Legislative Update

 

2016 Legislation

Published in The TBA Family Law [connect] 8/8/16
New Adoption and Termination Laws
What You Need to Know

*By Dawn Coppock

Two major adoption and termination of parental rights bills passed in Tennessee this year and are now in effect. These bills include both the mundane and monumental. I have included each new section. I have put the important and monumental provisions in bold, and included just enough context to flesh out why the changes were made. But, I have included the mundane as well. Complete citations are included to permit deeper study.

Pub. Ch. 636 – Administration Bill Effective March 23, 2016

T.C.A. § 36-1-111(j) Adds deputy warden and notary at a prison to be surrender witnesses in addition to the warden.

The primary goal of the following 4 sections is to clarify the adoption code sufficiently to fully implement the three-tiered system for classification of fathers, legal, putative and biological. T.C.A. § 36-1-117(a) and (c) requires that legal parents and putative father’s parental rights must be terminated before an adoption can occur. If there is not a legal or putative father, the adoption may proceed without termination of a father, even though obviously there must be a biological father.

Also original to the 1996 complete redraft of the adoption code but until now largely inoperable, was a two-tiered system of grounds for termination of parental rights. In addition to the grounds for termination of parental rights that apply to all parents, putative fathers are subject to a set of grounds that are aimed at the man’s failure to grasp the opportunity to parent his child as described in Lehr v. Robertson 463 U.S. 248; 103 S. Ct 2985; 77 L. Ed. 2d 614; 1983 U.S. LEXIS 92; 51 U.S.L.W. 5010 (June 27, 1983). A Tennessee Supreme Court 2010 case, Bernard T. 319 S.W. 3d 586, (Tenn. 2010) ruled that the (g)(9), “putative father” grounds only applied to men who were not putative fathers. Bernard T. has been a difficult case to apply and was directly critiqued for being opposed to the plain language of the statute. In Re. Ashton B. (W.S. Ct. App., March 15, 2016). The combined effect of the following four legislative changes is to further clarify the law on classes of fathers and the grounds applicable to each, and to thereby legislatively overrule Bernard T.

T.C.A. § 36-1-102 Defines “Putative Father” as biological or alleged biological father of a child who, at the time of the filing of a petition to terminate the parental rights of such person or, if no such petition is filed, at the time of the filing of a petition to adopt a child, meets at least one (1) criteria set out in 36-1-117 (c) and is not a legal parent.

T.C.A. § 36-1-117 Deletes “biological” before the word putative in all T.C.A. § 36-1-117 references in order to clarify that “biological” and “putative” are two different classes of parents that may or may not occur together.

T.C.A. § 36-1-102 (28) Legal parent definition modified – if a presumption of legal parentage is rebutted then they need not be noticed and the person’s parental rights need not be terminated.

T.C.A. § 36-1-113 (g)(9)(A) If a person is a putative father at the time the termination of parental rights or adoption is filed his parental rights may be terminated based upon (g) (9) grounds.

 

Pub. Ch. 919 – Attorney’s Bill effective July 1, 2016

This chapter was prepared and passed by the collaborative efforts of termination and adoption practitioners across Tennessee, and corrects errors and provides escapes from some legal rabbit holes. While some of the changes are monumental in terms of adoption practice, this section does not change Tennessee termination and adoption policy.

T.C.A. § 36-1-102 (1)(A)(iv)This change addresses the difficulty of pursuing the abandonment ground against the frequently incarcerated. The change permits the accumulation of periods of liberty between incarcerations to accrue to create the four (4) month abandonment period when four (4) uninterrupted months of liberty do not exist.

T.C.A. § 36-1-102 Codifies the ordinary meaning of physical custody to end the occasional litigation of the point.

T.C.A. § 36-1-111(a)(1) Standardizes inconsistent language and affirms that homestudies are required prior to surrenders.

T.C.A. § 36-1-111(r)(1)(A)(i) Ends a birth parent’s child support obligation upon surrender, rather than upon adoption, to remove a disincentive to settle a contested termination of parental rights by surrender.

T.C.A. § 36-1-111(x) Creates a method in the adoption context, for a father to rebut the presumption of paternity created by being married to the mother, provided that he is not the biological father. He may sign a form before a notary and that, plus “other credible proof,” which may include a sworn statement of the mother, allows the adoption to proceed without termination of his parental rights. The form is set out in the statute.

