Termination
I. General Information on Termination and Adoption
§ 50.1Introduction—Termination and Adoption
Actions to terminate the parent-child relationship and to create the relationship by adoption are often interrelated. These two proceedings may be handled independently or combined into one proceeding.
A termination will always precede an adoption unless the parents are deceased at the time the petition for adoption is filed.
This manual contains four separate chapters that deal with termination and adoption. They are—
Chapter 50—“Termination”: The forms found in this chapter of the manual are to be used to terminate the parent-child relationship between a child and one or more of his parents and/or an alleged father.
Chapter 51—“Adoption of Child”: The forms found in this chapter of the manual are to be used to create the parent-child relationship by adoption.
Chapter 52—“Combined Termination and Adoption of Stepchild”: The forms in this chapter of the manual are to be used to terminate the rights of one parent or alleged father, while the other parent joins his or her new spouse in a petition for stepparent adoption.
Chapter 53—“Ancillary Forms for Termination and Adoption.”
§ 50.2Choice between One Proceeding or Two
A suit for termination and adoption should always be treated as two separate and distinct lawsuits unless a stepparent adoption is involved or the child has already lived in the petitioners’ home for six months.
The only benefit of combining a suit for termination with a suit for adoption is to save money. In a combined suit the client will pay only one filing fee. There will also be a savings in legal fees because the attorney will not have to draft two petitions and two decrees and make two court appearances. This financial benefit, however, is far outweighed by the risks involved.
A problem with combining the suit for termination and the adoption arises because the child must live in the petitioners’ home for six months before the adoption can be granted, and most judges are reluctant to waive the six-month requirement. If the affidavits signed by the birthparents are revocable after sixty days, the birthparents could revoke their relinquishments long before the child has been in the petitioners’ home for the required six months. The affidavits are often the only ground available for termination. Even if the affidavits are irrevocable after ten days, the birthparents will not be in a position to revoke their affidavits, but they could still come forward and try to present evidence showing that it would not be in the child’s best interest to terminate their rights. Proof that termination is in the best interest of the child is a separate element that must be supported by evidence in addition to a Code ground for termination. A statement in the affidavit of relinquishment that termination is in the best interest of the child is not conclusive evidence of that element. See In re E.J.R., 503 S.W.3d 536, 544 (Tex. App.—Corpus Christi–Edinburg 2016, pet. denied).
A combined proceeding also extends the period in which the birthparents can challenge the actual termination of their rights, because their rights to appeal do not begin until the termination has been granted.
COMMENT: The attorney should check with the county clerk’s office or the judge before filing a bifurcated action. In some counties the court will not allow a termination action to proceed without the joinder of an adoption suit.
§ 50.3Indian Child Welfare Act
In any case of termination or adoption involving an American Indian child, federal law preempts state law. 25 U.S.C. §§ 1901–1923 (Indian Child Welfare Act or ICWA). The Bureau of Indian Affairs has issued new regulations and guidelines that affect all terminations involving an Indian child. These regulations and guidelines, which went into effect December 12, 2016, can be found at www.federalregister.gov/documents/2016/06/14/2016-13686/indian-child-welfare-act-proceedings.
IMPORTANT NOTE: The U.S. District Court for the Northern District of Texas has ruled that ICWA is unconstitutional and that the regulations implementing the Act that went into effect on December 12, 2016 (referred to as the Final Rule), are void. See Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018). The plaintiffs asserted that the placement preferences of ICWA disfavor non-Indian families and therefore disadvantage children. They also claimed that ICWA commandeers state agencies to effectuate a federal child-placement policy. The case was appealed to the U.S. Fifth Circuit Court of Appeals. An en banc hearing was held on January 22, 2020, and the opinion was not issued until April 6, 2021. Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021). Many complex issues were discussed in the 206-page opinion. The majority held that the U.S. relationship with Native American tribes is a political one and that ICWA’s provisions applying to “Indian Children” are not based on race or ancestry. The court also held that some provisions of ICWA commandeer states’ rights, such as the requirement that state agencies provide substantive services to the birth family or bear the cost and burden of providing expert testimony to justify placement of children into foster care. A petition for writ of certiorari was granted, and oral arguments were heard on November 9, 2022. Until the Supreme Court addresses this case, practitioners should continue to comply with ICWA.
ICWA was established to address “the consequences . . . of abusive child welfare practices that [separated] Indian children from their families and tribes through adoption or foster care placement.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). ICWA contains heightened standards in a suit for involuntary termination of parental rights, such as a showing that serious harm is likely to result from the parent’s continued custody of the child and that remedial efforts were made to prevent the breakup of the Indian child’s family. The standard of proof in a suit under ICWA is beyond a reasonable doubt. The U.S. Supreme Court considered whether the heightened standards of ICWA applied to an involuntary termination of parental rights in cases where the child had never been in the custody of the biological father and had never resided on a reservation. The Court held that the Act was designed to counteract the unwarranted removal of Indian children from Indian families and that goal is not implicated when a child is voluntarily placed by a non-Indian parent with sole custodial rights. Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013).
In every termination case the court must inquire on the record if the child is an Indian child. The term Indian child is defined as any unmarried person who is under the age of eighteen and either is a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). If there is reason to know that a child might be an Indian child, there must be evidence on the record that due diligence was used to verify if the child is a member of a tribe or eligible for membership. If the child is determined to be an Indian child as defined by the Act, then the procedures and heightened burden of ICWA must be applied to the termination proceeding. In re S.J.H., 594 S.W.3d 682, 690 (Tex. App.—El Paso 2019, no pet.). A determination by a tribe that a child is or is not a member of that tribe or is or is not eligible for membership in that tribe, or that the biological parent is or is not a member of the tribe, is conclusive. In re A.W., 590 S.W.3d 68, 71–72 (Tex. App.—Texarkana 2019, pet. denied). Courts are advised to err on the side of caution and to apply ICWA if they are unable to determine that the child is not an Indian child. A father’s testimony that he had “some Indian blood” is not evidence that the child is an Indian child. In re R.M.W., 188 S.W.3d 831 (Tex. App.—Texarkana 2006, no pet.).
The term parent is defined as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.” 25 U.S.C. § 1903(9).
The inquiry as to whether a child is an Indian child is necessary because it affects the jurisdiction of the court and the standards and procedures to be used in the termination of parental rights. The Indian tribe has exclusive jurisdiction over an Indian child custody proceeding if the child resides or is domiciled within the reservation of the tribe, except when such jurisdiction is otherwise vested in the state by federal law. When an Indian child is a ward of the tribal court, the tribe retains exclusive jurisdiction of the child regardless of whether the child is living on the reservation. 25 U.S.C. § 1911(a).
If an Indian child does not reside or is not domiciled in a reservation and is not a ward of a tribal court, the tribal court and the state court have concurrent jurisdiction, but there is a presumption in favor of tribal court jurisdiction. Holyfield, 490 U.S. at 36; see 25 U.S.C. § 1911(b). The state court must defer to the tribal court unless (1) either parent objects; (2) the tribe declines the transfer; or (3) good cause is shown for retention of state jurisdiction. There is no definition of what constitutes good cause for the state court not to transfer the case to the tribal court. In re Navajo Nation, 587 S.W.3d 883, 888 (Tex. App.—Amarillo 2019, orig. proceeding).
Notice to the tribe is required in all involuntary terminations. 25 U.S.C. § 1912(a); Navajo Nation v. Washington, 47 F. Supp. 2d 1233 (E.D. Wash. 1999); Catholic Social Services, Inc. v. C.A.A., 783 P.2d 1159 (Alaska 1989), cert. denied, 495 U.S. 948 (1990); In re Welfare of L.N.B.-L., 237 P.3d 944 (Wash. App. Div. 2, 2010). However, notice to the tribe and ICWA findings are not required in emergency removals by TDFPS. In re A.M., 570 S.W.3d 860 (Tex. App.—El Paso 2018, no pet.). Although a voluntary termination or adoption does not require notice to the tribe to allow the tribe to assert jurisdiction, a letter of inquiry to the tribe may be necessary to determine if the child is an Indian child. See 25 U.S.C. § 1913. If the child is an Indian child, the ICWA standards shall be applied by the court. The tribe can intervene at any time, without having to file a written pleading with the court. In re J.J.T., 544 S.W.3d 874, 879 (Tex. App.—El Paso 2017, no pet.).
ICWA requires “evidence beyond a reasonable doubt” that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child before the parents’ rights may be terminated. Expert testimony is required to support such finding in involuntary termination cases. 25 U.S.C. § 1912(f); Doty-Jabbaar v. Dallas County Child Protective Services, 19 S.W.3d 870, 876 (Tex. App.—Dallas 2000, pet. denied). ICWA does not define who qualifies to provide the expert testimony, but the Bureau of Indian Affairs has created guidelines. See In re D.E.D.I., 568 S.W.3d 261, 263 (Tex. App.—Eastland 2019, no pet.); In re V.L.R., 507 S.W.3d 788, 796 (Tex. App.—El Paso 2015, no pet.).
The definition of the term “best interests of Indian Children” is different from the general Anglo-American “best interest of the child” standard used in cases involving non-Indian children. In re W.D.H., 43 S.W.3d 30, 36 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 169 (Tex. App.—Houston [14th Dist.] 1995, no writ); In re Welfare of L.N.B.-L., 237 P.3d 944.
