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TENNESSEE COMPILATION OF SELECTED LAWS ON CHILDREN, YOUTH AND FAMILIES, 2011 EDITION

TENNESSEE CODE ANNOTATED

Title 36 Domestic Relations

Chapter 1 Adoption

Part 1 General Provisions

36-1-111. Pre-surrender request for home study or preliminary home study - Surrender of child - Consent for adoption by parent - Effect of Surrender - Form of surrender - Waiver of interest - Interpreter for non-English speaking parents.

(a) (1) Prior to receiving a surrender by a parent of a child or prior to the execution of a parental consent by a parent in a petition for adoption, the prospective adoptive parents may request a licensed child-placing agency, a licensed clinical social worker, or, if indigent under federal poverty guidelines, the department, to conduct a home study or preliminary home study for use in the surrender, or parental consent proceeding, or in the adoption.

(2) A court report based upon the home study or preliminary home study must be available to the court or, when using a Tennessee surrender form, to the persons under subsection (h), (i), or (j), and, before the surrender to prospective adoptive parents is executed, the court report must be reviewed by the court or persons under those subsections in any surrender proceeding in which the surrender is not made to the department or a licensed child-placing agency. When a parental consent is executed, the court report based upon the home study or preliminary home study must be filed with the adoption petition, and must be reviewed by the court before the entry of an order of guardianship giving the prospective adoptive parents guardianship of the child.

(3) All court reports submitted under this subsection (a) shall be confidential and shall not be open to inspection by any person except by order of the court entered on the minute book. The court shall, however, disclose to prospective adoptive parents any adverse court reports or information contained therein, but shall protect the identities of any person reporting child abuse or neglect in accordance with law.

(b) All surrenders must be made in chambers before a judge of the chancery, circuit, or juvenile court except as provided herein, and the court shall advise the person or persons surrendering the child of the right of revocation of the surrender and time for the revocation and the procedure for such revocation.

(c) A surrender or parental consent may be made or given to any prospective adoptive parent who has attained eighteen (18) years of age, the department, or a licensed child-placing agency in accordance with the provisions of this section.

(d) (1) No surrender or any parental consent shall be valid that does not meet the requirements of subdivision (a)(2).

(2) No surrender or parental consent shall be valid that is made prior to the birth of a child, except a surrender executed in accordance with subsection (h).

(3) No surrender or parental consent shall be valid that is made within three (3) calendar days subsequent to the date of the child's birth, such period to begin on the day following the child's birth; provided, that the court may, for good cause shown, which is entered in an order in the minute book of the court, waive this waiting period.

(4) No surrender or parental consent shall be valid if the surrendering or consenting party states a desire to receive legal or social counseling under subdivisions (k)(2)(E) and (F) until certification of satisfaction or withdrawal of such request is received by the court as provided in subsection (l ).

(5) Unless the surrender or parental consent is made to the physical custodian or unless the exceptions of subdivision (d)(6) otherwise apply, no surrender or parental consent shall be sufficient to make a child available for adoption in any situation where any other person or persons, the department, a licensed child-placing agency, or other child-caring agency in this state or any state, territory, or foreign country is exercising the right to physical custody of the child under a current court order at the time the surrender is sought to be executed or when a parental consent is executed, or when those persons or entities have any currently valid statutory authorization for custody of the child.

(6) No surrender shall be valid unless the person or persons or entity to whom or to which the child is surrendered or parental consent is given:

(A) Has, at a minimum, physical custody of the child;

(B) Will receive physical custody of the child from the surrendering parent or guardian within five (5) days of the surrender, as evidenced by the affidavit of the person or persons receiving the surrender and by affidavit of the surrendering or consenting parent or guardian or court order;

(C) Has the right to receive physical custody of the child upon the child's release from a health care facility as evidenced by an affidavit of the person or persons or entities receiving the child and by the affidavit of the surrendering or consenting parent or guardian or court order; or

(D) Has a sworn, written statement from the person, the department, the licensed child-placing agency, or child-caring agency that has physical custody pursuant to subdivision (d)(5), which waives the rights pursuant to that subdivision (d)(5).

(e) The surrender form shall incorporate a provision stating to the surrendering parent or guardian the beginning and ending period for revocation of the surrender and the procedures for revoking the surrender, and shall include a place in which the date of the expiration of the revocation period shall be inserted.

(f) The commissioner, or the commissioner's authorized representatives, or a licensed child-placing agency, through its authorized representatives, may accept the surrender of a child and they shall be vested with guardianship or partial guardianship of the child in accordance with the provisions of this section and § 36-1-102; provided, that the department or any licensed child-placing agency may refuse to accept the surrender of any child.

