T.C.A. § 36-1-113 (f)

(1) A parent or guardian who is incarcerated at the time the parent is served with a petition to terminate parental rights shall receive notice that:

(A) A hearing will be held to determine whether the parent’s rights will be terminated;

(B) If the parent files a timely, written answer within thirty (30) days of service of the petition to terminate their parental rights, then:

(i) The parent must receive advance notice of the time and place of the hearing;

(ii) The parent has the right to participate in the hearing and to contest the allegation that the parent’s rights should be terminated. At the discretion of the court, such participation may be achieved through personal appearance, teleconference, telecommunication, or other means deemed by the court to be appropriate under the circumstances;

(iii) The parent may claim to be indigent and offer evidence of their financial circumstances and, if the court finds the parent to be indigent, the parent must be provided with a court-appointed attorney to assist the parent in contesting the termination of parental rights;

(iv) The parent has the right to offer testimony and other evidence at the hearing by all means permitted by the Tennessee Rules of Civil Procedure; and

(v) The parent has the continuing responsibility to update the court and petitioner’s counsel with the parent’s current contact information and mailing address promptly upon the parent’s release from incarceration and upon any subsequent changes; and

(C) The rights specified in subdivision (f)(1)(B) may be voluntarily waived by the parent’s written or verbal statement or, if the court determines that the parent has waived the rights specified in subdivision (f)(1)(B), by the parent’s action or inaction, including the failure to timely claim indigency or file an answer to the petition to terminate parental rights. If the court determines that the rights specified in subdivision (f)(1)(B) have been waived, then the court may hear and decide the petition without the parent’s or guardian’s participation.

If the incarcerated respondent does not participate, ask the court to make that determination with language such as:

“Respondent, (incarcerated birth parent) received the notice required by 36-1-113(f). (Incarcerated respondent) did not file an answer, or an affidavit of indigency, and has not otherwise informed this Court of a desire or intention to participate in this action. Therefore, this Court finds that (incarcerated respondent) has waived the rights provided to incarcerated respondents under 36-1-1113(f).”

At 6 months the foster child’s relationship
with foster parents becomes a “significant relationship,” so it has weight when compared with other nonparental pre-removal relationships.

Foster children are sometimes moved from stable foster families to the homes of people associated with their birth family. At initial removal, keeping children in their broader community is well established as a benefit to the child. But after the child has established a healthy parental attachment with a foster family moving the child, for example, to  their mother’s boyfriend’s sister’s home or even a grandparent may be damaging to the child.

To support quick placements within the child’s family or community, the Department must focus on locating kinship foster care during at least the first 30 days after removal. T.C.A. § 37-2-414(b)(2). If the child is quickly placed with a safe kinship home, the child gains the benefits of a community placement and is spared disruption of a healthy attachment with the foster parents.

The child welfare system focuses primarily on pre-removal relationships and places little value on the child’s attachments formed post-removal. Kids, of course, form parental attachments with loving caregivers without regard to the classifications of people applied by the child welfare system.  A legislative fix offers a way to value the healthy attachments of foster children to foster parents. 

Effective July 1, 2023, T.C.A. § 37-2-403 (b)(4) A foster parent or kinship caregiver whom a child has resided with for six (6) months or more is a person who has a “significant relationship” with the child. Absent evidence to the contrary, the Department, foster care advisory review board, or court may presume that continuation of the child’s placement with, or adoption by, the child’s current caregivers is in the child’s best interest.

At 9 months the foster parents don’t just get
notice of hearings and reviews about the
child but have an increased right to
participate on the issue of the child’s best interest.

Foster parents have long been entitled to prompt notice of all court hearings about the child. After 9 months, they are also permitted to appear and actively participate in hearings and reviews to present evidence regarding the child’s best interest. T.C.A. § 37-2-415(a)(17) and 37-2-416(a) and (b).

At 12 months foster parents
get preference to adopt should
the child become
available for adoption.

T.C.A. § 36-1-115(g)(1) and echoed with a bit less strength at 37-2-415(a)(20).

This is the long-standing foster parent preference to adopt children who have been in their care for one year.

Lawyers and judges are just learning about these new rights.  The judge may not be in the habit of offering foster parents a chance to speak at hearings for a while.  Foster parents may need to stand up and respectfully ask to be recognized.  Foster parents can share a copy of this post with your social worker, GAL, Department lawyer, or court staff as necessary to be recognized. At their own expense, foster parents may also hire an attorney to help them be heard.