ICWA provisions for the voluntary termination of parental rights for an Indian child differ in a number of significant ways from those for other Texas termination cases, specifically: (1) the child must be at least ten days old before the signing of documents, (2) the relinquishment must be executed in writing and recorded before a judge, (3) the judge must include a certificate that the terms and consequences of the relinquishment were fully explained in detail and were fully understood by the parent, and (4) the court must also certify that the parent understood the explanation in English or that it was interpreted into a language that the parent understood. 25 U.S.C. § 1913(a). The relinquishment remains revocable until the court enters a final decree of termination or adoption. 25 U.S.C. § 1913(c).
Even though notice to the tribe is not required in a voluntary termination, once it is determined that the child is an Indian child, the attorney must comply with all the heightened standards of the Act. Failure to comply with the procedures set forth in ICWA will result in a void termination decree. See 25 U.S.C. § 1914.
Each tribe determines the eligibility requirements for that tribe. A federal district court in Utah upheld the validity of the Cherokee Nation’s membership rule that a newborn child who is a direct descendant of an original enrollee on the Dawes Roll is automatically a member of the tribe for 240 days following the child’s birth. This ruling means that the provisions of ICWA would automatically apply to a child, even though neither of the birth parents was a registered member of the tribe. The automatic enrollment provision was challenged in Nielson v. Ketchum, 640 F.3d 1117, 1123–24 (10th Cir. 2011), cert. denied, 132 S. Ct. 2429 (2012), and the Tenth Circuit held that the tribe could not enroll a newborn without a request being filed on behalf of the enrollee. It is crucial to check with the tribe to determine eligibility requirements. See In re Adoption of C.D.K., 629 F. Supp. 2d 1258 (D. Utah 2009).
Some states have state ICWA statutes with additional, more stringent, requirements for handling cases when the child has parents with American Indian ancestry. These states are called mini-ICWA states, and the additional requirements must be met before those states will grant interstate compact approval, a termination, or an adoption. Arizona, California, Colorado, Iowa, Nebraska, Oklahoma, Michigan, Minnesota, and Wisconsin are all mini-ICWA states.
Additional information concerning the Indian Child Welfare Act can be found at www.NICWA.org and www.bia.gov.
Ancillary forms needed for termination and adoption actions, such as waivers of citation, affidavits of relinquishment, and affidavits of waiver of interest, are found in chapter 53 of this manual.
Under title 5 of the Family Code, a “parent” is the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, an adoptive mother or father, an unmarried man who provides sperm for assisted reproduction by an unmarried woman and who intends to be the father of a resulting child, or the intended mother or father confirmed by adjudication as a parent under a validated gestational agreement. Tex. Fam. Code §§ 101.024(a), 160.7031, 160.753. The term does not generally include a parent as to whom the parent-child relationship has been terminated. Tex. Fam. Code § 101.024(a). However, for purposes of establishing, determining the terms of, modifying, or enforcing an order, “parent” includes a person ordered to pay child support under Family Code section 154.001(a–1) or to provide medical support or dental support for a child. Tex. Fam. Code § 101.024(b).
A rebuttable presumption that a man is a child’s father exists if—
1.he is married to the mother of the child and the child is born during the marriage;
2.he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
3.he married the mother of the child before the birth of the child in apparent compliance with the law, 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 by death, annulment, declaration of invalidity, or divorce;
4.he married the mother of the child after the birth of the child in apparent compliance with the law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and (1) the assertion is in a record filed with the vital statistics unit (VSU), (2) he is voluntarily named as the child’s father on the child’s birth certificate, or (3) he promised in a record to support the child as his own; or
5.during the first two 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.
A presumption of paternity under section 160.204 may be rebutted only by an adjudication under chapter 160, subchapter G , or the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgement of paternity as provided by Family Code section 160.305. Tex. Fam. Code § 160.204(b).
§ 50.6Establishment of the Parent-Child Relationship
A parent-child relationship as to the mother of a child can be established by (1) the woman’s giving birth to the child, (2) an adjudication of the woman’s maternity, or (3) the adoption of the child by the woman. Tex. Fam. Code §§ 160.201(a), 160.753(a). A parent-child relationship as to the father of a child can be established by (1) an unrebutted presumption under Family Code section 160.204; (2) an effective acknowledgment of paternity under chapter 160, subchapter D, unless the acknowledgment has been rescinded or successfully challenged; (3) an adjudication of the man’s paternity; (4) the adoption of the child by the man; (5) the man’s consent to assisted reproduction by his wife under chapter 160, subchapter H, which resulted in the birth of the child; or (6) the unmarried man’s consent to assisted reproduction of an unmarried woman using his sperm with the intent to be the father. Tex. Fam. Code §§ 160.201(b), 160.7031, 160.753(b). For further discussion of parentage issues, refer to chapter 54 of this manual.
Gender-neutral treatment as set forth in Family Code section 160.106 obligates courts to treat a woman who is married to the mother of the child at the time of birth as a parent for purposes of standing and other obligations. In re D.A.A.-B., ___ S.W.3d ___, No. 08-2100058-CV, 2022 WL 3758574 (Tex. App.—El Paso Aug. 30, 2022, no pet.); Treto v. Treto, 622 S.W.3d 397, 402 (Tex. App.—Corpus Christi–Edinburg 2020, no pet.). But see In re A.E., No. 09-16-00019-CV, 2017 WL 1535101, at *10 (Tex. App.—Beaumont Apr. 27, 2017, pet. denied) (mem. op.) (rejecting nongestational spouse’s claim of standing based on presumed parentage in SAPCR portion of divorce of same-sex couple).
A man should register with the paternity registry if he wants to be notified of a proceeding for adoption or termination of parental rights regarding a child he may have fathered. This registration is accomplished by filing a “registration for notification” with the VSU before, or within thirty-one days after, the birth of the child. Tex. Fam. Code § 160.402(a). The filing of a registration does not create a presumption of paternity. The mother is not entitled to notice of the registration unless she has provided an address to the VSU. Tex. Fam. Code § 160.412(a).
Registration with the paternity registry entitles the registrant to notice, at the address provided, of a proceeding for termination or adoption with respect to the child, but it does not “commence a proceeding to establish paternity.” Tex. Fam. Code § 160.411(3).
If a man has timely registered, the petitioner must attempt service of process as provided by the rules of civil procedure. Tex. Fam. Code § 160.403. If a man has registered but cannot be served at the location listed in the registry or any other address known to the petitioner, it is not necessary to serve the alleged father by publication. Tex. Fam. Code § 161.002(b)(4), (d). Before proceeding without service on an alleged father who registered, the petitioner must show due diligence in attempting to obtain service by filing an affidavit with the court. Tex. Fam. Code § 161.002(f). The termination order must contain specific findings regarding the exercise of due diligence by the petitioner. Tex. Fam. Code § 161.002(f).
The failure of an unmarried birth father to timely register is grounds for termination of his parental rights. Tex. Fam. Code § 161.002(b)(2), (b)(3). A birth father who fails to register is not entitled to personal service, service by publication, or notice of a suit for termination of his parental rights. See Tex. Fam. Code §§ 160.404, 161.002(c–1).
However, the Department of Family and Protective Services has been found to have a due-process duty to personally serve an alleged father if his identity and location are known. See In re P. RJ E., 499 S.W.3d 571, 576 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); In re J.M., 387 S.W.3d 865, 872 (Tex. App.—San Antonio 2012, no pet.); see also In re E.R., 385 S.W.3d 552, 555, 565–66 (Tex. 2012).
All other grounds for termination of parental rights require service on the alleged father unless he waives that right. Tex. Fam. Code §§ 161.002(a), 102.009(a)(8).
There is a split of authority as to whether it is constitutional to terminate the rights of an alleged father whose identity is known without service. In In re Baby Girl S., the birth father was known to the birth mother, but his name was not disclosed to the agency. The birth father failed to register, and his rights were terminated for failure to register with the paternity registry, without notice or service of any kind, pursuant to Tex. Fam. Code § 161.002(b)(3). The court held the termination of his parental rights without notice to him was not a violation of his constitutional due process rights because the registry provides a legal mechanism that he could use to ensure that he received notice. In re Baby Girl S., 407 S.W.3d 904, 915 (Tex. App.—Dallas, 2013, pet. denied); see In re T.B.D., No. 05-17-01137-CV, 2018 WL 947905, at *3 (Tex. App.—Dallas Feb. 20, 2018, orig. proceeding) (mem. op.). But see In re P. RJ E., 499 S.W.3d 571, where the court held that personal service on an alleged father is required if the birth father’s identity and location are known, even though he failed to register with the paternity registry. The court distinguished this case from In re Baby Girl S. because in this case the Department of Family and Protective Services attempted to invoke personal jurisdiction over the birth father by naming him in the petition and listing an address, but there was no evidence that he was served or knew or had reason to know that the birth mother was pregnant. In In re Baby Girl S. there was evidence that the alleged father knew or should have known that the birth mother might be pregnant.
The information disclosed on the registry form may be used against the registrant to establish paternity. Tex. Fam. Code § 160.411(4). However, the registrant may rescind his registration at any time. Tex. Fam. Code § 160.414. The registration simply identifies a child the man “may have fathered.” Tex. Fam. Code § 160.402(a).