(g) In any surrender proceeding, the court or other person authorized herein to conduct a surrender proceeding, and when a parental consent is executed in the adoption petition, the court shall require that the person or persons surrendering the child for adoption or the person or persons giving consent and the person or persons accepting the child through the surrender or receiving parental consent to satisfactorily prove their identities before the surrender is executed or the parental consent is accepted. No surrender or parental consent may be executed in any form in which the identities of the person or persons executing the surrender or parental consent or the person or persons or agencies receiving the surrender or the identity of the child whose name is known are left blank or in any form in which those persons, the child, or agencies are given pseudonyms on the form or in the petition at the time of the execution of the surrender or parental consent.

(h) In cases where the person executing the surrender resides in another state or territory of the United States, the surrender may be made in accordance with the laws of such state or territory or may be made before the judge or chancellor of any court of record or before the clerk of any court of record of such state or territory and such surrender shall be valid for use in adoptions in this state.

(i) In cases where the surrendering person using the Tennessee form of surrender or the form provided by applicable law resides or is temporarily in a foreign country, the surrender may be made before any officer of the United States armed forces authorized to administer oaths, or before any officer of the United States foreign service authorized to administer oaths. A citizen of a foreign country may, in accordance with the law of the foreign country, execute a surrender of a child that states that all parental rights of that person are being terminated or relinquished by the execution of the document or that the child is being given to an agency or other person for the purposes of adoption.

(j) In cases where the person executing the surrender is incarcerated in a state or federal penitentiary, the surrender may be executed before the warden of the penitentiary; provided, that the signature of the person executing the surrender and the signature of the warden before whom the surrender is executed are acknowledged before a notary public.

(k) (1) (A) Notwithstanding any other provisions of this part, in obtaining any medical or social background information, contact veto information or other information required as part of the surrender or parental consent process pursuant to this part, the court, or, at its direction, its court officers or its clerks, or other persons authorized to accept a surrender or parental consent pursuant to this part, may accept notarized statements attached to each of the forms promulgated by the department that verify that the informant of the required information has previously reviewed the form or, if unable to read, has had the contents of the form explained to the person, and that the person has accurately supplied the information on the form and the person's responses have not been subject to duress by any person.

(B) (i) The court, or other persons authorized by this part to accept surrenders, shall personally, however, verify under oath by the surrendering or consenting person who has provided the information in a surrender or parental consent process pursuant to this part, that the parent or guardian agrees with the information provided in the forms required pursuant to this part, and the notarized statement shall have a section for the court, or other persons authorized by this part to accept surrenders, to ratify that this verification has occurred by providing a space for the signature of the judge or chancellor accepting the surrender or parental consent or other person authorized by this part to accept a surrender, and the date on which this was done.

(ii) The notarized statements must be attached to the surrender or parental consent and maintained with the surrender or parental consent form by the court or the court clerk, or person authorized by this part to accept surrenders, and transmitted to the department as otherwise required by this part.

(C) (i) In all other respects, the court, or other persons authorized by this part to accept surrenders, must witness the actual act of surrender, or must confirm the parental consent, by verifying directly with the parent or guardian the parent's or guardian's understanding and willingness to terminate parental rights and, by witnessing the parent's or guardian's signature on the surrender form, or by questioning the parent on the matters required by this part before the entry of an order of confirmation of the parental consent.

(ii) The court may not accept any surrenders executed prior to its approval of the surrender that relinquish the parent's or guardian's rights, nor may it enter any orders confirming a parental consent, based upon any written statement of the parent agreeing to relinquish the parent's rights to the child, except as may be otherwise specifically provided by this part.

(iii) The execution of the surrender or parental consent shall occur in private in the chambers of the court or in another private area, and in the presence of the surrendering or consenting person's legal counsel if legal counsel has been requested by the surrendering or consenting person. In the discretion of the court or other person conducting the surrender or parental consent proceeding, the court's officer or other employee may be present.

(D) For surrenders taken pursuant to subsection (h), (i) or (j), the information required by this part to be supplied by the prospective adoptive parents, the department, or a licensed child-placing agency and the acceptance of a surrender by the prospective adoptive parents or the department or the licensed child-placing agency may be made by affidavit contained with the Tennessee surrender forms.

(2) In accordance with the provisions of subdivision (k)(1), the following information shall be obtained under oath at the time of the surrender in Tennessee, when using a Tennessee surrender form, or at the time of the confirmation of the parental consent:

(A) A statement of the surrendering or consenting parent identifying any other legal or biological parent or legal guardian of the child being surrendered or for whom parental consent is being given and such person's whereabouts, or a statement that the identity or whereabouts of such other parent or guardian is not known;

(B) Whether the child is of Native American heritage and the tribal organization of which the child is a member or in which the child is eligible for membership, if known;

(C) Whether the child is intended to be sent out of state for the purposes of adoption, and, if the child surrendered is to be adopted under the laws of any jurisdiction other than Tennessee, a statement of the surrendering parent or guardian stating that the surrendering parent or guardian elects to have the surrender governed in all respects by Tennessee law, including choice of law;

