(a)

Attorney's Note

Under the Tennessee Code, punishments for crimes depend on the classification. In the case of this section:
ClassPrisonFine
class A misdemeanorup to 11 monthsup to $2,500
For details, see Tenn. Code § 40-35-111
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Terms Used In Tennessee Code 36-1-108

  • Adoption: means the social and legal process of establishing by court order, other than by paternity or legitimation proceedings or by voluntary acknowledgment of paternity, the legal relationship of parent and child. See Tennessee Code 36-1-102
  • children: means any person or persons under eighteen (18) years of age. See Tennessee Code 36-1-102
  • Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
  • Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
  • court: includes the juvenile court for purposes of the authority to accept the surrender or revocation of surrenders of a child and to issue any orders of reference, orders of guardianship, or other orders resulting from a surrender or revocation that it accepts and for purposes of authorizing the termination of parental rights pursuant to §. See Tennessee Code 36-1-102
  • Department: means the department of children's services or any of its divisions or units. See Tennessee Code 36-1-102
  • Foster care: has the meaning given to that term in §. See Tennessee Code 36-1-102
  • Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Licensed child-placing agency: means any agency operating under a license to place children for adoption issued by the department, or operating under a license from any governmental authority from any other state or territory or the District of Columbia, or any agency that operates under the authority of another country with the right to make placement of children for adoption and that has, in the department's sole determination, been authorized to place children for adoption in this state. See Tennessee Code 36-1-102
  • Licensed clinical social worker: means an individual who holds a license as an independent practitioner from the board of social worker certification and licensure pursuant to title 63, chapter 23, and, in addition, is licensed by the department to provide adoption placement services. See Tennessee Code 36-1-102
  • parents: means any biological, legal, adoptive parent or parents or, for purposes of §. See Tennessee Code 36-1-102
  • Person: includes a corporation, firm, company or association. See Tennessee Code 1-3-105
  • Prospective adoptive parents: means a nonagency person or persons who are seeking to adopt a child and who have made application with a licensed child-placing agency or licensed clinical social worker or the department for approval, or who have been previously approved, to receive a child for adoption, or who have received or who expect to receive a surrender of a child, or who have filed a petition for termination or for adoption. See Tennessee Code 36-1-102
  • Related: means grandparents or any degree of great-grandparents, aunts or uncles, or any degree of great-aunts or great-uncles, or stepparent, or cousins of the first degree, or first cousins once removed, or any siblings of the whole or half degree or any spouse of the above listed relatives. See Tennessee Code 36-1-102
  • State: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
  • written: includes printing, typewriting, engraving, lithography, and any other mode of representing words and letters. See Tennessee Code 1-3-105
(1) No person, corporation, agency, or other entity, except the department or a licensed child-placing agency or licensed clinical social worker, as defined in § 36-1-102, shall engage in the placement of children for adoption; provided, that this section shall not be construed to prohibit any person from advising parents of a child or prospective adoptive parents of the availability of adoption, or from acting as an agent or attorney for the parents of a child or prospective adoptive parents in making necessary arrangements for adoption so long as no remuneration, fees, contributions, or things of value are given to or received from any person or entity for such service other than usual and customary legal and medical fees in connection with the birth of the child or other pregnancy-related expenses, or for counseling for the parents and/or the child, and for the legal proceedings related to the adoption.
(2) Only a licensed child-placing agency, as defined in § 36-1-102, a licensed clinical social worker, as defined in § 36-1-102, prospective adoptive parents, or a lawyer who is subject to the Tennessee supreme court rules regarding lawyer advertising may advertise for the placement of children for adoption in this state. In order to advertise for the placement of children for adoption in Tennessee, out-of-state licensed child placing agencies, licensed clinical social workers or lawyers must:

(A) Be authorized to do business in this state under respective licensing laws; and
(B) Maintain a physical office within this state or incur expenses involved in the transportation of a licensing consultant to the closest physical office of the agency, social worker or lawyer.
(3) Any advertisement in this state for the placement of children for adoption in another state by an agency or individual not licensed or authorized to do such business in this state must clearly disclose on any advertisement in this state for the placement of a child or children for adoption, the name of the government authority by which they are licensed, and that they are not licensed by the state of Tennessee. The disclosure must be in a form similar to “(Person/Entity) is (a child-placing agency/an attorney/a clinical social worker) licensed by (government authority). Not licensed in Tennessee.”.
(4) It is unlawful for an adoption facilitator to operate in this state, advertise their services within the boundaries of this state, or provide services to any resident of this state including, but not limited to, prospective adoptive parents or parents considering placing their child, whether born or not yet born, for adoption.
(b) “Placement of a child or children for adoption” means, for purposes of this section and § 36-1-109 and for licensing purposes in title 37, chapter 5, part 5, and for § 37-5-507, that a person, corporation, agency, or other entity is employed, contracted, or engaged, in any manner for any remuneration, fee, contribution, or thing of value, of any type by, or on behalf of, any person:

