Browse Previous Page | Table of Contents | Browse Next Page

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

36-1-116. Pre-petition home study - Information from surrender court - Contents of petition - Effect of filing - Order of preference.

(a) (1) Prior to filing a petition for the adoption of a child, the prospective adoptive parents may contact a licensed child-placing agency, or a licensed clinical social worker, or if indigent under federal poverty guidelines, they may contact the department, and request a home study or a preliminary home study concerning the suitability of their home and themselves as adoptive parents.

(2) To be valid for use in response to the order of reference issued pursuant to subsection (e), the home study must have been completed or updated within six (6) months prior to the date of the order of reference. The preliminary home study must have been completed within thirty (30) days prior to the filing of the petition.

(b) The petition to adopt must state:

(1) The full name of the petitioners;

(2) The name used for the child in the proceeding. In the petition or other orders related to the custody of the child and the final order of adoption, and in all other documents related to the case, the name selected by the petitioner as the name for the child may be used as the true and legal name of the child, and the original name of the child shall not be necessary. Only in the court report required by law on the investigation of the conditions and antecedents of the child sought to be adopted and on the form requesting the new certificate of birth by adoption shall the original name of the child given by the biological or prior legal parent or parents be necessary;

(3) The birth date, state, and county or country of birth of the child, if known;

(4) The information necessary to show that the court to which the petition is addressed has jurisdiction;

(5) That the petitioners have physical custody of the child or that they meet the requirements of § 36-1-111(d)(6), and from what person or agency such custody was or is to be obtained;

(6) That it is the desire of the petitioners that the relationship of parent and child be established between them and the child;

(7) The desire of the petitioners, if they have such, that the name of the child be changed, together with the new name desired;

(8) The value of the personal and real property owned by the child or in which the child may have some legal or equitable interest;

(9) That the petitioners are fit persons to have the care and custody of the child and that it is in the best interest of the child for this adoption to occur;

(10) That the petitioners are financially able to provide for the child;

(11) That there has been full compliance with the law in regard to surrender of the child to the petitioners, or termination of parental or guardianship rights, or consent to the adoption of the child by the agency with rights to place a child for adoption, or that the petitioner intends to effect compliance with the requirements for termination of parental or guardianship rights or parental consents as part of the adoption proceeding, and how such compliance will be effected. A copy of any orders obtained by the prospective adoptive parents terminating parental or guardianship rights and copies of any surrenders that were executed to the prospective adoptive parents shall be filed with the petition;

(12) (A) Whether the biological parent is giving parental consent for the adoption of the child as defined pursuant to § 36-1-102 and as executed pursuant to § 36-1-117(g), or that the parent is signing the petition pursuant to § 36-1-117(f) and that the parent understands that the child will be adopted by the relatives or stepparent of the child and that, in the case of the adoption by relatives, the parent will have no legal rights to the custody, control, or to visitation with the child in the future;

(B) In the case of a parental consent pursuant to § 36-1-102 and § 36-1-117(g), the petition must state that the parent understands that the entry of an order confirming the parental consent, without revoking the parental consent prior to the entry of such order, will terminate that parent's parental rights to the child forever and that the parent will have no legal rights to the custody, control, or to visitation with the child in the future;

(13) (A) That the petitioner has made inquiry to the putative father registry within ten (10) working days prior to the filing of the petition to determine whether any person claims a paternity interest in the child who is the subject of the proceeding by having entered a claim with the registry, the result of such inquiry, and that, if the child is less than thirty (30) days old at the time the petition is filed, the petitioner provided notice of the filing of the adoption petition to the registry; and

(B) Whether there are any other persons known to the petitioner(s) who are entitled to notice under § 36-1-117 and the identity of such persons;

(14) Whether the child was brought into Tennessee for foster care or adoption, and, if so, that there has been full compliance with the ICPC or, if compliance has not occurred, a statement alleging good cause for such noncompliance. Evidence of compliance in the form of the ICPC Form 100A or other form from the department, if appropriate, or a sworn statement stating why such form is not required shall be included or attached as an exhibit to the petition;