(D) Whether the person has paid or received or has been promised any money or other remuneration or thing of value in connection with the birth of the child or placement of the child for adoption and, if so, to or from whom, the specific amount, and the purpose for which it was or is to be paid or received;

(E) Whether such person desires counseling from the department or a licensed child-placing agency or a licensed clinical social worker concerning the decision to surrender or give parental consent to the adoption of the child and if the person has been made aware of any assistance that might be available to the person should the person decide not to place the child for adoption;

(F) Whether the person is represented by legal counsel and, if not, whether the person wishes to consult with legal counsel prior to execution of the surrender or prior to the confirmation of the parental consent;

(G) Whether such person is freely and voluntarily executing the surrender or parental consent with full knowledge of its consequences and whether such person knows and understands the right to revoke the surrender or consent and the time limits in which the revocation may be executed;

(H) Whether the child is possessed of any real or personal property of any kind, or has any expectation of any real or personal property and the nature of such interest;

(I) A statement of the surrendering parent or guardian concerning whether that parent or guardian or some other person or persons or entity has legal and/or physical custody of the child at the time of the surrender or whether such person intends to give custody to the prospective adoptive parents, the department or a licensed child-placing agency.

(3) (A) The court shall require the person or persons surrendering the child for adoption or consenting to the child's adoption to complete the portion of the surrender or a parental consent form that indicates whether the person desires, or wishes to veto, further contact with other persons eligible under this part to have contact with the surrendering parent at a later time in accordance with §§ 36-1-127 - 36-1-131.

(B) The form that the surrendering or consenting parent signs shall notify the parent that the parent may withdraw or vary the veto or consent at any time and the form, or an attachment to the form, shall inform the parent of the procedures for doing so.

(C) Upon receipt of the completed form, the department shall enter the surrendering or consenting person's request on the contact veto registry and shall maintain a copy of the form and all modifications to the form as part of the post-adoption record.

(4) (A) The court or persons authorized to receive the surrender shall obtain from the prospective adoptive parents or from a licensed child-placing agency receiving the surrender at the time of the execution of the surrender, or the court shall obtain, at the time an order of guardianship is entered that is based upon the execution of a parental consent, a statement of the fees paid to any person or persons, licensed child-placing agency, licensed clinical social worker, attorney, or other entity for the placement of the child or for legal costs or any other costs related in any way to the adoption or placement for adoption of the child as of the time the surrender is executed or at the time the parental consent is executed.

(B) In the case of a surrender of a child to be removed from Tennessee for adoption, the court shall obtain a statement from the prospective adoptive parents that there will be compliance with the interstate compact on the placement of children and how that compliance will be effected;

(l) (1) In the case of a surrender directly to prospective adoptive parents, if the person surrendering the child desires under subdivision (k)(2)(E) to have counseling prior to execution of the surrender and the child is being surrendered directly to the prospective adoptive parents, the prospective adoptive parents shall, if so requested by the surrendering person or persons, compensate a licensed child-placing agency, a licensed clinical social worker, or the department for such counseling, which must be certified as having been completed before the surrender can be executed;

(2) If the person surrendering the child states a desire under subdivision (k)(2)(F) to have legal counseling prior to or during the execution of a surrender directly to the prospective adoptive parents, the prospective adoptive parents shall, if so requested by the surrendering person or persons, compensate the attorney for such counseling sought, which must be certified as having been completed before the surrender can be executed;

(3) The provisions of this subsection (l ) shall also apply to the use of parental consents pursuant to § 36-1-117(g) prior to entry of the order of confirmation;

(4) The payment of compensation by the prospective adoptive parents shall not establish any professional/client relationship between the prospective adoptive parents and the counselor or attorney providing services under subdivisions (l )(1) and (2);

(5) The department shall, by rule, establish the form of the certification required by this section, including the counseling criteria that must be met with the surrendering parent as part of the certification.

(m) Before the surrender is received and before an order of guardianship is entered based upon a parental consent, the person or persons to whom the child is to be surrendered or the persons to whom a parental consent is given, other than the department or a licensed child-placing agency, shall present with the surrender executed in Tennessee or on a Tennessee form at the time of the execution of the surrender or before confirmation of a parental consent by the court, all of the following documents:

(1) A court report based upon a currently effective or updated home study or preliminary home study conducted by a licensed child-placing agency, a licensed clinical social worker, or the department;

(2) Certification of the completion of any counseling requested under subsection (l );

(3) An affidavit of the person or persons stating whether they have physical custody of the child at the time of the surrender or the affidavits required by subdivision (d)(6);

(4) If the child has been brought to Tennessee from another state or territory, a copy of the ICPC Form 100A, or other substitute form required for ICPC compliance, showing approval of the department for the child brought into Tennessee for foster care or adoption or a sworn statement stating why such form is not required pursuant to the ICPC; and

(5) A sworn statement that if the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., applies because of the child's Native American heritage, there has been compliance with that act.

