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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

36-1-112. Revocation of surrender and parental consent - Form.

(a) (1) (A) A person who executed a surrender may revoke the surrender at any time within ten (10) calendar days of the date of the surrender.

(B) The surrender shall be revoked by appearing before the judge who accepted the surrender or that judge's successor or substitute, or another judge of a court with jurisdiction to accept a surrender in the absence of the judge who accepted the surrender or that judge's successor or substitute, or by appearing before the person, or that person's successor, pursuant to § 36-1-111(h), (i) or (j) before whom the surrender was executed and by executing the revocation of surrender form.

(C) If the tenth day falls on a Saturday, Sunday, or legal holiday, the last day for the revocation shall be the next day that is not a Saturday, Sunday or legal holiday. The ten-day period for revocation of the surrender shall not limit the court's authority to order the revocation of the surrender pursuant to § 36-1-118.

(D) The revocation of the surrender shall be executed under oath by the parent or guardian who executed the surrender of the child, and the judge or other person who accepted the surrender or the judge's successor or substitute as indicated in subdivision (a)(1)(B) shall sign and date the revocation form.

(E) In the event the person under § 36-1-111(h), (i) or (j) is unavailable or has no authorized successor, the person may apply to a court that is qualified to receive a surrender in Tennessee or a court with domestic relations jurisdiction in another state or country to execute the revocation before a judge of that court as provided herein.

(F) (i) No surrender may be revoked by the person surrendering the child or set aside by a court after the expiration of the ten-day period except as the surrender may be invalidated by court order entered pursuant to a timely filed complaint filed pursuant to subsection (d) or as permitted by order of the court entered pursuant to § 36-1-118.

(ii) The execution of a revocation of a surrender within the ten-day period shall be grounds for the dismissal of any adoption petition filed during that period and, upon motion of the person who revoked the surrender, the court shall dismiss the adoption petition without prejudice.

(2) (A) A parental consent may be revoked at any time prior to the entry of an order of confirmation of the parental consent by the court.

(B) The parent who executed the parental consent shall appear before the judge of the court in which the adoption petition is filed, or in the judge's absence, the judge's successor or substitute or, if no successor or substitute, any judge or a court with jurisdiction to adjudicate adoption petitions, and shall execute a revocation of the parental consent.

(b) The form for the revocation of a surrender or parental consent shall be prescribed by the department pursuant to rules promulgated by it pursuant to this part, and a copy of the form shall be attached to the parent's copy of the surrender.

(c) (1) The court or person receiving the revocations shall maintain the originals in the office of the clerk or the office of the person receiving the surrender, together with the original of the surrender or adoption petition containing the parental consent, if available, and shall personally give or shall send by certified mail, return receipt requested, certified copies of the revocations to the child's parents, the prospective adoptive parents, the local office of the department, or a licensed child-placing agency to whom the child had been surrendered, and if the prospective adoptive parents are represented by counsel, a certified copy of the revocation shall be forwarded to such counsel.

(2) (A) When the revocation is received, the court or the person before whom the revocation was executed shall attach a certified copy of the revocation to a certified copy of the surrender or petition for adoption containing the parental consent, and shall within three (3) days mail the copies of both documents by certified mail, return receipt requested, to the adoptions unit in the state office of the department in Nashville.

(B) If the revocation must be executed before a court or person before whom the surrender was not executed or in which the adoption petition was not filed, the original of the revocation shall be sent within three (3) days to the court or person before whom the surrender was executed or in which the adoption petition was filed, and that court or person shall be responsible for sending the forms to the department and to the persons or agencies who are entitled to copies of the revocation.

(C) The department shall record the revocation with the copies of the surrender or adoption petition containing the parental consent and the order of guardianship for purposes of tracking the adoptive placement status of the child.

(d) After the revocation period has expired or after the court has entered an order confirming a parental consent, no surrender or waiver of interest or parental consent shall be set aside by a court except upon clear and convincing evidence of duress, fraud, intentional misrepresentation or for invalidity under § 36-1-111(d), and no surrender, waiver of interest, or parental consent may be set aside for any reason under this part unless the action based on these grounds is initiated within thirty (30) days of the execution of the surrender, waiver of interest or within thirty (30) days of the date of entry of the order of confirmation of the parental consent.

(e) (1) A surrender or parental consent that is revoked shall have the effect of returning the child's legal status to that which existed before the surrender was executed, and the department, a licensed child-placing agency, or the person who or that had custody or guardianship of the child prior to the surrender pursuant to any parental status, prior court order or statutory authorization shall continue or resume custody or guardianship under that prior parental status, prior court order, or statutory authority, that had established the custodial or guardianship status of the child prior to the execution of the surrender or parental consent, unless a court of competent jurisdiction shall otherwise determine as specifically provided herein.

(2) (A) Unless they had received or maintained custody or guardianship of the child pursuant to a court order entered or pursuant to statutory authority prior to the execution of the surrender or parental consent, the department, the licensed child-placing agency, or the person or persons to whom the child was surrendered and who has physical custody of the child, shall, within five (5) days of the receipt by such department, agency or person of the revocation, return the child to the child's parents or guardian who executed and revoked the surrender or parental consent; provided, that a sworn complaint may be filed in the court where the revocation was executed, or in the event that the surrender was executed before a person or court pursuant to § 36-1-111(h), (i) or (j), in the chancery, circuit, or juvenile court where the child resides in Tennessee, to show cause why the child would likely suffer immediate harm to the child's health and safety if returned to the child's parent or parents or guardian who had executed the surrender.