T.C.A.§ 36-1-112 (a)(1)(A) Establishes a standardized method of counting the three (3) day surrender revocation period as set out in TRCP 6.01, excluding weekends and holidays, and requiring that the last day be a business day.

T.C.A. § 36-1-113(b)(1) Adds “physical” to “having custody of the child” along with the definition of physical custody. This removes ambiguity about whether licensed child placing agencies and others with children in their care may be legally active on behalf of the children.

T.C.A. § 36-1-113(g)(9)(A)(vi)Deletes, “by the child’s mother” from a notice provision, permitting wider sources of notice that a woman may be expecting a man’s child.

T.C.A. § 36-1-113(g)(9)(B)(i) Sets out the technical requirements of notice to a man that he may be the father of a child. This section clarifies that this notice can be given at any time after conception. Notice, plus his inaction for 30 days, particularly failure to file a parentage action, serves as a basis for termination of his parental rights under existing law. The law is now clear that, in many cases, a man should file a pre-birth parentage action to protect his parental rights.

T.C.A. § 36-1-115(d) Allows non-residents to petition for adoption in the Tennessee County where they received guardianship of a child.

T.C.A. § 36-1-116(a) Standardizes inconsistent language and affirms that homestudies are good for one year.

T.C.A. § 36-1-116(h) Standardizes inconsistent language and affirms that UCCJEA does not apply to adoptions in Tennessee. Also adds that UCCJEA does not apply to voluntary consents either, and affirms prior law that UCCJEA applies to involuntary terminations of parental rights.

T.C.A. § 36-1-117(w)(a) Answers to termination actions shall be signed by the respondent and sworn, like original petitions.

T.C.A. § 36-1-118 “Prospective adoptive parents” changed to “prospective adoptive parents or a licensed child-placing agency,” and

T.C.A. § 36-1-118(c)(2) “The persons” is changed to “ the persons or entity.” Removes inadvertent barriers to licensed child-placing agencies being legally active on behalf of children.

T.C.A. § 36-1-124 (d) Notice of appeal filed in termination of parental rights actions shall be signed by the appellant. This prevents appeals without the appellant’s knowledge or consent.

T.C.A. § 36-1-123 Restraining orders and protective orders, protective of children who are adopted, will not be automatically dissolved by a final order of adoption. Those orders may be enforced in the court that issued the order or the adoption court.

T.C.A. § 36-1-116 (e) Petitioners’ counsel may review documents filed by public or private agencies in an adoption action upon order of the court. Any party may move for such an order. The agency may, upon good cause and with a court order, restrict such information. This permits attorneys for petitioners in DCS and private agency adoptions to conduct a review of the foundational termination documents before adoptions are finalized.

T.C.A.§ 36-1-116(f)(2) Adoptions and terminations suspend custody, visitation and guardianship regardless of the stage of adjudication. This section re-states and clarifies very similar language in the same section that was not enforced in a recent court opinion. In re Hailey S., 2015 Tenn. LEXIS 924 (Tenn. Nov. 16, 2015).

T.C.A. § 36-1-113(g)(14) A new ground for termination of parental rights is established: “A legal parent or guardian has failed to manifest, by act or omission, an ability and willingness to personally assume legal and physical custody or financial responsibility of the child, and placing the child in the person’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child.”

Are these bills good? Absolutely. Like commercial paper law, in termination of parental rights cases the cost of uncertainty in the law is too high to tolerate. In Tennessee termination law, the cost is primarily a cost to children rather than a cost to banks. Standardizing and restating provisions, while dull, minimizes uncertainty. The provisions around classifying fathers and clarifying what grounds apply to what father provides certainty and a balanced approach that has eluded Tennessee for 20 years, and may counter the long-term, lackadaisical approach some men take to their children or possible children. Proceeding to adoption without terminating the rights of unknown fathers, and a two-tiered system of grounds for fathers, legal vs. putative were original objectives of the 1996 adoption code redraft that was not fully operational until now. The Tennessee approach to unwed fathers substantially exceeds the minimum due process floor set by the U.S. Supreme Court in Lehr v. Robertson 463 U.S. 248; 103 S. Ct 2985; 77 L. Ed. 2d 614; 1983 U.S. LEXIS 92; 51 U.S.L.W. 5010 (June 27, 1983). Sound and workable law, balancing the interests of multiple parties, took a while, but it has happened.

*Dawn Coppock is the author of Coppock on Tennessee Adoption Law, the next edition will be available from Celtic Cat Publishing by December 2016. Dawn practices adoption law from Strawberry Plains, Tennessee.

 

 

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