(n) (1) A licensed child-placing agency receiving the surrender shall complete the provisions of subdivisions (m)(3)-(5).

(2) The department, when receiving the surrender, shall complete the provisions of subdivisions (m)(3) and (5).

(o) No surrender shall be accepted by the Tennessee court or on a Tennessee form by those persons authorized to accept a surrender under subsection (h), (i) or (j), nor shall a parental consent be confirmed by the court, nor shall an order of guardianship be entered by the court under subsection (r) based upon a surrender or a parental consent until there has been compliance with the provisions of subsections (l ), (m) and (n).

(p) (1) (A) The person or persons executing the surrender and the person or persons, the local representative of the department or the local representative of the licensed child-placing agency to whom the child is surrendered shall receive certified copies of the original surrender from the clerk of the court immediately upon the conclusion of the surrender proceeding.

(B) Costs of all certified copies provided under this subdivision (p)(1) shall be taxed only to the person or persons receiving the surrender, the department, or the licensed child-placing agency.

(2) (A) The original of the surrender executed before the court shall be entered on a special docket for surrenders and shall be styled: “In Re: (Child's Name),” and shall be permanently filed by the court in a separate file designated for that purpose maintained by the judge, or the judge's court officer, who accepted the surrender and shall be confidential and shall not be inspected by anyone without the written approval of the court where the file is maintained or by a court of competent jurisdiction with domestic relations jurisdiction if the file is maintained elsewhere. There will be no court costs or litigation tax assessed for the surrender. Within five (5) days, a certified copy of the surrender shall be sent by the clerk or the court to the adoptions unit in the state office of the department in Nashville.

(B) (i) The original of the surrender executed before the persons authorized under subsections (h) and (i), or, in out-of-state correctional facilities under subsection (j), shall be maintained in a separate file designated for that purpose, which shall be confidential and shall not be inspected by anyone else without the written approval of a court with domestic relations jurisdiction where the file is maintained.

(ii) For surrenders executed under subsection (j) in federal and state correctional facilities in Tennessee, the original shall be filed in a secure file in the office of the warden, which shall not be open to inspection by any other person, and after ten (10) days from the date of the surrender, the original shall be sent to the adoptions unit in the state office of the department in Nashville and a copy shall be maintained by the warden.

(3) (A) The clerk of the court, or the department as the case may be, upon request, shall send certified copies of the original surrender to:

(i) The court where the adoption petition or where the petition to terminate parental rights is filed;

(ii) A party who is petitioning for an adoption in cases where the child was not placed by the department or a licensed child-placing agency; provided, however, where the child was placed by the department or a licensed child-placing agency, the parties petitioning for an adoption or termination of parental rights are not entitled to copies of the surrenders made to the department or a licensed child-placing agency; and

(iii) The department's county office or a licensed child-placing agency or licensed clinical social worker that or who is performing any service related to an adoption or that has intervened in an adoption proceeding.

(B) Costs of providing certified copies under this subdivision (p)(3) may be taxed or charged to the person, the department, or the licensed child-placing agency that requests the certified copies, except where the department, the licensed child-placing agency, or licensed clinical social worker is responding to an order of reference from a court or where the department, licensed child-placing agency, or licensed clinical social worker is conducting any investigation related to the adoption or to the child's welfare.

(q) (1) The party to whom the child is surrendered pursuant to subsection (h), (i) or (j) shall file a certified copy of the surrender of a child with the chancery, circuit, or juvenile court in Tennessee where the child or the prospective adoptive parents reside, or with the court in which an adoption petition is filed in Tennessee, within fifteen (15) days of the date the surrender is actually received, or within fifteen (15) days of the date the child or the person or persons to whom the child has been surrendered becomes a resident of the state of Tennessee, whichever is earlier.

(2) The surrender filed pursuant to subdivision (q)(1) shall be recorded by the court and shall be processed by the clerk as required by subdivision (p)(2)(A).

(3) In cases under subdivision (q)(1), where the child is in the legal custody of the department or a licensed child-placing agency, the surrender also may be filed in the chancery, circuit, or juvenile court or other court that had placed custody of the child with the department or the licensed child-placing agency.

(4) In cases under subdivision (q)(1), and in accordance with subsection (r), the court shall enter such other orders for the guardianship and supervision of the child as may be necessary or required pursuant to this section or § 36-1-118.

(r) (1) (A) (i) A surrender, a confirmed parental consent, or a waiver of interest executed in accordance with this part shall have the effect of terminating all rights as the parent or guardian to the child who is surrendered, for whom parental consent to adopt is given, or for whom a waiver of interest is executed. It shall terminate the responsibilities of the surrendering parent or guardian, the consenting parent, or the person executing a waiver of interest under this section for future child support or other future financial responsibilities pursuant to subsection (w) if the child is ultimately adopted; provided, that this shall not be construed to eliminate the responsibility of such parent or guardian for past child support arrearages or other financial obligations incurred for the care of such child prior to the execution of the surrender, parental consent or waiver of interest; and provided further, that the court may, with the consent of the parent or guardian, restore such rights and responsibilities pursuant to § 36-1-118(d).

