Revision as of 19:14, 15 April 2014

Adoption Laws

Consent to Adoption

Who Must Consent to an Adoption Citation: Fam. Code § 162.010

Unless the managing conservator is the petitioner, the written consent of a managing conservator to the adoption must be filed.

If a parent of the child is presently the spouse of the petitioner, that parent must join in the petition for adoption, and further consent of that parent is not required.

Consent of Child Being Adopted Citation: Fam. Code § 162.010

A child who is age 12 or older must consent unless the court finds it in the child’s best interests to waive consent.

When Parental Consent Is Not Needed Citation: Fam. Code §§ 161.001 through 161.007; 162.010

Consent of the parent is not required when:

• The parent is unable to care for the child due to mental illness.
• The parent has voluntarily terminated parental rights.
• The parent has no right of consent after an abortion when the child survives.
• A person is convicted of a crime resulting in the birth of a child.
• The parent’s rights have been terminated on the grounds of abandonment, nonsupport, endangerment, abuse, or neglect.

The court may waive the requirement of consent by the managing conservator if the court finds that the consent is being refused or has been revoked without good cause.

When Consent Can Be Executed Citation: Fam. Code §§ 161.103; 161.106

An affidavit for voluntary relinquishment of parental rights must be signed after the birth of the child but not before 48 hours after the birth of the child by the parent, whether or not a minor, whose parental rights are to be relinquished.

A man may sign an affidavit disclaiming any interest in a child before the birth of the child.

How Consent Must Be Executed Citation: Fam. Code §§ 161.103; 161.106

An affidavit for voluntary relinquishment of parental rights must be signed by the parent, whether or not a minor, whose parental rights are to be relinquished, witnessed by two credible persons, and verified before a person authorized to take oaths. The affidavit must contain:

• The name, address, and age of the parent whose parental rights are being relinquished
• The name, age, and birth date of the child
• The names and addresses of the guardians of the child, if any
• A statement that the person signing the affidavit is or is not presently obligated to make payments for the support of the child
• A description of all property owned by the child
• An allegation that termination of the parent-child relationship is in the best interests of the child
• The name and address of the other parent or a statement that the parental rights of the other parent have been terminated or that the child has no presumed father
• A statement that the parent has been informed of parental rights and duties
• A statement that the relinquishment is revocable, irrevocable, or irrevocable for a stated period of time
• The designation of a prospective adoptive parent, the department, or a licensed child-placing agency to serve as managing conservator of the child

The affidavit may not contain terms for limited posttermination contact between the child and the parent whose parental rights are to be relinquished as a condition of the relinquishment of parental rights.

A man may sign an affidavit disclaiming any interest in a child and waiving notice in any suit filed or to be filed affecting the parent-child relationship. The affidavit shall be signed by the man, whether or not a minor, witnessed by two credible persons, and verified before a person authorized to take oaths.

The affidavit may contain a statement that the affiant does not admit being the father of the child or having had a sexual relationship with the mother of the child.

Revocation of Consent Citation: Fam. Code §§ 161.1035; 162.011; 161.103; 161.106

At any time before an order granting the adoption of the child is rendered, a consent required by § 162.010 may be revoked by filing a signed revocation.

An affidavit of relinquishment of parental rights that fails to state that the relinquishment is irrevocable for a stated time is:

• Revocable only if the revocation is made before the 11th day after the date the affidavit is executed
• Irrevocable on or after the 11th day after the date the affidavit is executed

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents Govt. Code § 411.114; Admin. Code Tit. 40; §§ 745.651; 745.655

The Department of Family and Protective Services shall obtain criminal history record information for any person who is providing or applying to provide in-home or foster care for children in the care of the department and other persons living in the residence in which the child will reside.

Fingerprint-based criminal history background checks must be completed on all prospective foster parents and the members of their households who are age 14 or older and not in the legal conservatorship of the department. Criminal history background checks will be conducted in accordance with the criminal history rules promulgated by the Child Care Licensing Division of the department.

In regulation:Approval may be denied if the person has committed any of the following misdemeanor or felony offenses:

• Offenses against the person or family
• Robbery
• Public indecency
• Stalking
• Criminal solicitation of a minor
• Failure to stop or report aggravated sexual assault of a child
• Any offense committed in the past 10 years under:
  • The Texas Controlled Substances Act
  • Making a firearm accessible to a child
  • Intoxication and alcoholic beverage offenses
• Any other felony under the Texas Penal Code or any like offense under the law of another State or Federal law that the person committed within the past 10 years
• Deferred adjudications covering an offense listed above if the person has not completed the probation successfully

Approval also may be denied if a check of the child abuse central registry reveals that the person has any sustained finding of child abuse or neglect, including sexual abuse, physical abuse, emotional abuse, physical neglect, neglectful supervision, or medical neglect.