(15) (A) Whether the child was brought into Tennessee for foster care or adoption from a foreign country, and, if so, evidence shall be attached to the petition showing approval of the government or legal authority in the country from which the child was brought that the child's placement with the petitioners was appropriate and that the petitioners have legal authority under that country's law to have the custody of the child;

(B) The petition shall exhibit evidence from the immigration and naturalization service, the department of justice or the department of state that the child has proper authorization to enter the United States;

(C) If a child who was the subject of an adoption decree from the foreign country must be re-adopted under Tennessee law to effect a valid adoption due to any interpretation of the United States government, the petition shall so state and state that this is necessary for the child to be legally adopted in the United States, and the court shall have jurisdiction to enter an order of adoption for this purpose;

(D) If a child is in this country and the provisions of subdivision (b)(15)(A) cannot be met, the petitioners shall file an affidavit and any other available documentary evidence satisfactory to the court that shows why there is no approval available for the child from the foreign government or legal authority in the foreign country concerning the child's placement with the petitioners;

(16) (A) Whether the petitioners have paid, or promised to pay, any money, fees, contributions, or other remuneration or thing of value in connection with the birth, placement or the adoption of the child, and if so, to or from whom, the specific amount, and the specific purpose for which these were paid or promised;

(B) The disclosure required by this subdivision (b)(16) shall specifically include whether any attorney's fees or medical expenses or counseling fees and the other expenses permitted under §§ 36-1-108 and §§ 36-1-109or any other fees, remuneration, or contribution, were paid or promised in connection with the child's birth, placement, or adoption and if so, to whom, the specific amount and the specific purpose for which they were paid or promised;

(C) The disclosure required by this subdivision (b)(16) shall also specifically include the amount of fees paid to any licensed child-placing agency or licensed clinical social worker in connection with the placement of the child.

(c) The petition must be signed by each petitioner personally and must be verified and must be filed with the clerk of the court, who shall send a certified copy of the petition to the director of adoptions in the state office of the department in Nashville, and to the local office of the department or the licensed child-placing agency or licensed clinical social worker that or who has been directed to answer the order of reference issued in accordance with subsection (e) within three (3) business days after its filing.

(d) Any person who files a petition to adopt a child less than thirty (30) days old shall notify the putative father registry maintained by the department of the filing of the petition unless the known biological or legal father has:

(1) Executed a surrender or a waiver of interest in accordance with this part;

(2) Had parental rights terminated by a court of competent jurisdiction; or

(3) Been made a party to the adoption proceedings and has been served notice as required by law.

(e) (1) Upon filing the adoption petition, the prospective adoptive parents shall notify the court if they have requested a home study or preliminary home study pursuant to subsection (a) and shall file or cause to be filed a copy of the court report based upon the home study or preliminary home study with the court, under seal, unless the court waives the home study or the preliminary home study for prospective adoptive parents who are related to the child.

(2) (A) Upon filing of the petition for adoption, the petitioners also shall inform the adoption court of the name of the court in which the surrender was filed, and the adoption court shall request the court where the surrender was filed to forward a certified copy of the surrender and copies of the medical and social information obtained at the time of the surrender to the adoption court and any court reports based upon home studies that were ordered by the court. This information shall be made a part of the adoption record, but shall be confidential and shall be placed in a sealed envelope within the court file or shall be filed in a protected electronically maintained file and shall remain under seal and shall not be open to inspection by any person or agency other than the department or the licensed child-placing agency or licensed clinical social worker to which the order of reference is issued under this subsection (e), except by written order of the court or as otherwise permitted under this part.

(B) Unless waived by the court in accordance with subdivision (e)(1), the court shall order a licensed child-placing agency or licensed clinical social worker, or the department if the petitioners are indigent under federal poverty guidelines, to conduct a preliminary home study, and a court report based upon such a study must be submitted within fifteen (15) days of the date of the order if, at the time the petition is filed, the petitioners have custody of the child, and the petitioners have not submitted to the court a court report based upon a timely home study or timely preliminary home study with the petition, and the court may enter any orders necessary for the child's care and protection as permitted by subsection (f) pending receipt of the preliminary home study.