The paternity registry may be a source for service information on a self-alleged father and should be searched as a precaution against a subsequent claim of parentage by a nonparty to the parentage action. See In re K.M.S., 68 S.W.3d 61 (Tex. App.—Dallas 2001, pet. denied) (paternity order set aside by bill of review when notice not given to man claiming to be father). A man who registers subjects himself to long-arm jurisdiction. Tex. Fam. Code § 159.201(a)(7).
Registration with the paternity registry is not necessary when a man is a presumed father, has been adjudicated to be the biological father, has filed an acknowledgment of paternity, or has commenced a proceeding to adjudicate paternity before his parental rights are terminated. See Tex. Fam. Code § 160.402(b).
In all termination cases where there is no presumed father, a certificate of paternity registry search must be filed before the proceeding may be concluded. Tex. Fam. Code § 160.422(c). The petitioner may request a search of the registry on or after the thirty-second day after the date of the child’s birth. Tex. Fam. Code § 160.421(a). The court may not render an order terminating parental rights of an alleged father who has not registered unless the court receives evidence of a certificate of the results of a search of the registry from the VSU indicating that no man has registered the intent to claim paternity. Tex. Fam. Code § 161.002(e). If the petitioner has reason to believe that the child may have been conceived or born in another state, a search of the paternity registry from the other state must also be obtained. Tex. Fam. Code § 160.421(b).
No fee may be charged for filing a registration or to rescind a registration. However, a fee for processing a search or furnishing a certificate concerning the search may be charged, except to a “support enforcement agency.” Tex. Fam. Code § 160.416. A support enforcement agency includes the attorney general, domestic relations offices, and the Texas Department of Family and Protective Services. See Tex. Fam. Code § 160.102(17).
§ 50.8Affidavit of Voluntary Relinquishment of Parental Rights
A person, a licensed child-placing agency, or the Department of Family and Protective Services designated managing conservator in an irrevocable or unrevoked affidavit of voluntary relinquishment has a superior right to possession of the child over the parent who signs the affidavit. The designated managing conservator also has the right to consent to medical, surgical, dental, and psychological treatment for the child and the rights and duties given to a possessory conservator under Family Code chapter 153 unless those rights and duties are modified or terminated by court order. Tex. Fam. Code § 161.104.
The relinquishment contained in an affidavit that designates the department or a licensed child-placing agency as managing conservator is irrevocable. Tex. Fam. Code § 161.103(a), (e).
An affidavit of voluntary relinquishment of parental rights in a private placement may be irrevocable for a stated time, not to exceed sixty days. Tex. Fam. Code § 161.103(e). If the affidavit fails to address the matter of revocability, then it becomes revocable for a period of ten days. Tex. Fam. Code § 161.1035. To limit the revocation period to ten days, the affidavit must contain a statement, in bold-faced type, that the affiant may revoke only if the revocation is made before the eleventh day after the date of execution. Tex. Fam. Code § 161.103(b)(10). The name and address of the person to whom the revocation is to be delivered must be included in the affidavit. Tex. Fam. Code § 161.103(b)(11).
To revoke an affidavit of relinquishment, the parent who executed it must sign a verified statement before two witnesses. A copy of the revocation shall be delivered to the person designated in the affidavit. If a parent attempting to revoke a relinquishment knows that a termination suit based on the affidavit of relinquishment has been filed, the parent shall file a copy of the revocation with the clerk of the court. Tex. Fam. Code § 161.103(g).
An affidavit of relinquishment that meets the requirements of Texas Family Code section 161.103 is prima facie evidence of the validity of the relinquishment, and the party rebutting that presumption bears the burden of showing that it was executed as the result of “fraud, duress, or coercion.” In re A.R.M.K., 588 S.W.3d 692, 699 (Tex. App.—Amarillo 2019, no pet.). In Vela v. Marywood, 17 S.W.3d 750 (Tex. App.—Austin 2000), pet. denied, 53 S.W.3d 684 (Tex. 2001) (per curiam), the court found that an affidavit of relinquishment was procured by misrepresentation, fraud, and duress and was not voluntarily signed, because the child-placing agency breached its duty owed to the pregnant mother when it failed to notify her that an open adoption agreement was unenforceable. Vela, 17 S.W.3d at 760–64. In Queen v. Goeddertz, 48 S.W.3d 928 (Tex. App.—Beaumont 2001, no pet.), the court found that an affidavit of relinquishment was not voluntarily signed by a father, because it contained representations that he retained his right to visit with the child and the adoptive parents refused to permit him to do so. Queen, 48 S.W.3d at 931–32.
The affidavit of voluntary relinquishment of parental rights must be executed at least forty-eight hours after the birth of the child and must be verified and witnessed by two credible persons. Tex. Fam. Code § 161.103(a). The attorney for the adoptive parents may be disqualified from acting as the notary on the relinquishment if the attorney has a strong financial interest in the case. See Martin v. Mooney, 695 S.W.2d 211 (Tex. App.—Austin 1985, no writ); Terrell v. Chambers, 630 S.W.2d 800, 802 (Tex. App.—Tyler 1982), writ ref’d n.r.e., 639 S.W.2d 451 (Tex. 1982) (per curiam).
The affidavit must contain the statements and information set forth in Family Code section 161.103(b). See Tex. Fam. Code § 161.103(b). The affidavit may contain a waiver of citation in a termination suit. Tex. Fam. Code § 161.103(c)(1). It may also contain a waiver of record and a waiver of notice of the final judgment. Tex. Fam. Code §§ 105.003(c), 161.209. Minor parents are permitted to sign affidavits of relinquishment. Tex. Fam. Code § 161.103(a)(1); Coleman v. Smallwood, 800 S.W.2d 353 (Tex. App.—El Paso 1990, no writ). A copy of the affidavit shall be provided to the parent when the parent signs it. Tex. Fam. Code § 161.103(d). 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. Tex. Fam. Code § 161.103(h).
A parent who signs an affidavit of voluntary relinquishment of parental rights regarding a biological child must also prepare a medical history report addressing the medical history of the parent and the parent’s ancestors. The department has adopted a form for parents to use to comply with this requirement, designed to permit them to identify any of their medical conditions that could indicate a predisposition for the child to develop the condition. This medical history report is to be used in preparing the health, social, educational, and genetic history report required by Family Code section 162.005 (see section 51.20 in this manual) and made available to persons granted access under Family Code section 162.006. Tex. Fam. Code § 161.1031.
§ 50.9Affidavit of Waiver of Interest in Child
Before or after the child is born, any man alleged to be the father may execute an affidavit of waiver of interest. The affiant is not required to admit paternity of the child and may disclaim any interest in the child. This affidavit must be signed and verified before a notary and two witnesses. The affidavit may waive notice or the service of citation in any suit filed or to be filed affecting the parent-child relationship with respect to the child. Tex. Fam. Code § 161.106(a)–(d); Ivy v. Edna Gladney Home, 783 S.W.2d 829 (Tex. App.—Fort Worth 1990, no writ). Waiver of the making of a record and of the right to receive notice of the judgment may also be included. Tex. Fam. Code §§ 105.003(c), 161.209.
An affidavit of waiver of interest is irrevocable. Tex. Fam. Code § 161.106(f).
§ 50.10Release of Child from Hospital
The mother of a newborn child may authorize the child’s release from the hospital or birthing center to a licensed child-placing agency, the Texas Department of Family and Protective Services, or another designated person. The release must be executed in writing, witnessed by two credible adults, and verified before a person authorized to take oaths. A hospital or birthing center shall comply with the terms of a properly executed release without requiring a court order. Tex. Fam. Code § 161.108.
[Sections 50.11 through 50.20 are reserved for expansion.]
The purpose of the suit to terminate the parent-child relationship is to divest the parent or alleged father and the child of all legal rights and duties with respect to each other, except that the child retains the right to inherit from and through the child’s divested parent unless the court provides otherwise. See Tex. Fam. Code § 161.206(b). Estates Code section 201.052 also addresses rights of inheritance by and from certain children with no presumed father. See Tex. Est. Code § 201.052. The obligation of support may be continued under certain circumstances, and limited posttermination contact may be available. See the discussion at section 50.34 below.
The suit is captioned “In the Interest of ____________, a Child.” Tex. Fam. Code § 102.008(a). If the suit is filed before the birth of the child, it is styled “In the Interest of an Unborn Child,” and after the birth the clerk shall change the style to reflect the name of the child unless adoption is sought. Tex. Fam. Code §§ 102.008(a), 161.102(b). The petition must contain the information required by Family Code section 102.008(b). See Tex. Fam. Code § 102.008(b).
Unless all parties reside in Texas, the first pleading by each party must also contain either in the body of the pleading or in an attached affidavit the information set forth in section 152.209 of the Family Code. See Tex. Fam. Code §§ 152.102(4), 152.209.
The petition must state whether, in regard to a party to the suit or a child of a party to the suit, there is in effect a protective order under Family Code title 4, a protective order under chapter 7A of the Code of Criminal Procedure, or an order for emergency protection under article 17.292 of the Code of Criminal Procedure. The petition also must state whether an application for any of these orders is pending. The petitioner must attach a copy of each such protective order in which a party to the suit or the child of a party to the suit was the applicant or victim of the conduct alleged in the application or order and the other party was the respondent or defendant of an action regarding the conduct alleged in the application or order without regard to the date of the order. If a copy of the order is not available at the time of filing, the petition must state that a copy will be filed with the court before any hearing. Tex. Fam. Code § 102.008(b)(11), (c).