Requirements for Adoptive Parents Fam. Code § 162.0085; Govt. Code § 411.114; Admin. Code Tit. 40; §§ 745.651; 745.655

The court shall order each person seeking to adopt a child to obtain his or her own criminal history record information. The court shall accept a person’s criminal history record information if the information was obtained not more than 1 year before the date the court ordered the history to be obtained.

Fingerprint-based criminal history background checks must be completed on all prospective foster and adoptive parents and the members of their households who are age 14 or older. Criminal history background checks will be conducted in accordance with the criminal history rules promulgated by the Child Care Licensing Division of the department.

In regulation:Approval may be denied if the person has committed any of the following misdemeanor or felony offenses:

• Offenses against the person or family
• Robbery
• Public indecency
• Stalking
• Criminal solicitation of a minor
• Failure to stop or report aggravated sexual assault of a child
• Any offense committed in the past 10 years under:
  • The Texas Controlled Substances Act
  • Making a firearm accessible to a child
  • Intoxication and alcoholic beverage offenses
• Any other felony under the Texas Penal Code or any like offense under the law of another State or Federal law that the person committed within the past 10 years
• Deferred adjudications covering an offense listed above if the person has not completed the probation successfully

Approval also may be denied if a check of the child abuse central registry reveals that the person has any sustained finding of child abuse or neglect, including sexual abuse, physical abuse, emotional abuse, physical neglect, neglectful supervision, or medical neglect.

Grounds for Involuntary Termination of Parental Rights

Circumstances That Are Grounds for Termination of Parental Rights Fam. Code §§ 161.001; 161.002(b); 161.007

The court may order termination parental rights if the court finds by clear and convincing evidence that the parent has:

• Abandoned the child
• Knowingly allowed the child to remain in conditions or surroundings that endanger the physical or emotional well-being of the child
• Failed to support the child in accordance with the parent’s ability for 1 year
• Voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy and continuing through the birth, failed to provide adequate support or medical care for the mother during her pregnancy, and remained apart from the child or failed to support the child since the birth
• Been the major cause of the failure of the child to be enrolled in school as required by law or to be absent from the child’s home without the consent of the parents for a substantial length of time or without the intent to return
• Been convicted of any of the following crimes that caused the death or serious injury of a child:
  • Murder or manslaughter
  • Assault, sexual assault, aggravated assault, or aggravated sexual assault
  • Injury to a child or abandoning or endangering a child
  • Indecency with a child or prohibited sexual conduct
  • Sexual performance by a child or possession or promotion of child pornography
  • Continuous sexual abuse of a young child
  • Trafficking of persons or compelling prostitution
• Had his or her parental rights terminated with respect to another child
• Failed to comply with the provisions of the case plan established for the parent to obtain the return of the child
• Used a controlled substance in a manner that endangered the health or safety of the child and failed to complete a court-ordered substance abuse treatment program or after completion of a treatment program, continued to abuse a controlled substance
• Been incarcerated and unable to care for the child for 2 years
• Been the cause of the child being born addicted to alcohol or a controlled substance
• Voluntarily delivered the child to a designated emergency infant care provider without expressing an intent to return for the child
• Been convicted of:
  • The murder of the other parent of the child
  • The criminal attempt or solicitation to commit murder of the other parent
• Been convicted of a sexual offense and the victim of the offense became pregnant with the parent’s child

The rights of an alleged father may be terminated if:

• After being served with notice, he does not respond by timely filing an admission of paternity or a counterclaim for paternity.
• The child is over age 1 at the time the petition for termination is filed, he has not registered with the paternity registry, and after the exercise of due diligence by the petitioner, his identity and/or location are unknown.
• The child is under age 1 at the time the petition is filed, and he has not registered with the paternity registry.
• He has registered with the paternity registry but the petitioner’s attempt to personally serve notice at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful, despite the due diligence of the petitioner.

Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Home Study Requirements for Prospective Parents in Domestic Adoption

Who Must Be Studied Citation: Admin. Code Tit. 40, § 749.3621

The applicants, their families, and any persons, including children, residing in the applicants’ home shall be included in the study.

