§ 36-1-117 — Parties to proceedings - Termination of rights of putative father - Consent of parent or guardian - Service of process

Tennessee § 36-1-117

• Jurisdiction: Tennessee
• Title: 36

Text

(a) Only a legal parent, guardian, or putative father of the child is a necessary party to the adoption proceeding or to a separate proceeding seeking termination of those rights prior to the entry of an order of adoption, and those rights must be terminated prior to the entry of an order of adoption. If a person has surrendered parental or guardianship rights to the child, executed a parental consent, waived the person's rights pursuant to § 36-1-111(s) or (t) , or the person's rights have been terminated by court order, then the person is not a necessary party. (b) (1) If a petition has been filed to establish paternity of the child who is the subject of the adoption proceeding, the adoption court shall have exclusive jurisdiction to hear and decide any paternity petition filed in the adoption proceeding or that has been transferred to it pursuant to § 36-2-307 . (2) The paternity petition shall be heard and concluded prior to any action by the adoption court to determine whether to grant the petition for adoption. (3) (A) The petition shall be granted if it is shown by a preponderance of the evidence that the person alleged to be the father of the child is the father of the child; provided, that the entry of such an order shall not prevent the filing and consideration of a petition pursuant to § 36-1-113 . (B) If the petition to establish paternity is granted, then the parental rights of the legal father must be terminated as provided by § 36-1-113 or as otherwise provided by law, or the legal father must execute a surrender under § 36-1-111 , file a parental consent, or the legal father must co-sign the petition for adoption pursuant to subsection (f) before the court may be authorized to order an adoption of the child. (4) If grounds for termination of parental rights do not exist, then the child's legal father shall be granted custody of the child, unless the court determines, upon clear and convincing evidence, that the legal father is unable currently to provide proper custodial care for the child, in which case the court shall make such orders as may be necessary for the child's care and supervision pursuant to § 37-1-140 ; or unless the child's mother's rights have not been previously terminated, in which case the court shall make a determination of the custodial status of the child between the legal father and the mother, and the court may make such other orders as are necessary to provide for the child's care and supervision. If the court determines that neither parent is suitable to provide for the care of the child, it shall make such other orders as it may determine are necessary for the child's care and supervision. (5) If the petition to establish paternity is not granted by the court after a hearing and determination based upon subdivision (3), then the court may enter an order to that effect specifying the basis for the determination, and may proceed with the adoption proceeding without further need to terminate the rights of that putative father. (6) The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), compiled in chapter 6, part 2 of this title, shall govern jurisdiction of the adoption court in this state if a paternity proceeding has been filed by the putative father in another state, territory, or foreign country. (c) [Deleted by 2024 amendment.] (d) (1) Other biological or legal relatives of the child or the adult are not necessary parties to the proceeding and shall not be entitled to notice of the adoption proceedings unless they are the guardian or custodian of the child or the conservator of the adult at the time the petition is filed. (2) The legal custodian of the child or any person or entity appointed guardian of the person or property of the child pursuant to an order that does not specifically include the right to adopt or consent to the adoption of the child and that was not entered as a result of a surrender, parental consent, termination of parental rights, or finding that the child is without any living person entitled to notice pursuant to subsection (a) may only receive notice of the proceeding and may only present evidence as to the child's best interests. (e) Any public or private agency that may have custody or complete or partial guardianship of the child and that has not given consent as provided under this part shall be made a defendant and given notice of the filing of the adoption or termination of parental or guardian rights petition filed under this part or under title 37, and shall be permitted to assert its rights to custody or guardianship of the child. (f) When the child is related to one (1) of the petitioners or is the stepchild of the petitioner, and the legal or biological parent or parents or guardian or guardians of the child signs the adoption petition as a co-petitioner for the specific purpose, as stated in the petition, of giving consent to the adoption, no further surrender, parental consent, or termination of parental rights shall be required as to that parent or guardian, as the act of joining in the adoption petition shall be deemed a complete surrender, notwithstanding subsection (g), and no further notice or service of process need be made to that person; provided, that where the stepparent of a stepchild seeks to adopt a stepchild, the co-signing of the petition by the child's parent who is the spouse of the petitioner shall not affect the existing parent/child legal relationship between that parent and the parent's child who is the subject of the adoption petition by the stepparent of the child. (g) (1) A parent may sign a petition for adoption as provided by § 36-1-102 for the purpose of giving parental consent to the adoption of the parent's child by unrelated persons. 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 custody or control of the child in the future. (2) It is specifically and expressly declared that the act of signing the adoption petition does not terminate the parental rights of such parent until the court where the adoption petition is filed has entered an order confirming the parental consent. Prior to the court entering an order confirming the parental consent: (A) The parent shall answer, in writing and under oath, each of the questions required pursuant to § 36-1-111(b)(4) , and submit the parent's answers to the court on a substantially similar form; and (B) The court shall: (i) Witness the parent's or guardian's signature on the form; and (ii) Confirm the parental consent by verifying the parent's answers to the questions required pursuant to § 36-1-111(b)(4) , and by witnessing the parent's signature on an affidavit acknowledging the parental consent. (3) The parent signing the petition for the purpose of giving parental consent shall be provided ten (10) calendar days' written notice by the court of the appearance date for the required response to the court pursuant to § 36-1-111 before entry of the order confirming the parental consent is entered by the court. Unless the parent is disabled or the parent's appearance is impracticable as determined by the court, that parent must personally attend the hearing before the court in chambers. If the parent is disabled or the parent's appearance is impracticable as determined by the court, the answers shall be taken under oath at the parent's location by the court or by any person appointed by an order of the court to do so. If the parent executing the parental consent cannot be found or does not appear at the time of such hearing, the court may terminate that parent's rights upon any grounds available pursuant to a petition filed under § 36-1-113 . (4) Following the satisfactory completion of such questions, which shall be recorded on the forms required pursuant to § 36-1-111 , the court shall