Section 0250-07-12-.05 - PROCEDURES FOR ACCESS TO RECORDS:(1) When a request is made by an adopted person or a person for whom adoption records, sealed records, sealed adoption records or post-adoption records of an adoption or attempted adoption of such person are maintained, the Department will make a determination of eligibility as set forth in Section 0250-7-12-.04 above and shall require the requesting party to sign the sworn statement acknowledging the restrictions on contact with persons who are eligible to file or who are protected by a contact veto or who may otherwise be protected from contact without their written consent.(2) If after review of all available information the Department is unable to verify the adoptive status of an individual or the relationship of biological or legal relatives, no access to records, no authorization for contact and no transmittal of information as permitted by this Chapter will be authorized.(3) If relationship, verification of identity, or other facts necessary to permit access to the records cannot be determined from any information made available to the Department or if other circumstances pursuant to these rules, including denial of a fee waiver, require, then the person requesting access shall be notified by the Department that access to the records has been denied. The requesting person shall be notified of the basis for denial of access in writing and the person may request a fair hearing pursuant to the Department's rules.(4) Prior to the release of any records to an eligible person, written notification will be given to a person registered on the Advance Notice Registry, who is identified in the adoption record, sealed record or sealed adoption record. A period of notice will be given 15 days prior to release of records.(a) Persons eligible to register with the Advance Notice Registry include those persons eligible for access to records pursuant to § TCA 36-1-127(c).(b) To be registered with the Advanced Notice Registry, an eligible person must notify the Department in writing on a form provided by the Department, provide satisfactory proof of identity and pay the fees in accordance with 0250-7-12-.07 or be determined eligible for a fee waiver in accordance with 0250-7-12-.07.(c) A person whose name is entered in the Advance Notice Registry shall advise the Department any change in the person's address. Such notice must be in writing to the Department.(5) If the requesting person seeks contact with any persons eligible to file a contact veto, the Department shall search the Contact Veto Registry pursuant to Section 0250-7-12-.06 to determine the status of contact vetoes.(6) If consent for contact is shown from the Registry records or is given by the person with whom contact is sought either by withdrawing or varying the veto, or if the adopted person or a person for whom records are maintained as described in T.C.A. § 36-1-127(c)(1)(A), or their legal representative, give permission for contact or for release of identifying information, the department shall, upon satisfactory proof of identity of the person who wishes to file a written withdrawal or variance of the contact veto and in conformity with the consent or the varied veto, notify the person making the original request of this fact and shall provide such information as may be available to establish contact or shall provide such identifying information as may be released from any record in conformity with this part by the adopted person or a person for whom records are maintained as described in T.C.A. § 36-1-127(c)(1)(A), or their legal representative.(7) If the contact veto remains intact, or if the adopted person or a person for whom records are maintained as described in T.C.A. § 36-1-127(c)(1)(A), or their legal representative, refuse contact or refuse to release identifying information, the person making the request for contact or information may place his or her name, address, and telephone number in the registry to request notification from the department should the contact veto be varied or withdrawn or permission for release of identifying information be given, or such requesting person may, in writing, permit the department to release his or her name, address, and telephone number to the person who had entered the contact veto or who had denied contact or who had denied the release of identifying information, and that person may contact the requesting person at his or her discretion without further involvement of the Department.(8) If the person with whom contact is sought is not registered with the Contact Veto Registry, the Department shall conduct a diligent search for such person. Such search shall be based upon information contained in the sealed records, sealed adoption records, or post-adoption records or such other information as may be made available to the Department.(9) If after the diligent search , the person being sought cannot be located, the diligent search efforts will be reviewed by the Program Manager for Post Adoption Services. Such review shall include, but not be limited to, a review of the information contained in the sealed records, the sealed adoption record(s), the post adoption records and any other available information source used by the Program Specialist or Case Manager in conducting the diligent search. The Program Manager will ensure that, in the Department's discretion, all leads have been thoroughly exhausted prior to the search efforts being shared with the person to whom service is being rendered.(10) After the completion of a diligent search and notification to the person sought of the inquiry and the Department's determination of relationship to the requesting party, the person sought will be given ninety (90) days from the date written notice is sent by the Department to submit the Contact Veto Registry form with the fee to register their desires for contact with the Contact Veto Registry.(11) If the no contact statement is timely and effectively filed as required by Section 0250-7-12-.06, the person requesting contact shall be notified and no contact will be permitted. If the no contact statement is not timely and effectively filed, then the requesting party shall be notified and there will be no further restrictions on the requesting party for contact with the person sought, unless such person is an adopted person or a person for whom records are maintained as described T.C.A. § 36-1-127(c)(1)(A) or unless such person is a person for whom an automatic veto applies pursuant to T.C.A. § 36-1-130(a)(6)(A)(I). Written notice shall be effective upon the date the notice is sent.