(ii) If, after determining the surrender to be in the child's best interest, the department accepts a surrender of a child, who was previously placed for adoption by the department, from the child's adoptive parent or parents, the unrevoked surrender of such child shall terminate the responsibilities of the surrendering adoptive parent or parents for future child support or other future financial responsibilities; provided, that this shall not be construed to eliminate the responsibility of such parent or parents for past child support arrearages or other financial obligations incurred for the care of such child prior to the execution of the surrender; and provided further, that the court may, with the consent of the parent or parents, restore such rights and responsibilities pursuant to § 36-1-118(d).

(B) Notwithstanding the provisions of subdivision (r)(1)(A), a child who is surrendered, for whom a parental consent has been executed, or for whom a waiver of interest has been executed, shall be entitled to inherit from a parent who has surrendered the child or executed a parental consent or waiver of interest until the final order of adoption is entered.

(2) (A) Unless prior court orders or statutory authorization establishes guardianship or custody in the person or entity to whom the surrender or parental consent is executed, the surrender or parental consent alone does not vest the person, persons or entities who or that receive it with the legal authority to have custody or guardianship or to make decisions for the child without the entry of an order of guardianship or partial guardianship as provided in subdivision (r)(6)(A) or as provided in § 36-1-116(f). The court accepting the surrender or the parental consent shall not enter any orders relative to the guardianship or custody of a child for whom guardianship or custody is already established under prior court orders or statutory authorization, except upon motion under subdivision (r)(4)(D) by the person, persons or entities to whom the surrender or parental consent is executed.

(B) In order to preserve confidentiality, the court clerk or the court shall have a separate adoption order of guardianship minute book, which shall be kept locked and available for public view only upon written approval of the court.

(3) (A) Except as provided in subdivisions (r)(2) and (4), a validly executed surrender shall confer jurisdiction of all matters pertaining to the child upon the court where the surrender is executed or filed until the filing of the adoption petition, at which time jurisdiction of all matters pertaining to the child shall transfer to the court where the adoption petition is filed; provided, that the jurisdiction of the juvenile court to adjudicate allegations concerning any delinquent, unruly, or truant acts of a child pursuant to title 37 shall not be suspended.

(B) A waiver of interest does not confer jurisdiction over the child in any court nor does it permit the entry of any order of custody or guardianship based solely upon such waiver, but shall only permit a court to find that that person's parental rights, if any, are terminated.

(4) (A) When, at the time the surrender or parental consent is executed, a prior court order is in effect that asserts that court's jurisdiction over the child who is the subject of the surrender or parental consent, the prior court order shall remain effective until, and only as permitted by this section, an alternate disposition for the child is made by the court where the surrender is executed or filed or until, and only as permitted by this section, an alternate disposition is made for the child on the basis of a termination of parental rights proceeding, or, as permitted by § 36-1-116, until an alternate disposition for the child is made by the court where the adoption petition is filed.

(B) If the prior court order under subdivision (r)(4)(A) gives the right to legal and physical custody of the child to a person, the department, a licensed child-placing agency, or other child-caring agency, a surrender or parental consent by the parent or guardian to any other person, persons or entities shall be invalid as provided under subdivision (d)(5), and any purported surrender or parental consent to such other person or persons or entities shall not be recognized to grant standing to file a motion pursuant to subdivision (r)(6) and § 36-1-116(f)(3) to such other person or persons or entities who or that received the surrender or parental consent, and no order of guardianship or partial guardianship based upon that surrender or parental consent and motion shall be effective to deprive the existing legal or physical custodians under the court's prior order of legal or physical custody of that child. Any orders to the contrary shall be void and of no effect whatsoever.

(C) If the court that has entered the prior custody order under subdivision (r)(4)(A) has subject matter jurisdiction to terminate parental or guardian rights at the time a surrender of the child who is the subject of that order is validly executed in another court pursuant to subdivision (r)(4)(D) or at the time a petition to terminate parental rights is filed pursuant to subdivision (r)(4)(E), it shall continue to have jurisdiction to complete any pending petitions to terminate parental or guardian rights that are filed prior to the execution of the surrender or prior to the filing of the petition to terminate parental rights in the other court pursuant to subdivision (r)(4)(E). The court shall not have jurisdiction to complete any pending petitions to terminate parental rights subsequent to the filing of a petition for adoption. The court may enter orders of guardianship pursuant to the termination of parental rights proceedings unless prior thereto an order of guardianship is entered by another court pursuant to subdivisions (r)(4)(D) and (E). Any orders of guardianship entered pursuant to subdivisions (r)(4)(D) and (E) or pursuant to § 36-1-116 shall have priority over the orders of guardianship entered pursuant to this subdivision (r)(4)(C); provided, that orders terminating parental rights entered pursuant to this subdivision (r)(4)(C) shall be effective to terminate parental rights.