Agency or Person Conducting the Study Citation: Fam. Code § 107.051

The social study may be made by a private entity, a person appointed by the court, a domestic relations office, or a State agency, including the Department of Family and Protective Services if the department is a party to the suit.

Each individual who conducts a social study must be qualified under § 107.0511.

Qualifications for Adoptive Parents Citation: Admin. Code Tit. 40, § 749.3623

All adoptive applicants must be:

• Age 21 or older
• Financially able to provide for their family and the child being adopted
• Healthy enough to assume parenting responsibilities
• Able to accept and parent an adopted child
• Willing to respect and encourage the adopted child’s religious affiliation, if any

Elements of a Home Study Citation: Fam. Code § 107.0514; 162.0085; Admin. Code Tit. 40, §§ 745.615; 749.3663

The basic elements of a social study consist of:

• A personal interview of each adopting parent
• An interview, conducted in a developmentally appropriate manner, of each adoptive child who is at least age 4
• Observation of each adoptive child, regardless of age
• Obtaining information from relevant collateral sources
• Evaluation of the home environment

The court shall order each person seeking to adopt a child to obtain that person’s own fingerprint-based criminal history record information. The court shall accept a person’s criminal history record information when the information was obtained no more than 1 year before the date the court ordered the history to be obtained.

In regulation: A name-based criminal history check and a central registry check must be requested for:

• Each prospective adoptive parent seeking to adopt through a child-placing agency
• Each person age 14 and older who will reside in the home

The department must request a fingerprint-based criminal history check request for:

• Any person who applies to be an adoptive parent
• Any person age 18 or older living in the home of the applicant

Basic safety requirements for the home and grounds include:

• The home must be clean, safe, and free of obvious fire and other hazards. The home must be equipped with smoke detectors.
• Pets must be vaccinated and treated as recommended by a licensed veterinarian.
• If the adoptive home has a swimming pool, wading pool, hot tub, or other bodies of water on the premises, plans must be in place to ensure the safety of the child.

Grounds for Withholding Approval Citation: Admin. Code Tit. 40, §§ 745.651; 745.655

Approval may be denied if the person has committed any of the following misdemeanor or felony offenses:

• Offenses against the person or family
• Robbery
• Public indecency
• Stalking
• Criminal solicitation of a minor
• Failure to stop or report aggravated sexual assault of a child
• Any offense committed in the past 10 years including:
  • Those under the Texas Controlled Substances Act
  • Making firearms accessible to a child
  • Intoxication and alcoholic beverage offenses
• Any other felony under the Texas Penal Code or similar offense under the law of another State or Federal law committed within the past 10 years
• Deferred adjudications covering an offense listed above if the person has not completed probation successfully

Approval also may be denied if a check of the child abuse central registry reveals that the person has any sustained finding of child abuse or neglect, including sexual abuse, physical abuse, emotional abuse, physical neglect, neglectful supervision, or medical neglect.

When Studies Must Be Completed Citation: Admin. Code Tit. 40, § 749.3633

An adoptive home screening must be updated every 12 months and after a major life change in the adoptive family. The update must include:

• A review and any required updating of each category of information required for an adoptive home screening
• Documentation of at least one visit to the adoptive home when all household members are present within the 90-day period before the update is approved

Postplacement Study Requirements Citation: Admin. Code Tit. 40 §§ 749.3741 through 749. 3753

A postplacement adoptive report is a written evaluation of the adjustment of all individuals to the placement. Interviews for the report may be conducted in one visit and must include:

• Individual interviews with each adoptive parent, each child age 3 or older, any other person living with the family
• A joint interview with the adoptive parents
• A family group interview with all family members

The interviews must be conducted after the child has resided with the adoptive parent for at least 5 months. Each interview should focus on the adjustment of the family and the child following the placement of the child. The caseworker must visit the home when all members of the household are present and document the date, persons present, their relationship to the adoptive parents, and observations made during the visit.

The postplacement adoptive report must include:

• A summary of all assessments and available information about the child, including:
  • Health, social, education, genetic, and family histories
  • History of physical, sexual, or emotional abuse experienced by the child
  • History of any previous placements
  • The child’s understanding of adoptive placement
  • The child’s legal status
• A summary of all assessments, interviews, and available information about the adoptive parents including:
  • The adoptive home screening, including the results of the criminal history and central registry background checks
  • Individual strengths and weaknesses of the adoptive parents
  • Observations made relative to the family’s interactions
  • Interviews conducted and home visits
• An evaluation of the child’s needs and whether the environment will meet those needs
• A summary of the adjustment of the family and child in the home during the postplacement period

Exceptions for Stepparent or Relative Adoptions

This issue is not addressed in the statutes and regulations reviewed.