Look for a blog post soon about the rumor that foster parents can’t consult lawyers. Spoiler alert, it is fake news.

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Go to https://dawncoppock.com/dcs-foster-parents/ for other useful information about foster parent adoption in Tennessee.

This is not a debated or murky point of Tennessee law. You just can. I do 2 or 3 adult adoptions a year and I have for decades. 

See Tennessee Code Annotated § 36-1-117(j). 
(1) When the person sought to be adopted is eighteen (18) years of age or older, only the sworn, written consent of the person sought to be adopted shall be required and no order of reference or any home studies need be issued.

Chapter 17 of Coppock on Tennessee Adoption Law, 7th Ed. is called, guess what? “Adult Adoptions.”

The law creates a legal relationship because the people have an existing emotional parent-child relationship and think their love is just that important.  

At the hearing, the clients usually cry. Sometimes I cry. Sometimes even the judge and the bailiff cry. 

It is a “real” adoption and the legal part is easy peasy, not just in Tennessee, but pretty much all over the U.S. 

I don’t know anything at all about the case in the news. I just want to be sure that you know that if you want to adopt an adult, like a nephew, niece, stepchild, or former foster child, and they want to be adopted, have at it.

If you and your de facto parent or child want to make it legal, call your local adoption lawyer. 

Dawn Coppock, Attorney
Strawberry Plains, TN

Many psychological professionals, foster parents and lawyers have observed that Tennessee’s “best interest of the child” factors are oddly weighted in favor of the birth parent and not the child. The current factors don’t place much weight on the child’s need for continuity and stability, the child’s emotional attachments, the child’s fear of a birth parent,  or a birth parent’s delay in working toward reunification.

This summer and fall, a group of Tennessee Bar Association members who practice adoption law hammered out more child centered factors. The proposed factors take into account modern science regarding the needs of children, particularly children who have experienced trauma, disruption and medical insults like prenatal drug exposure. I was privileged to work on this project. A number of psychological professionals provided input as well.

 The product is now a bill before the Tennessee legislature, HB200/SB205.

You can follow the progress of the bill through my blog: https://dawncoppock.com/blog/ and also on the Tennessee General Assembly website, http://www.legislature.state.tn.us/ 

I am excited about this bill. Read a copy here:  http://www.capitol.tn.gov/Bills/112/Bill/HB0200.pdf

If you want to read the current law and the proposed changes comparatively, you will find the current best interest of the child factors at T.C.A. 36-1-113(i):

T.C.A. 36-1-111(i) In determining whether termination of parental or guardianship rights is in the best interest of the child pursuant to this part, the court shall consider, but is not limited to, the following:

(1) 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;

(2) 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;

(3) Whether the parent or guardian has maintained regular visitation or other contact with the child;

(4) Whether a meaningful relationship has otherwise been established between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely to have on the child’s emotional, psychological and medical condition;

(6) 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;

(7) 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, controlled substances or controlled substance analogues as may render the parent or guardian consistently unable to care for the child in a safe and stable manner;

(8) 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

(9) Whether the parent or guardian has paid child support consistent with the child support guidelines promulgated by the department pursuant to § 36-5-101.

Today the Tennessee Senate unanimously passed the First in Adoption bill without amendment or even discussion. If the Governor signs the bill as expected, it will become law on July 1, 2018.

First in Adoption makes a number of pro-child modifications in many areas of adoption and termination law, some extremely important and a number better described as housekeeping measures. While mundane, even housekeeping measures decrease confusion that can lead to litigation.  The changes and their implications exceed the scope of a blog post but in this post I’ll hit the highlights so other adoption attorneys, social workers and child welfare advocates will have a sense of the breadth and type of changes and can look forward to the effectiveness of this bill as I do. A supplement to Coppock on Tennessee Adoption Law is planned and materials for next week’s comprehensive adoption law seminar are under emergency revision to include the changes. I’m scrambling but happily so.

Here are the highlights. The first change most lawyers and social workers will notice is a new, less bureaucratic surrender form. This form will be included in the Tennessee Code and should be used for all surrenders executed on and after July 1, 2018. For the lay-readers, a surrender form is the form a parent signs to voluntarily transfer their parental rights to agencies or adoptive parents. The current form is 15 pages long and confusing. The new one is 2 pages long and clear.