(D) If the person, persons or entities in subdivision (r)(4)(B) to whom the surrender is made have legal and physical custody of the child or the right to legal and physical custody of the child pursuant to a prior court order at the time the surrender is executed to them, any court with jurisdiction to receive a surrender may receive a surrender that is executed to them and shall have jurisdiction, upon their motion, to enter an order giving guardianship or partial guardianship to the person, persons or entities, and, notwithstanding the provisions of subdivision (r)(4)(A), such order may make an alternate disposition for the child.

(E) Notwithstanding the provisions of subdivision (r)(4)(A), a person, the department, or a licensed child-placing agency that had custody of the child pursuant to a court's prior order, may file in any court with jurisdiction to terminate parental or guardian rights, and in which venue exists, any necessary petitions to terminate the remaining parental or guardian rights of any person or persons to the child, and if they have any subsequent orders of guardianship or partial guardianship based upon an executed surrender or a termination of parental rights from the other court of competent jurisdiction, they may place the child for adoption in accordance with those subsequent orders.

(5) If multiple surrenders or parental consents are received with respect to the same child in different courts, subject to the restrictions of subdivisions (r)(2) and (4), the court that first receives a surrender or parental consent or in which the surrender is first filed pursuant to subsection (q), and that enters an order of guardianship or partial guardianship, shall have jurisdiction of the child and shall issue any necessary orders of reference required by this section. Any other court that receives a surrender or parental consent or in which a surrender or parental consent is filed pursuant to subsection (q) subsequent to the surrender shall, upon notification by the first court, send the original of the surrender or filed pleading to the first court and shall retain a certified copy of the original in a closed file, which shall not be accessed by any person without the written order of the court.

(6) (A) Subject to the restrictions of subdivisions (r)(2) and (4), a validly executed surrender under this section or a parental consent shall give to the person to whom the child is surrendered or to whom a parental consent is given standing to file a written motion for an express order of guardianship or partial guardianship, as defined in § 36-1-102, from the court where the child was surrendered or where, under subsection (q), the surrender was filed, or in the court that, pursuant to subdivision (r)(4)(A), has granted legal custody of the child to such person, or in the court in which the adoption petition is filed. A validly executed surrender shall entitle the department or the licensed child-placing agency that received the surrender to have the court enter an order of guardianship pursuant to subdivision (r)(6)(C).

(B) The motion, which may be filed by any person or by that person's attorney, shall contain an affidavit that the party seeking the order of guardianship or partial guardianship has physical custody of the child, or if filed at the time of the execution of the surrender or the filing of the adoption petition containing a parental consent, it shall contain the affidavits otherwise required by subdivision (d)(6).

(C) If the person, the department, or the licensed child-placing agency to whom the child is surrendered or to whom parental consent is given has physical custody or has otherwise complied with the requirements of subdivision (d)(6), and if there has been full compliance with the other provisions of this section, the court may, contemporaneously with the surrender or the filing of an adoption petition, immediately upon written motion by the person or the person's attorney, and the court shall, if the surrender is to a licensed child-placing agency or the department, enter an order giving the person, the licensed child-placing agency, or the department, guardianship or partial guardianship of the child.

(D) A copy of the surrender, the motion and any resulting order shall be sent by the clerk to the adoptions unit in the state office of the department in Nashville, which shall record the surrender, the motion, and the order and their dates of filing and entry for purposes of tracking the child's placement status and the status of the adoption process involving the child.

(7) If an order of guardianship is entered, the appointed guardians shall have authority to act as guardian ad litem or next friend of the child in any suit by the child against third parties while the child is in the care and custody of the petitioners. The court may appoint a special guardian for the child for such purpose upon motion by the department for a child in its guardianship.

(8) If the court grants guardianship or custody of the child upon the filing of the surrender or upon the filing of a parental consent and the child is possessed of any real or personal property to be administered, the court shall appoint a guardian of the property of the child if no guardian of the property exists, and such guardian may be the same person or persons who are guardians of the person of the child except if the child is in the guardianship of the department in which case another person or entity shall be appointed.

(s) The Uniform Child Custody Jurisdiction and Enforcement Act, compiled in chapter 6, part 2 of this title, shall govern jurisdiction for the disposition of the child and the proceedings under this section.

(t) (1) Upon receipt of the surrender or upon filing a parental consent for an adoption by a person other than a related person, and if no home study had been completed or updated within six (6) months prior to the surrender or the filing of a parental consent, and no court report based upon the home study has been filed with the court, the court shall, by an order of reference issued within five (5) days, direct that a home study be conducted and filed as provided in this part.