(1) In the selection of prospective adoptive parents for a child by determining the relative qualifications of prospective adoptive parents in a decision by that person, corporation, agency, or other entity to place any child or children, including specifically, but not limited to, the preparation of home studies, preliminary home studies, court reports for surrenders or adoptions, or the provision of supervision of a child in an adoptive home as part of the adoptive process; or
(2)

(A) In the business of arranging services or assistance directed primarily, and not as an incidental part of its primary business, toward bringing to or placing with prospective adoptive parents a child or children for the purpose of foster care leading to adoption or as an adoptive placement for a child or children, including, but not limited to, advertising for such services, accepting clients for a fee, or providing any placing services for a fee;
(B) Nothing in subdivision (b)(2)(A) shall include the provision of reasonable and necessary legal services related to the adoption proceedings, or medical or counseling services for the child or the parent in connection with the child’s birth or in connection with the parent’s decision to relinquish the child for adoption or for counseling services for the prospective adoptive parents.
(c)

(1) Any court of competent jurisdiction, upon the filing of a sworn complaint by the department or by a licensed child-placing agency, or by any person aggrieved, may temporarily enjoin or restrain any person, corporation, agency, or other entity from engaging or attempting to engage in placing children for adoption in violation or in threatened violation of this part or title 71, chapter 3, part 5, and upon final hearing, if the court determines that there has been a violation, or threatened violation, thereof, the injunction shall be made permanent.
(2) If the court finds that any person, corporation, agency, or other entity has engaged in the illegal placement of children for adoption, that person, corporation, agency, or other entity is liable for all the costs of the legal proceedings and for all attorney fees for private persons or private agencies who brought the action, or for the cost of attorney and staff time for the department involved in the proceeding, or for other remedies pursuant to § 29-34-214.
(d)

(1) In order to allow the prospective adoptive parents to have information available to them to permit informed choices regarding the employment of persons or entities involved in the placement of children, or in counseling, or in the provision of legal services, the department shall collect the information concerning fees or other costs charged by licensed child-placing agencies, licensed clinical social workers, attorneys, and counseling services that are disclosed in accordance with §§ 36-1-116(b)(16) and 36-1-120(b).
(2) This information shall be used by the department to develop an informational database in order for the department to provide, upon request of prospective adoptive parents or other interested persons, information concerning fees charged for home studies, placement services, counseling and legal fees. Such information shall be made available by the department in written form to any person so requesting. No employee of the department shall make any recommendation regarding or comment upon any information concerning such attorney, licensed child-placing agency or licensed clinical social worker.
(3) The department is specifically authorized to promulgate rules pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to regulate fees charged by licensed child-placing agencies and licensed clinical social workers or their practices, if it determines that the practices of those licensed child-placing agencies or licensed clinical social workers demonstrate that the fees charged are excessive or that any of the agency’s practices are deceptive or misleading; provided, that such rules regarding fees shall take into account the use of any sliding fee by an agency or licensed clinical social worker that or who uses a sliding fee procedure to permit prospective adoptive parents of varying income levels to utilize the services of such agencies or persons.
(4) The department shall promulgate rules pursuant to the Uniform Administrative Procedures Act to require that all licensed child-placing agencies and licensed clinical social workers provide written disclosures to all prospective adoptive parents of any fees or other charges for each service performed by the agency or person, and file an annual report with the department that states the fees and charges for those services, and to require them to inform the department in writing forty (40) days in advance of any proposed changes to the fees or charges for those services.
(5) The department is specifically authorized to disclose to prospective adoptive parents or other interested persons any fees charged by any licensed child-placing agency, licensed clinical social worker, attorney or counseling service or counselor for all legal and counseling services provided by that licensed child-placing agency, licensed clinical social worker, attorney or counseling service or counselor.
(e)

(1) A person commits an offense who engages or attempts to engage in placing a child or children for adoption in violation of the requirements of this part or title 71, chapter 3, part 5.
(2) A violation of this subsection (e) is a Class A misdemeanor.
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