enter an order that confirms the parental consent, and the court shall then, and only then, be authorized to enter an order terminating such parent's rights to the child who is the subject of the adoption petition; provided, that 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 by executing a revocation form as provided in § 36-1-112 , and such revocation shall negate and void the parental consent executed pursuant to this subsection (g). (5) The death of the consenting parent or termination of parental rights of such parent by a validly executed surrender or by court action prior to the entry of the adoption order will make any requirements for the parental consent contained herein unnecessary. (6) Upon entry of the order of confirmation, the clerk shall send certified copies of the order to the adoptions unit in the state office of the department in Nashville. (h) The department, through any authorized person, or the executive head of such licensed child-placing agency may give consent to the adoption of the child by the petitioners for whom it holds complete or partial guardianship. (i) (1) (A) When the child who is the subject of the adoption is fourteen (14) years of age or older at any time before the granting of the petition, the adoption court must receive the sworn, written consent of such child to the adoption, which shall be filed with the record, and the consent of such minor shall be recited in the order of adoption. The court shall receive the consent and testimony from the child in chambers, if requested by the child. The consent is legally sufficient if it contains statements comparable to the "Consent to Adoption by Minor" set forth in subdivision (i)(3). (B) CONSENT TO ADOPTION BY MINOR WHO IS FOURTEEN (14) YEARS OF AGE OR OLDER STATE OF TENNESSEE COUNTY OF 1. I am ____________________ [name of child] born on ______________. 2. I understand that ____________________ [name of prospective adoptive parent(s)] have filed a petition to adopt me. 3. I understand that if the Court enters an order of adoption based upon the Petition, that I will become the legal child of ____________________ [name of prospective adoptive parent(s)] and that he/she/they will become my parents for all purposes, just the same as if I had originally been born to them. 4. I understand that, while I remain under eighteen (18) years of age, my adoptive parents will have the right to determine if I should contact or visit with anyone in my prior legal or birth family. 5. I understand that I will have the right to inherit property from my adoptive parents, and their descendants will have the right to inherit property from me or my descendants but only for property I acquire after the adoption order is entered. 6. No one has pressured me to agree to this adoption, and I believe that my adoption is in my best interest. 7. I freely and voluntarily, without pressure from anyone, consent to this adoption. This the ____________________day of ____________________, 20____________________. FURTHER AFFIANT SAITH NOT Please Print: ____________________ Signature: ____________________ Sworn to and subscribed before me this ____________________ day of ____________________, 20____________________. Please Print: ______________ Judge of the ______________ Court for ______________ County, Tennessee Signature: ____________________ (2) If the child who is the subject of the adoption is mentally disabled and is fourteen (14) years of age or more at any time before the granting of the petition, then the court shall appoint a guardian ad litem to give or withhold consent for the child to the adoption, and the court shall follow the procedure of subdivisions (j)(2)(B) and (C). (j) (1) When the person sought to be adopted is eighteen (18) years of age or older, only the sworn, written consent of the person sought to be adopted shall be required and no order of reference or any home studies need be issued. (2) (A) If the adult person to be adopted has been adjudicated incompetent, then the written consent of the adult person's conservator shall be required. (B) If the person is without a conservator and the court has reason to believe that the person is incompetent to give consent, then the court shall appoint a guardian ad litem who shall investigate the person's circumstances and that guardian ad litem shall give or withhold consent. (C) The guardian ad litem shall file a written report stating the basis for the decision and the court shall afford a hearing to all parties to present evidence as to the best interests of the person, and if the court determines upon clear and convincing evidence that the decision to withhold consent by the guardian ad litem is arbitrary and is not in the best interests of the incompetent person, it may proceed to make any other orders it deems necessary for the person's welfare, including granting the adoption petition. (3) In all other situations under this subsection (j) for adult persons who are the subject of an adoption petition, an order of reference, social investigation, report to the court by a licensed child-placing agency or licensed clinical social worker or the department, putative father registry check in this or any other state, or the waiting period under § 36-1-119 is not required. (k) When the child has been surrendered or parental rights have been relinquished to an agency operating under the laws of another state, territory, or foreign country, or such agency has received guardianship or the right to place a child for adoption pursuant to the laws of its jurisdiction, the surrender or relinquishment, or any order terminating parental rights, and the written consent of the agency pursuant to the laws of its jurisdiction or pursuant to its procedures shall be filed with the adoption petition and shall be sufficient for the purposes of providing the necessary consent required by this part. (l) If a person has surrendered that parent's parental rights or guardianship rights, if a person has filed a parental consent and the consent has been confirmed as provided herein, if a person has executed a waiver of interest pursuant to this part, if a person or agency has consented to the adoption of the child who is the subject of the adoption proceeding, or if a person's parental or guardianship rights to the child have been properly terminated, no notice of the adoption proceeding or service of process shall be made to that person or agency. (m) (1) Service of process for adoption proceedings and termination proceedings in chancery and circuit courts pursuant to this part and for proceedings to terminate parental rights in juvenile courts are made pursuant to the Tennessee Rules of Civil Procedure and the statutes governing substituted service. (2) [Deleted by 2024 amendment.] (3) Any motion for an order for publication in these proceedings shall be accompanied by an affidavit of the petitioners or their legal counsel attesting, in detail, to all efforts to determine the identity and whereabouts of the parties against whom substituted service is sought. (4) Service of process for juvenile court proceedings may be completed by any individual authorized to serve process under the Tennessee Rules of Civil Procedure or the Tennessee Rules of Juvenile Procedure, including, but not limited to, a sheriff, constable, or private process server. (n) The court may enter a default judgment against any party to the adoption or termination proceeding upon a finding that service of process has been validly made against that party in accordance with the Tennessee Rules of Civil or Juvenile Procedure and the statutes concerning substituted service; however, in termination proceedings, proof must be presented as to legal grounds and best interest pursuant to § 36-1-113 . (o) The response or answer to a petition for termination of parental rights shall be signed by the respondent personally, sworn to and verified, and filed with the clerk of the court.