Requirements for Interjurisdictional Placements Citation: Fam. Code § 162.102

Any out-of-home placement of a child outside the State is subject to the provisions of the Interstate Compact on the Placement of Children.

The child shall not be sent into the receiving State until the appropriate public authorities in the receiving State notify the sending agency, in writing, that the proposed placement does not appear to be contrary to the interests of the child.

Foster to Adopt Placements Citation: Admin. Code Tit. 40, §§ 749.3201; 749.3203; 749.3221

Applicants may be approved as a foster-adoptive home. All rules for verifying a foster family home and for approving an adoptive home must be followed. The foster home screening and preadoptive home screening may be combined into one screening report as long as requirements for each screening are covered.

A ‘legal risk placement’ exists when:

• A child that is not available for adoption because his or her parent(s)’ rights have not been terminated.
• A child has been placed into a home that has been jointly verified as a foster home and approved as an adoptive home.
• The placement is intended to change from foster care to adoption once the child is eligible for adoption.

A legal risk placement does not exist when a child is placed with foster parents who want to adopt the child but have not been approved as an adoptive home.

Infant Safe Haven Laws

Infant’s Age Citation: Fam. Code § 262.302

A child who is 60 days old or younger may be relinquished.

Who May Relinquish the Infant Citation: Fam. Code § 262.302

The child may be relinquished by his or her parent.

Who May Receive the Infant Citation: Fam. Code §§ 262.301; 262.302

A designated emergency infant care provider shall, without a court order, take possession of a child who appears to be 60 days old or younger if the child is voluntarily delivered to the provider by the child’s parent, and the parent did not express an intent to return for the child. A designated emergency infant care provider includes:

• An emergency medical services provider
• A hospital
• A licensed child-placing agency that:
  • Agrees to act as a designated emergency infant care provider
  • Has on staff a person who is licensed as a registered nurse or who provides emergency services and who will examine and provide emergency medical services to a child taken into possession

Responsibilities of the Safe Haven Provider Citation: Fam. Code §§ 262.302; 262.303

A designated emergency infant care provider who takes possession of a child has no legal duty to detain or pursue the parent and may not do so unless the child appears to have been abused or neglected. The designated emergency infant care provider has no legal duty to ascertain the parent’s identity, and the parent may remain anonymous. However, the parent may be given a form for voluntary disclosure of the child’s medical facts and history.

A designated emergency infant care provider who takes possession of a child under this section shall perform any act necessary to protect the physical health or safety of the child.

No later than the close of the first business day after the date on which a designated emergency infant care provider takes possession of a child, the provider shall notify the Department of Protective and Regulatory Services that the provider has taken possession of the child. The department shall assume the care, control, and custody of the child immediately on receipt of notice.

Immunity for the Provider Citation: Fam. Code § 262.302

The designated emergency infant care provider is not liable for damages related to the provider’s taking possession of, examining, or treating the child, except for damages related to the provider’s negligence.

Protection for Relinquishing Parent Citation: Penal Code § 22.041(h); Fam. Code § 262.308

The parent may remain anonymous. All identifying information, documentation, or other records regarding a person who voluntarily delivers a child to a designated emergency infant care provider under this subchapter is confidential and not subject to release to any individual or entity.

It is an exception to the application of the law prohibiting abandonment or endangerment of a child that the actor voluntarily delivered the child to a designated emergency infant care provider.

Effect on Parental Rights Citation: Fam. Code §§ 262.304; 262.305; 262.309; 262.105

A child for whom the Department of Protective and Regulatory Services assumes care, control, and custody shall be treated as a child taken into possession without a court order. When a child is taken into possession without a court order, the person taking the child into possession, without unnecessary delay, shall:

• File a suit affecting the parent-child relationship
• Request the court to appoint an attorney ad litemfor the child
• Request an initial hearing to be held by no later than the first working day after the date the child is taken into possession

If the Department of Protective and Regulatory Services files a suit affecting the parent-child relationship seeking termination of the parent-child relationship, the department shall file the suit no later than the 45th day after the date the department assumes the care, control, and custody of the child.

