Adoption

The following provides a brief discussion of the adoption process under Texas Law. As always, each case or situation involves factual or legal twists that might not fit into the following overview. As a result, the following overview does not provide a substitute for discussing your particular case or interest with an attorney.

Overview

Adoption is where one person essentially replaces another person as the lawful parent of a minor child for whatever reason. It is often referred to as the "happy" part of family law because a child who, almost by definition, lacks a willing or capable parent is able to obtain one. Adoption can occur out of several different scenarios. A childless couple might be finally able to adopt a child before that child is even born and then raise it as their own. A relative might want to assume the full parental obligations for a parent who is too young or is otherwise unable to care for a child. Foster parents might seek to adopt a child placed in their home due to abuse or neglect. Step parents might want to adopt step-children as a part of creating a new "Brady Bunch" family group. A non-traditional parental figure might want to adopt a child who has somehow lost a parent. Adoption can even occur in Texas after the adopted person attains adulthood: say, to memorialize a parental relationship with a non-parent. In any event, adoption is an uncommonly wonderful event because one person voluntarily assumes all the rights and responsibilities of raising a child. Although people can (and... often do) become parents "by accident," every adoptive parent does so willingly for no other reward than simply being a parent.

Termination of the Current Parents' Parental Rights

Adoption can happen if and only if the parental rights of the current parent are terminated. The "current parent" in an adoptive situation usually is a biological parent, but that is not always the case: in rare cases, a biological parent can end up "adopting" his or her own child from a different adoptive parent who stepped in for a temporary period of time. Nonetheless, a child may not have more than two parents, and even the parental rights of absentee parents must be terminated before someone can adopt a child. Finally, termination must also be in the child's best interests (not the best interests of one or both parents), whether it be sought on voluntary or involuntary grounds.

Termination of parental rights is a significant legal event that should not be considered or done lightly. Termination essentially "erases" that parent's legal relationship and rights to that child, as if the parent legally does not exist in relation to that child. That parent generally loses the right to visit with the child or to know anything about that child from termination onward, and the child also loses the right to obtain support or care from that parent. As a result, termination should not be considered as a legal strategy to exclude a capable and willing parent out of a child's life. Consequently, you should discuss with your attorney whether other legal arrangements or strategies could be preferable to a full-blown adoption in your situation.

Voluntary Termination

Under the Texas Family Code, the parental rights of a parent may be terminated either voluntarily or involuntarily. Obviously, voluntary termination occurs when a parent voluntarily simply signs his or her rights away for whatever reason. Voluntary terminations occur in cases ranging from something as simple as an agreed adoption prior to birth to a plea agreement to avoid going to a jury trial on an involuntary termination case involving alleged abuse or neglect. Typically, a court must receive assurances that the voluntary termination is done voluntarily, willingly, and with a full understanding of the impact of the decision.

Texas courts generally disfavor voluntarily terminating parental rights without an adoptive parent being available and willing to immediately step into the terminated parent's role. The primary reason is that all parents owe their children a duty of care and support, and even if a parent wants nothing to do with a child, courts generally do not allow a parent to shrug off this obligation unless it is in the child's best interests to do so; and it rarely will be in the child's best interest to voluntarily terminate this duty unless someone else is available to voluntarily undertake that duty of care and support. Because this duty extends for the entire childhood of a minor (18 years or more), courts also do not decide the issue based merely on the current status of each parent because circumstances could change dramatically over 18 years: an infant child might need even a derelict, crack-addicted father 10 years from now after the child's mother passes away and the father has long-since cleaned his life up. Additionally, the duty of support does not "belong" to the parent who primarily cares for the child; it belongs to the child, itself. Even if both parents desire termination of the rights of one or both parents, a court must find that it is in the best interests of the child to terminate parental rights, not the best interests of the parents or prospective parents.

Nonetheless, in circumstances where an adoptive parent is willing and available, or where it is in the child's best interests to terminate a parent's rights for whatever other reason, voluntary termination is an available remedy and is preferable to involuntary termination.