(12) If a request is made under this Chapter to have contact with an adopted person or person for whom records are maintained as described in T.C.A. § 36-1-127(c)(1)(A) by an eligible parent, sibling, lineal descendant, or lineal ancestor of such person or the legal representative of the requesting party under this provision, the department will make a diligent effort to contact the adopted person or person for whom records are maintained as described in T.C.A. § 36-1-127(c)(1)(A), or such person's legal representatives, based upon information contained in any records which it maintains or based upon any information which it is given by the parent, sibling, lineal descendant, or lineal ancestor of such person or the legal representative of those persons. The Department shall determine if the adopted person or person for whom records are maintained as described in T.C.A. § 36-1-127(c)(1)(A) who is twenty-one (21) years of age or older, or such person's legal representative wishes to permit contact or wishes to release identifying information. They may then give the Department written direction relative to the desire for contact or for the extent of identifying information such person wishes to release.(13) If permission is given by the adopted person or a person for whom adoption records, sealed records, sealed adoption records or post-adoption records of an adoption or attempted adoption of such person are maintained, the Department will require the requesting person or such person's legal representative, to sign the sworn statement concerning restrictions on contact or use of any identifying information permitted or allowed to be released under this Chapter.(14) Any Tennessee courts, the Tennessee Department of General Services or Health, licensed child-placing agencies, or licensed clinical social worker, who are requested by any eligible person for access to records must receive authorization for release of information from the Post Adoption Unit of the Department; provided this shall not be construed to preclude the opening of such records by court order as provided by law.(15) When the adopted person's birth was the result of rape or incest the biological mother must consent to the release of the records or information contained in the records.(16) If an adopted person is deceased or is disabled as defined for purposes of appointment of conservator under Title 34 of the Tennessee Code Annotated, the lineal descendants may petition the court pursuant to T.C.A. § 36-1-138(c)(7), to be given access to the records of such person. A lineal descendant given access to records under that provision is subject to all the requirements of the Contact Veto process.(17) The requesting person will only have access to information which is a part of the adoption records, sealed records, sealed adoption records and post-adoption records at the time access to the records is allowed. Any information placed in the post-adoption records after access to the records and as a result of a diligent search will be sent to the requesting person at the conclusion of the diligent search and provision of service. Any information placed in the post adoption record subsequent to sending the information gathered as a result of the diligent search and provision of service will only be made available upon subsequent written request and payment of the fee by the requesting person.(18) The post-adoption unit staff will review all records prior to their release to the adopted person or other eligible persons to determine eligibility of the person requesting to have access.(19) When review of the record reveals that information in the records pertains to other individuals not a party to the adoption or placement of, or maintenance of a record about, an adopted person, or other eligible persons requesting the records, and the review demonstrates to the Department that the record has apparently been misfiled, that information will be reviewed by the Director of Adoptions and such information will be removed and filed in the correct adoption record, sealed record, sealed adoption record or post-adoption record or in a new sealed record created for the holding of such information.(20) Home studies pertaining to adoptive parents will be removed from the sealed records or sealed adoption records prior to the review and/or copying of the record for the eligible person. Information relating to the counseling of a biological mother regarding crisis pregnancy counseling will be removed from the sealed records or sealed adoption records prior to the review and/or copying of the record for the eligible person.(21) Verification: (a) Records will be opened by the Department to determine the adoptive status of the adoptive person and the relationship of the adopted person and other legal and biological relatives requesting access to the records. Information in the record must verify or substantiate the information supplied by the person sought or the requesting person.(b) Proof of relationship must be shown by satisfactory evidence to the Department.(c) If after review of all available information the Department is unable to verify the adoptive status of an individual or the relationship of biological or legal relatives, or the status of any legal representative, no access to record, no authorization for contact or no transmittal of information will be authorized.(22) Distribution of photographs and letters/cards:(a) Any photographs or letters/cards addressed to a specific individual contained in the sealed records or sealed adoption records and Post-Adoption Records shall be given to the adopted person or person to whom the letter is addressed who requests access to the record. Photocopies of such pictures/letters/cards shall be made for the sealed record, sealed adoption record, or post-adoption record, and a notation will be made in the sealed record, the sealed adoption records, and in the post-adoption records stating to whom the photographs/letters/cards were given and the date such original photographs/letters/cards were removed from the record.(b) In the event the adopted person is deceased, the original photographs will be given to the lineal descendant who first receives a copy of the record by court order pursuant to T.C.A. § 36-1- 138(c)(7). Photocopies of the photographs/letters/cards will be made and preserved as stated in subparagraph (a) above.
