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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

36-1-118. Dismissal of adoption proceedings and guardianship orders - Revocation of surrender by court - Notice - Disposition of child.

(a) If at any time between the surrender of a child directly to prospective adoptive parents and the filing of an adoption petition or at any time between the filing of an adoption petition and the issuance of the final order of the adoption, it is made known to the court on the basis of clear and convincing evidence that circumstances are such that the child should not be adopted, the court may dismiss the adoption proceedings or, if no adoption proceedings have been commenced, the court may order the surrender or parental consent to prospective adoptive parents to be revoked and may modify or dismiss any order of guardianship previously entered, and may order the reinstatement of parental rights, all in consideration of the best interests of the child.

(b) If it is made known to the court where the surrender of a child directly to adoptive parents was executed or filed and that, in accordance with § 36-1-111(r), has jurisdiction of the child, that the prospective adoptive parents to whom the child had been surrendered have not filed a petition to adopt the child within thirty (30) days of the date of execution of the surrender, or if the court where the adoption petition determines that the prospective adoptive parents do not have, or have not obtained, an order of guardianship or an order of legal custody for the child who is the subject of the adoption petition within thirty (30) days of the date of the filing of the petition, the court shall set a hearing for the purpose of determining if any surrender to the prospective adoptive parents should be ordered revoked, if any order of guardianship should be modified or dismissed, if an order of custody or guardianship should be entered, if parental rights should be reinstated, or if some other disposition should be made for the child in the child's best interests.

(c) (1) Before entering an order pursuant to subsection (a) or (b) directing that the surrender directly to prospective adoptive parents be revoked or that the parental consent to prospective adoptive parents disallowed, or that the order of guardianship be modified or dismissed, that an order of custody or guardianship be entered, or that parental rights be reinstated, or before dismissing the adoption proceedings, the court must give written notice of not less than five (5) days, excluding Saturdays, Sundays, and legal holidays, of its intent to do so.

(2) The notice shall be given to the persons to whom the child was surrendered and for whom an order of guardianship was entered, to any petitioners and other parties to the proceeding, and to the department or licensed child-placing agency, or licensed clinical social worker that or who placed the child or conducted any studies involving the placement of the child in the home, and to the parent whose rights were terminated, but only if the court will consider reinstatement of that parent's rights.

(d) (1) Following the hearing, the court may order the revocation of the surrender or any parental consent, modify or dismiss the order of guardianship, may enter an order of custody or guardianship, may order reinstatement of parental rights, or may dismiss the petition if it determines upon clear and convincing evidence that such action is in the child's best interests.

(2) The court may reinstate parental rights only with the consent of the parent whose rights were terminated.

(e) (1) After the court's dismissal of the petition or after the order of revocation by the court of a surrender or parental consent, if the child had been in the legal custody or guardianship of the department or a licensed child-placing agency prior to the surrender, the parental consent, the entry of a guardianship order, or the filing of the adoption petition, the court shall enter an order directing that the child shall be placed in the guardianship of the department or the licensed child-placing agency that had legal custody or guardianship of the child immediately before the placement was made with the prospective adoptive parents or immediately before the surrender was executed or parental consent was filed or before the prior order giving guardianship to the prospective adoptive parent was entered.

(2) In all other cases in which the child was not in the legal custody or guardianship of the department or a licensed child-placing agency prior to the revocation by the court of the surrender or parental consent to prospective adoptive parents or prior to the dismissal of the guardianship order, or prior to the dismissal of the adoption proceeding by the court, or when the agency that had had custody or guardianship of the child prior to the child's placement or prior to the revocation of the surrender by the court, or dismissal of the petition cannot or will not resume guardianship or custody of the child, the child shall remain a ward of the court, which shall have jurisdiction to award the child's guardianship or legal custody according to the best interest of the child.

(3) The court shall continue to have jurisdiction of the child to make such further orders as are necessary until another adoption petition is filed, at which time jurisdiction over the child shall transfer to the court where the new adoption petition may be filed; provided, the juvenile court shall retain jurisdiction of the child for allegations of delinquency, unruliness, and truancy pursuant to the provisions of title 37, chapter 1, part 1.

(4) (A) Unless the child's custody or guardianship is required to be returned to the custody of the department or a licensed child-placing agency, or unless the court must return jurisdiction of the child to a court with prior jurisdiction, then, after entry of an order revoking the surrender or parental consent, dismissing the order of guardianship, after entry of an order of custody or guardianship, or after dismissing the petition for adoption, the court may, in its discretion, by order entered in the record, transfer all jurisdiction and wardship of the child to the juvenile court of the county of the child's residence.

(B) (i) After the clerk has transferred to the department the information required under this part, certified copies of any records of the child needed by the juvenile court from the court where the surrender was revoked, the guardianship order was dismissed, the custody or guardianship order was entered, or the adoption petition was dismissed, shall be transferred to the juvenile court and the clerk of the court that had taken action pursuant to subsection (d) and subdivision (e)(4) shall maintain the original of the records in that court's files.

(ii) Except as otherwise provided by this part, all such records shall remain confidential in the files of the juvenile court and shall not be open to any person except the child's legal custodian or legal guardian, or pursuant to a written order of the court, or to the department that may be investigating a report of child abuse or neglect or that may be responding to an order of reference by the juvenile court, or to a law enforcement agency investigating a report of child abuse or neglect or that is investigating any crime involving the child.

(5) Any order of guardianship or legal custody entered pursuant to this subsection (e) shall continue until modified by the court to which the jurisdiction is transferred or by the court where a new adoption petition is filed.

(6) If guardianship is awarded pursuant to this section, the court shall, in addition to the authority under § 37-1-140, give authority to place the child for adoption and to consent to adoption, or to adopt the child, or may give authority to surrender the child for that purpose.

(7) The department or the licensed child-placing agency receiving guardianship of the child under this section shall have authority to make another placement of the child for adoption and to consent to the adoption by new adoptive parents without further approval of the court.

(8) For purposes of this section, legal custody awarded by the court shall vest the legal custodian with the authority to provide the care and control of the child as set forth in § 37-1-140, but does not, by itself, without entry of an order of guardianship pursuant to this part, authorize the legal custodian to place the child for adoption or to consent to the adoption.

(9) Prior to entering an order establishing a permanent plan for the child who is not returned to the department or a licensed child-placing agency as provided in subdivision (e)(1), the court shall order the department or a licensed child-placing agency or licensed clinical social worker to investigate and report to the court within sixty (60) days regarding a suitable permanent plan for the child. Subject to the jurisdiction of the juvenile court for allegations of delinquency, unruliness, or truancy against the child pursuant to title 37, the court may make further orders of custody or guardianship upon receipt of the report.

Acts 1995, ch. 532, § 1.

Compiler's Notes. Former § 36-1-118 (Acts 1951, ch. 202, § 16 (Williams, § 9572.30); 1959, ch. 223, § 7; 1961, ch. 150, § 4; 1961, ch. 264, § 1; 1971, ch. 286, § 1; impl. am. Acts 1975, ch. 219, § 1; Acts 1978, ch. 611, §§ 3, 4; 1983, ch. 435, § 6; T.C.A. (orig. ed.), § 36-118; Acts 1986, ch. 767, § 8; 1988, ch. 560, § 12; 1991, ch. 158, § 1), concerning investigation by the human services department or agency, was repealed by Acts 1995, ch. 532, § 1, effective January 1, 1996.

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