Involuntary Termination

Involuntary termination typically involves circumstances where either abuse, neglect, or abandonment of a child rises to the level where it is in the best interests of a child to terminate that parent's rights as a parent. The Texas Family Code contains at least 23 separate statutory grounds for involuntary termination of parental rights, most of which are fairly common sense: severe abuse, mental illness of a parent, debilitating drug or alcohol abuse, etc . Because parental rights are protected by the United States and Texas Constitutions, involuntary termination is much more complicated than voluntary termination due to the procedural and substantive Constitutional protections afforded to all parents. Additionally, even if a court might find that sufficient statutory grounds exist to involuntarily terminate parental rights, a court might decide to not do so because it would not be in the child's best interest to do so. Involuntary terminations also involve proving that a parent is "unfit," an accusation of which generally creates a rather acrimonious situation. Consequently, voluntary termination is always preferable for adoptive situations.

Involuntary Termination Cases Arising Through CPS/DFPS

Most Involuntary Termination cases arise in the context of a Suit Affecting Parent-Child Relationship" ("SAPCR") filed by the Child Protective Services (CPS) branch of the Texas Department of Family and Protective Services (DFPS) after a report of alleged neglect or abuse of a child. In such cases, the Department usually attempts to provide social services to the biological parents to help resolve the risk of harm to the child: whether it be drug or alcohol treatment, anger management, parenting skills classes, protective parenting skills classes, or more in-depth counseling, training or even schooling to resolve psychological or intelligence problems that inhibit a parent's ability to care for a child. Under Texas law, the Department has one year from filing to either return the children and dismiss the case or to bring the case to an Involuntary Termination trial and prove the allegations and risk of harm to the child(ren). In such cases, prospective adoptive foster parents have the right to intervene in the trial so that they can express their interests and position to the judge or jury. Such foster parents should contact an attorney to discuss the details and

Adoption Process

After the parental rights of the existing parents are terminated, the interested parties may proceed with the adoption process. If necessary, the court will appoint an interim managing conservator for the child while the adoption process is completed, which could be the Department of Family and Protective Services, a private agency, or an individual.

Preliminary Reports

The Texas Family Code contains several reports that must accompany any adoption: 1) a pre-adoptive home screening of the prospective parent; 2) a post-placement adoptive report, 3) a criminal history of the prospective parents; and 4) a social, health, educational, and genetic history report regarding the child. The first three reports basically assure the court that it is not allowing criminals or "bad" people to adopt children. They also assure the court that it is in the best interests of the child to proceed with the adoption. The fourth report is more for the benefit of the child, most specifically to provide the child with health and genetic background information of the biological parents so as to be able to provide preventative medical care or treat health issues later in the child's life. This latter report will be kept on file in a Central Registry for 99 years and may also be edited to protect the identities of the biological parents when necessary.

The court may also order a broader Social Study be conducted into the circumstances and condition of the child and of the home of any prospective parent. The Texas Department of Protective and Regulatory Services often conducts the pre-adoptive home screening report and a social study if required by the court. These requirements can be short-cut if the adoption is done by a step-parent or grandparent or is done through a licensed child-placing agency. You should discuss which reports must be prepared and filed with your attorney.

Final Order

Usually, after the child has been placed with the prospective parent for at least six months and receives assurances that the placement is going well, a court may enter a final order of adoption if it finds that doing so would be in the child's best interest. A court may waive this six-month requirement if it finds that it would be in the child's best interest to do so: say, in an adoption arranged prior to birth of the child.

Adult Adoption

The Texas Family Code also provides for the adoption of an adult. Although this procedure might sound counter-intuitive because an adult by definition does not need a parent to protect and conserve an adult, such adult adoptions often occur to memorialize a step-parent or a parental figure's role in the adult's life. An adult adoption also helps secure inheritance rights between the adoptive parents and the adopted adult. Contrary to a child adoption, and adult adoption also severs inheritance rights between the adult and the biological parent being replaced by the adoptive parent. Because an adult adoption involves less complicated rights and obligations and because adults can presumably make their own decisions, courts generally grant adult adoptions readily so long as the adopted adult consents to the adoption.