(2) The order of reference shall be directed to a licensed child-placing agency or a licensed clinical social worker unless the prospective adoptive parents are indigent under current federal poverty guidelines, in which case the order shall be directed to the department.

(3) The court report based upon the home study shall be filed with the court within sixty (60) days of the date of the order of reference.

(4) The court shall order a licensed child-placing agency, a licensed clinical social worker, or the department, if the parents are indigent under federal poverty guidelines, to provide supervision for the child who is in the home of prospective adoptive parents pursuant to a surrender or a parental consent under this section, and to make any necessary court reports that the court should have concerning the welfare of the child pending entry of the final order in the case; provided, that this subdivision (t)(4) shall not apply when the surrender is made to related persons.

(5) If the adoption petition is filed before the home study is completed or before the court report based upon the home study is filed, and the adoption petition is filed in a court other than the one where the surrender was executed, the court where the surrender was executed shall, upon request of the court where the adoption petition is filed or upon motion of the prospective adoptive parents, send any court report it receives to the adoption court.

(6) Unless they are indigent under federal poverty guidelines, the prospective adoptive parents shall be assessed by the court the costs of the study and the supervision of the placement by the agency, and the costs shall be paid by them to the licensed child-placing agency or licensed clinical social worker that performed the home study or supervision.

(u) (1) Failure to fully comply with the provisions of this section or failure to file the surrender executed pursuant to subsection (h), (i) or (j) within the fifteen-day period required by subsection (q), or failure to obtain an order of guardianship in accordance with this section within thirty (30) days of the date the surrender is executed or filed, or within thirty (30) days of the date parental consent is filed, shall be grounds for removal of the child from the physical care and control of the person, the department, or licensed child-placing agency receiving the surrender; provided, that this shall not apply when the persons, the department or the licensed child-placing agency have legal custody or partial guardianship under an order of a court entered prior to the execution of the surrender or parental consent or pursuant to any statutory authority giving custody to the department or licensed child-placing agency.

(2) A sworn complaint concerning the grounds alleged in subdivision (u)(1) and concerning the best interests of a child for whom a surrender is sought or on whom a surrender or parental consent was executed or guardianship order entered, or which complaint otherwise seeks to present proof concerning the best interests of the child, may be filed by any person, the department, a licensed child-placing agency, or a licensed clinical social worker.

(3) The complaint may be filed in the court where the surrender was executed or filed or where the adoption petition containing a parental consent was filed. If the surrender was not executed or filed in Tennessee or if the surrender was not executed before a court or if the surrender was not filed at all, then the complaint may be filed in the circuit, chancery, or juvenile court in the county where the child resides.

(v) (1) (A) Upon its own motion or upon the complaint filed pursuant to subsection (u) and subject to the restrictions concerning custody of the child who is not in the custody of the prospective adoptive parents as stated in subdivisions (r)(2) and (4) and § 36-1-116(f)(1), the court receiving the surrender or entering the order of guardianship or partial guardianship and the adoption court to which jurisdiction may be transferred may make any suitable provisions for the care of the child and, notwithstanding the restrictions of subdivisions (r)(2) and (4) and § 36-1-116(f)(1), the court shall have jurisdiction to enter any necessary orders, including any emergency ex parte orders for the child's emergency protection, care, and supervision based upon probable cause that the child's health and safety is immediately endangered; provided, that such emergency orders shall only remain effective for thirty (30) days when the restrictions of subdivisions (r)(2) and (4) and § 36-1-116(f)(1) apply.

(B) If another court has jurisdiction under a prior order because of such restrictions, upon completion of all proceedings to protect the child, the court shall then return all jurisdiction over the child to the court having jurisdiction under the prior order; provided, that the juvenile court shall maintain jurisdiction pursuant to title 37 to adjudicate allegations of delinquency, unruliness, or truancy involving the child.

(C) If the child has no legal custodian with authority to provide temporary care for the child, then, subject to the restrictions of subdivisions (r)(2) and (4) and § 36-1-116(f)(1), the court shall give temporary legal custody pursuant to § 37-1-140 to the department or a licensed child-placing agency until full compliance has been effected and until a guardianship or partial guardianship order can be entered, or until some other disposition is made for the child by the court. The court may permit the department or a licensed child-placing agency, in its discretion, to place the child with any suitable person, including the prospective adoptive parents, under the department's or the licensed child-placing agency's supervision.

(D) If an emergency ex parte order removes the child from the custody of the prospective adoptive parents or the department or licensed child-placing agency, a preliminary hearing shall be held within five (5) days, excluding Saturdays, Sundays, and legal holidays, to determine if probable cause exists for the continuance of such order.

(2) The prospective adoptive parents or entities from which the child was removed shall be necessary parties at the preliminary hearing and the final hearing, and the court may order the department or a licensed child-placing agency or licensed clinical social worker to provide any necessary information or court reports concerning the welfare of the child as it may require.

(3) A final hearing shall be held within thirty (30) days of the date of the preliminary hearing, except for good cause entered upon the record.

