February 3, 2023
Tennessee law grants a unique form of guardianship pursuant to surrenders and terminations of all parental rights. This guardianship confers rights tantamount to parental rights (absent inheritance rights) and can only be ended by (a) adoption or (b) termination of guardianship rights through the same process as termination of parental rights. Tennessee DCS has recognized this heightened guardianship status as meeting the guardianship exclusion in Article VIII of the Interstate Compact on the Placement of Children (ICPC). Therefore, Tennessee DCS has not processed ICPC Regulation No. 12 requests.
However, concerns have been raised from our ICPC partner states regarding (1) this policy possibly impeding pre-adoptive parents’ ability to finalize adoptions in their home states, (2) placement safety and monitoring of pre-adoptive parents who retrieve children and full guardianship orders from Tennessee and return to their home states without any oversight, and (3) adoption agencies facilitating interstate adoptions with Tennessee surrenders for the specific purpose of subverting ICPC. Therefore, moving forward Tennessee DCS will require and process ICPC Regulation No. 12 referrals for all non-agency pre-adoptive parents with Tennessee full guardianship orders. This revised protocol will also bring Tennessee into conformity with guidance preferences offered by AAICPC and prevailing state standards.
— TN Department of Children’s Services
(Former Position) 12/12/18 – Fewer Tennessee Cases Will Require ICPC Approval
On December 12, 2018, the Tennessee Department of Children’s Services issued the following significant statement regarding ICPC:
“After consideration of Article VIII and Regulation 10, the Tennessee ICPC office will no longer be processing ICPC packets for children in full guardianship when the non-agency placement is in Tennessee when full guardianship is ordered. The Tennessee ICPC office will continue to process ICPC requests for children in partial guardianship or guardianship of an agency.”
This is a big change, so let’s unpack it. The Interstate Compact on the Placement of Children, codified in Tennessee at T.C.A. 37-4-201, et. seq. states in Article VIII as follows:
This compact shall not apply to:
(a) The sending or bringing of a child into a receiving statebythe child’s parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or the child’s guardian and leaving the child with any such relative or non-agency guardian in the receiving state.
Tennessee and some other states provide prospective adoptive parents with guardianship as part of the adoption process. Article VIII places non-agency guardians outside the applicability of ICPC without any distinction between the sorts of guardianships existing in the various states. Many state ICPC administrators dismiss the “lighter” versions of guardianship granted to adoptive parents, asserting that only a complete guardianship or guardianship with a right of consent is the sort of guardianship that Article VIII intended to reference. Other ICPC administrators disregard the guardianship exception all together.
In Tennessee, prospective adoptive parents routinely obtain court ordered guardianship of a child following either a birth parent’s judicial consent or judicial termination of rights. Upon termination of all legal parents’ and putative father’s rights, and upon review of the prospective adoptive parents’ home study, a Tennessee court may grant an order of “Complete Guardianship” to prospective adoptive parents. This is also commonly called “full guardianship”. This complete guardianship is very broad and includes a “right to consent” to the adoption. Granting guardianship to prospective adoptive parents is not new, but has been part of Tennessee law and practice for thirty years or more.
In non-agency cases, where a child is sent from Tennessee in the complete guardianship of prospective adoptive parents, the Tennessee Department of Children’s Services will no longer require or process an ICPC package. This is not inconsistent with the ICPC, but entirely compliant with the ICPC, which by its terms does not apply to a non-agency guardian bringing a child into their home state to adopt.
In private newborn adoptions, a guardianship order is normally entered at a birth parent’s judicial “surrender” hearing. If there is no Tennessee surrender hearing, for example, and another state’s extra-judicial adoption consent document is used, in most cases, the prospective adoptive parents will not have an opportunity to secure an order of complete guardianship from a Tennessee court and therefore, will not become guardians under Tennessee law.
ICPC still applies to Tennessee private adoptions when, for any reason, the prospective adoptive parents do not have a court order of complete guardianship. ICPC also still applies to children who are in the guardianship of an agency.
Tennessee permits non-resident prospective adoptive parents to return to Tennessee to finalize their adoption if a Tennessee court gave the prospective adoptive family complete guardianship of the child.
The recently announced change is significant. Some transitional education and confusion is to be expected. But the net effect is a reduction in legal fees and length of travel for many non-resident prospective adoptive families.