(3) If no prior or updated home study of the prospective adoptive parents has been conducted and a court report filed with the court at the time the order of reference is issued and such home study has not been waived in accordance with subdivision (e)(1), then the court, within five (5) days of the date the petition is filed, shall direct the order of reference to a licensed child-placing agency or licensed clinical social worker chosen by the petitioners or, if the petitioners are indigent under federal poverty guidelines or if the child was placed with the petitioners by the department, to the department, to submit a preliminary court report, and any supplemental court reports as may be necessary, and a final court report concerning the circumstances of the child, the child's antecedents, and the proposed adoptive home. Except for good cause shown, the court shall issue the order of reference to the licensed child-placing agency, the licensed clinical social worker, or the department that conducted the home study pursuant to the prospective adoptive parents' request pursuant to subsection (a).

(4) The information in subdivision (e)(2) shall be made available to the licensed child-placing agency or licensed clinical social worker or the department which responds to the order of reference. If the necessary medical and social information was obtained by the court pursuant to the provisions of § 36-1-111, it shall not be necessary for the department or the licensed child-placing agency or licensed clinical social worker to have any further contact with the biological parents in response to the order of reference, unless it is believed the information contained in the statements is inaccurate or incomplete, in which case the department, licensed child-placing agency, or the licensed clinical social worker may contact the biological or prior legal parents or the guardian to obtain such information.

(5) (A) A preliminary court report shall be filed by the department, the licensed child-placing agency or the licensed clinical social worker within sixty (60) days of the receipt of the order of reference and may be supplemented from time to time as the licensed child-placing agency, the licensed clinical social worker or the department determines necessary, or as ordered by the court.

(B) A final court report shall be submitted immediately prior to the finalization of the adoption upon fourteen (14) days' notice to the department, the licensed child-placing agency, or the licensed clinical social worker.

(f) (1) Upon the filing of the petition, the court shall have exclusive jurisdiction of all matters pertaining to the child, including the establishment of paternity of a child pursuant to chapter 2, part 3 of this title, except for allegations of delinquency, unruliness or truancy of the child pursuant to title 37; provided, that, unless a party has filed an intervening petition to an existing adoption petition concerning a child who is in the physical custody of the original petitioners, the court shall have no jurisdiction to issue any orders granting custody or guardianship of the child to the petitioners or to the intervening petitioners or granting an adoption of the child to the petitioners or to the intervening petitioners unless the petition affirmatively states, and the court finds in its order, that the petitioners have physical custody of the child at the time of the filing of the petition, entry of the order of guardianship, or entry of the order of adoption, or unless the petitioners otherwise meet the requirements of § 36-1-111(d)(6).

(2) Except for proceedings concerning allegations of delinquency, unruliness, or truancy of the child under title 37, any proceedings that may be pending seeking the custody or guardianship of the child or visitation with the child who is in the physical custody of the petitioners on the date the petition is filed, or where the petitioners meet the requirement of § 36-1-111(d)(6), shall be suspended pending the court's orders in the adoption proceeding, and jurisdiction of all other pending matters concerning the child and proceedings concerning establishment of the paternity of the child shall be transferred to and assumed by the adoption court; provided, that until the adoption court enters any orders affecting the child's custody or guardianship as permitted by this part, all prior parental or guardian authority, prior court orders regarding custody or guardianship, or statutory authority concerning the child's status shall remain in effect.

(3) If no prior order of guardianship or custody has been entered giving guardianship or legal custody to the petitioners, the court may, upon receipt of a satisfactory preliminary home study or a satisfactory home study, and if the petitioners have physical custody of the child or otherwise meet the requirements of § 36-1-111(d)(6), issue an order of guardianship or custody with the same authority given to the petitioners as is provided pursuant to §§ 36-1-102 and §§ 37-1-140as the case may be.

