Discovery Rule Won’t Toll Deadline for Revoking Surrender of Parental Rights in Memphis, Tennessee Adoption: In re Carlee A.

February 9, 2022 K.O. Herston 0 Comments

Facts: Convoluted procedural histories are common in parental-termination cases, and this case is no exception. Fortunately, I’ll only give you what is necessary to understand the one thing I think you ought to know about this case.

Child was born to unmarried parents. Mr. Smith executed a voluntary acknowledgment of paternity.

Child was adjudicated dependent and neglected and the victim of severe abuse. Custody was awarded to Mr. Smith and his parents.

DNA testing later revealed that Mr. Smith was not Child’s biological father.

Because of their advanced age, Mr. Smith’s parents placed Child for adoption and chose Bethany Christian Services (“BCS”) as the adoption agency. Mr. Smith’s parents took part in selecting adoptive parents and ultimately selected Mr. and Mrs. A because they and BCS gave assurances that Mr. Smith’s parents could remain in Child’s life after the adoption in a role like traditional grandparents.

Mr. Smith surrendered his parental rights, guardianship was awarded to BCS, and physical custody of Child was placed with Mr. and Mrs. A.

Mother’s parental rights were terminated along with any putative or unknown father.

Shortly after that, Mr. Smith’s parents received a letter from BCS directing them to cease all communication with Mr. and Mrs. A and Child.

A few weeks later, Mr. and Mrs. A adopted Child.

Mr. Smith sought to revoke the surrender of his parental rights on grounds of fraud after the deadline expired for doing so. The trial court rejected his argument that the discovery rule should extend his deadline for revoking his surrender.

Mr. Smith appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Tennessee law provides that a person who surrenders their parental rights may revoke the surrender within three calendar days. After the three-day period has expired, a surrender of parental rights cannot be set aside by a court absent clear and convincing evidence of duress, fraud, or intentional misrepresentation, and only then if the action to revoke the surrender is initiated within 30 days of the surrender.

Here, Mr. Smith did not start the action to revoke the surrender within 30 days. He argued the discovery rule should apply to toll the running of the 30 days until the fraud is discovered.

The discovery rule provides that the statute of limitations starts running when the injury is discovered, or in the exercise of reasonable care and diligence, the injury should have been discovered.

The Court held the discovery rule does not apply to toll the statutory deadline for revoking a surrender of parental rights:

Even assuming arguendo that the 30-day period set forth in Tennessee Code Annotated § 36-1-112 would be considered a statute of limitations, we find no basis for applying the discovery rule.

Looking first at the statutory language, it plainly states that “[n]o surrender may be revoked by the person surrendering the child or set aside by a court after the expiration of the three-day period except as the surrender may be invalidated by court order entered pursuant to a timely filed complaint filed pursuant to subsection (c) or as permitted by order of the court….” Subsection (c) then states unequivocally:

after the revocation period has expired …, no surrender … shall be set aside by a court except upon clear and convincing evidence of duress, fraud, intentional misrepresentation …, and no surrender … may be set aside for any reason under this part unless the action based on these grounds is initiated within 30 days of the execution of the surrender….

This language leaves no room for application of the discovery rule….

Consideration of the policies furthered by application of the discovery rule against the legitimate policies upon which statutes of limitations are based leads to the same conclusion. In the field of surrender and adoption, the need to prevent undue delay in bringing suits is of the utmost importance. … A “primary purpose” of Tennessee’s adoption statutes is to ensure that adoption proceedings are held in an expeditious manner to enable the child to achieve permanency, consistent with the child’s best interests, at the earliest possible date…. At the same time, the need to protect biological parents [] of children from decisions concerning the relinquishment of their parental [] rights to their children [] that might be made as a result of undue influence or fraud is designated as a “secondary purpose” of the adoption statutes.

In § 36-1-112, the legislature expressly considered the possibility “duress, fraud, [or] intentional misrepresentation[] but yet chose to impose a strict 30-day time period for seeking to set aside a surrender “based on these grounds.” Applying the discovery rule would indefinitely extend the time period for setting aside a surrender and undermine the primary purposes of the adoption statutes. Therefore, we find no basis for applying the discovery rule to toll the 30-day period for seeking to set aside a surrender based on fraud.

Finding that Mr. Smith’s petition to revoke his surrender was untimely and properly dismissed by the trial court, the trial court’s judgment was affirmed.

In re Carlee A. (Tennessee Court of Appeals, Western Section, January 26, 2022).

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Discovery Rule Won’t Toll Deadline for Revoking Surrender of Parental Rights in Memphis, Tennessee Adoption: In re Carlee A. was last modified: February 7th, 2022 by K.O. Herston

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