Before a child may be adopted, parental rights must be terminated. “Parental rights” are the rights to act as a parent, to care for, to name and to claim custodial rights with respect to a child. If these rights are terminated, an adoption may take place and the adoptive parents will be able to legally exercise parental rights with regard to their adopted child.
Tennessee’s adoption law is found in Tennessee Code Annotated Title 36 Domestic Relations, Chapter 1 Adoption. This chapter is full of terms, some defined and some not, that make this a highly technical topic. Section 113 of Chapter 1 governs the termination of parental rights. The biological mother, guardian, putative biological father and any presumed father (T.C.A. Sect. 36-2-304) must all have their rights terminated before a child may be adopted. The termination may be by a voluntary agreement of the party whose rights are being terminated. This might happen where an infant is being surrendered by a mother in a private adoption, for example.
When there is no agreement or where the exact status of the parties is unclear, an involuntary termination may be necessary. An action to involuntarily terminate parental rights may be filed on its own in juvenile, circuit or chancery court or with an adoption petition in circuit or chancery court. “The prospective adoptive parent or parents of the child, including extended family members caring for a related child, any licensed child-placing agency having custody of the child, the child’s guardian ad litem, or the department (of Children’s Services) have standing” to file a termination petition. The allegations in the petition must be verified under oath.
Involuntary termination actions are often filed when the Department of Children’s Services or a private agency has been awarded custody of a dependent and neglected child. In order for the termination to succeed, there must be clear and convincing proof of at least one of the statutory grounds for termination as well as a finding by the court that termination is in the best interests of the child. Some of these grounds are as follows: Abandonment by a parent in jail who had engaged in conduct that exhibits wanton disregard for the welfare of the child prior to incarceration ; Incarceration under a 10-year sentence; Abandonment by failure to pay support; Abandonment by failure to visit; Abandonment by failure to establish a suitable home during the first 4 months of custody; Father’s abandonment by failure to visit or support the mother for 4 months prior to the birth of the child; Failure to legitimate; Persistence of conditions that led to the removal of the child; or Commission of severe abuse including the knowing or failure to protect a child from serious bodily injury or psychological abuse. There are numerous appellate termination cases which give further guidance on which facts support each of these statutory grounds for termination of parental rights.
Cases involving family matters like these are complex and volatile. You should always consult an experienced attorney for legal advice regarding your particular situation. My office number in Knoxville is (865)539-2100.