(23) Procedure when no sealed record or sealed adoption record exists under the supervision of the Department:(a) When no sealed record or sealed adoption record is on file with the Department, the identity of the person making the request for access to a record in any information source must be verified and the person determined to be eligible to have access to the record. The eligible person must identify the Tennessee court believed to have granted the adoption or which had jurisdiction of the adopted person's adoption proceeding and/or the Tennessee licensed or chartered child-placing agency which had made the placement of the adopted person or which had maintained the person's record.(b) If the Tennessee agency is no longer in existence the Department will not conduct a search for the record of that agency, unless information is provided to the Department which will enable the Department to locate the record.(c) When the request for access to a record or contact with an eligible person is made by a biological relative and no sealed record or sealed adoption record is on file with the Department, the person making the request must provide information such as the individual's full name, date of birth, county of birth, full names of individual's parents, and/or the Tennessee licensed or chartered child-placing agency with whom the birth parent(s) had received service.(d) When a request for service is received and Department has no sealed record or sealed adoption record, the person requesting the service will be notified. This notification will explain the services available to search for a record, any additional information which may be needed for the search, and the fee for the service.(24) Those persons who, according to the post-adoption file, have received a copy of their sealed record or sealed adoption record by court order, but have not had access to the post-adoption record and/or wish to receive a letter of authorization for information from any other information sources, will be notified of the services available and the procedures necessary to access the record, and the fee for such service. For those eligible persons who have received all records, including sealed records, sealed adoption records, and post-adoption records, and who are only requesting a letter of authorization, such letter of authorization will be provided to such persons. No authorization for a release of information from any other information sources will be provided by the Department until the fee for service has been received or the fee waiver request has been granted or the fee waived as otherwise provided herein.(25) All courts and agencies which are discovered not to have sent to the Department information which should be a part of the sealed record or the sealed adoption record after March 16, 1951 and prior to the effective date of these rules will be asked to send such information within sixty (60) days of the request for such documents.(26) Notification of certain persons: (a) Age1. Any notification required to be made as part of a search or a contact or an identifying information request pursuant to this part for an adopted person or a person for whom records are maintained as described under T.C.A. § 36-1-127(c)(1)(A) shall be made with such persons who are twenty-one (21) years of age or older, or with the legal representative of such persons.2. Any notification for search or contact requests involving the biological or legal relative, who is under twenty-one (21) years of age, of the adopted person or person for whom records are maintained as described under T.C.A. § 36-1-127(c)(1)(A), shall be with the parents or legal representative of such biological or legal relative; and, or;3. Any notification involving any other persons who are subject to contact for search requests or contact requests under this part shall be made with those persons who are twenty-one (21) years of age or older or with the known legal representative of any such persons.4. If the person sought is stated to be under twenty-one (21) years of age, the person filing on the Registry for this minor must submit proof of the minor's age and relationship of the filer. Contact will not be made with a person under twenty-one (21) when verification has been provided to establish that this person is under twenty-one (21).(b) Any decision to permit contact or to permit the disclosure of information authorized by this part to be disclosed under subsection (a) shall be made, as the case may be:1. By the adopted person or a person for whom records are maintained as described under T.C.A. § 36-1-127(c)(1)(A) in subdivision (a)(i) twenty-one (21) years of age or older, or their legal representative; or2. By the parents or by the legal representative of the biological or legal relative in subdivision (a)(ii), who is under twenty-one (21) years of age, of the adopted person or person for whom records are maintained as described under T.C.A. § 36-1-127(c)(1)(A).3. By those other persons in subdivision (a)(iii) who are twenty-one (21) years of age or older or by the known legal representative of any such persons.4. Incompetent Persons: (i) If a person is alleged to be incompetent, legal proof that the person has been declared incompetent must be provided to the Department along with legal documents verifying the person who has been appointed Power of Attorney, Guardian, or Conservator. This legally appointed person will act in filing the Contact Veto Registry on behalf of the incompetent person.(ii) If a person is alleged to be incompetent but there has been no legal action to establish incompetency and there is no legal representative to act in their behalf, the Department will make every effort to communicate with the person verbally or in writing to establish identity. Once identity of the alleged incompetent person is established, the Department will send the Contact Veto Registry form to that person.(iii) If identity of the alleged incompetent person cannot be established and there is no legal representative to act in their behalf, the Department must notify the person who has sought contact that the person with whom contact is desired was not located.(27) When all records have been reviewed by the eligible person and any copies made, the record will be returned to the information source; provided, however, the Department will make copies, if necessary, of all records which are not maintained by the Department or the Department of General Services, for future reference. The Department will establish a sealed record or a sealed adoption record to maintain the information it receives as a result of such circumstance.Tenn. Comp. R. & Regs. 0250-07-12-.05
Original rule filed October 26, 2001; effective January 9, 2002.Authority: T.C.A. § 36-1-101 et seq., Public Chapter 1079, §13 (1996), Public Chapter 1068 (1996), and Public Chapter 1054 (1996).