Immediately after assuming care, control, and custody of a child, the Department of Protective and Regulatory Services shall report the child to the appropriate State and local law enforcement agencies as a potential missing child. A law enforcement agency that receives a report shall investigate whether the child is reported as missing.

The Department of Family and Protective Services is not required to conduct a search for the relatives of a child for whom the department assumes care, control, and custody under this subchapter.

Regulation of Private Domestic Adoption Expenses

Birth Parent Expenses Allowed Citation: Penal Code § 25.08(b)

The following payments are permitted:

• Fees paid to an attorney, social worker, mental health professional, or physician for services rendered in the usual course of legal or medical practice or in providing adoption counseling
• Reimbursement of legal or medical expenses incurred by a person for the benefit of the child
• Necessary pregnancy-related expenses paid by a child-placing agency for the benefit of the child’s parent during the pregnancy or after the birth of the child as permitted by the minimum standards for child-placing agencies and Department of Protective and Regulatory Services rules

Birth Parent Expenses Not Allowed

This issue is not addressed in the statutes reviewed.

Allowable Payments for Arranging Adoption Citation: Family Code § 162.025

A person who is not the natural or adoptive parent of the child, the legal guardian of the child, or a licensed child-placing agency commits an offense if the person:

• Serves as an intermediary between a prospective adoptive parent and an expectant parent or parent of a minor child to identify the parties to each other
• Places a child for adoption

It is not an offense if a professional provides legal or medical services to:

• A parent who identifies the prospective adoptive parent and places the child for adoption without the assistance of the professional
• A prospective adoptive parent who identifies a parent and receives placement of a child for adoption without the assistance of the professional

Allowable Payments for Relinquishing Child Citation: Penal Code § 25.08(a)

A person commits an offense if he or she:

• Possesses a child younger than age 18 or has the custody, conservatorship, or guardianship of a child younger than age 18, whether or not he or she has actual possession of the child, and he or she offers to accept, agrees to accept, or accepts a thing of value for the delivery of the child to another or for the possession of the child by another for purposes of adoption
• Offers to give, agrees to give, or gives a thing of value to another for acquiring or maintaining the possession of a child for the purpose of adoption

Allowable Fees Charged by Department/Agency Citation: Penal Code § 25.08; Family Code § 107.0519

A licensed child-placing agency may charge a fee for services provided.

The costs of a social study in a suit for adoption shall be paid by the prospective adoptive parent.

Accounting of Expenses Required by Court

This issue is not addressed in the statutes reviewed.

The Rights of Unmarried Fathers

Legal Definition of Father Family Code §§ 160.102; 160.204

An ‘adjudicated father’ is a man who has been adjudicated by a court to be the father of a child. A ‘presumed father’ is a man who, by operation of law under § 160.204, is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding.

A man is presumed to be the father of a child if:

• He is married to the mother of the child, and the child is born during the marriage.
• He was married to the child’s mother, and the child is born before the 301st day after the date the marriage is terminated.
• He married the child’s mother before the birth of the child even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated.
• He married the child’s mother after the birth of the child, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:
  • The assertion is in a record filed with the Bureau of Vital Statistics.
  • He is voluntarily named as the child’s father on the child’s birth certificate.
  • He promised in a record to support the child as his own.
• During the first 2 years of the child’s life, he continuously resided in the household in which the child resided, and he represented to others that the child was his own.

Paternity Registry Family Code §§ 160.401; 160.402

A registry of paternity is established in the Bureau of Vital Statistics.

A man who desires to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered may register with the registry of paternity:

• Before the birth of the child
• No later than the 31st day after the date of the birth of the child

Alternate Means to Establish Paternity Family Code §§ 160.301; 160.302; 160.402; 160.601

The mother of a child and a man claiming to be the biological father of the child may sign an acknowledgment of paternity with the intent to establish the man’s paternity. An acknowledgment of paternity must:

• Be in a record
• Be signed or otherwise authenticated by the mother and the man seeking to establish paternity
• State that the child whose paternity is being acknowledged:
  • Does not have a presumed father or has a presumed father whose full name is stated
  • Does not have another acknowledged or adjudicated father
• State whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing
• State that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after 4 years

A man is entitled to notice of a proceeding regardless of whether he registers with the registry of paternity if:

• A father-child relationship between the man and the child has been established under this chapter or another law.
• The man commences a proceeding to adjudicate his paternity before the court has terminated his parental rights.

The parentage of a child may be adjudicated in a civil proceeding.

