Texas Law
Texas Adoption Law
Adoption Law
Adoption policy in the United States is undergoing a great deal of public scrutiny. News reports in recent years have featured dramatic stories of conflict between biological and adoptive parents, raising questions about how to balance the rights of both families and about which policies further the best interests of the adopted child. These cases have helped clarify important legal and social questions surrounding adoption. Although adoption remains a hotly debated and legislated area of the law, most adoptions proceed through the legal system with little, if any, conflict. For most families, adoption is a perfect way for adults to provide love and care to a child whose biological parents are not able to do so.
Adoption law, like most family law, is state law; there is very little federal regulation of adoption. Each state has the authority to create adoption laws and to regulate adoption agencies. One major exception to this rule concerns adoption of a child from another country. The United States Immigration and Naturalization Service (INS) imposes regulations on such adoptions in addition to those imposed by the state; the adoptive parents must be United States citizens, for example. Adoption in Texas is governed by the adoption law under the Family Code.
What Is Adoption?
In an adoption, parental rights are transferred from the natural or birth parents to the adoptive parents. Adoption is a legal arrangement; the adoptive parents become legally responsible for the child they adopt and they obtain all legal parental rights with regard to the child. This legal proceeding is so complete that a new birth certificate is issued for the child. It shows the adoptive parents' names as the child's mother and father at the time of birth. The original birth certificate is retained but sealed, so it can be accessed only by court order.
An adoption in Texas may be open or anonymous, private or through an agency, or some combination of these types of adoption.
Most of the laws and regulations concerning adoptions are applicable to so-called stranger adoption or unrelated adoption. That is, people seek out a child to adopt through an acquaintance or an agency. Many of the procedures required to adopt in Texas apply to both agency and private adoptions. International adoptions are quite similar to domestic adoptions, but additional requirements and procedures apply.
Adoption may take place within a family. This kind of adoption sometimes is called a relative adoption. A stepparent who is responsible for providing the care, love, discipline, and guidance for the children of his or her spouse may formalize the relationship by adopting the stepchildren. A grandparent, aunt, or uncle may adopt a child when the child's birth parent has become unable to care for the child. As with any adoption, a relative adoption can happen only if both natural parents agree.
In Texas, it is possible for an adult to be adopted by another, older adult. The person sought to be adopted must consent to the adoption and must be present at the final hearing.
Open Versus Closed Adoption
If the adoptive and birth parents know each other and remain in touch after the adoption, the adoption is said to be open. If they do not know each other and do not stay in touch after the adoption, it is said to be closed. Usually, open adoptions are privately arranged between the adoptive parents and the birth parents. People may make these arrangements through doctors, attorneys, nurses, or friends.
Open and closed adoptions are not the only two options available to parents; they exist at opposite ends of a continuum of choices. The degree of openness in an adoption is determined by the parties involved and may be quite complex. Most important to a successful adoption is that all expectations regarding openness and the role both sets of parents will play are clearly communicated and understood by all parties. Adoption facilitators or attorneys can assist in ensuring the most secure adoption plan in the best interests of the child.
Who May Adopt?
Any adult in Texas may file a petition to adopt a child. Commonly, married couples apply to become adoptive parents, although single, separated, and divorced people have the right to adopt in Texas. Married people must adopt together, however; one spouse may not seek to adopt a child without the consent and joint petition of the other spouse. There is no particular age, housing situation, social background, or income level that makes certain people more qualified to be adoptive parents than others. It is prohibited by Texas law to discriminate against a person in an adoption because of his or her race or ethnicity, or to deny a person the right to adopt a particular child for these reasons. Some people may be required to provide additional information to an agency considering their application. For instance, working parents might be required to demonstrate how child care will be provided. The Texas Department of Protective and Regulatory Services provides various services to people wishing to adopt, including adoption placement.
Adoption Placements and Procedures
An agency placement of a child for adoption is one made through a state-licensed public or private adoption agency. Under an agency adoption, the birth parent signs a document in which all parental rights are relinquished to the adoption agency. The birth parent may designate the adopting parents. Approximately two-thirds of all adoptions in the United States are arranged through agencies.