Legislative History

Amended by 2024 Tenn. Acts, ch. 996,s 19, eff. 7/1/2024. Amended by 2024 Tenn. Acts, ch. 996,s 18, eff. 7/1/2024. Amended by 2024 Tenn. Acts, ch. 996,s 17, eff. 7/1/2024. Amended by 2024 Tenn. Acts, ch. 996,s 16, eff. 7/1/2024. Amended by 2024 Tenn. Acts, ch. 996,s 15, eff. 7/1/2024. Amended by 2024 Tenn. Acts, ch. 996,s 14, eff. 7/1/2024. Amended by 2023 Tenn. Acts, ch. 263, s 7, eff. 7/1/2023. Amended by 2023 Tenn. Acts, ch. 263, s 6, eff. 7/1/2023. Amended by 2023 Tenn. Acts, ch. 363, s 5, eff. 5/5/2023. Amended by 2023 Tenn. Acts, ch. 393, s 2, eff. 5/11/2023. Amended by 2022 Tenn. Acts, ch. 937, s 16, eff. 7/1/2022. Amended by 2022 Tenn. Acts, ch. 937, s 10, eff. 7/1/2022. Amended by 2020 Tenn. Acts, ch. 525, Secs.s 8, s 9 eff. 3/6/2020. Amended by 2019 Tenn. Acts, ch. 36, Secs.s 29, s 32 eff. 7/1/2019. Amended by 2019 Tenn. Acts, ch. 36, Secs.s 33, s 34 eff. 7/1/2019. Amended by 2018 Tenn. Acts, ch. 875, Secs.s 20, s 32 eff. 7/1/2018. Amended by 2018 Tenn. Acts, ch. 875, s 19, eff. 7/1/2018. Amended by 2018 Tenn. Acts, ch. 535, s 1, eff. 3/7/2018. Amended by 2016 Tenn. Acts, ch. 919, s 13, eff. 7/1/2016. Amended by 2016 Tenn. Acts, ch. 636, s 3, eff. 3/23/2016. Acts 1951, ch. 202, § 7 (Williams, § 9572.21); Acts 1955, ch. 320, § 2; 1955, ch. 345, § 1; 1959, ch. 223, § 3; 1961, ch. 150, § 2; impl. am. Acts 1975, ch. 219, § 1; 1976, ch. 455, § 1; T.C.A. (orig. ed.), § 36-108; §36-1-108; Acts 1995, ch. 532, § 1; 1996, ch. 1054, §§ 53-56, 113; 1997 , ch. 551, §§ 57 - 65; 1998, ch. 1098, §§ 5 - 7; 2003 , ch. 231, § 14; 2007 , ch. 199, §§ 1, 2; 2008 , ch. 1059, § 5; 2008 , ch. 1162, § 1; 2010 , ch. 842, § 2; 2010 , ch. 849, § 1.