Required Information Family Code §§ 160.411; 160.402

The Bureau of Vital Statistics shall adopt a form for registering with the registry. The form requires the signature of the registrant and must state that:

• The form is signed under penalty of perjury.
• A timely registration entitles the registrant to notice of a proceeding for adoption of the child or for termination of the registrant’s parental rights.
• A timely registration does not commence a proceeding to establish paternity.
• The information disclosed on the form may be used against the registrant to establish paternity.
• Services to assist in establishing paternity are available to the registrant through the support enforcement agency.
• The registrant should also register in another State if the conception or birth of the child occurred in the other State.
• Information on registries in other States is available from the bureau.
• Procedures exist to rescind the registration of a claim of paternity.

A registrant shall promptly notify the registry of any change in the information provided by the registrant. The Bureau of Vital Statistics shall incorporate all new information received into its records but is not required to affirmatively seek to obtain current information for incorporation in the registry.

Revocation of Claim to Paternity Family Code §§ 160.414; 160.307; 160.308; 160.414

A signatory may rescind an acknowledgment of paternity by commencing a proceeding to rescind before the earlier of:

• 60 days after the effective date of the acknowledgment
• The date of the first hearing in a proceeding to which the signatory is a party before a court to adjudicate an issue relating to the child, including a proceeding that establishes child support

After the period for rescission has expired, a signatory of an acknowledgment of paternity may commence a proceeding to challenge the acknowledgment only on the basis of fraud, duress, or material mistake of fact. The proceeding must be commenced before the fourth anniversary of the date the acknowledgment is filed. A party challenging an acknowledgment of paternity or denial of paternity has the burden of proof.

A registrant [in the putative fathers registry] may rescind his registration at any time by sending to the registry a rescission in a record or another manner authenticated by him and witnessed or notarized.

Access to Information Family Code § 160.412

The Bureau of Vital Statistics is not required to attempt to locate the mother of a child who is the subject of a registration. The bureau shall send a copy of the notice of the registration to a mother who has provided an address.

Information contained in the registry is confidential and only may be released on request to:

• A court or a person designated by the court
• The mother of the child who is the subject of the registration
• An agency authorized by law to receive the information
• A licensed child-placing agency
• A support enforcement agency
• A party, or the party’s attorney of record, to a proceeding under this chapter or a proceeding to adopt or to terminate parental rights regarding a child who is the subject of the registration
• The registry of paternity in another State

Use of Advertising and Facilitators in Adoptive Placements

Use of Advertisement Citation: Penal Code § 25.09

A person commits an offense if the person advertises in the public media that the person will place a child for adoption or will provide or obtain a child for adoption. This section does not apply to a licensed child-placing agency that is identified in the advertisement as a licensed child-placing agency.

Public media includes newspapers or other periodicals, billboards or other signs, radio or television broadcasts, or communications through the use of the Internet or another public computer network.

Use of Intermediaries/Facilitators Citation: Penal Code §§ 25.08(a)-(b); 162.025

A person commits an offense if he or she:

• Has custody of a child younger than age 18 and offers to accept, agrees to accept, or accepts a thing of value for the delivery of the child to another for the purposes of adoption
• Offers to give, agrees to give, or gives a thing of value to another for acquiring a child for the purpose of adoption

It is an exception to the application of this section that the thing of value is:

• A fee or reimbursement paid to a child-placing agency as authorized by law
• A fee paid to an attorney, social worker, mental health professional, or physician for services rendered in the usual course of legal or medical practice or in providing adoption counseling
• A reimbursement of legal or medical expenses incurred by a person for the benefit of the child
• A necessary pregnancy-related expense paid by a child-placing agency for the benefit of the child’s parent during the pregnancy or after the birth of the child as permitted by the minimum standards for child-placing agencies

A person who is not the natural or adoptive parent of the child, the legal guardian of the child, or a licensed child-placing agency commits an offense if the person:

• Serves as an intermediary between a prospective adoptive parent and an expectant parent or parent of a minor child to identify the parties to each other
• Places a child for adoption

It is not an offense under this section if a professional provides legal or medical services to:

• A parent who identifies the prospective adoptive parent and places the child for adoption without the assistance of the professional
• A prospective adoptive parent who identifies a parent and receives placement of a child for adoption without the assistance of the professional

Who May Adopt, Be Adopted, or Place a Child for Adoption?

Who May Adopt Citation: Fam. Code § 162.001

Any adult may adopt.