If the child has been the subject of an earlier suit affecting the parent-child relationship, the court in which the prior proceedings occurred retains continuing, exclusive jurisdiction. Tex. Fam. Code § 155.002. The suit must be filed in the court of continuing jurisdiction. Tex. Fam. Code § 155.001. If a final order is rendered by a court other than the court that has continuing, exclusive jurisdiction, such order is voidable under section 155.104, but that court may be requested to transfer, if appropriate. Tex. Fam. Code §§ 103.002, 103.003, 155.104. See chapter 42 of this manual for appropriate transfer procedures.
§ 50.24Uniform Child Custody Jurisdiction and Enforcement Act
A suit to terminate the parent-child relationship is a “child custody proceeding,” as defined under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Tex. Fam. Code § 152.102(4). In personam jurisdiction over the nonresident parent is not a prerequisite to obtaining a valid termination order. Tex. Fam. Code §§ 152.106, 152.108, 152.201(c). Suits for termination of parental rights are status determinations and do not require personal jurisdiction. In re M.S.B., 611 S.W.2d 704, 706 (Tex. App.—San Antonio 1980, no writ). The petitioner must satisfy the subject-matter jurisdiction requirement of the UCCJEA under Family Code sections 152.201 and 152.202. See Tex. Fam. Code §§ 152.201, 152.202. See the discussion of interstate jurisdictional issues in section 51.3 in this manual.
Venue is in the county where the child resides as defined in Family Code section 103.001, unless another court has continuing, exclusive jurisdiction under Family Code chapter 155 or venue is fixed by chapter 6. Tex. Fam. Code § 103.001(a). If a court has continuing jurisdiction but the child’s residence has changed, transfer to the county of proper venue may be sought. See Tex. Fam. Code §§ 103.002, 103.003. See pleadings in chapter 42 of this manual.
A parent may bring a voluntary suit requesting termination of his or her own parental rights. Tex. Fam. Code § 161.005(a).
In involuntary termination proceedings the petitioner may be any person authorized by Family Code section 102.003. In particular, an original suit may be brought by a person designated the managing conservator in a revoked or unrevoked affidavit of relinquishment under Family Code chapter 161 or to whom consent to adoption has been given in writing under chapter 162 or to whom a statement to confer standing has been executed. Tex. Fam. Code § 102.003(a)(10), (a)(14).
An original suit for termination of the parent-child relationship joined with a petition for adoption may be brought by a stepparent of the child; by an adult who, as the result of a placement for adoption, has had actual possession and control of the child at any time during the thirty-day period immediately preceding the filing of the petition; by an adult who has had actual possession and control of the child for at least two months during the three-month period immediately preceding the filing of the petition; by an adult who has adopted, or is the foster parent of and has petitioned to adopt, a sibling of the child; or by another adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing to do so. Tex. Fam. Code § 102.005.
In a suit filed under Family Code section 161.005(a) in which the parent is seeking to have his or her rights terminated, the only evidence needed is that termination will be in the best interest of the child. Tex. Fam. Code § 161.005(a); Nichols v. Nichols, 803 S.W.2d 484, 485 (Tex. App.—El Paso 1991, no writ). Courts are reluctant to grant a “voluntary” termination under this section, because the termination of parental rights usually extinguishes the obligation of that parent to provide support for the child. The attorney should confirm with the court in which the suit will be filed that such a proceeding will not be against that court’s policy.
In certain cases, however, the obligation to support might not be extinguished by the termination of parental rights. In a suit in which the Texas Department of Family and Protective Services has been appointed managing conservator of the child, the court may order each parent who is financially able to support a child who is in substitute care, even if the parental rights have been terminated. In re C.J.C., 630 S.W.3d 500 (Tex. App.—Eastland 2021, no pet. h.). Similarly, the court may order support by a parent whose rights have been terminated with respect to a child who was conceived as a direct result of conduct that constitutes an offense under section 21.02, 22.011, 22.021, or 25.02 of the Texas Penal Code. The court may also order support by a parent whose rights have been terminated with respect to a child for a reason described by Code section 161.001(b)(1)(T)(iv) or (b)(1)(U) (concerning sexual assault of the other parent). See Tex. Fam. Code § 154.001(a–1).
Suit for Termination Based on Misrepresentation of Paternity: With certain exceptions, a man may file a suit for termination of the parent-child relationship between the man and a child if the man signed an acknowledgment of paternity without obtaining genetic testing or was adjudicated to be the child’s father in a proceeding in which genetic testing did not occur. The petition must be verified and must allege facts showing that the petitioner is not the child’s genetic father and that he signed the acknowledgment of paternity or failed to contest parentage in the previous proceeding because of the mistaken belief, at the time the acknowledgment was signed or on the date the court order in the previous proceeding was rendered, that he was the child’s genetic father based on misrepresentations that led him to that conclusion. Tex. Fam. Code § 161.005(c).
A suit under this section may not be filed by a man who is the child’s adoptive father, a man who consented to conception by assisted reproduction, or a man who is the intended father of the child under a gestational agreement validated by a court. Tex. Fam. Code § 161.005(d).
The petition must be filed not later than the second anniversary of the date on which the petitioner becomes aware of the facts indicating that he might not be the genetic father. Tex. Fam. Code § 161.005(e). This awareness need not be based on conclusive paternity test results. In re D.I.P., 421 S.W.3d 106 (Tex. App.—San Antonio 2013, pet. denied).
The court must hold a pretrial hearing to determine whether the petitioner has established a meritorious prima facie case for termination. If he has, the court must order genetic testing. Tex. Fam. Code § 161.005(f). A prima facie showing can be established by the filing of a verified petition alleging the misrepresentation coupled with circumstantial evidence of the misrepresentation. See In re C.E., 391 S.W.3d 201, 204 (Tex. App.—Houston [1st Dist.] 2012, no pet.). If the results of that genetic testing identify the petitioner as the child’s genetic father and the result of any further testing requested by the petitioner and ordered by the court do not exclude him as the genetic father, the court shall deny the request for termination. Tex. Fam. Code § 161.005(g). If the results of the genetic testing exclude the petitioner as the child’s genetic father, the court shall render an order terminating the parent-child relationship without a showing that termination is in the best interest of the child. See Tex. Fam. Code § 161.005(h).
A termination order under these provisions ends the petitioner’s obligation for future support of the child as of the date the order is rendered, as well as the obligation to pay interest that accrues after that date on the basis of a child support arrearage or money judgment for a child support arrearage existing on that date, but does not affect any support obligations incurred before that date. Support obligations accrued before entry of the termination order are enforceable until satisfied by any means available for the enforcement of child support other than contempt. Tex. Fam. Code § 161.005(i).
The termination order does not preclude initiation of a proceeding under Family Code chapter 160 to adjudicate whether another man is the child’s parent or, if the other man is adjudicated as the child’s parent, the rendition of an order requiring that man to pay child support, though not for periods preceding the date of the termination order. Tex. Fam. Code § 161.005(j), (k).
The petitioner in a suit to terminate his rights under these provisions may request periods of possession or access following termination, but the court may order periods of possession or access only if the court determines that denial of possession or access would significantly impair the child’s physical health or emotional well-being. Tex. Fam. Code § 161.005(l). If possession or access is ordered, the order may include provisions requiring that the child or any party to the proceeding participate in family counseling and that any party pay the costs of that counseling. Tex. Fam. Code § 161.005(m), (n). During periods of possession or access, the petitioner has the rights and duties specified in Family Code section 153.074, subject to any limitations by the court. Tex. Fam. Code § 161.005(o).
§ 50.28Grounds for Involuntary Termination
There are a number of sections in the Family Code that provide grounds for involuntary termination. See Tex. Fam. Code §§ 160.404, 161.001, 161.002, 161.004, 161.006, 161.007. The practitioner should refer to these sections to determine the appropriate grounds before filing a termination suit. The majority of the grounds for termination are set forth in Code section 161.001. It is not necessary to specifically plead the underlying facts in an involuntary termination petition as long as the petition alleges in the statutory language each ground for termination and that the termination is in the child’s best interest. Tex. Fam. Code § 161.101(a).
A parent who signs a voluntary affidavit of relinquishment of parental rights remains a party to the lawsuit and is entitled to testify without being designated on a witness list. In re J.L.J., 352 S.W.3d 536, 542 (Tex. App.—El Paso 2011, no pet.).
Pregnancy Result of Criminal Act: There are some special provisions for termination of parental rights if the pregnancy was the result of a criminal act. Code section 161.007 permits termination of parental rights when there has been a violation of Texas Penal Code section 21.02, 22.011, 22.021, or 25.02 resulting in the victim’s becoming pregnant with the parent’s child. The requirements for termination under Code section 161.007 differ depending on whether the parent was married to or cohabiting with the other parent for the two years after the birth of the child.
If the parents were not married or cohabiting during that two-year period, the court shall order termination if it finds by clear and convincing evidence that the parent has engaged in conduct that constitutes an offense under section 21.02, 22.011, 22.021, or 25.02 of the Texas Penal Code; that the victim of the conduct became pregnant with the parent’s child as a direct result of that conduct; and that termination is in the child’s best interest. Tex. Fam. Code § 161.007(a).
