ADOPTION

Termination of Parental Rights

In Tennessee, before a child can be adopted, the biological parents’ rights to the child must be voluntarily relinquished by each parent or involuntarily terminated by the court. The biological parents can voluntarily surrender their rights by filling out and executing certain documents before a judge. They are not required to testify on the record in open court. If one or both parents do not consent to surrendering their parental rights, then a Petition for Termination of Parental Rights will need to be filed against the nonconsenting parent(s) before the adoption proceedings can occur. The Tennessee Court of Appeals has stated:

“A biological parent’s right to the care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the due process clauses of the federal and state constitutions.” Although a parent’s right is fundamental and superior to the claims of other persons and the government, it is not absolute. A parent’s right “continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination.”

In Tennessee, proceedings to terminate parental rights are governed by statute. A party seeking to terminate parental rights must prove two things. First, they must prove the existence of at least one of the statutory grounds for termination. Second, they must prove that terminating parental rights is in the child’s best interests. In light of the fundamental rights at stake in a termination proceeding, the grounds for termination and best interest inquiry must be established by clear and convincing evidence.

Clear and convincing evidence “establishes that the truth of the facts asserted is highly probable . . . and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.”

In re Makendra E., No. W2015-01374-COA-R3-PT, 2016 Tenn. App. LEXIS 49, at *5–6 (Tenn. Ct. App. Jan. 27, 2016) (emphasis in original) (internal citations omitted).

Grounds for Termination of Parental Rights

As stated in Makendra E., to terminate parental rights, the Petitioner must first prove at least one statutory ground for termination. If two biological parents are at issue, then the Petitioner must prove at least one ground for each parent. These statutory grounds, which are cited from Tenn. Code Ann. § 36-1-113, include:

Abandonment, Abuse, & Neglect

• Abandonment by the parent or guardian has occurred.

• Substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan.

• A parent or guardian has failed to show an ability and willingness to personally assume legal and physical custody or financial responsibility of the child, and placing the child in the person’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child.

• A parent has committed severe child abuse against the child (or in some cases, any child).

Prior Removal from Home

• The child has been removed from the home or the physical or legal custody of a parent or guardian for a period of six (6) months* and:

  • (i) The conditions that led to the child’s removal still persist or other conditions exist that would cause the child to be subjected to further abuse or neglect, preventing the child’s safe return to the care of the parent or guardian;

  • (ii) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent or guardian in the near future; and

  • (iii) The continuation of the parent or guardian and child relationship greatly diminishes the child’s chances of early integration into a safe, stable, and permanent home.

* The six (6) months must accrue on or before the first date the termination of parental rights petition is set to be heard.

Termination Due to Parental Convictions and Incarceration

• The parent or guardian has been sentenced to more than two (2) years’ imprisonment for conduct against the child, or for conduct against any sibling or half-sibling of the child or any other child residing in the home of such parent or guardian.

• The parent has been confined in a correctional or detention facility of any type as a result of a criminal act, with a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court.

• The parent has been:

  • Convicted of first degree or second degree murder of the child’s other parent or legal guardian; or

  • Found civilly liable for the intentional and wrongful death of the child’s other parent or legal guardian.

  • Convicted of aggravated rape or rape of a child pursuant to from which crime the child was conceived. 

  • Found to have committed severe child sexual abuse under any prior order of a criminal court.

  • Convicted of trafficking for commercial sex act.

  • Convicted on or after July 1, 2015, of sex trafficking of children or by force, fraud, or coercion, or a sex trafficking of children offense under the laws of another state.

Termination Due to Mental Incompetence

If an independent proceeding conducted prior to an adoption proceeding determines the parent or guardian is mentally incompetent to provide for the further care and supervision of the child, and to terminate that parent’s or guardian’s rights to the child on the basis of clear and convincing evidence that:

• The parent or guardian of the child is incompetent to adequately provide for the further care and supervision of the child because the parent's or guardian's mental condition is presently so impaired and is so likely to remain so that it is unlikely that the parent or guardian will be able to assume or resume the care of and responsibility for the child in the near future; and

That termination of parental or guardian rights is in the best interest of the child.