First in Adoption both increases protections for active unwed fathers by requiring out-of-state putative father registry checks when the child is born or conceived out-of-state. The bill also limits the rights of inactive, unwed fathers to disrupt or delay adoption plans by requiring some action on the part of the father to grasp the opportunity to parent before a man’s status is elevated to putative father.  These provisions also remove any disincentive for mothers to provide social and medical information about fathers. The children will benefit from faster connections to active fathers, will have more information about fathers generally and have less delay in adoption causes by inactive, non-legal fathers.

Jurisdiction and venue requirements are expanded including an expansion of jurisdiction to include new residents and Tennesseans in military service that are stationed outside of Tennessee.

First in Adoption removes years of accumulated common law requirements on four key grounds for involuntary termination of parental rights. Children are often subject to DCS or private terminations of parental rights due to the opiate epidemic. Relatives and family friends whose resources are already taxed by the unexpected expenses for the care of a child often eventually want to adopt. The heavy burden of proof and exceedingly technical requirements of proving grounds for termination of parental rights has priced many families out of the adoption market. Most of the tough requirements are necessary and unavoidable. It should be difficult to terminate parental rights. First in Adoption removes some of the technical requirements that have been added over time that are neither constitutionally required nor good public policy, and manages to do so without prejudice to birth parents. That is a breath of fresh air.

The grounds modified are abandonment, severe child abuse, and two grounds only for dependent and neglected children related to their parent’s failure to make the changes required to create a safe home.

Abandonment may be the most common ground for termination of parental rights. Previously, the petitioner was required to prove by clear and convincing evidence, not only 4 months without visits or without support, but also that such failure to visit or support was willful. It is often not possible to prove the circumstances or mindset of a person who is either entirely absent or uncooperative with discovery and testimony. First in Adoption makes the absence of willfulness an affirmative defense rather than making affirmative proof of willfulness an element of the ground. This places the burden of proof and the incentive to produce it on the party with the proof. This also permits a finding of abandonment when a parent is so completely absent that discernment of the parent’s circumstances is not possible. Being entirely absent is one basic definition of abandonment and should not bar a court from finding that ground. But if a parent is participating and can establish that their estrangement from their child was not willful, they need only offer such proof to a preponderance of evidence standard to prevail. Under existing law, parents have a right to counsel in a termination case to, among other things, assist in offering defenses, so parents need not undertake the burden of asserting this defense without professional assistance.

Two of the grounds amended are applicable only to children previously found to be dependent and neglected and both require a set period of time without return of the child to the parent. Both of these grounds previously only applied to the parent from whom the child was physically removed, but not to the other parent who did not have physical custody and also did not present an appropriate alternative to non-parental care for the child during the same post-removal period of time. It is said that this odd application actually favored the “worst bad parent.”

During the period of remediation, either or both parents can secure custody upon proof of that their home meets minimum standards. First in Adoption makes the grounds related to failure to offer a suitable home applicable to both parents regardless of which parent had physical custody at removal. Procedural impediments to the timely prosecution of these cases for dependent and neglected children were also removed from each ground.

Severe child abuse is the last ground modified. It is grounds for termination of parental rights that a parent has committed severe child abuse.  However, the ground previously required that the severe child abuse be “against the child who is the subject of the petition or against any sibling or half-sibling of such child, or any other child residing temporarily or permanently in the home of such parent.”  The ground now is established if the parent has been found to have severely abused any child.

If the abuse is very remote in time or circumstance, or if the parent’s relationship with the subject child is so positive that the judge decides that the risk of such continued relationship is outweighed by the quality of the relationship, then the judge can decline to terminate parental rights in this case as in any case, not for lack of grounds, but because termination of parental rights is not in the best interest of the child.

It happened again. First in Adoption and many other bills have fallen off the end of the Senate calendar today due to large legislative volume that is common late in the session. The Senate will reconvene tomorrow at 8:30 am to take another run at the long list of pending bills. Hopefully they will get to us, if not “First,” sometime tomorrow or this week. I’ll add an update to the blog when we get a vote. Until then, the adoption community is cautiously optimistic.

https://dawncoppock.com/blog/