The Texas Department of Protective and Regulatory Services is the state adoption agency, and there are many private agencies as well. Private child-placement or adoption agencies must be licensed in Texas. These agencies also provide services to assist people in adopting children. Even with these regulations, however, not all licensed agencies are equal. Agencies differ as to the services offered, adoptive clients served, geographic area served, fees charged, and age of the child to be adopted. When dealing with an adoption agency, it is best to ask questions to determine whether the needs of the adoptive parents and the birth parents are met by the services offered by the agency.
When a birth parent places a child directly with the adopting parents, a private or independent adoption is said to occur. A private adoption is one arranged between the adoptive and birth parents without the assistance of an agency. In this situation, the parties have come together through other means--usually through mutual friends. However, even in the case of a private-placement adoption, the adopting parents must file a petition to adopt and must undergo many of the same procedures as in an agency adoption. The birth parents may designate the adopting parents in a private or independent adoption, but agency adoptions usually are anonymous. In an anonymous adoption the adoptive parents and the birth parents may have some identifying information about each other, but they do not share their last names or addresses.
Initiating an Adoption
Before an adoption of a child can commence, the child's birth parents must voluntarily give up their parental rights by signing a document relinquishing all legal rights with regard to the child. Another way parental rights are terminated is involuntarily: the parents are declared unfit by a court of law. For example, a court may find that a parent has abandoned the child, severely abused the child, or has shown such little interest in caring for the child that he or she is not competent to be a parent. Usually, when birth parents relinquish their right to raise a child, however, they do so consensually. The right to care for the child and make decisions on his or her behalf may be given over to an adoption agency, discussed below, prior to the child's placement with his or her adoptive parents.
When the birth parents' parental rights are terminated, they must sign a legal document relinquishing their rights. The document must clearly state their wish to place the child for adoption and their belief that the adoption is in the best interests of the child. If the biological father of the child is not involved in the preliminary part of the adoption proceedings, an attempt must be made to locate him before the adoption can be finalized. Usually, this is accomplished by publishing a notice in the leading newspaper in the county in which he resides. If he cannot be located, the adoption still can be completed as long as this notice requirement has been met.
The consent of the birth mother may not be obtained until 48 hours after the child is born. This is to ensure that her consent is free and voluntary. The form must be witnessed by two people and verified by a notary. Once the birth mother has signed the relinquishment form, it cannot be revoked for 60 days. During this 60-day period, a judge decides whether to accept the consent form and terminate parental rights. A child over the age of 12 must consent to be adopted.
In Texas, as in all other states, it is illegal to buy a baby. This means that adoptive parents may not pay a parent or a third person for the right to adopt a child. Adoptive parents are allowed by law to pay reasonable expenses in connection with the adoption. For example, they may pay the birth mother's medical expenses connected with the birth, and they may pay attorney's fees for the legal procedural part of the adoption. This law does not prohibit adoption agencies or intermediaries such as attorneys from charging fees for their services.
People wishing to adopt must file an adoption petition with the court. An adoption agency must file supporting documents, including a report on the investigation of the child and the social study, discussed below.
Qualification
Adoption agencies conduct a rather extensive examination of people who wish to adopt, to ensure that they are fit to do so. This is called a "home study" or "social study." The agency also assesses the child's needs and creates a record that includes a history and verification that the child is free for adoption. The child's record includes social, educational, and genetic backgrounds, as well as a medical history and information regarding any history of abuse. The social study of the potential adoptive parents is an investigation of criminal, marital, medical, and employment backgrounds. It also includes an interview, the purpose of which is to ascertain whether the potential parents are ready for the responsibilities of parenting. Some of the issues covered in the home study include:
- Is the house clean and safe?
- Is there room for the child?
- How long have the applicants been married?
- Are both people eager to adopt?
- Do the applicants have any experience with children?
- Can they afford to have a child?
- Will one parent stay home with the child or will they use day care?
The goal of the interview and examination process is not to make sure the applicants have a lot of money, a big house, or a great deal of education. It is meant to verify that adoption is the appropriate choice for the couple and that they will be able to meet the specific needs of the child they are seeking to adopt. The home study also is an opportunity for the potential parents to obtain information from the agency worker and to have their questions answered. Even if people arrange an adoption independent of an agency, a public or private agency still must conduct an investigation and social study.
