TPR Back in Effect
April 20, 2016 § 3 Comments
Governor Bryant signed HB 1240, which revised the statutes providing for termination of parental rights (TPR). You can read the full text of the bill here. The new law is in effect now.
You will recall that this revision in the law of TPR was made necessary by the MSSC’s decision in the May 21, 2013, case of Chism v. Bright, which in effect ruled that the old statute could not be used in a private (non-DHS) TPR case. A post on the case is here.
The Better Chancery Practice Blog 
Whenever I serve as a GAL in a voluntary TPR I make it short and sweet. The solution, absent legislative intervention, to GAL costs in voluntary TPR cases is for the Court’s order to require the GAL to meet the bare minimum standards.
Just my $.02, but I wish they didn’t require a GAL in voluntary TPR’s. When doing a private adoption, and the parents are voluntarily surrendering their child to be adopted by another, requiring a GAL is now another expense to be added to the adopting family…which already can be astronomically high.
I view §93-15 and §93-17 as two totally separate procedural mechanisms for relief. Even before the revision, I’ve always thought of 93-15 as the “standalone TPR statue.” The only relevance 93-15 had for me before revision was the applicability of the (what used to be) 93-15-103 factors for termination as incorporated by (what used to be) 93-17-7(2)(e). So even when 93-15 was specifically invoked in a pleading, it was only by way of 93-17-7.
The way I read the statutes, the voluntary release in the new 93-15-11 is unrelated to adoption (unless you’ve anticipated objection from the defendant before filing and have requested relief under both 93-17 and 93-15). 93-17-5(1) states that a necessary party may consent to the adoption proposed in the petition, and 93-17-8(5) states that appointment of a GAL in an adoption is only required when an adoption becomes contested or as needed for an abandoned child. Assigning any applicability of 93-15-111 to an agreed adoption throws 93-17-5, 93-17-8(1)(b), and 93-17-8(5) into procedural discord.
I interpret the last few lines of 93-17-13(2) regarding effect of the final decree— “all parental rights of the natural parent, or parents, shall be terminated, except as to a natural parent who is the spouse of the adopting parent”— to be analogous to the last line of 93-9-9 in the paternity statute… “In the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.” Parties don’t have to plead for name change in that case; it’s just an effect of the decree as a matter of course.
My question about GAL appointments is: When does an adoption become “contested” pursuant to 93-17-8 such that a GAL is required? 93-17-8(3) and 93-17-6(5) reference the “objecting parent.” Is actual objection required for 93-17-8(1)(b) to kick in, or is mere failure of the parent(s) to execute a consent form after being properly served enough to trigger the mandatory appointment of a GAL pursuant to 93-17-8(5)?
At least the new TPR statute is clear— if you’re seeking relief under 93-15, whether by itself or as a preliminary matter preceding an adoption, the court must appoint a GAL. Doesn’t matter if it’s contested or agreed or anything in between. 93-17, on the other hand, leaves me wondering: If I file a petition for determination of rights pursuant to 93-17-6 as part of a cause of action for adoption and get the biological father (usually out of the picture for the last five+ years) served, but he doesn’t show up or file an answer, do I get to proceed with the adoption? Or does his failure to consent (even if he also fails to actively object) mean I’ve got to then pursue relief under 93-15-119 as described in 93-17-6(5) before I can get on with the adoption?
My take on it based on the plain language of the statute is, “if they don’t object, they don’t object… no GAL required.” However, I’ve had different chancellors go opposite ways on this issue when presented with identical fact scenarios of parents neither consenting nor objecting. I guess that’s where all that discretionary power comes in.