Adoption law is one of my favorite areas of the law to practice. Whether contested or uncontested, the end result most often results in a very happy family.
Generally speaking, for an adoption to occur, there must first be termination of at least one (1) biological parents rights (unless, of course, one or both parents are deceased).
A termination proceeding can either be voluntary or involuntary. In a voluntary termination of parental rights case, the parent or parents agree to allow his/her/their parental rights to be terminated so that the child(ren) may be adopted. This proceeding is most often used in a joint petition for adoption and is handled in the same proceeding.
An involuntary termination of parental rights proceeding is a proceeding in which either DCS or a prospective adoptive parents are trying to terminate the biological parent or parents rights. Pursuant to T.C.A. Sec. 36-1-113, in order for a court to be able to terminate the rights of a parent, it must first find that at least one (1) of the following grounds exist:
- non-compliance with Permanency Plan;
- the child(ren) have been removed from the parets home for six (6) months or more and the conditions that led to the removal continue to exist;
- the parent has been found to have committed severe child abuse;
- the parent’s conduct toward the child(ren) resulting in a sentence of two (2) years or more;
- the parent has been confined under a sentence of more than ten (10) years and the child is under the age of 8; or
- the parent has been convicted of or found civilly liable for the death of the other parent.
Once the court finds that at least one (1) of the grounds exists, it must then determine whether termination is in the best interest of the minor child(ren) pursuant to T.C.A. Sec. 36-1-113(c)(2). This must be found using clear and convincing evidence. There are several statutory factors to be considered by the court.
If the court finds that grounds do not exist, or that it is not in the best interest of the minor child(ren), then termination will not be allowed and an adoption cannot move forward. However, if both grounds and best interests are found by the court, then the parent(s)parental rights will be terminated and the adoption can then occur. Typically, the adoption is not held until either the time to appeal the courts ruling has passed (30 days) or the appeals process has run its course.
It should be noted that indigent parents who are facing termination have the right to have counsel appointed to them upobn request.
There are many requirements that must be met before an adoption can be granted. These include a home study, supervision, putative father registry check, order of reference, guardianship, disclosure of expenses among numerous requirements to be included in the petition. Your lawyer can guide you through this processand advise you which requirements fit your circumstances.
One of the most common types of adoptions is the step-parent adoption. In these adoptions, one biological parent has remarried and the new spouse wants to adopt the child(ren). In these cases, many of the above listed requirements can be waived. However, grounds and best interests must still be proven.
Adoptions are technically difficult areas of the law. It is not advised to attempt an adoption without the benefit of competent legal counsel. In fact, my strongest advice is to seek legal counsel that has extensive experience in complex and contested adoption cases. The Reeves Law Firm is such a place.
For additional reference, read my Adoption Law Handbook at JDSUPRA.