(4) If an order of guardianship is entered pursuant to this part, the petitioner or petitioners 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.

(g) (1) The court shall order a licensed child-placing agency or licensed clinical social worker, or the department if the parents are indigent under federal poverty guidelines or if the child was placed with the prospective adoptive parents by the department, to provide supervision for the child who is in the home of prospective adoptive parents and to make any necessary reports that the court should have concerning the welfare of the child pending entry of the final order in the case; provided, that the court may waive this requirement when the child is to be adopted by related persons.

(2) Unless they are indigent under federal poverty guidelines, the prospective adoptive parents shall pay the costs of the home study and the supervision required by this subsection (g) and the supervision required by the court.

(h) The filing of the petition shall be deemed the commencement of a custody proceeding for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), compiled in chapter 6, part 2 of this title.

(i) If the court grants guardianship or custody of the child upon the filing of the petition or at any time thereafter to any person, 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 or trustee is currently appointed to care for the child's property.

(j) When the husband and wife are joint petitioners, the death of one (1) spouse shall not result in the dismissal of the petition for adoption for that reason alone, and the court may proceed to grant the adoption to the surviving petitioner.

(k) (1) The department, a licensed child-placing agency, or a licensed clinical social worker shall have the right to intervene in the adoption proceeding at any time to present evidence as to the best interests of the child by filing a sworn complaint in the adoption proceeding.

(2) (A) Subject to the provisions of subsection (f), the court may make any necessary orders upon its own motion or upon the sworn complaint of the department, a licensed child-placing agency, or a licensed clinical social worker for the protection and welfare of the child, including emergency ex parte orders for the immediate care and protection of the child as permitted pursuant to § 36-1-111(v)(1)(A)-(C).

(B) Any emergency ex parte orders for the protection of the child may be entered if the court finds probable cause to believe that the child's immediate health or safety would be endangered. The ex parte order may direct the removal of the child from the custody of the prospective adoptive parents.

(3) If an ex parte order of protection is entered that removes the child from the custody of the prospective adoptive parents, a preliminary hearing shall be held within five (5) days, excluding Saturdays, Sundays and legal holidays, to determine the need for the continuance of such order.

(4) The prospective adoptive parents shall be necessary parties at the preliminary hearing and the court may order the department or the 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.

(5) If the court determines at the preliminary hearing that there is probable cause to believe that the child's health or safety will be immediately endangered if the child remains in or is returned to the custody of the prospective adoptive parents, or that any other orders must be entered to ensure the health and safety of the child, it shall make such orders as are necessary to protect the child and may continue or place temporary legal custody of the child with the department or a licensed child-placing agency or any other suitable persons approved by the department or a licensed child-placing agency or licensed clinical social worker.

(6) The court shall set a final hearing concerning the allegations involving the prospective adoptive parents within thirty (30) days, except for good cause shown in an order entered by the court.

(7) If the court determines upon clear and convincing evidence at a final hearing that it should make another disposition of the child, it may remove the child from the custody of the prospective adoptive parents and may make any other orders necessary for the child's welfare and best interests, including an alternate custody or guardianship order for the child, and the court may dismiss the adoption petition as provided in § 36-1-118. If the court does not find by clear and convincing evidence that it should make another disposition of the child, it shall dismiss the complaint that had made the allegations concerning the child's best interests and the adoption proceedings shall continue pending further orders of the court.

Acts 1995, ch. 532, § 1; 1996, ch. 1054, §§ 45-52, 112; 1997, ch. 551, §§ 55, 56; 2003, ch. 231, §§ 11-13.

Compiler's Notes. Former § 36-1-116 (Acts 1951, ch. 202, § 35 (Williams, § 9572.49); 1953, ch. 171, § 1; impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), § 36-116), concerning consent of persons eighteen years of age or older, was repealed by Acts 1995, ch. 532, § 1, effective January 1, 1996.

Browse Previous Page | Table of Contents | Browse Next Page