LEGAL OPINION OF DAWN COPPOCK REGARDING THE OPERATION OF
ADOPTION FACILITATORS IN THE STATE OF TENNESSEE
ISSUE
Can Tennessee families use unlicensed adoption facilitators to assist them in locating a child to adopt?
PREREQUISITE DEFINITION
An adoption facilitator for purposes of this opinion is defined as a business entity or individual that is not a licensed child placing agency that brings together adoptive parents and birth parents for a fee. Whether this facilitation is termed an “advertising service”, “facilitation service”, or “profile service”, is of no consequence. If the point of the service is to connect the family with a pregnant woman considering adoption, it is a facilitation service.
CONTROLLING STATUTES
Tennessee Code Annotated § 36-1-108 and 36-1-109.
ANALYSIS
It is clear under these provisions that adoption facilitation for a fee by any entity other than a licensed child placing agency is illegal in Tennessee. It is acknowledged that adoption facilitation is legal in some other states. However if the couple paying for the adoption facilitation service is located in the State of Tennessee, to make such payment is a crime. It is a Class C Felony punishable by not less than 3 years nor more than 15 years in prison and a fine not to exceed $10,000 for an individual or a fine of $250,000 for a corporation under the laws of the state of Tennessee.
DISCLOSURE REQUIREMENTS
It is necessary both in the birth parent surrender and in the Petition for Adoption for the adoptive parent to disclose all expenses paid by them or on their behalf in relation to a particular adoption. These disclosures must be made under oath by the prospective adoptive parents. Tennessee families accepting surrenders or finalizing adoptions in the state of Tennessee who have paid adoption facilitators have two unattractive alternatives; either disclosing a previously committed felony under oath to the court; or commit a second crime of perjury and perpetrating a fraud on the court. Given that choice, the appropriate alternative is to disclose the payment to the facilitator but this is risky.
At one time, many Tennessee Judges were not aware of the criminal issues associated with payment of facilitators. Some families finalized these adoptions without the facilitation issue being raised, even though they fully disclosed the payment. That is no longer to be expected. Families who have paid facilitators must understand that through the finalization process, their case could be referred by the adoption court to criminal authorities for investigation.
Finalizing the adoption in another state when that is available avoids the disclosure requirements but it does not eliminate the crime.
CONCLUSION
Do not retain facilitators. If you have already retained a facilitator but you have not received custody of a child, you should be able to set aside your contract because it is illegal and therefore void. Because payment is the key to the illegality, under no circumstances should you send a facilitator more money than you have already sent.
POST SCRIPT
To console those who feel that they are missing an important method of locating a child to adopt, be aware that the quality and results of facilitation services vary dramatically. There are many hidden costs associated with following up on the various leads provided that often result in costs much higher than just the facilitation fee. Finally, many families have been emotionally battered by the fast paced nature of the facilitator’s approach. That approach often includes referring a number of risky and poorly investigated potential situations to the family before one finally works out. There are many other effective and less expensive approaches available that do not present the possibility in incarceration.
Reference: Tennessee Code Sections: TCA § 36-1-108 & TCA § 36-1-109