Who May Be Adopted Citation: Fam. Code §§ 162.001; 162.501; 162.504

A child residing in the State may be adopted if:

• The rights of the parents have been terminated.
• The parent whose rights have not been terminated is presently the spouse of the petitioner and the proceeding is for a stepparent adoption.
• The child is at least 2 years old; the parent-child relationship has been terminated with respect to one parent; the person seeking the adoption has been a managing conservator or has had actual care, possession, and control of the child for a period of 6 months preceding the adoption; or is the child’s former stepparent; and the nonterminated parent consents to the adoption.
• The child is at least 2 years old; the parent-child relationship has been terminated with respect to one parent; and the person seeking the adoption is the child’s former stepparent and has been a managing conservator or has had actual care, possession, and control of the child for a period of 1 year preceding the adoption.

An adult residing in this State may adopt another adult with the adult adopted person’s written consent.

Who May Place a Child for Adoption Citation: Fam. Code §§ 162.025; 162.001

Only the following may place the child:

• The child’s natural or adoptive parent
• The child’s legal guardian
• A licensed child-placing agency
• The Department of Protective and Regulatory Services

Post-Adoption Laws

Access to Adoption Records

Who May Access Information Citation: Fam. Code §§ 162.018; 162.406

Nonidentifying information may be provided to:

• The adoptive parents
• The adopted person who is age 18 or older

Identifying information may be accessed by:

• The adopted person who is age 18 or older
• A birth parent
• An alleged father who acknowledges paternity
• A birth sibling who is age 18 or older

Access to Nonidentifying Information Citation: Fam. Code § 162.018

The adoptive parents are entitled to receive copies of the records and other information relating to the history of the child maintained by the department, licensed child-placing agency, person, or entity placing the child for adoption.

The adoptive parents and the adopted person, after the adopted person is an adult, are entitled to receive copies of the records that have been edited to protect the identity of the birth parents and any other person whose identity is confidential and other information relating to the history of the child maintained by the department, licensed child-placing agency, person, or entity placing the child for adoption.

At the time an adoption order is rendered, the court shall provide to the parents of an adopted person information provided by the Bureau of Vital Statistics that describes the functions of the voluntary adoption registry. The licensed child-placing agency shall provide to each of the child’s birth parents, as known to the agency, the information when the parent signs an affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child. The information shall include the right of the child or birth parent to refuse to participate in the registry. If the adopted child is age 14 or older, the court shall provide the information to the child.

Mutual Access to Identifying Information Citation: Fam. Code §§ 162.407; 162.413; 162.414; 162.416

The persons listed above may register with a mutual consent voluntary adoption registry. A registration remains in effect until the 99th anniversary of the date the registration is accepted, unless a shorter period is specified by the applicant or the registration is withdrawn. A registrant may withdraw his or her registration in writing at any time.

The applicant must participate in counseling for not less than 1 hour with a social worker or mental health professional with expertise in postadoption counseling before the release of confidential information.

The administrator shall process each registration in an attempt to match the adopted person, the birth parents, and the birth siblings. The administrator shall determine that there is a match if the adult adopted person and the birth mother, father, or sibling has registered.

When a match has been made, the administrator shall mail a written notice to each registrant:

• Informing the registrant that a match has been made
• Reminding the registrant that he or she may withdraw the registration before disclosures are made, if desired
• Notifying the registrant that before any identifying disclosures are made, he or she must sign a written consent and participate in counseling

Identifying information about a registrant shall be released without the registrant’s having consented to disclosure after the match if the registrant is dead, his or her registration was valid at the time of death, and he or she had in writing specifically authorized the postdeath disclosure. Identifying information about a deceased birth parent may not be released until each surviving child is an adult or until each child’s surviving parent or guardian consents in writing to the disclosure.

Access to Original Birth Certificate Citation: Health & Safety Code § 192.008

Only the court that granted the adoption may grant access to the original birth certificate.

Where the Information Can Be Located

Central Adoption Registry, Texas Department of State Health Services -- Vital Statistics

Intestate Inheritance Rights for Adopted Persons

Birth Parents in Relation to Adopted Person Citation: Prob. Code § 40; Fam. Code § 162.507

The birth parents of an adopted child shall not inherit from or through said child, but said child shall inherit from and through his or her birth parents.

A person who was adopted as an adult may not inherit from or through the adult’s birth parent, nor may the birth parent inherit from or through the adopted adult.

