Tenn. Comp. R. & Regs. 0250-07-07-.02 - DEFINITIONS FOR PURPOSES OF THIS CHAPTER

(1) Adopted Person- A person with respect to whom any adoption record, sealed record, sealed adoption record, or post-adoption record is maintained by the court, by the Department, or by any other information source whether or not an adoption petition was ever filed, was finalized, was dismissed or was otherwise never completed.

(2) Adoptee- A person who is adopted or placed for adoption under Chapter 1, Title 1, Chapter 36 of the Tennessee Code Annotated or pursuant to the laws of any State, Territory or foreign country.

(3) Adoption- The social and legal process of establishing by court order the legal relationship of parent and child other than by paternity or legitimization proceedings or by voluntary acknowledgment of paternity. It shall include, for purposes of this Chapter, the social and legal process leading to, or the social and legal process made in an effort to establish, the legal relationship or parent and child established or sought to be established, other than by paternity or legitimization proceedings by court order, prior to March 16, 1951, or the social and legal process of placement or preparation for placement of children for adoption, or which involved children who were subject to placement as a result of the activities of the Tennessee Children's Home Society at anytime.

(4) Adoption record- The records, reports, and papers, including those of termination of parental rights or adoption proceeding, maintained about an adopted person: by the clerk or judge of the court where the adoption petition is filed, where a surrender or revocation of a surrender is filed, or by the state, district or county offices of the Department, or by a licensed or chartered child-placing agency, or by any other information source and which record contains all social, medical, legal or other information concerning a person who has been placed for adoption or for an adopted person, and which existed prior to its becoming a sealed record or a sealed adoption record; provided, however, that the adoption record shall not include any home study or preliminary home study or any information obtained by the Department, a licensed child-placing agency, a licensed clinical social worker, or an attorney in connection with a home study or adoption proceeding other that that which is expressly included in a report to the court by such persons. Information relating to the counseling of a biological mother regarding crisis pregnancy counseling shall not be included in the adoption record for purposes of release pursuant to this part without a court order pursuant to T.C.A. § 36-1-138. This record is confidential and is not subject to disclosure except as provided in this chapter.

(5) Adoptive parent(s)- The person(s) who have been made the legal parent(s) of a child by the entry of an order of adoption under the provisions of the law of the State of Tennessee prior to March 16, 1951 or who became the legal parent(s) by entry of an order of adoption as a result of the placement for adoption or the process of placement of children for adoption by any branch of the Tennessee Children's Home Society.

(6) Agency care- The care of a child by any licensed or chartered child-placing or other child-placing agency by means of foster care or by the provision of care to a child in facilities or homes operated by employees or contractors or volunteers of such agency.

(7) Alleged parent- A person who was named or described in the sealed record or the sealed adoption record as parent of the adopted person, but who does not otherwise meet the definition of biological parent pursuant to these rules.

(8) Biological Parent(s)-Based on a birth certificate, a court order, an unqualified surrender of parental rights, or based on an unqualified acknowledgment of parenthood, or any other document contained in the sealed record or the sealed adoption records the person(s) identified as the birth parent(s) who genetically conceived the adopted person. The information in the sealed records, adoptions records, and sealed adoption records must be consistent as to the identity of the biological parent.

(9) Court- The chancery, circuit, or former county courts, or other courts in Tennessee which have or may have possessed adoption jurisdiction at anytime.

(10) Child- placing agency-Any agency, whether licensed or chartered by the State of Tennessee, which engages or, at anytime, had engaged in the placement of children for adoption or as a prelude to the placement of a child for adoption through agency care.

(11) Crisis Pregnancy Counseling - Any counseling provided by the Department, a licensed child-placing agency or licensed clinical social worker related to the pregnancy, planning and decisions for the expected child by his/her mother.

(12) Department- The Tennessee Department of Children's Services or any of its divisions or units.

