikely the parent will be able to assume or resume care or responsibility for the child in the near future. NOTE: chronic chemical dependency has served as a basis for termination under this ground.

Grounds against putative fathers or fathers who are not legal fathers are as follows:

Failed without good cause to pay reasonable share of prenatal, natal and post natal expenses in accordance with financial means promptly upon the person's receipt of notice of the child's impending birth.
Failed without good cause to make reasonable and consistent payments for the support of the child in accordance with child support guidelines.
Failed to seek reasonable visitation or failed to use visitation granted except token visitation.
Failed to manifest an ability and willingness to assume legal and physical custody of the child.
Placing custody of the child with the parent would pose a risk of substantial harm to the physical or psychological welfare of the child.
Failed to file a petition to legitimate the child within 30 days after notice of alleged paternity by the child's mother or notice of a pending adoption made through the putative father's registry or within 30 days after he has verbally claimed to be the father of the child.

In addition to proving at least one of the statutory grounds the Court MUST also find clear and convincing evidence that it is in the best interest of the child to terminate the parental rights. Factors the Court will consider to determine best interest of the child are provided by statute as follows:

Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child's best interest to be in the home of the parent or guardian;
Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;
Whether the parent or guardian has maintained regular visitation or other contact with the child;
Whether a meaningful relationship has otherwise been established between the parent or guardian and the child;
The effect a change of caretakers and physical environment is likely to have on the child's emotional, psychological and medical condition;
Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the child, or another child or adult in the family or household;
Whether the physical environment of the parent's or guardian's home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol or controlled substances as may render the parent or guardian consistently unable to care for the child in a safe and stable manner;
Whether the parent's or guardian's mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing safe and stable care and supervision for the child; or
Whether the parent or guardian has paid child support consistent with the child support guidelines promulgated by the department pursuant to T.C.A. 36-5-101.

Miscellaneous information regarding termination of parental rights:

Indigent defendants have a right to a Court-appointed attorney in a termination of parental rights case.

Incarcerated defendants have a right to an attorney and a right to participate in the hearing in a termination of parental rights case.

Non-English speaking defendants have a right to have an interpreter to be appointed if they can not afford one.

The Court can NOT award attorney fees due to the absence of a statute allowing such award.

In most cases, a Court will NOT terminate parental rights when there is no adoption anticipated to follow. The reason for this is that it has been held by the Tennessee Court of Appeals that it was not in a child's best interest for the child to lose the child's right to support from a parent if there is no anticipated adoption to replace the parent for means of support of the child. It has also been reasoned that a "dead-beat" parent is better than no parent because the child would at least be entitled to that parent's social security benefits or a possible wrongful death claim due to the parent/child relationship.

When does the obligation to pay child support terminate?

If the termination was by Surrender , then the obligation to pay support ends on the date of the surrender, but the obligation is revived if the parent revokes the surrender within the 10 day period.

If the termination was by Waiver of Interest , then the obligation to pay support ends when the adoption is finalized retroactively back to the date the wavier was signed. Putative fathers must make sure the adoption is finalized or they may someday be surprised with a large retroactive child support obligation that will be owed.

If the termination was by Parental Consent , then the obligation to pay support ends when the consent is confirmed by the Court. In non-relative adoptions, there is a hearing to confirm the parental consent and the consenting parent must attend. In relative and step-parent adoptions, the confirmation happens automatically when the adoption is finalized and the consenting parent does not have to attend. In relative and step-parent adoptions the consenting parent must make sure the adoption is finalized or he/she may someday be surprised with a large retroactive child support obligation that he/she will owe.

If the termination is involuntary then the obligation to pay support ends upon the entry of the Order terminating the parental rights of that parent.

NOTE: No matter when the obligation to pay current child support payments ends, the obligation to pay pre-termination child support arrearages continues until the obligation is paid in full.

Adoptions In Tennessee: What You Need To Know

General Information

What is Adoption?

Who May Adopt In Tennessee?

Who May Be Adopted in Tennessee?

What Qualifies the Adoptive Parent To File A Petition?

What Are The Types Of Adoptions in Tennessee?

What Are the Requirements for Adoption in Tennessee?

Information For Birth Parents

Information For Putative Fathers

Information For Adoptive Parents

Miscellaneous Adoption Information

Termination Of Parental Rights

Related Adoption Links