If the parents were married or cohabiting for the two-year period, the court may order termination if it finds that the parent has been convicted of an offense under section 21.02, 22.011, 22.021, or 25.02 of the Texas Penal Code; that the other parent became pregnant with the child as a direct result of the commission of the offense; and that termination is in the child’s best interest. Tex. Fam. Code § 161.007(b).
§ 50.29Proceedings Regarding Alleged Father
Except as otherwise provided in Family Code section 161.002, the procedural and substantive standards for termination of parental rights under Family Code title 5 apply to the termination of the rights of an alleged father. Tex. Fam. Code § 161.002(a). An alleged father who has been served with citation in a suit affecting the parent-child relationship may have his rights terminated if he fails to respond by timely filing an admission of paternity or by filing a counterclaim for paternity. Tex. Fam. Code § 161.002(b)(1).
Although the statute states that an alleged father is entitled to the procedural and substantive standards for termination of his parental rights, there are limitations on these procedural rights if the alleged father fails to register with the paternity registry. See Tex. Fam. Code § 161.002(b)(2), (b)(3). The petitioner is not required to identify the alleged father or give any type of notice to him of the suit to terminate his parental rights if he fails to register. Tex. Fam. Code § 161.002(c–1).
COMMENT: See section 50.7 above for a discussion of whether a known alleged father is entitled to service if there is no evidence that he knew of the pregnancy.
In termination suits filed by a governmental entity against an alleged father who failed to register and whose identity or location is unknown, the court is required to appoint an attorney ad litem to represent the alleged father’s interests. Tex. Fam. Code § 107.013(a)(3). There is no requirement that the petitioner prove termination is in the best interest of the child when the ground for termination is that the alleged father failed to register.
There is a conflict as to whether a certificate from the paternity registry is required in all cases where there is not a presumed father. Section 161.109(a) of the Texas Family Code states if there is not a presumed father of the child, a certificate from the vital statistics unit must be filed with the court before a trial on the merits in the termination suit. See Tex. Fam. Code § 161.109(a). In contrast, section 161.109(b) states that a certificate from the paternity registry is required before termination of the parental rights of an alleged or probable father if he has not been personally served or signed an affidavit of relinquishment or an affidavit of waiver of interest. See Tex. Fam. Code § 161.109(b).
A named or alleged father may execute an affidavit of waiver of interest in the child either before or after the birth of the child. See Tex. Fam. Code § 161.106. He is not required to admit paternity. Tex. Fam. Code § 161.106(d). If the alleged father executes an affidavit of waiver of interest, it is advisable that it contain a waiver of citation as well as a waiver of further notice of the termination suit. Tex. Fam. Code §§ 102.009(a)(8), 161.106(a). If there is more than one alleged father, each one should execute an affidavit of waiver of interest.
Although the affidavit of waiver of interest may be used in any proceeding in which the father claims paternity, it may not be used in a proceeding in which another person or an agency attempts to establish his paternity. Tex. Fam. Code § 161.106(e).
For a full discussion on other issues relating to paternity see chapter 54 of this manual.
§ 50.30Proceedings before Birth of Child
A petition that requests the termination of the parent-child relationship may be filed before the birth of the child. Tex. Fam. Code § 161.102(a). A suit may be filed before the birth of the child by a biological parent, by a licensed child-placing agency, or by the prospective adoptive parents if a biological parent has signed a statement to confer standing. See Tex. Fam. Code § 102.003. Filing suit before the birth of the child may be advisable if it will be difficult to serve one of the parties. If the suit is filed before the child’s birth, it is styled “In the Interest of an Unborn Child.” Tex. Fam. Code § 161.102(b). After the child’s birth, the clerk shall change the style of the case to include the child’s name, unless adoption is sought. Tex. Fam. Code §§ 102.008(a), 161.102(b).
§ 50.31Best-Interest Determination
Most, but not all, grounds for termination of parental rights require that there be a specific finding that the termination is in the best interest of the child. However, when using section 160.404 (failure to register) or section 161.006 (termination of parental rights if child born alive after attempted abortion), there is no requirement that the termination be in the best interest of the child. See Tex. Fam. Code §§ 160.404, 161.006.
The fact that termination is in the best interest of the child must be established by clear and convincing evidence, unless the case involves an Indian child; the latter situation requires proof beyond a reasonable doubt that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
There is a strong presumption that keeping a child with a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). Holley v. Adams contains a nonexclusive list of factors to consider. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Evidence of the grounds for termination may also be used as evidence that termination is in the best interest of the child, and undisputed evidence of just one factor may be sufficient to support a finding that termination is in the child’s best interest. In re C.H., 89 S.W.3d 17, 27–28 (Tex. 2002). The best-interest determination may rely on direct or circumstantial evidence, subjective factors, and the totality of the evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). When contested evidence is presented on the issue of best interest, the trial court determines the credibility of the witnesses. The trial court’s ruling will be overturned only if the appellate court determines that based on the evidence presented the fact finder would have formed a firm belief or conviction that termination was in the best interest of the child. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
The statement in the affidavit of relinquishment that termination is in the best interest of the child can ordinarily be ample evidence to support the required best-interest finding. See In re K.S.L., 538 S.W.3d 107, 111 (Tex. 2017). The intent of the legislature was to make an affidavit of relinquishment sufficient evidence on which the trial court can make a finding that termination is in the best interest of the children. Brown v. McLennan County Children’s Protective Services, 627 S.W.2d 390, 394 (Tex. 1982). However, a statement in an affidavit of relinquishment that termination is in the best interest of the child is not always conclusive evidence of that issue and does not mandate that the termination be granted. See In re E.J.R., 503 S.W.3d 536, 544 (Tex. App.—Corpus Christi–Edinburg 2016, pet. denied); see also In re Morris, 498 S.W.3d 624, 633–34 (Houston [14th Dist.] 2016, orig. proceeding [mand. denied]) (trial court entitled to conduct best-interest review of mediated settlement agreement that provided for termination of parental rights; court not required to find best interest as matter of law based solely on statements in agreement and in affidavit of relinquishment that termination was in best interest of child).
Summary judgment is rarely appropriate in contested termination cases for the best interest determination, because the best interest prong of a termination case requires a weighing of the evidence. In re C.M.J., 573 S.W.3d 404, 412 (Tex. App.—Houston [1st Dist.] 2019, no pet.). However, deemed admissions can support a finding that termination is in the best interest of the child. In re N.L.W., 534 S.W.3d 102, 112 (Tex. App.—Texarkana 2017, no pet.).
A child’s need for permanence in a “stable, permanent home” is paramount in considering best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.). It is the child’s best interest, not the parent’s best interest, that is to be considered by the court. See In re G.A.C., 499 S.W.3d 138, 141 (Tex. App.—Amarillo 2016, pet. denied).
§ 50.32Appointments in Termination Suits by Governmental Entity
To Represent Interests of Child: In a suit filed by a governmental entity seeking termination of the parent-child relationship, the court shall appoint a guardian ad litem to represent the best interest of the child immediately after the filing of the petition but before the full adversary hearing. See Tex. Fam. Code §§ 107.001(5), 107.011(a). The powers and duties of a guardian ad litem are listed in Family Code section 107.002. See Tex. Fam. Code § 107.002.
Contrast this with the appointment of an attorney ad litem, who is defined as an attorney who provides legal services to a person, including a child, and who owes to that person the duties of undivided loyalty, confidentiality, and competent representation. See Tex. Fam. Code §§ 107.001(2), 107.012. The powers and duties of an attorney ad litem are listed in Family Code sections 107.003 and 107.004. See Tex. Fam. Code §§ 107.003, 107.004.
An attorney may be appointed to serve in the dual role, which is defined as the role of an attorney who is appointed to act as both guardian ad litem and attorney ad litem for a child in a suit by a governmental entity. Tex. Fam. Code § 107.0125(a); see also Tex. Fam. Code § 107.001(4).
All powers and duties of the court-appointed representatives are discussed in chapter 13 of this manual.
To Represent Interests of Parent or Alleged Father: In a suit filed by a governmental entity seeking termination of the parent-child relationship or the appointment of a conservator for a child, the court shall appoint an attorney ad litem to represent the interests of (1) an indigent parent of the child who responds in opposition to the termination, (2) a parent served by citation by publication, (3) an alleged father who failed to register with the registry under Family Code chapter 160 and whose identity or location is unknown, and (4) an alleged father who registered with the paternity registry under Family Code chapter 160 but on whom the petitioner’s attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful. Tex. Fam. Code § 107.013(a).
If a parent is not represented by an attorney at the parent’s first court appearance, the court must inform the parent of the right to be represented by an attorney and, if the parent is indigent and appears in opposition to the suit, of the right to an attorney ad litem appointed by the court. Tex. Fam. Code § 107.013(a–1).
If an alleged father for whom an attorney ad litem has been appointed is adjudicated to be a parent of the child and is determined by the court to be indigent, the court may appoint the attorney ad litem to continue to represent the father’s interests as a parent. Tex Fam. Code § 107.0132(c).
The powers and duties of an attorney ad litem appointed under Code section 107.013 to represent the interests of a parent are listed in Tex. Fam. Code § 107.0131. The powers and duties of an attorney ad litem appointed under Code section 107.013 to represent the interests of an alleged father are listed in Code section 107.0132. The powers and duties of an attorney ad litem appointed under Code section 107.013 to represent the interests of a parent whose identity or location is unknown or who has been served by publication are listed in Tex. Fam. Code § 107.014. See Tex. Fam. Code §§ 107.0131, 107.0132, 107.014.