(B) If a complaint is filed pursuant to subdivision (e)(2)(A), the child shall remain in the physical and/or legal custody or guardianship of the persons or agencies to whom the child was surrendered or with respect to whom the parental consent was executed until the court makes any further orders pursuant to this section, and those persons or agencies shall have authority to provide any necessary care and supervision of the child, subject to further orders of the court.

(C) (i) The complaint filed under this subdivision (e)(2) shall name the parent(s) or guardian who executed and revoked the surrender or parental consent as defendant(s). Except for cause shown in an order entered on the record, the court shall hold a preliminary hearing within three (3) days of the filing of the petition to determine if there is probable cause to believe that the child will be subject to immediate harm to the child's health or safety if the child is returned to the child's parent(s) or guardian.

(ii) If probable cause is not established in the preliminary hearing, the child shall be immediately returned to the child's parent or parents or guardian who executed the surrender that has been revoked.

(iii) If probable cause is established, the court shall continue the child in the custody of the persons or the agency to whom the child was surrendered or with respect to whom a parental consent was executed, subject to further orders of the court, pending the final hearing.

(iv) The court may make any necessary orders pending the final hearing for the protection of the child.

(D) The case shall be set for a final hearing on the merits within thirty (30) days of the preliminary hearing except for cause shown in a written order of the court entered on the record.

(E) Unless clear and convincing evidence at the final hearing shows that the child's safety and health would be in immediate danger if the child is returned or remains in the custody of the parent or guardian who executed the surrender or filed the parental consent, the complaint shall be dismissed. If the child was not returned to the parent at the preliminary hearing, the child shall be immediately returned to the child's parent or guardian who had executed the surrender or filed the parental consent.

(3) (A) If no complaint is filed pursuant to subdivision (e)(2), the court where the surrender or parental consent was revoked shall enter any orders that are necessary to effect the return of the child to the parent(s) or guardian who had custody of the child prior to the execution of the surrender or prior to filing the parental consent, unless another person, the department, or a licensed child-placing agency had custody or guardianship of the child under a prior order entered before the execution of the surrender or filing of the parental consent, or that had custody or guardianship under statutory authorization prior to the execution of the surrender or parental consent that was revoked by that parent.

(B) The court in which a surrender, revocation or parental consent is given or filed, or adoption court may not modify any prior custody or guardianship order that had given custody or guardianship of the child to the department, a licensed child-placing agency, or another person under a prior order or pursuant to any statutory authorization prior to the surrender or the filing of the parental consent, and if such order or statutory authority exists, the court's jurisdiction over the child shall terminate after the execution of the revocation of the surrender or parental consent, and the prior parental status, prior court order or prior statutory authority shall continue in effect; provided, that if for any reason, the agencies or persons who had prior custody or guardianship of the child are unable or unwilling to resume custody of the child, the court receiving the revocation shall be authorized to make a custody determination and award temporary custody of the child to any suitable person, the department, or a licensed child-placing agency with custodial authority pursuant to § 36-1-140, or it may make an order of guardianship or partial guardianship pursuant to § 36-1-102, with the right to adopt or consent to the child's adoption.

(4) In the event that the surrender was executed before a person or court under § 36-1-111(h), (i) or (j), the chancery, circuit or juvenile court where the surrender was filed pursuant to § 36-1-111(q), or in the county where the child resides in Tennessee if the surrender has not been filed, shall have jurisdiction to enter orders in compliance with this subsection (e) to effect the child's return to the child's parent(s) or guardian or to provide for the child's custody or guardianship as permitted herein.

(f) If the child is not returned to the child's parent(s) or guardian pursuant to subdivision (e)(2)(E), and unless the department, a licensed child-placing agency, or another person to whom the child was surrendered or to whom a parental consent was executed had custody or guardianship of the child pursuant to a court order entered prior to the filing of the surrender or the parental consent or pursuant to statutory authorization prior to the execution of the surrender or parental consent, the court where the revocation was executed shall have jurisdiction following a revocation of the surrender or parental consent to award temporary custody to any appropriate person, the department, or any other licensed child care agency, with the authority as legal custodian pursuant to § 37-1-140, or the court may award guardianship or partial guardianship pursuant to § 36-1-102 with the right to adopt or consent to the child's adoption.

(g) The department or a licensed child-placing agency or licensed clinical social worker shall have the right to intervene in any complaint filed pursuant to subdivision (e)(2)(A) for the purpose of introducing proof as to the child's health and safety.

Acts 1951, ch. 202, § 11 (Williams, § 9572.25); 1959, ch. 223, § 6; impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 36-117; Acts 1986, ch. 767, § 7; 1993, ch. 124, § 3, 4; T.C.A., § 36-1-117; Acts 1995, ch. 532, § 1; 1996, ch. 1054, §§ 40, 111; 2000, ch. 981, § 51.

Compiler's Notes. Former § 36-1-112 (Acts 1951, ch. 202, §§ 9, 11 (Williams, §§ 9572.23, 9572.25); impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 36-112), concerning filing of consent making the consenting person a party to the proceedings, was repealed by Acts 1995, ch. 532, § 1, effective January 1, 1996.

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