Follow Adoption Procedures to the Letter
A recent decision by the Court of Appeals of Tennessee is yet another reminder that terminating biological parental rights and creating new parental rights through adoption is a technical legal procedure that must be followed to the letter [In Re Gabrielle W., 2017]. This comment briefly discusses in a general and incomplete educational manner this single decision. Always consult an experienced attorney in specific adoption and family law matters.
In an incomplete factual overview, the child in question was born in 2006 “as a result of a transient sexual encounter” to a mother who was using drugs and is now deceased. The Tennessee Department of Children’s Services (DCS) removed the child as a result of the drug use and placed the child with a material aunt and uncle. They in turn utilized a babysitter and in 2007 custody of the child was transferred by a Juvenile Court order to this babysitter, now designated “Guardians.” At this hearing and in other conversations the identity of the biological father was discussed as being potentially several persons and one was named and identified as living in Texas. This named individual attempted a Tennessee visit upon birth of the child but never saw the child and was subsequently informed by the mother that according to a DNA test, he was not the father. In 2009 the child was adopted by the Guardians.
In December 2011, the mother contacted the Texan and informed him that she now believed that the child was his but that she did not have custody. He looked for an adoption record but was unsuccessful due to having an incorrect birth date and a misspelling of the child’s name on the birth certificate. Believing there was no adoption, the Texan filed a Petition to Establish Paternity in 2013. Ultimately this became a Motion to Set Aside the Final Order of Adoption. The trial court determined that proper personal jurisdiction over the Texas father was not obtained at the time of the adoption and that both the adoption order and termination of parental rights were void; however, the child would remain in the custody of the Guardians.
The appellate court considered the Guardians’ appeal. Initially the appellate court discussed at length the failure of the Guardians to sign their notice of appeal as the Tennessee statute specifies that “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” After looking to similar language in other states, the appellate court concluded that “in these cases, dealing with the termination of parental rights, the courts strictly follow the language of the statutes and rules.” Consequently, the Guardians’ appeal was dismissed.
However, the appellate court went on to discuss the merits of the Guardians’ appeal in case the dismissal was overturned on further appeal. The Court wrote that “the burden of diligent inquiry into the identity of the Father and other potential fathers rested on the Guardians. The potential for more than one putative father does not automatically dispose of the requirement for actual notice of service.” “…Service by publication should only be a means of last resort, especially in situations where the identity of the defendant is known.” Here the Mother named the father, but misspelled his name, and identified the city and state where he lived. A DNA test prior to the adoption had excluded another potential father.
In this situation the father was not properly served and, in addition, the Guardians did not make a Motion for Publication or a separate Affidavit detailing their attempts to locate the Father, as statutorily required as a prerequisite for Service by Publication. The Court noted that “service of process in not a mere perfunctory act but has constitutional dimensions… ” Additionally, the Father did not acquiesce in the adoption or set idly by but was active in his search after the 2011 information from the Mother. The Court concluded that the trial court was correct in requiring a full and separate hearing concerning custody. Hence, the case is remanded by the appellate court for further proceedings.
The opinion is silent concerning how and why the mistakes in the termination of parental rights and adoption occurred, as well as the failure to sign the notice of appeal. One can only speculate. However, what is clear is that attempts to locate the biological Father and properly serve him are crucial. As the Court noted, it is not a “perfunctory act.” Additionally, it is important to follow adoption procedures to the letter. This decision is in line with numerous states that consider the termination of parental rights as a significant step requiring a full measure of diligence and due process.
This comment briefly and incompletely provides a general educational overview of a single court decision and is not intended to provide legal advice. Always consult an experienced attorney in all specific adoption and family law matters.