The court must require a parent claiming indigence for appointment of an attorney ad litem to file an affidavit of indigence before the court may conduct a hearing to determine the parent’s indigence. The court may consider additional evidence at the hearing, and, if it determines that the parent is indigent, shall appoint an attorney ad litem. Tex. Fam. Code § 107.013(d).
A parent determined to be indigent is presumed to remain indigent for the duration of the suit and any appeal, absent a determination that the parent is no longer indigent due to a material and substantial change in the parent’s financial circumstances. Tex. Fam. Code § 107.013(e); Tex. R. App. P. 20.1(b).
The court may appoint an attorney ad litem to represent a parent’s interests for a limited period beginning at the time the court issues a temporary restraining order or attachment of the child until the court determines whether the parent is indigent before commencement of the full adversary hearing. Tex. Fam. Code § 107.0141(a). An attorney ad litem who identifies and locates the parent shall inform the parent of the right to representation and the appointment of an attorney if the parent is indigent; help the parent make an indigence claim, if applicable; and assist the parent in preparing for the full adversary hearing. Tex. Fam. Code § 107.0141(c).
Counsel appointed to represent an indigent birth parent must provide effective assistance of counsel. The Texas Supreme Court has adopted the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), to determine if the representation was effective. See In re M.S., 115 S.W.3d 534 (Tex. 2003); In re D.J.J., 178 S.W.3d 424 (Tex. App.—Fort Worth 2005, no pet.). There is a split of authority as to whether a nonindigent parent who has retained counsel can raise the issue of ineffective assistance of counsel on appeal in a termination suit filed by a governmental entity. A number of cases have held that a parent cannot challenge ineffective assistance of retained counsel. See In re Z.C., No. 12-15-00279-CV, 2016 WL1730740, at *2 (Tex. App.—Tyler Apr. 29, 2016, no pet.) (mem. op.); In re J.B., No. 07-14-00187-CV, 2014 WL 5799616, at *5 (Tex. App.—Amarillo Nov. 6, 2014, no pet.) (mem. op.); see also In re A.B.B., 482 S.W.3d 135, 140–41 (Tex. App.—El Paso 2015, pet. denied) (private termination). But see In re E.R.W., 528 S.W.3d 251, 261 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (mother found to have right to challenge effectiveness of retained counsel since she has right to counsel under Tex. Fam. Code § 107.013).
If the appointed counsel fails to be present and participate at a “critical stage” of litigation, it is appropriate to presume that prejudice to the rights of the indigent parent occurred. In re J.A.B., 562 S.W.3d 726 (Tex. App.—San Antonio 2018, pet. denied); In re J.M.O., 459 S.W.3d 90, 94 (Tex. App.—San Antonio 2014, no pet.).
Duration of Appointment: An order appointing the Texas Department of Family and Protective Services as the child’s managing conservator must provide for the continuation of the appointment of the guardian ad litem or the attorney ad litem for the child, or an attorney appointed to serve in the dual role, as long as the child remains in the department’s conservatorship. Tex. Fam. Code § 107.016(1)(A). If both an attorney ad litem and a guardian ad litem for the child have been appointed, such an order may provide for the continuation of both appointments as long as the child remains in the department’s conservatorship. Tex. Fam. Code § 107.016(1)(B).
An attorney appointed to serve as an attorney ad litem for a parent or an alleged father continues to serve in that capacity until the earliest of the date (1) the suit affecting the parent-child relationship is dismissed, (2) all appeals in relation to any final order terminating parental rights are exhausted or waived, or (3) the attorney is relieved of the attorney’s duties or replaced by another attorney after a finding of good cause is rendered by the court on the record. Tex. Fam. Code § 107.016.
Fees and Expenses: An attorney appointed to serve as an attorney ad litem for a child, an attorney in the dual role, or an attorney ad litem for a parent is entitled to reasonable fees and expenses. See Tex. Fam. Code § 107.015.
Note: This manual does not contain forms for suits filed by governmental entities.
For a more complete discussion of appointments of court-ordered representatives, see chapter 13 of this manual.
§ 50.33Appointments in Termination Suits Other than Suits by Governmental Entity
In a suit requesting termination of the parent-child relationship that is not filed by a governmental entity, the court shall, unless the court finds that the interests of the child will be represented adequately by a party to the suit whose interests are not in conflict with the child’s interests, appoint an amicus attorney or an attorney ad litem. Tex. Fam. Code § 107.021(a–1). A court can seldom find that one party adequately represents the child’s interest or that their interests are not in conflict with the child’s interest. In re K.M.M., 326 S.W.3d 714, 715 (Tex. App.—Amarillo 2010, no pet.).
An amicus attorney is defined as an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child’s best interest rather than to provide legal services to the child. Tex. Fam. Code § 107.001(1). The powers and duties of an amicus attorney are listed in Family Code sections 107.003 and 107.005. See Tex. Fam. Code §§ 107.003, 107.005.
An attorney ad litem is defined as an attorney who provides legal services to a person, including a child, and who owes to that person the duties of undivided loyalty, confidentiality, and competent representation. See Tex. Fam. Code § 107.001(2). The powers and duties of an attorney ad litem are listed in Family Code sections 107.003 and 107.004. See Tex. Fam. Code §§ 107.003, 107.004.
In determining whether to make a discretionary appointment under Family Code section 107.021, the court shall give due consideration to the ability of the parties to pay reasonable fees to the appointee but may not require a person appointed to serve without reasonable compensation for the services rendered by that person. Tex. Fam. Code § 107.021(b)(1)(A), (b)(3). In a private suit for termination there are no provisions for the county to pay for the fees of the appointed attorney if the parents are indigent.
In addition to attorney’s fees that may be awarded under Family Code chapter 106, an amicus attorney or an attorney ad litem for the child is entitled to reasonable fees and expenses in an amount set by the court and ordered to be paid by one or more parties to the suit. Tex. Fam. Code § 107.023(a). The court may determine that such fees are necessaries for the benefit of the child. Tex. Fam. Code § 107.023(d). The fees cannot be classified as additional child support and therefore are not enforceable by contempt. In re R.H.W., 542 S.W.3d 724, 743–44 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
COMMENT: According to the U.S. Supreme Court, indigent parents in suits for termination of parental rights are not constitutionally entitled to representation. Lassiter v. Department of Social Services, 452 U.S. 18 (1981). Even though it is not constitutionally required, many states, including Texas, have enacted statutes to provide for representation of indigent parents in certain situations. Texas specifically requires the appointment of an attorney ad litem to represent indigent parents when the suit to terminate is filed by a governmental agency. Tex. Fam. Code § 107.013(a)(1).
Because of the changes to the law concerning the appointment of an attorney ad litem to represent birth parents who are indigent in nongovernmental termination cases, there will be more pro se litigants defending against the termination of their parental rights. Indigent parents may often be incarcerated. If so, the issue of whether the court should issue a bench warrant will arise. See section 3.15 in this manual for a discussion of an inmate’s participation at trial.
Generally, a person whose parental rights have been terminated is divested of all legal rights and duties between that former parent and the child. See Tex. Fam. Code § 161.206.
Limited Posttermination Contact: If a suit for voluntary termination of parental rights is filed by a nongenetic father pursuant to Family Code section 161.005(c), the court may order posttermination periods of possession of and access to the child if the court determines that denial of the periods of possession of or access to the child would significantly impair the child’s physical health or emotional well-being. See Tex. Fam. Code § 161.005(l), (m).
The order of termination in a suit filed by the Texas Department of Family and Protective Services may include terms for limited posttermination contact between a child and the biological parents under certain circumstances. See Tex. Fam. Code § 161.2061. The court must find that the biological parent requesting the contact has filed an affidavit of voluntary relinquishment of parental rights under Family Code section 161.103. The contact must be agreed on by the biological parent and the department. Further, the court must find the limited posttermination contact to be in the best interest of the child. Tex. Fam. Code § 161.2061(a).
The order may also include terms that allow the biological parent to receive specified information regarding the child, provide written communications to the child, and have limited access to the child until a final adoption is granted. Tex. Fam. Code § 161.2061(b). The terms of the 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. Tex. Fam. Code § 161.2061(c). The terms of the posttermination contact are not enforceable by contempt and may not be modified. Tex. Fam. Code § 161.2061(d), (e).
An order under Family Code section 161.2061 does not affect the finality of a termination order or grant standing to a parent whose parental rights have been terminated to file any action other than a motion to enforce the terms regarding limited posttermination contact until the court renders a subsequent adoption order with respect to the child. Tex. Fam. Code § 161.2061(f). The posttermination contact will cease on the adoption of the child, and the termination order may not require that the provisions be included in an adoption decree. Tex. Fam. Code § 161.2062(a).
Support: A court may order a financially able person whose parental rights have been terminated with respect to a child in substitute care for whom the department has been appointed managing conservator. The court may also order support by a parent whose rights have been terminated with respect to a child for a reason described by Code section 161.001(b)(1)(T)(iv) or (b)(1)(U) (concerning sexual assault of the other parent). This provision also applies for a child who was conceived as a direct result of conduct that constitutes an offense under section 21.02, 22.011, 22.021, or 25.02 of the Texas Penal Code. An order may be entered to support the child until the child’s adoption, the later of the child’s eighteenth birthday or graduation from high school, removal of the child’s disabilities, or the child’s death or, in the case of a disabled child, for an indefinite period. Tex. Fam. Code § 154.001(a–1).