(4) Upon the final hearing, and based upon clear and convincing evidence that the action is in the best interests of the child, the court shall have jurisdiction to enter an order removing the child from the prospective adoptive parents or other custodian or guardian of the child, and may award temporary legal custody giving any person, the department or licensed child-placing agency, or a child-caring agency, the care and custody of the child as provided under § 37-1-140 or may enter a guardianship or partial guardianship order with the rights provided under this part, all subject to the rights of any remaining parent or guardian.

(w) (1) Notwithstanding any other provision of law to the contrary, a waiver of interest and notice, when signed under oath by the alleged biological father, shall serve to waive the alleged biological father's interest in the child and the alleged biological father's rights to notice of any proceedings with respect to the child's adoption, custody or guardianship. The alleged biological father who executes the waiver shall not be required to be made a party to any adoption proceedings, custody or guardianship proceedings with respect to the child and shall not be entitled to receive notice thereof, and the court in any adoption proceeding, notwithstanding any law to the contrary, shall have jurisdiction to enter a final order of adoption of the child based upon the waiver, and in other proceedings to determine the child's legal custody or guardianship shall have jurisdiction to enter an order for those purposes. The waiver may not be revoked.

(2) (A) The execution of the waiver, in conjunction with a final order of adoption of the child, shall irrevocably terminate all rights the alleged biological father has or may have to the child and any rights the child has or may have relative to the alleged biological father. Upon entry of a final order of adoption of the child, the waiver, except as provided in subdivision (w)(2)(B), shall also terminate the responsibility of the alleged biological father for any future child support or other financial obligations to the child, or to the child's mother that are related to the child's support, arising after the date of the execution of the waiver.

(B) If, after execution of the waiver, a final order of adoption is not entered, and a parentage action is initiated against the alleged biological father or the alleged biological father executes a voluntary acknowledgment of paternity, the alleged biological father shall become liable for child support or other financial obligations to the child, or to the child's mother that are related to the child's support, arising after the execution of the waiver and beginning with the date of the entry of an order establishing the biological father's parentage to the child or upon the date of the biological father's execution of a voluntary acknowledgment of paternity; provided, if paternity is later established, the alleged biological father who executed the waiver shall be liable for all or a portion of the actual medical and hospital expenses of the child's birth and all or a portion of the mother's pre-natal and post-natal care up to thirty (30) days following the child's birth if the parentage action is initiated or the voluntary acknowledgment of paternity is executed within two (2) years of the date of the execution of the waiver.

(3) The waiver shall not be valid for use by a legal father as defined under § 36-1-102 or for any man listed as the father of a child on the child's birth certificate.

(4) The waiver of interest and notice may be executed at any time after the biological mother executes a sworn statement identifying such person as the biological father of the biological mother's child to be born, or at any time after the birth of the child.

(5) The waiver of interest and notice shall be legally sufficient if it contains a statement comparable to the following:

(x) (1) If a child is surrendered to a person other than a licensed child-placing agency or the department, and, after the expiration of the ten-day period for revocation, the person or persons to whom the child was surrendered decide that they no longer wish to adopt the child, and if no order of guardianship has been entered by a court that gives those persons who had received the surrender the guardianship of the child, they may surrender the child to a licensed child-placing agency or the department without notice to the parent or guardians who originally had executed the surrender to them.

(2) In this event, the licensed child-placing agency or the department shall have the same rights as set forth above just as if the child had been originally surrendered to them; provided, that if the court has entered a guardianship order as set forth above, the surrender cannot be utilized in this manner, and a motion must be made to the court to modify the existing guardianship order.

(3) Certified copies of all such surrenders and orders modifying any order of guardianship shall be sent by the clerk to the adoptions unit in the state office of the department in Nashville.

(y) An interpreter shall be provided to a surrendering parent or guardian who is not fluent in English, before a final hearing on an adoption is conducted. The prospective adoptive parent or parents shall be responsible for payment of the cost of such interpreter.

Acts 1995, ch. 532, § 1; 1996, ch. 1054, §§ 21-39, 106-110; 1998, ch. 1098, § 3; 2000, ch. 922, § 3; 2003, ch. 231, § 7; 2005, ch. 409, § 1; 2010, ch. 915, § 1.

Compiler's Notes. Former § 36-1-111 (Acts 1951, ch. 202, § 6 (Williams, § 9572.20); 1975, ch. 196, § 1; T.C.A. (orig. ed.), § 36-111; Acts 1984, ch. 681, § 2; 1986, ch. 767, § 1; 1992, ch. 994, §§ 2, 3), concerning children born out of wedlock, was repealed by Acts 1995, ch. 532, § 1, effective January 1, 1996.

This section, as enacted by Acts 1995, ch. 532, did not contain a subdivision (p)(3). The compiler has redesignated (p)(4) in the act as (p)(3).

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