Does Tennessee's Department of Children's Services have any say in which attorney prospective adoptive parents use when seeking federal adoption-assistance reimbursement?

Subject

Opinion No. 14-57, Role of DCS in the Selection of an Attorney Under Adoption Assistance Program, May 20, 2014

Plain-English summary

Nolan Goolsby (President of the Tennessee Council of Juvenile and Family Court Judges) asked whether the Department of Children's Services (DCS) has any proper role in the adoptive parents' choice of attorney when those parents seek reimbursement for legal fees under the federal Fostering Connections to Success and Increasing Adoptions Act of 2008. The AG said no.

The 2008 Federal Act amended Title IV-E adoption-assistance eligibility (42 U.S.C. § 673) to provide incentives for adoption of children with special needs. DCS administers Title IV-E Foster Care and Adoption Assistance for Tennessee under Tenn. Code Ann. § 37-5-106(12). Reimbursable items include a one-time adoption expense, medical benefits, and monthly payments, with the one-time expense including up to $1,000 in attorneys' fees (DCS Admin. Policies and Procedures 15.11(N)(5)(a)).

Two clear statutory and policy points control. First, nothing in DCS's policies and procedures contemplates DCS having a role in the parents' attorney selection. Second, Tenn. Code Ann. § 36-1-108(d)(2) prohibits DCS from recommending an attorney or other adoption-related service provider to prospective adoptive parents. The 2008 Federal Act, at 42 U.S.C. § 673(a), neither requires nor authorizes DCS to vet or pick the parents' attorney as a precondition for nonrecurring-expense reimbursement.

The single eligibility criterion for reimbursement of legal fees is whether the child meets the definition of "special needs" (DCS Admin. Policies and Procedures 15.11(N)(4)). Reimbursement is processed upon submission of proper documentation and itemization after the adoption is final (15.11(O)).

The opinion preserves a separate informational role for DCS. Tenn. Code Ann. § 36-1-108(d)(1), (2), and (5) authorize DCS to collect and provide prospective parents with information about persons and entities (including attorneys) employed to assist in adoption placements. Providing a list or factual information is different from recommending a specific attorney or conditioning reimbursement on choice of counsel.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What did the 2008 Federal Act do?

It amended Title IV-E adoption assistance to expand incentives for the adoption of children with special needs. The reimbursement of nonrecurring adoption expenses, including legal fees up to a state-defined cap, is the relevant feature for this opinion.

What is a "child with special needs"?

The definition is federal and state-derived. DCS Admin. Policies and Procedures 15.11(N)(4) sets out the criteria. Typical factors include age, ethnic or racial background, sibling-group considerations, and physical, mental, or emotional disabilities that make the child difficult to place.

What is the cap on legal-fee reimbursement?

DCS's policy at 15.11(N)(5)(a) sets the legal-fee cap at $1,000 in the one-time adoption expense category. The opinion is from 2014; the current cap should be verified against DCS's current administrative policies.

Why can't DCS recommend or restrict the parents' choice of attorney?

Tenn. Code Ann. § 36-1-108(d)(2) directly prohibits DCS from making such a recommendation. Adoption representation involves the prospective parents' personal legal interests and choice of counsel, which the legislature has reserved to them.

Can DCS give parents a list of attorneys?

Yes. § 36-1-108(d)(1), (2), and (5) authorize DCS to collect information about persons and entities (including attorneys) involved in adoption placements and to provide that information to prospective parents. The distinction is between a factual list and a personalized recommendation.

What documentation is needed for reimbursement?

Per 15.11(O), proper documentation and itemization of expenses must be submitted after the adoption is final. The opinion does not specify the precise forms but DCS's policy manual sets them out.

Does this apply only to public-agency adoptions or also to private adoptions?

The opinion focuses on Title IV-E adoption assistance, which is keyed to the special-needs status of the child rather than the placement agency. Both public-agency and private adoptions can qualify if the child meets the special-needs criteria and other Title IV-E eligibility conditions are met.