Inheritance Rights: The child may still inherit from and through the parent whose rights have been terminated, unless the court specifically terminates the child’s inheritance rights. Tex. Fam. Code § 161.206(b). Termination of inheritance rights may be requested, but the practitioner should seriously consider the advisability of such a request. Typically the termination of inheritance rights is not requested. See Lutheran Social Service, Inc. v. Meyers, 460 S.W.2d 887 (Tex. 1970) (orig. proceeding).
Estates Code section 201.052 also addresses rights of inheritance by and from certain children who have no presumed father. See Tex. Est. Code § 201.052; see also McNary v. Khan, 792 S.W.2d 126, 127 (Tex. App.—Dallas 1990, no writ).
The Estates Code provides that the probate court may declare that a parent of a child under eighteen years of age may not inherit from or through the child on a finding by clear and convincing evidence of certain facts that substantially mirror several of the grounds for termination in Family Code section 161.001; these grounds involve abandonment, failure to support, or responsibility for death or serious injury of a child. See Tex. Est. Code § 201.062. If the court determines that the parent may not inherit from or through the child, the parent is treated as if the parent predeceased the child for purposes of inheritance through the laws of descent and distribution and any other cause of action based on parentage. Tex. Est. Code § 201.062(b).
Grandparent Rights: A biological or adoptive grandparent has standing to seek access under Family Code chapter 153 if one of the child’s biological or adoptive parents remains a legal parent after the termination. Tex. Fam. Code § 161.206(c); see Tex. Fam. Code §§ 153.433–.434. However, a grandparent seeking possession or access must meet stringent requirements, including overcoming the presumption set forth in section 153.433(a)(2).
§ 50.35Appointment of Managing Conservator
If the court terminates the parental rights of both parents or of the only living parent, the court shall appoint a suitable, competent adult, the Texas Department of Family and Protective Services, or a licensed child-placing agency as managing conservator. Tex. Fam. Code § 161.207(a). The appointment of the department as managing conservator is limited to certain circumstances. See Tex. Fam. Code § 161.208.
If the termination petition requests the appointment of a nonparent as managing conservator with authority to consent to adoption of a child, the petition must include a verified allegation that there has been compliance with the interstate compact or a verified statement of the particular reasons for noncompliance. Tex. Fam. Code § 162.002(b); see also Rodriguez v. Lutheran Social Services of Texas, Inc., 814 S.W.2d 153, 154–55 (Tex. App.—San Antonio 1991, writ denied).
If temporary orders are requested in a suit for termination of parental rights, there remains a strong presumption that a parent should be appointed as the temporary managing conservator. Only on a verified pleading or affidavit and a showing that placement of the child with a parent could endanger the child’s well-being should a nonparent be appointed temporary managing conservator. In re Mata, 212 S.W.3d 597 (Tex. App.—Austin 2006, orig. proceeding).
In a termination suit, the preplacement portion of an adoption evaluation or a combined pre- and postplacement adoption evaluation must be filed with the court before entry of the decree of termination if the termination is not contested. See Tex. Fam. Code § 107.159(d). In a contested termination the parties should consider requesting a custody evaluation. See Tex. Fam. Code § 107.202. A custody evaluation will permit the court to allocate the costs between the parties to the case.
Termination cases have been treated by some courts as quasi-criminal in nature, but this does not mean that all of the substantive due process of a criminal case should be applied in the trial of a termination case. There is no requirement that a parent be mentally competent to participate in the trial. When determining whether to proceed, the court must weigh the private interest at stake of both the parent and the child, the government’s interest in the proceeding, and any other private interest that is affected. In re R.M.T., 352 S.W.3d 12, 21–22 (Tex. App.—Texarkana 2011, no pet.).
Any party has a statutory right to a jury trial in a termination case. Tex. Fam. Code § 105.002(a), (b). However, a jury trial cannot be requested for the first time when asking for a de novo hearing. In re A.L.M.-F., 593 S.W.3d 271 (Tex. 2019).
Rule 277 of the Texas Rules of Civil Procedure, as amended effective May 1, 2020, requires separate jury questions for each parent and each child on (1) each individual statutory ground for termination of the parent-child relationship and (2) whether termination of the parent-child relationship is in the best interest of the child. It further requires the best-interest question to be predicated on an affirmative finding of at least one termination ground. See Tex. R. Civ. P. 277. The supreme court’s order amending rule 277 explicitly supersedes Texas Department of Human Services v. E.B., 802 S.W.2d 647 (Tex. 1990), in which the court had approved the broad-form submission of whether parental rights should be terminated. See Texas Supreme Court, Order Amending Texas Rule of Civil Procedure 277, Misc. Docket No. 20-9008 (Jan. 8, 2020), 83 Tex. B.J. 104 (2020); Texas Supreme Court, Final Approval of Amendments to Texas Rule of Civil Procedure 277, Misc. Docket No. 20-9056 (Apr. 14, 2020), 83 Tex. B.J. 402 (2020). Suggested jury questions, instructions, and definitions are contained in the current edition of State Bar of Texas, Texas Pattern Jury Charges—Family and Probate.
The Family Code provides that the “clear and convincing evidence” standard of proof is required in proceedings for termination of the parent-child relationship. Tex. Fam. Code §§ 161.001, 161.206(a); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). The term clear and convincing evidence is defined as the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex. Fam. Code § 101.007. However, in cases relating to American Indian children under the Indian Child Welfare Act, proof beyond a reasonable doubt is required. 25 U.S.C. § 1912(f).
In termination cases there is an increased standard of appellate review of factual findings. That standard is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the state’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
§ 50.38Trial or Hearing before Associate Judge
The judge of a court having jurisdiction of suits under Family Code title 5 may appoint a full-time or part-time associate judge to perform specified duties if the commissioner’s court for the county authorizes employment of an associate judge. Tex. Fam. Code § 201.001(a). An associate judge may hear a contested trial on the merits in a termination suit, unless a written objection has been timely filed. Tex. Fam. Code § 201.005(a), (b). A party may request a de novo hearing before the referring court. See Tex. Fam. Code § 201.015. De novo hearings are discussed in section 8.17 in this manual.
In a termination suit, after a hearing, the court shall grant a motion for a preferential setting for a final hearing on the merits filed by a party to the suit or by the amicus attorney or attorney ad litem for the child. The court shall give precedence to the hearing over other civil cases if the termination would make the child eligible for adoption and discovery has been completed or sufficient time has elapsed since the filing of the suit for the completion of all necessary and reasonable discovery if diligently pursued. Tex. Fam. Code § 161.202.
In termination suits brought by the Texas Department of Family and Protective Services the trial court is mandated to follow the stringent time limitations relating to the rendition of final orders. See Tex. Fam. Code § 263.401; In re Department of Family & Protective Services, 273 S.W.3d 637 (Tex. 2009) (orig. proceeding); In re L.L., 65 S.W.3d 194, 196–97 (Tex. App.—Amarillo 2001, pet. dism’d); In re Ruiz, 16 S.W.3d 921, 926–28 (Tex. App.—Waco 2000, orig. proceeding); In re Bishop, 8 S.W.3d 412, 418–19 (Tex. App.—Waco 1999, orig. proceeding [mand. denied]); In re Neal, 4 S.W.3d 443, 447 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding [mand. denied]); see also In re L.J.S., 96 S.W.3d 692, 693–94 (Tex. App.—Amarillo 2003, pet. denied).
The court shall order each parent before the court in a termination suit to provide information regarding the medical history of the parent and the parent’s ancestors. A parent may comply with the order by completing the medical history report form adopted by the Texas Department of Family and Protective Services, designed to permit them to identify any of their medical conditions that could indicate a predisposition for the child to develop the condition. If the department is a party to the termination suit, the information provided in the report must be maintained in the department’s records about the child and made available to persons with whom the child is placed. Tex. Fam. Code §§ 161.2021, 161.1031, 162.006.
COMMENT: The attorney should obtain a HIPAA authorization before the release of any medical history.
§ 50.41Attorney’s Fees and Costs
The court may award costs in a suit or motion under title 5 of the Family Code and in a habeas corpus proceeding. Tex. Fam. Code § 106.001. The court may render judgment for reasonable attorney’s fees and expenses and order the judgment and postjudgment interest to be paid directly to an attorney. A judgment for attorney’s fees and expenses may be enforced in the attorney’s name by any means available for the enforcement of a judgment for debt. Tex. Fam. Code § 106.002.
A family court is not required to state good cause for adjudging costs against the successful party as is required in other civil cases. Goheen v. Koester, 794 S.W.2d 830, 836 (Tex. App.—Dallas 1990, writ denied).
For fees for appointed representatives, see sections 50.32 and 50.33 above.
§ 50.42Attack on Termination Order
The general rule is that the validity of an order terminating the parental rights of a person who has been served personally or by publication, who has executed an affidavit of relinquishment of parental rights or an affidavit of waiver of interest in a child, or whose rights have been terminated under section 161.002(b) is not subject to collateral or direct attack after the sixth month following the date the order was signed. Tex. Fam. Code § 161.211(a), (b). However, a termination after service by publication may be challenged more than six months after the entry of the decree to determine if publication provided constitutionally adequate notice. If not, the failure to provide adequate notice deprives the party of due process and deprives the trial court of personal jurisdiction. The court must determine if the challenging party acted promptly after learning of the termination and analyze whether granting relief would impair another party’s substantial reliance interest, in which case the court has discretion to deny the relief. In re E.R., 385 S.W.3d 552, 565–69 (Tex. 2012).
