To be used beginning July 1st, 2018
Click here for the new surrender form available in WORD and PDF formats
Lawyers and Clerks– If you have determined that a surrender is the correct process for a voluntary termination of parental rights in your case, you will find the new form in the Tennessee Code as amended effective July 1st, 2018. T.C.A. § 36-1-1119(b). But if you cut and paste it from the Code, it will look “Hobo” as we say in my family. But it takes awhile to format it and make it look nice. My office has done that already, and in the spirit of collegiality and celebration of this exciting legal development, here it is. You’re welcome.
Because none of us have done one of exactly these before, here are my brief thoughts on how this will go. More is available in Coppock on Tennessee AdoptionLaw, 7th edition. A supplement to incorporate the new surrender form and other First in Adoption Actchanges is planned for September 2018, but because much of the law around the surrender process remains unchanged, the current edition remains useful on this and most other TN adoption issues.
1) MAKE AN APPOINTMENT Like before, you contact a judge and schedule a surrender hearing, and ask the surrendering party, accepting party, and both parties counsel to be present. The rules on pre-surrender counseling and legal counsel, timing of the surrender and physical custody, are the same. Legal and social counseling must be offered to the surrendering party and received pre-surrender, if it is desired. The child must be at least 4-days-old before surrender, and the accepting party must have physical custody of the child at the time of surrender. Physical custody is a defined term. T.C.A. § 36-1-102(39). There is some “wiggle room” on physical custody for children in the hospital and such. T.C.A.§ 36-1-111(d)(6). But, physical custody is a threshold requirement and may not be waived.
2) PRE-SURRENDER INFORMATIONS FORMS Parties need ID, AND now they need their respective “pre-surrender information forms” done and in hand. Found at T.C.A. § 36-1-111(b)(4) for the surrendering party, (b)(5) for the accepting party.
Lay people will need professional help with these forms from their respective advocates. Because the forms are offered to the court as sworn evidence and collect legally significant information previously gathered by a judge, advocates should carefully review the forms for completeness and correctness before submission.
I plan to interview my client to obtain the information, complete the form for them, and go over it with them to confirm correctness before the form is offered to the court.
3) OTHER ATTACHMENTS The additional attachments are the accepting parties social and medical history form, the same DCS form previously required and available from DCS,
and
If the surrender is executed to anyone other than a licensed adoption agency or DCS, the accepting parties current and approved court report from their home study is required. You can’t waive this, ever.
This is not new law. In relative adoptions, a homestudy may be waived by the court at the adoption phase, but not at surrender. If relatives don’t have and don’t want to get a homestudy, a surrender is not the correct way to terminate parental rights in the case.
4) SURRENDER FORM The actual surrender form is found at T.C.A. § 36-1-111(b)(5). Before you see the judge, attach the two information forms, the blank revocation form, (T.C.A. § 36-1-111(b)(6)), the completed social and medical history and the homestudy, if required. Complete all the blanks on the form except the signatures and maybe the date of execution. Carefully calculate the revocation period. The revocation period is 3 days as calculated under T.R.C.P. 6.01. Mistakes here, particularly understating the revocation period, could be serious. There is a chart (p. 38)and explanation of how this works (Chapter 3) in Coppock on Tennessee Adoption Law,7th Edition, and that process is unchanged by recent changes in the law. In my office, we have a rule, every surrender package and particularly calculation of the revocation period must be reviewed by two pairs of eyes before we offer it to the court. And even here, the second pair of eyes occasionally finds errors. The new process certainly has less traps for the unwary than the old one and we are “tickled”. Still we are keeping the rule.
5) SURRENDER HEARING The laws regarding how the surrender hearing is conducted remain unchanged. The hearing is in private, generally in chambers. A court officer or clerk may be present. The only other person who can be present with a surrendering party is their lawyer; not the other parent, an emotional support person and particularly, not a representative of the agency to whom the child will be surrendered. The hearing is designed, not only for the judge to ensure completeness of the paperwork, but more importantly, to talk with the surrendering party to determine if they understand what a surrender does and whether this step is their free choice. Judges reach these goals in different ways.
After the surrendering party signs and exits the judge’s office, the accepting party does the same. Often, the accepting party will present a motion and order for full or partial guardianship at this time. The rules around guardianship are unchanged. Forms and discussion of guardianship are available in my book.
6) POST SURRENDER After the surrender is executed by both parties, the clerk should take the original. The statutory directions for court clerks remain unchanged, but are no longer included on the forms. The surrendering and accepting parties and their counsel each should leave with certified copes of the surrender, and the surrendering party should leave with a blank revocation form and should understand how to revoke if they decide to do so.
NOTE TO LAY PEOPLE– Yes, there is much law on the web. Maybe some of it you can use without doing great harm. Of course, everyone has a right to represent themselves, but in termination of parental rights the stakes for a child’s stability are quite high. A surrender is a technically detailed process for an attorney, one of the most tricky issues is determining if it is the right form for any particular case, and then exactly when and where it should be signed. In every case, it must be signed in front of a judge to be effective. As they say on T.V., but seriously, ”Don’t try this at home.”
Call a good lawyer with experience in adoption.
