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

Big addition to foster parent’s right to participate in hearings.

T.C.A. §  37-2-415 (a)(17) – (Public Chapter 263)
For some time, the court has been required to promptly notify foster parents of all court hearings regarding their foster child. They are permitted to attend “at the discretion of the court” which means unless the judge doesn’t want them to.

The new provision says, “A foster parent who has served as the physical placement of the child for a period of nine (9) months or more shall be permitted to appear and actively participate in any permanency hearing or dispositional hearing for the child with regard to the best interest of the child.”

Now there is a right to “actively participate”.

T.C.A. §  37-2-416 – (Public Chapter 263)

(a) “The department shall notify the foster parents, if any, or any prospective adoptive parent or relative providing care for the child in state custody with notice of any review or hearing to be held with respect to the child. The foster parents, if any, of such a child and any prospective adoptive parent or relative providing care for the child shall be provided with notice of the right to be heard in any review or hearing to be held with respect to the child, except that this section shall not be construed to require that any foster parent, prospective adoptive parent, or relative providing care for the child who has served as the physical placement for the child for a period of fewer than nine (9) continuous months be made a party to such review or hearing solely on the basis of such notice and right to be heard.
(b) Any foster parent who has served as the physical placement for the child for a period of nine (9) or more continuous months shall be permitted to appear for the sole purpose of presenting evidence with regard to the best interests of the child.
(c) At each hearing, the court shall determine whether the department has complied with this section.”  

After the child is in the foster parents’ care for 9 months the foster parents have a right to present best interest evidence.

Judges are just learning about these new rights.  As of this post, these changes are not yet in the online version of the Code.  For a while, the judge may not call on you.  You may need to stand up and respectfully ask to be recognized.  You can share a copy of this post with your social worker, GAL, Department lawyer or court staff as necessary to be recognized. 

© Dawn Coppock 7.13.2023

– TBA Journal – July / August 2021