Special Grounds for a Biological, but not yet Legal, Father

The parental rights of any person who, at the time of the filing of a petition to terminate the parental rights of such person, or if no such petition is filed, at the time of the filing of a petition to adopt a child, is the putative father of the child may also be terminated based upon any one (1) or more of the following additional grounds:

• The person has failed, without good cause or excuse, to pay a reasonable share of prenatal, natal, and postnatal expenses involving the birth of the child in accordance with the person’s financial means promptly upon the person’s receipt of notice of the child's impending birth;

• The person has failed, without good cause or excuse, to make reasonable and consistent payments for the support of the child in accordance with the child support guidelines;

• The person has failed to seek reasonable visitation with the child, and if visitation has been granted, has failed to visit altogether, or has engaged in only token visitation;

• The person has failed to manifest an ability and willingness to assume legal and physical custody of the child;

• Placing custody of the child in the person’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child; or

• The person has failed to file a petition to establish paternity of the child within thirty (30) days after notice of alleged paternity, or as required or after making a claim of paternity pursuant as required by state law.

  • “Notice” means the written statement to a person who is believed to be the biological father or possible biological father of the child. The notice may be made or given by the mother, the department, a licensed child-placing agency, the prospective adoptive parents, a physical custodian of the child, or the legal counsel of any of these people or entities; provided, that actual notice of alleged paternity may be proven to have been given to a person by any means and by any person or entity. The notice may be made or given at any time after the child is conceived and, if not sooner, may include actual notice of a petition to terminate the putative father’s parental rights with respect to the child;

  • “Notice” also means the oral statement to an alleged biological father from a biological mother that the alleged biological father is believed to be the biological father of the biological mother’s child;

The Child’s Best Interest

If the court finds that the Petitioner has established at least one of the above-listed grounds by clear and convincing evidence, then the Petitioner must prove that the termination of parental rights is in the child’s best interests. The Tennessee Court of Appeals has explained that:

When at least one ground for termination of parental rights has been established, the petitioner must then prove, by clear and convincing evidence, that termination of the parent’s rights is in the child’s best interest. When a parent has been found to be unfit (upon establishment of ground(s) for termination of parental rights), the interests of parent and child diverge. The focus shifts to the child’s best interest. Because not all parental conduct is irredeemable, Tennessee’s termination of parental rights statutes recognize the possibility that terminating an unfit parent’s parental rights is not always in the child’s best interest. However, when the interests of the parent and the child conflict, courts are to resolve the conflict in favor of the rights and best interest of the child. Further, “[t]he child’s best interest must be viewed from the child’s, rather than the parent’s, perspective.” 

In re Ja'Miya T., No. W2016-01433-COA-R3-PT, 2017 Tenn. App. LEXIS 206, at *27–28 (Tenn. Ct. App. 2017) (internal citations omitted).

For cases filed prior to April 22, 2021, a set of nine non-exhaustive “best interests” factors in Tenn. Code Ann. § 36-1-113(I) for courts to consider:

• (1) Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best interest to be in the home of the parent or guardian;

• (2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;

• (3) Whether the parent or guardian has maintained regular visitation or other contact with the child;

• (4) Whether a meaningful relationship has otherwise been established between the parent or guardian and the child;

• (5) The effect a change of caretakers and physical environment is likely to have on the child’s emotional, psychological and medical condition;

• (6) Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the child, or another child or adult in the family or household;

• (7) Whether the physical environment of the parent’s or guardian’s home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol, controlled substances or controlled substance analogues as may render the parent or guardian consistently unable to care for the child in a safe and stable manner;

• (8) Whether the parent’s or guardian’s mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing safe and stable care and supervision for the child; or

• (9) Whether the parent or guardian has paid child support consistent with the child support guidelines promulgated by the department pursuant to § 36-5-101.