Background and statutory framework

Title IV-E of the Social Security Act funds state foster-care and adoption-assistance programs. The federal Fostering Connections Act of 2008 expanded those incentives, particularly for special-needs adoptions. DCS implements Tennessee's program under Tenn. Code Ann. § 37-5-106(12), with the operational rules in the DCS Administrative Policies and Procedures manual at section 15.11.

Tennessee's adoption-assistance framework keeps DCS in an information-and-administration role. § 36-1-108(d) gives DCS authority to gather and share factual information about adoption service providers but prohibits recommendations of specific providers. That structural separation, combined with the federal law's silence on attorney selection, leaves the choice of counsel to the parents.

Citations

• 42 U.S.C. § 673 (Title IV-E adoption assistance)
• 42 U.S.C. § 673(a) (nonrecurring adoption expense reimbursement)
• Tenn. Code Ann. § 36-1-108(d)(1) (DCS authority to collect information on adoption service providers)
• Tenn. Code Ann. § 36-1-108(d)(2) (DCS prohibited from recommending specific adoption service providers)
• Tenn. Code Ann. § 36-1-108(d)(5) (DCS authority to share information with prospective parents)
• Tenn. Code Ann. § 37-5-106(12) (DCS administers Title IV-E programs)
• DCS Admin. Policies and Procedures 15.11 (adoption assistance program)
• DCS Admin. Policies and Procedures 15.11(N)(4) (special-needs eligibility for reimbursement)
• DCS Admin. Policies and Procedures 15.11(N)(5)(a) ($1,000 legal-fee reimbursement cap)
• DCS Admin. Policies and Procedures 15.11(O) (post-finalization reimbursement documentation)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-057.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 20, 2014
Opinion No. 14-57
Role of DCS in the Selection of an Attorney Under Adoption Assistance Program

QUESTION

Does the Department of Children's Services (DCS) have a proper role in the selection of an attorney by prospective adoptive parents when the adoptive parents will be seeking reimbursement of the attorney's fee under the federal Fostering Connections to Success and Increasing Adoptions Act of 2008?

OPINION

No.

ANALYSIS

The federal Fostering Connections to Success and Increasing Adoptions Act of 2008 ("2008 Federal Act") amended the eligibility requirements for assistance under the federal Title IV-E Adoption Assistance program, providing incentives to encourage the adoption of children with special needs. See 42 U.S.C. § 673. DCS has authority to administer the Title IV-E Foster Care and Adoption Assistance Program. Tenn. Code Ann. § 37-5-106(12). Adoption assistance under this program can include the reimbursement of a one-time adoption expense, medical benefits, and monthly payments. DCS Admin. Policies and Procedures 15.11. The one-time adoption expense for which adoptive parents may be reimbursed may include up to $1,000 in attorneys' fees. Id. 15.11(N)(5)(a).

But nothing in DCS's policies and procedures contemplates that DCS would have a role in the selection of the adoptive parents' attorney, and no provision of federal or State law authorizes it to do so. DCS may not recommend an attorney or other adoption-related service provider to prospective adoptive parents. Tenn. Code Ann. § 36-1-108(d)(2). The 2008 Federal Act does not authorize or require DCS to select the attorney of prospective parents as a requirement for reimbursement of nonrecurring expenses incurred in the adoption of a child with special needs. See 42 U.S.C. § 673(a). The only criterion considered for eligibility for reimbursement of nonrecurring expenses of an adoption, such as legal fees, is whether the child meets the definition of special needs. DCS Admin. Policies and Procedures 15.11(N)(4). Reimbursement of legal expenses will be made upon submission of proper documentation and itemization of expenses once the adoption is final. Id. 15.11(O).

DCS is authorized to collect information regarding persons and entities, including attorneys, employed to assist in the placement of children and to provide such information to prospective parents. Tenn. Code Ann. § 36-1-108(d)(1), (2), (5).

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

RYAN L. MCGEHEE
Assistant Attorney General

Requested by:
The Honorable Nolan R. Goolsby
TCJFCJ President
511 Union Street, Suite 600
Nashville, Tennessee 37219