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.