It is important to note that “‘this list [of factors] is not exhaustive, and the statute does not require a trial court to find the existence of each enumerated factor before it may conclude that terminating a parent’s rights is in the best interest of a child.’ Depending on the circumstances of an individual case, the consideration of a single factor or other facts outside the enumerated, statutory factors may dictate the outcome of the best interest analysis. As explained by this Court: Ascertaining a child’s best interests does not call for a rote examination of each of Tenn. Code Ann. §§ 36-1-113(i)’s nine factors and then a determination of whether the sum of the factors tips in favor of or against the parent. The relevancy and weight to be given each factor depends on the unique facts of each case. Thus, depending upon the circumstances of a particular child and a particular parent, the consideration of one factor may very well dictate the outcome of the analysis.” In re Ja’Miya T., 2017 Tenn. App. LEXIS 206, at *29–30.

For cases filed after April 22, 2021, the newly adopted twenty-one (21) factor test will apply which is found at Tenn. Code Ann. § 36-1-113(i)(1)(A)-(T) will apply:

(A) The effect a termination of parental rights will have on the child's critical need for stability and continuity of placement throughout the child's minority;

(B) The effect a change of caretakers and physical environment is likely to have on the child's emotional, psychological, and medical condition;

(C) Whether the parent has demonstrated continuity and stability in meeting the child's basic material, educational, housing, and safety needs;

(D) Whether the parent and child have a secure and healthy parental attachment, and if not, whether there is a reasonable expectation that the parent can create such attachment;

(E) Whether the parent has maintained regular visitation or other contact with the child and used the visitation or other contact to cultivate a positive relationship with the child;

(F) Whether the child is fearful of living in the parent's home;

(G) Whether the parent, parent's home, or others in the parent's household trigger or exacerbate the child's experience of trauma or post-traumatic symptoms;

(H) Whether the child has created a healthy parental attachment with another person or persons in the absence of the parent;

(I) Whether the child has emotionally significant relationships with persons other than parents and caregivers, including biological or foster siblings, and the likely impact of various available outcomes on these relationships and the child's access to information about the child's heritage;

(J) Whether the parent has demonstrated such a lasting adjustment of circumstances, conduct, or conditions to make it safe and beneficial for the child to be in the home of the parent, including consideration of whether there is criminal activity in the home or by the parent, or the use of alcohol, controlled substances, or controlled substance analogues which may render the parent unable to consistently care for the child in a safe and stable manner;

(K) Whether the parent has taken advantage of available programs, services, or community resources to assist in making a lasting adjustment of circumstances, conduct, or conditions;

(L) Whether the department has made reasonable efforts to assist the parent in making a lasting adjustment in cases where the child is in the custody of the department;

(M) Whether the parent has demonstrated a sense of urgency in establishing paternity of the child, seeking custody of the child, or addressing the circumstance, conduct, or conditions that made an award of custody unsafe and not in the child's best interest;

(N) Whether the parent, or other person residing with or frequenting the home of the parent, has shown brutality or physical, sexual, emotional, or psychological abuse or neglect toward the child or any other child or adult;

(O) Whether the parent has ever provided safe and stable care for the child or any other child;

(P) Whether the parent has demonstrated an understanding of the basic and specific needs required for the child to thrive;

(Q) Whether the parent has demonstrated the ability and commitment to creating and maintaining a home that meets the child's basic and specific needs and in which the child can thrive;

(R) Whether the physical environment of the parent's home is healthy and safe for the child;

(S) Whether the parent has consistently provided more than token financial support for the child; and

(T) Whether the mental or emotional fitness of the parent would be detrimental to the child or prevent the parent from consistently and effectively providing safe and stable care and supervision of the child.

The Tennessee Legislature adopted these new factors and statutory framework to give courts clearer direction and ability to better balance between parental rights and the child’s well-being. The Legislature provides this in the form of a legal presumption at Tenn. Code Ann.  § 36-1-113(i)(2) where it states “The prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest.”  This denotes a primary focus on the child’s safety and well-being, whether or not the placement is with a biological parent.