Breeding & Henry, LLC

Tennessee's First in Adoption Bill

The "First in Adoption" bill was unanimously passed by the Tennessee General Assembly in April of 2018. On May 3, 2018, Governor Bill Haslam signed off on the bill, which will become law on July 1, 2018. This bill will affect several different areas of adoption and termination law while still ensuring that the best interests of the child are well maintained.

One of the more noticeable benefits that the bill offers to lawyers, social workers, and other parties involved in the process of terminating parental rights is the updated surrender form. When a parent voluntarily transfers their parental rights to an agency or to adoptive parents, they do so by executing what is known as a surrender form. Prior to the passage of this bill, the form was not only fifteen pages long, but also complicated and unclear. Now, the form has been condensed into two pages and is considerably more understandable and easy to read.

The new bill establishes safeguards for a person executing a surrender form in circumstances where they are unable to read the English language, see, comprehend, understand or review the form. Under the new law, the person executing the form must be offered appropriate assistance or an interpreter to guarantee that they sufficiently understand and comprehend the forms, before and during the surrender hearing, which will be paid for by the receiving party. Additionally, a court report based on a home study that was conducted by a licensed child-placing agency, a licensed clinical social worker, or the department, is mandatory under the new law as opposed to discretionary under the previous law when a parent is surrendering their rights.

The bill also creates changes in requirements of four of the grounds for involuntary termination of parental rights; abandonment, severe child abuse, and two grounds applying to dependent and neglected children in relation to their parent's failure to make requisite changes to create a safe home environment.

In regards to abandonment, the parent will now have the responsibility of proving, by a preponderance of the evidence, that their abandonment was not willful. Prior to the passage of this bill, the petitioner had a higher burden of proof along with the responsibility of proving that the parent was not only failing to visit or support the child for four months, but that the parent was acting willfully. This change benefits the petitioners, or perspective adoptive parents, by not burdening them with the complicated task of proving that the parent acted willfully, while still allowing for the parent to bring their lack of willfulness as an affirmative defense to protect them against the involuntary termination of their rights.

Another ground for involuntary termination of parental rights that is affected by the passage of this bill, is whether the parent has committed severe child abuse. Under existing law, the severe child abuse had to be "against the child who is the subject of the petition or against any sibling or half-sibling of such child, or any other child residing temporarily or permanently in the home of such parent." Now, if the parent has severely abused any child, their rights can be involuntarily terminated. This clearly offers more protection to children, because they are protected from a parent who has committed severe child abuse to any child, not just children that fall within the categories of the existing law.

The two grounds applying to dependent and neglected children in relation to their parent's failure to create a safe home now apply to both parents. Formerly, the grounds only applied to the parent who had physical custody of the child. With amending this ground more protection is being offered to the child, because the home environments of both parents have to be suitable, regardless of who has physical custody at the time the child is removed from the parent's home.

Procedural changes, such as jurisdiction and venue, have been made to existing law as a result of the new bill. For example, under existing law, the petitioners must have lived or maintained a regular place of abode within Tennessee for six consecutive months. Under the amendment, the petitioner must only live and maintain a regular place of abode within Tennessee at the actual time the adoption petition is filed. Additionally, the bill makes it easier for military service members to file a petition. A military service member may file a petition for adoption within Tennessee so long as they lived or maintained a regular place of abode within Tennessee for six consecutive months or Tennessee is the legal residence of the service member as identified to the military.

It is important to recognize that in all cases dealing with adoption and termination, the court will always consider what is in the best interest of the child. The amendments that are enacted with the passage of this new bill were aimed to help assure the best interests of the child are being upheld and are of paramount consideration in any termination and adoption case.

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