(13) Department of General Services- The state executive branch agency which maintains the State's records management center and in which the sealed records or adoption records are stored.

(14) Department of Health- The state executive branch agency which administers the Division of Vital Statistics, which Division maintains records of births.

(15) Eligible Person- A person who is verified by the Department as being in the class of individuals who is permitted by T.C.A. §§ 36-1 -101 et seq. and this Chapter to receive access to records.

(a) An adoption for an adopted person which was finalized as defined in paragraph (18); or

(b) An adopted person whose records were maintained by, the Tennessee Children's Home Society, whether the adoption of the person placed by such agency was finalized, or was dismissed or was otherwise not completed before or after March 16, 1951 and whether or not the record of the person was maintained by the Tennessee Children's Home Society at anytime before or after March 16, 1951; and

(c) Whose sealed records, sealed adoption records, or post adoption records are maintained in the office of the Clerk of the adoption court, in the offices of the Department of Health, in the office of any child-placing agency, in the state, district, or county offices of the Department, or in any other information source, and who, by written request, seeks access to his or her records and who is verified by the Department as otherwise meeting the requirements as an eligible person to have access to the records pursuant to House Bill 406 (1995).

(16) Family Unit-A group of two or more persons residing together who are related by blood, marriage, of adoption. A person whose work, study, treatment or care results in only temporary, periodic, or otherwise time-limited absence from the family unit shall be deemed to be a member of the family unit to which he or she usually returns to reside at the end of such absences. Any person who receives 50% or more or his or her support, in cash or in-kind, from persons to whom he or she is related by blood, marriage or adoption shall, for purposes of income and resource determination, also be deemed to be a member of the family unit which contributes the greatest percentage of such support.

(17) Finalized adoptions- For purposes of this Chapter, this term shall include:

(a) Any adoptions which were completed by the entry of an order of adoption, or which adoptions were dismissed, or were otherwise never completed due to abandonment of any further necessary activity related to the completion of the adoption, and for which records and papers of an adoption proceedings existed prior to March 16, 1951, and which records became sealed or closed by the court before that date, or where the record or other evidence demonstrates that a person was surrendered for adoption prior to March 16, 1951; or

(b) Any adoptions which, before the passage of House Bill 406 (1995), have been previously treated as, or are now determined by the Department or any other information source to be, cases of adoptions completed by the entry of an order of adoption or by order of dismissal or as otherwise never completed due to the abandonment of any further necessary activity related to the completion of the adoption prior to March 16, 1951, and for which records and papers of such adoption exists prior to March 16, 1951, or where the record or other evidence demonstrates that a person was surrendered for adoption prior to March 16, 1951.

(c) Any appeals of adoptions occurring subsequent to March 16, 1951 shall not be deemed to be a completion of the adoption and any placement which occurred prior to March 16, 1951 and which resulted in the completion or abandonment of all necessary activity after such date shall not, for purposes of this Chapter, be deemed to be finalized prior to March 16, 1951;

(18) Home study- The product of a preparation process in which individuals or families are assessed by themselves and the Department or licensed child-placing agency, or a licensed clinical social worker as to their suitability for adoption and their desires with regard to the child they wish to adopt. The home study shall conform to the requirements set forth in the rules of the Department and becomes a written document which is used in the decision to approve or deny a particular home for adoptive placement.

(19) Information Sources- The courts, agencies, or entities which maintain or had maintained information directly related to the adoption, the placement, or potential placement for adoption or a person, including information related to tile agency care or foster care utilized by the Tennessee Children's Home Society.