Adoptive Parents in Relation to Adopted Person Citation: Prob. Code § 40; Fam. Code §§ 162.507; 162.017

An adopted child may, under the laws of descent and distribution, inherit from and through the adopting parents and their relatives, and the adopting parents and their family may inherit from and through such adopted child.

Adopted Persons Who Are Not Included in a Will Citation: Fam. Code § 67

A ‘pretermitted child’ means a child of a testator who, during the lifetime of the testator, or after his or her death, is born or adopted after the execution of the will of the testator.

Whenever a pretermitted child is not mentioned or provided for in the testator’s will or otherwise provided for by the testator, the pretermitted child shall succeed to a portion of the testator’s estate as provided below:

• If the testator has one or more children living when he or she executes his or her last will, and:
  • No provision is made for any such child, a pretermitted child receives the portion of the estate to which he or she would have been entitled had the testator died intestate without a surviving spouse, owning only that portion of the estate not bequeathed to the parent of the pretermitted child.
  • Provision is made for one or more of such children, a pretermitted child is entitled to share in the testator’s estate as follows:
    • The portion of the estate to which the pretermitted child is entitled is limited to the disposition made to children under the will.
    • The pretermitted child shall receive such share of the estate, as limited above, as he or she would have received had the testator included all pretermitted children with the children who were included in the will, and given an equal share of such benefits to each such child.
• If the testator has no child living when he executes his or her last will, the pretermitted child receives the portion of the estate to which he or she would have been entitled had the testator died intestate without a surviving spouse, owning only that portion of the estate not bequeathed to the parent of the pretermitted child.

Postadoption Contact Agreements Between Birth and Adoptive Families

What may be included in postadoption contact agreements? Fam. Code §§ 161.2061; 161.2062

An order terminating the parent-child relationship may include terms that allow the biological parent to:

• Receive specified information regarding the child
• Provide written communications to the child
• Have limited access to the child

The order of termination may not require that a subsequent adoption order include terms regarding limited posttermination contact between the child and a biological parent.

The inclusion of a requirement for posttermination contact in a termination order does not affect the finality of a termination or subsequent adoption order or grant standing to a parent whose parental rights have been terminated to file any action under this title after the court renders a subsequent adoption order with respect to the child.

Who may be a party to a postadoption contact agreement? Fam. Code § 161.2061

The agreement shall be between the biological parent and the Department of Protective and Regulatory Services.

What is the role of the court in postadoption contact agreements? Fam. Code § 161.2061

If the court finds it to be in the best interests of the child, the court may provide in an order terminating the parent-child relationship that the biological parent who filed an affidavit of voluntary relinquishment of parental rights under § 161.103 shall have limited posttermination contact with the child on the agreement of the biological parent and the Department of Protective and Regulatory Services.

Are agreements legally enforceable? Fam. Code § 161.2061

The terms of an order of termination regarding limited posttermination contact may be enforced only if the party seeking enforcement pleads and proves that, before filing the motion for enforcement, the party attempted in good faith to resolve the disputed matters through mediation.

The terms of an order of termination under this section are not enforceable by contempt.

The inclusion of a requirement for posttermination contact in a termination order does not:

• Affect the finality of a termination or subsequent adoption order
• Grant standing to a parent whose parental rights have been terminated to file any action under this title after the court renders a subsequent adoption order with respect to the child

How may an agreement be terminated or modified? Fam. Code § 161.2061

The terms of an order of termination regarding limited posttermination contact may not be modified.

Laws Related to Intercountry Adoption

Effect and Recognition of a Foreign Adoption Decree

Family Code § 162.023(a)

An adoption order rendered to a resident of this State that is made by a foreign country shall be accorded full faith and credit by the courts of this State and enforced as if the order were rendered by a court in this State unless the adoption law or process of the foreign country violates the fundamental principles of human rights or the laws or public policy of this State.

Readoption After an Intercountry Adoption

Family Code § 162.023(b)

Adoptive parents may petition the court for registration of a foreign adoption decree that was issued abroad and may combine the petition for registration with a petition for a name change.

Application for a U.S. Birth Certificate

Family Code § 162.023(b)

If the court finds that the foreign adoption order meets the requirements of this statute, the court shall order the State Registrar to:

• Register the order under chapter 192, Health and Safety Code
• File a certificate of birth for the child under § 192.006, Health and Safety Code

Source

Child Welfare Information Gateway. U.S. Department of Health and Human Services Administration for Children and Families. [1]

References