To support a termination order an affidavit of relinquishment or an affidavit of waiver of interest must be voluntarily executed, and the burden is on the proponent to prove it was voluntarily executed by clear and convincing evidence. In re K.M.L., 443 S.W.3d 101, 103 (Tex. 2014). A termination order based on an unrevoked affidavit of relinquishment or affidavit of waiver of interest in a child may be attacked only on the basis of fraud, duress, or coercion in the execution of the affidavit. Tex. Fam. Code § 161.211(c). A court stated that duress “occurs when, due to some kind of threat, a person is incapable of exercising her free agency and unable to withhold consent.” In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet. denied).
This statute specifically limits the types of attacks that can be filed, and those cannot be expanded by a trial court. In re D.S., 602 S.W.3d 504, 509 (Tex. 2020) (father who signed unrevoked affidavit of relinquishment could not collaterally attack judgment based on lack of subject-matter jurisdiction under UCCJEA).
The legal and factual insufficiency of the best interest findings cannot be raised on appeal in cases in which the termination of parental rights is based on the execution of a voluntary affidavit of relinquishment. In re K.S.L., 538 S.W.3d 107, 111 (Tex. 2017).
§ 50.43Appeal of Termination Order
An appeal from a final order rendered in a suit in which termination of the parent-child relationship is ordered must be given precedence over other civil cases by the appellate courts, shall be accelerated, and shall follow the procedures for an accelerated appeal under the Texas Rules of Appellate Procedure. Tex. Fam. Code § 109.002(a–1); Tex. R. App. P. 28.4(a)(1); see also Tex. Fam. Code § 263.405(a). See the discussion in section 26.16 in this manual concerning accelerated appeals of parental termination cases.
A final order in a termination case filed by a governmental entity must contain a statement prescribed in Family Code section 263.405 regarding the right to appeal, application of the rules for accelerated appeals, and the possible result of failure to follow those rules. See Tex. Fam. Code § 263.405(b).
COMMENT: Termination cases have an accelerated time table for appeal. A notice of appeal must be filed on or before the twentieth day following the signing of the termination order. Tex. R. App. P. 26.3 indicates that, if the appellant files a timely motion, the deadline for filing notice of an accelerated appeal may be extended. A statement of inability to afford payment of costs must be filed on or before the notice of appeal unless a presumption of indigence has been established under Tex. R. App. P. 20.1(b). See the discussions in sections 26.16 and 26.18 in this manual.
See section 50.32 above for discussion of appointment of attorneys ad litem for indigent parents, including representation through the appeal process.
Standard of Review: In termination cases, the burden of proof at trial is by clear and convincing evidence. In re C.H., 89 S.W.3d 17, 18 (Tex. 2002). The appellate standard for reviewing termination findings is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the state’s allegations. In re C.H., 89 S.W.3d at 25.
[Sections 50.44 through 50.50 are reserved for expansion.]
III. Reinstatement of Parental Rights
§ 50.51Reinstatement of Parental Rights Generally
Subchapter D of chapter 161 of the Texas Family Code, providing a process for re-instatement of parental rights in certain circumstances, became effective on September 1, 2021. The provisions of the new subchapter are set forth in sections 50.52 through 50.56 below.
Warning: The new cause of action contemplated by subchapter D of chapter 161 of the Texas Family Code appears to be in conflict with the substantive and procedural rights contained within the Texas Rules of Civil Procedure. The new statute requires that the hearing on the petition to reinstate must be heard within sixty days of the date the reinstatement petition is filed. This deadline will make it virtually impossible to conduct discovery, address transfer issues, or adequately prepare a case for trial or request a jury. The statute is unclear about who is entitled to notice of the proceeding, but it does require that the county attorney be provided forty-five days’ notice of the intention to file the suit. In several counties, the county attorney does not represent the department, so in many cases the attorney who represents the department will not be receiving notice of the intent to file the petition to reinstate.
At the hearing the court can grant the reinstatement, deny the reinstatement, or defer a ruling after the hearing and enter temporary orders for a period of six months that appoint the petitioner as a possessory conservator. It appears that the appointment of the parent as a temporary possessory conservator is automatic and not subject to the best interest provision of section 153.002 of the Texas Family Code.
Because these and other questions remain about how the statute will be interpreted, no forms for reinstatement of parental rights are provided in this manual at this time.
A petition for reinstatement of the parental rights of a former parent whose parental rights were involuntarily terminated in a suit under Texas Family Code section 161.001 or 161.003 brought by the Texas Department of Family and Protective Services may be brought by the department, by the single source continuum contractor with responsibility for the child, by the attorney ad litem for the child, or by the former parent whose parental rights were involuntarily terminated. Tex. Fam. Code § 161.302(a).
A petition for reinstatement may be filed only if the suit resulting in termination was filed by the department. At least two years must have passed since the termination order was issued, and there must be no pending appeal. The child must not have been adopted or be the subject of an adoption placement order. If the petitioner is the former parent whose rights are sought to be reinstated, he must have provided required notice to the department, at least forty-five days before the petition is filed, that he intends to file the petition. Tex. Fam. Code § 161.302(b), (d).
The petition for reinstatement must be sworn by the petitioner. The petition must include—
1.the petitioner’s name;
2.if the former parent is not the petitioner, the former parent’s name and current residence address;
3.the child’s name, current residence address, and date and place of birth, if known;
4.the name, current residence address, and contact information, if known, of any party that participated in the original termination hearing and has information relevant to the determination of conservatorship of or possession of or access to the child;
5.a summary of the grounds on which the court rendered the order terminating the former parent’s parental rights;
6.a summary statement of the facts and evidence that the petitioner believes demonstrate that the former parent has the capacity and willingness to perform parental duties, including steps the former parent has taken toward personal rehabilitation since the rendition of the termination order;
7.a statement of the former parent requesting the reinstatement of parental rights;
8.if the child is twelve years of age or older, a statement of the child’s intent or willingness to consent to the reinstatement; and
9.a summary of all prior requests or motions for reinstatement by the former parent and by the petitioner, if the former parent is not the petitioner, with respect to the child.
The petition and notice of hearing must be served on the child or the child’s representative; the county attorney; the child’s attorney ad litem; the department or single source continuum contractor, if applicable; the former parent, if he is not the petitioner; and, if the child is subject to the Indian Child Welfare Act, the designated tribal service agent of the tribe and any other person required by federal law. Tex. Fam. Code § 161.302(e).
If the former parent is the petitioner, a copy of the required notice to the department of intent to file the petition must be filed with the petition. Tex. Fam. Code § 161.302(d).
Hearing on the reinstatement petition must be held within sixty days after the petition is filed. The petitioner has the burden of proof—by a preponderance of the evidence—and each party may call witnesses. Tex. Fam. Code § 161.303(a), (b).
The court may grant the petition and order reinstatement of the former parent’s parental rights only if the court finds that—
1.reinstatement is in the child’s best interest;
2.at least two years have passed since the termination order was issued, and no appeal is pending;
3.the child has not been adopted and is not the subject of an adoption placement agreement;
4.if the child is twelve years of age or older, he consents to the reinstatement and desires to reside with the parent;
5.the former parent has remedied the conditions that were grounds for rendering the termination order; and
6.the former parent is willing and has the capacity to perform parental duties as provided in Family Code section 151.001, including maintaining the child’s health, safety, and welfare.
If the child is eleven years of age or younger, the court shall consider the child’s age, maturity, and ability to express a preference and may consider the child’s preference regarding the reinstatement as one factor, considered along with all other relevant factors, in determining whether to grant reinstatement. Tex. Fam. Code § 161.303(d).
After the hearing, the court may render an order granting the petition, denying it, or deferring a decision on it. Tex. Fam. Code § 161.304(a).
Petition Granted: If the court renders an order for reinstatement of parental rights, the court must enter its findings in a written order stating that all legal rights, powers, privileges, immunities, duties, and obligations of the former parent regarding the child, including with respect to custody, care, control, and support, are reinstated. Tex. Fam. Code § 161.304(c).
Petition Denied: If the court denies the petition, the court must render a written order that includes the court’s findings and detailing reasons for denial of the petition and a statement prohibiting the filing of a subsequent petition in regard to the former parent’s parental rights before the first anniversary of the date the order of denial was issued. Tex. Fam. Code § 161.304(d).
Decision Deferred: If the court defers granting the petition, it renders a temporary order expiring after six months during which the department remains the child’s managing conservator and the former parent is appointed as the possessory conservator. During the period of the temporary order, the department must monitor the former parent’s possessory conservatorship. When the temporary order expires, the court must hold a hearing to determine whether to grant or deny the petition for reinstatement. Tex. Fam. Code § 161.304(a), (d).
[Sections 50.57 through 50.60 are reserved for expansion.]
The following websites contain information relating to the topic of this chapter:
Indian Child Welfare Act (§ 50.3)
www.bia.gov
www.NICWA.org
www.federalregister.gov/documents/2016/06/14/2016-13686/indian-child-welfare
-act-proceedings