(20) Legal parent:

(a) The biological mother of a child;

(b) A man who is or has been married to the biological mother of the child if the child was born during the marriage or within 300 days after the marriage was terminated for any reason, or if the child was born after a decree of separation was entered by a court,

(c) A man who attempted to marry the biological mother or the child before the child's birth by a marriage apparently in compliance with the law, even if the marriage is declared invalid, if the child was born during the attempted marriage or within 300 days after the termination of the attempted marriage for any reason;

(d) A man who has been adjudicated to be the legal father of the child by any court or administrative body of this State or any other state or territory or foreign country or who has signed, pursuant to T.C.A. §§ 24-1-118, 68-3-203(g), 68-3-302 and 68-3-305(b), an unrevoked surrender and sworn acknowledgment of paternity under the provisions of Tennessee law, or who has signed a sworn acknowledgment pursuant to the law of any other state, territory, or foreign country; or

(e) An adoptive parent of a child or adult.

(21) Legal Representative:

(a) The conservator, guardian, legal custodian, or other person or entity with legal authority to make decisions for an individual with a disability, or an attorney-in-fact, an attorney-at-law representing a person for purposes of obtaining information pursuant to this part, or the legally appointed administrator, executor, or other legally appointed representative of a person's estate, or

(b) Any person acting under any durable power of attorney for health care purposes or any person appointed to represent a person and acting pursuant to a living will.

(c) For purposes of this definition, "disability" means that the individual is a minor pursuant to any state, territorial, or federal law, or the law of any foreign country or that the individual has been determined by any such law to be in need of a person or entity to care for the individual due to that individual's physical or mental incapacity or infirmity. Such a person shall exhibit to the Department's satisfaction such authority:

(d) Authority to act on behalf of an individual shall be presented to the Department by way of certified copies of orders or powers, or signed statements authorizing representation by attorneys at law.

(22) Licensed or chartered child-placing agency- Any agency operating under a license to place children for adoption issued by the Department, or by a charter from the State of Tennessee prior to March 16, 1951.

(23) Lineal descendant- A person who descended directly from another person who is the biological or adoptive ancestor of such person, such as the daughter of her mother or granddaughter of her grandmother.

(24) Parents Means any biological, legal, adoptive parent, or for purposes of T.C.A.. § 36-1-127, stepparents. "Step parent" shall mean the current husband or wife of the adopted person's biological or adoptive parent.

(25) Placement- For purposes of this Chapter, placement shall include any form of agency care or foster care utilized by the Tennessee Children's Home.

(26) Post Adoption- The unit in the state office of the Department responsible for maintaining post adoption records and search requests and for reviewing and opening or approving the opening of adoption records, sealed records, sealed adoption records, or post adoption records pursuant to Title 36, Chapter 1, Part I of the Tennessee Code Annotated.

(27) Post Adoption Records- The record maintained by the Department or a licensed or chartered child-placing agency, separately from the sealed record or sealed adoption record, containing information about adopted persons or the legal or biological relatives subsequent to the completion of an adoption proceeding and which may contain information concerning, but not limited to, the written inquiries from persons requesting access to records, the search efforts of the Department, the response to those search efforts by those persons sought, information which has been requested to be transmitted from or on behalf of any persons entitled to access, any updated medical information and any personal identifying information concerning any persons. This term shall also include the "limited record" as described in § 36-1-126(b). The information in the post-adoption record is confidential and will not be disclosed by the Department or the licensed child-placing agency or a court except as specifically permitted in this chapter, or as may be deemed necessary by the Department in performing its duties under this chapter.

(28) Record- Any paper, report, document, or photograph, or other medium of preservation of information. For purposes of this Chapter, a record which may be available to an eligible person shall not include the remaining names of other persons on a -list, log, or roll maintained by the Department or any other entity who are not, as determined by the Department, a part or the eligible person's request for service.

(29) Resources- For purposes of these rules, resources shall include only the following assets of the requesting person or any member of his or her family unit:

(a) Cash;

(b) Accounts in financial institutions, certificates of deposits, or any other evidence of financial assets;

(c) Stocks;

(d) Bonds;

(e) Securities;

(f) Cash value or life insurance policies;

(g) Notes receivable;

(h) The equity value of any real property which is not the primary home, farm, or business operation of the family unit:

(i) The equity value of any vehicles owned by the adopted person, his or her siblings, or lineal descendants, or members of the family unit in excess of one vehicle per member of the family unit;

(j) The equity value of personal property or the family unit, in addition to subparagraphs (a)-(g) which exceeds $ 10,000; and

(k) All assets which are shown to be pledged as security for loans or mortgages shall be excluded from countable resources.