Finalizing the Adoption
All adoptions must be finalized in court, generally six months after the child has been living in his or her new home. Only under special circumstances may the requirement that the child live in the home for six months be waived. This requirement is a way to ensure the placement is successful. If all conditions are satisfactory, the court enters a final adoption order. At this point, the new birth certificate is issued, and the legal rights and responsibilities of parenting go into effect. A final order of adoption is--as its sounds--final. It may not be challenged by the birth parents or other parties (although the adoptive parents' fitness, if it became an issue, could be challenged in a separate court proceeding).
International Adoptions
As noted earlier, adopting a child from another country is regulated not only by Texas law but by federal law, as well. The INS determines, according to its guidelines, whether a person or couple is qualified to adopt, approves the child for adoption based on a number of factors, including country of origin and level of health, and ensures that all requisites for immigration to the United States are met. Usually, married couples qualify to adopt, although single adults over the age of 25 also may qualify. At least one of the adopting parents must be a United States citizen.
Licensed adoption agencies provide services to assist people in adopting foreign-born orphans through the Intercountry Adoption Program. Although it is possible to adopt a child from another country independently, it is much better to go through an agency. Private agencies (public agencies do not facilitate intercountry adoptions) are experienced in avoiding the special problems that can arise when attempting to adopt in another country.
Intercountry adoptions can be more expensive than domestic adoptions. In addition to travel expenses, INS fees, and fees for additional documentation, agency fees usually are higher, as are foreign court fees. Many people work with a foreign agency, as well, which is an additional expense. Intercountry adoptions also can be more difficult. The waiting period both before and after the adoptive parents qualify may be longer, and there is a greater risk of medical and social factors becoming problematic.
All of this said, intercountry adoption is a perfect option for many people. Some people prefer to adopt a healthy infant, which is much more of a possibility with international adoptions because waiting lists for infants born in the United States are quite long. Finally, many of the procedures for adopting a child from another country--such as home studies, investigations of the birth and adoptive parents, forms, fees, and court petitions--are not much different than the procedures required in any adoption.
Other Adoption Services
In addition to coordinating placement of a child with adoptive parents, most public and private adoption agencies provide other services to both sets of parents. Adoption facilitators may be available to provide personal assistance throughout the adoption, including facilitating communication between the parties. Directories, including photographs and background information, are maintained by adoption agencies. These lists are provided to assist the adoptive parents in choosing a child. Most agencies also maintain an attorney referral service, which can be an additional source for locating an adoption attorney.
Counseling frequently is offered to support birth parents through the decision to place their child for adoption. Larger agencies may even have counseling for the relatives of birth parents who have decided not to raise a child themselves. Many agencies provide classes about adopting, which are designed to educate people about adoption laws and procedures. Some classes are tailored specifically to the parents' or child's situation: information about parenting a child who is HIV-positive or a child who has been abused may be available, for example. Other classes may function almost like support groups, in which people wishing to adopt exchange information and experiences. Some agencies provide classes, counseling, or even financial assistance for adoptive parents after the home placement, or even after the adoption is final.
Resources
The National Adoption Information Clearinghouse was established by Congress as an information center for consumers, professionals, and the general public. It is funded by the United States Department of Health and Human Services. While it does not provide information on or assist in specific adoptions, nor provide counseling, it does make referrals and publish numerous fact-sheets and directories. For information on Texas adoptions, to order Adoption: Where Do I Start?, a free publication, or to purchase the National Adoption Directory (a listing by state of all adoption agencies), contact the National Adoption Information Clearinghouse, 5640 Nicholson Lane #300, Rockville, MD 20852, (301) 231-6512.
Contact the Texas Department of Protective and Regulatory Services, P.O. Box 149030, Mail Code, E558 Austin, TX 78714-9030, (512) 438-3127, for information on Texas state adoptions, (512) 438-3412; private adoption agencies, (512) 438-3251; the adoption resource exchange and photo listing, (512) 438-3357; and post-adoption services, (512) 438-3302.