LEGAL OPINION OF DAWN COPPOCK REGARDING THE OPERATION OF
ADOPTION FACILITATORS IN THE STATE OF TENNESSEE
ISSUE
May adoption facilitators legally operate in Tennessee?
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 in Tennessee or in the state where the business is located, that brings together adoptive parents and birth parents for a fee. Whether this facilitation is termed an “advertising service”, “facilitation service”, “profile service”, or “law center” is of no consequence. If the point of the service is to connect the family with a child or pregnant woman considering adoption for a fee, regardless of what the fee is called, it is a facilitation service.
A lawyer may be paid for legal work directly related to the legal proceeding. But a lawyer or law center located in a state, where neither the birth or adoptive parents reside and who is not licensed in either of their states, is not providing “necessary legal services” as allowed in the statute.
In addition, in order for a lawyer, social worker or out of state agency to advertise for the placement of children in Tennessee, they must become licensed in Tennessee. If they are advertising here or elsewhere and placing children in Tennessee without being licensed here, that is also prohibited.
CONTROLLING STATUTES
Tennessee Code Annotated § 36-1-108 and 36-1-109, which say (with some simplification), that it is unlawful for any person, corporation, agency or entity other than the Department (DCS) or a licensed child-placing agency to charge or receive any fee or contribution for services or assistance, including advertising, directed toward bringing or placing a child with prospective adoptive parents.
ANALYSIS
Based upon these statutes, adoption facilitation for a fee by any entity other than a licensed child-placing agency is illegal in Tennessee. Adoption facilitation is legal in some other states. However, in the State of Tennessee, 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. Assisting in the commission of this crime carries the same penalty.
Also ICPC Regulation 12 defines adoption facilitator as “an individual who is not licensed or approved by a state as an adoption agency or attorney, and who is engaging in the matching of birth parents to adoptive parents.”
To console those who feel that they are missing a magical method of locating a child to adopt, be aware that the quality and results of facilitation services vary dramatically and rarely achieve their advertised claims. Often the cost of using a facilitator is much higher than just the facilitation fee. There are many hidden costs associated with following up on the various leads provided. Finally, many families have been emotionally battered by the fast paced nature and often ethically laxness 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, if one works out, a casual approach to collection of medical information or encouraging the birth parent to deemphasize unattractive aspects of the situation to the adoptive family. Remember, you have contracted with an entity who either does not know or does not care that they are committing a felony in Tennessee. How much do they know or care about other laws designed to protect you, the birth parents and the child? There are effective, ethical and less expensive approaches that are legal.
CONCLUSION
Do not retain facilitators. If you have already retained a facilitator but you have not received custody of a child, you may be able to set aside your contract because it is illegal and therefore void. If you have signed a contract, but have not sent money, do not send money. You could be assisting in the commission of a crime.
Reference: Tennessee Code Sections: TCA § 36-1-108 & TCA § 36-1-109