(30) Scaled adoption records- The adoption record which had been prepared or compiled by the clerk or Judge of the court where the adoption petition was filed, by the Department, or a licensed child-placing agency, concerning an adopted person or a person placed for adoption as the record exists subsequent to the entry of an order of adoption or subsequent to the entry of an order of dismissal of the adoption petition. Such record and the information therein shall be confidential and shall be opened only as provided in this part. Information relating to the counseling of a biological mother regarding crisis pregnancy counseling shall not be included in the adoption record for purposes of release pursuant to this part without a court order pursuant to T.C.A. § 36-1-138.

(31) Sealed or closed record- The record of an adoption finalized prior to March 16, 1951 as defined in paragraph (18), or which record was maintained at anytime by the Tennessee Children's Home Society, and which records are now maintained by the court, the Department or any of its offices, the Department of Health, or which is maintained by any other information source, and which records have been maintained in a manner which, prior to the passage of House Bill 406 (1995), has prohibited access to the record by any eligible person. This term shall also include any record which has been created by the Department to maintain any records of an adoption finalized prior to March 16, 1951 as defined in paragraph (18) or which has been created by die Department to maintain any records from the Tennessee Children's Home Society and which have, prior to the passage of House Bill 406 (1995), been maintained in a manner which has prohibited access to the record by any eligible person.

(32) Sibling -Anyone having a sibling relationship.

(33) Sibling relationship- The biological or legal relationship between persons who have a common biological or legal parent.

(34) Unit of Service- As used in this Chapter, a unit of service shall consist of the process required to open each record necessary to fulfill the request for search services. A unit of service shall also include the search for records not held by the Department for each person for whom the request is made. The fee for service charged pursuant to Section 0250-7-7-.04 shall be applied to each unit of service as stated in Section .04.

(35) Verification- The process of determining the correct identity and relationship of a person who seeks to obtain access to any adoption records, sealed records, sealed adoption records, or post adoption records and shall include any information contained in paragraph 37, and may include any other information satisfactory to the Department necessary to determine the person's status as an eligible person.

(36) Written request- An inquiry made in writing by a potentially eligible person or their legal representative seeking access to the records of an adopted person. Such request must be by letter with the original signature of the person making the request and shall include the following:

(a) Name, date of birth, address and telephone number of the person requesting service;

(b) Information, including legal documents or affidavits which establishes the person's legal relationship to a person involved in the adoption (adopted person 21 years of age or older, birth/adoptive/legal parent of the adopted person, siblings, lineal descendants, or lineal ancestors of the adopted person or legal representative of the requesting party), or which otherwise establishes the person's right to request access.

(c) Any other information the Department requires to establish the person's identity;

(d) If the information in the written request does not establish the person's right to have access to the records, the Department will search the sealed adoption records and post adoption records, including those of other alleged siblings, if available, for information which may establish the person's right to have such access as an eligible person.

Notes

Tenn. Comp. R. & Regs. 0250-07-07-.02

Original rule filed September 29, 1993; effective December 13, 1993. Repeal and new rule filed December 14, 1995; effective February 26, 1996. Rule assigned a new control number, removed and renumbered from 1240-7-7-.02 filed and effective March 25, 1999. Amendment filed September 7, 2001; effective November 21, 2001.

Authority: T.C.A. §§ 4-5-202, 4-5-226(b)(2), 36-1-101 et seq., 36-1-102, 36-1-127, 36-1-141(a) and (d), 37-5-101, 37-5-105, 37-5-106, 37-5-112(a), and Public Acts of 1995, Chapter 532, House Bill 406.