Adoption of Child
I. General Information on Adoption
§ 51.1Statutory Restrictions on Child Placing
It is a criminal offense for a person who has possession, custody, conservatorship, or guardianship of a child under eighteen years of age to accept, offer to accept, or agree to accept a thing of value for the delivery or possession of the child for purposes of adoption. It is also a criminal offense for a person to give, offer to give, or agree to give a thing of value to another for acquiring or maintaining the possession of a child for the purpose of adoption. See Tex. Penal Code § 25.08(a). The offense is generally a third-degree felony but may be a second-degree felony in certain circumstances. See Tex. Penal Code § 25.08(c). Such conduct is not a criminal offense if the thing of value is a fee or reimbursement paid to a child-placing agency as authorized by law or a fee paid to an attorney, social worker, mental health professional, or physician for services rendered in the usual course of the person’s practice. The statute also authorizes the payment of legal and medical expenses incurred for the child’s benefit and any necessary pregnancy-related expenses paid by a child-placing agency, as permitted under specified rules. See Tex. Penal Code § 25.08(b).
A person who is not the natural or adoptive parent of the child, the legal guardian of the child, or a licensed child-placing agency commits a class B misdemeanor if the person serves as an intermediary between a prospective adoptive parent and the expectant parent(s) to identify the parties to each other or places the child for adoption. Tex. Fam. Code § 162.025(a), (c). Even providing the name of a person interested in adoption to a person seeking to place a child for adoption is a violation of this provision. This criminal penalty is in addition to that provided under chapter 42 of the Texas Human Resources Code.
No person may operate a child-placing agency unless licensed. Tex. Hum. Res. Code § 42.041(a). Human Resources Code section 42.075 provides for civil penalties, and section 42.076 provides for criminal penalties. See Tex. Hum. Res. Code §§ 42.075, 42.076.
The Texas Department of Family and Protective Services sets standards and issues licenses to agencies that place children for adoption. A child’s parent or legal guardian can make an adoption plan without being licensed as an agency. Placement activities include purposeful acts to facilitate or arrange an adoptive placement. Serving as an intermediary between an adoptive couple and a parent who desires to place a child for adoption, including disclosing names, requires a license. Any assistance in making the arrangements for an adoptive placement, other than providing legal or medical services, could be construed as an illegal placement. See Tex. Hum. Res. Code § 42.076(d).
Court approval is required for the transfer of permanent physical custody of an adopted child by a parent, managing conservator, or guardian to any person who is not a relative or stepparent of the child or an adult who has a significant and long-standing relationship with the child. See Tex. Fam. Code § 162.026. It is a felony offense to conduct, facilitate, or participate in an unregulated custody transfer of an adopted child except as provided in Tex. Penal Code § 25.081(d). See Tex. Penal Code § 25.081. This topic is discussed in more depth in section 51.30 below.
§ 51.2Interstate Compact on Placement of Children
The Interstate Compact on the Placement of Children (ICPC) is a uniform act that has been enacted in all states and establishes procedures and fixes responsibilities for those involved in placing a child across state lines for adoption. See Tex. Fam. Code §§ 162.101–.107. The ICPC requires approval from the appropriate state authorities before a child crosses state lines for the purposes of adoption. The state the child is coming from is called the “sending state,” and the state where the adoptive parents reside is called the “receiving state.” The receiving state ultimately gives approval for the placement.
Anyone who sends, brings, or causes a child to be sent or brought into the receiving state without complying with the ICPC is subject to the penalties in both the sending and the receiving states. Tex. Fam. Code § 162.102, art. IV. It is a class B misdemeanor to violate the Texas ICPC. Tex. Fam. Code § 162.107(a).
The ICPC does not apply if a child is sent or brought into a receiving state by the child’s parent, stepparent, grandparent, adult sibling, adult aunt or uncle, or guardian and left with any such relative or nonagency guardian in the receiving state. Tex. Fam. Code § 162.102, art. VIII(a).
An ICPC file is opened by filing a Form 100A, Interstate Compact on the Placement of Children Request. The compact administrator should also be provided a copy of (1) the legal documents along with an opinion letter by a licensed attorney that the relinquishment is executed in compliance with the law; (2) the preplacement home study with verification of state and federal criminal clearances; (3) the health, social, educational, and genetic history report; (4) medical records and a discharge summary; (5) verification of compliance with ICWA if required; and (6) a statement of authority to place the child. The Association of Administrators of the Interstate Compact on the Placement of Children has adopted Regulation No. 12, Private/Independent Adoptions, which provides the entire list of documents required for such adoptions. The regulation can be viewed at https://aphsa.org/AAICPC/AAICPC/Resources.aspx.
Some states have additional ICPC requirements, so it is a good idea to check with the compact administrators in both states to see what additional documents may be required. Once the receiving state has approved the placement, the child may be taken into the receiving state. See Tex. Fam. Code § 162.102, art. III.
Texas requires that an affidavit be filed in any suit for the appointment of a nonparent managing conservator with authority to consent to adoption or for the adoption of a child, stating whether or not there has been compliance with the ICPC. If there has not been compliance, the affidavit must state the reasons for noncompliance. See Tex. Fam. Code § 162.002(b).
Contact the Texas office at:
TDFPS
Texas Interstate Compact Office
Attn: Deputy Compact Administrator
Mailing address:
P.O. Box 149030 MC W-223
Austin, TX 78714-9030
Physical address:
701 W. 51st St. MC W-223
Austin, TX 78751
512-438-5141
§ 51.3Interstate Jurisdiction Issues
The UCCJEA applies to suits for termination of parental rights. See Tex. Fam. Code § 152.102(3), (4). In an initial custody proceeding the Texas court will conduct a home-state analysis to determine if jurisdiction is proper. See Tex. Fam. Code § 152.102(7). If the child is a newborn, home state is established if the child lived from birth with a parent or a person acting as a parent. See Tex. Fam. Code § 152.102(7). In an interstate adoption the central question is whether the child is physically present in the state at the time the suit is filed. If so, Texas will have jurisdiction because the child lived with the prospective adoptive parents who were persons acting as a parent. See Tex. Fam. Code §§ 152.102(13)(B), 161.104.
The UCCJEA states that it does not apply to adoption proceedings. See Tex. Fam. Code § 152.103. However, there are a number of ways that the application of the UCCJEA could be triggered in an adoption case. If the suit is a combined suit for termination and adoption, the UCCJEA will apply because the termination of parental rights portion of the case is a “child custody proceeding.” See Tex. Fam. Code § 152.102(3), (4). If the suit is the first proceeding relating to the child, the “home state” analysis applies. The provisions of the UCCJEA would also be triggered if the adoption is being finalized in Texas and there was a prior custody determination regarding the child made in another state, such as a child abuse or neglect case, a paternity suit, or a divorce action. In these adoption cases there must be compliance with the UCCJEA in order for the Texas court to have jurisdiction. See Tex. Fam. Code §§ 152.102(3), (4), 152.203.
If another state has jurisdiction, a Texas court can acquire jurisdiction by making a determination that the child, the child’s parents, or any persons acting as the child’s parents do not presently reside in the other state. See Tex. Fam. Code § 152.203(2). The other avenue for the Texas court to gain jurisdiction is for the court in the other state to make a determination that it no longer has exclusive continuing jurisdiction or that the Texas court would be a more convenient jurisdiction. See Tex. Fam. Code § 152.203(1). The court with continuing jurisdiction is the only court that can determine if it will continue to exercise that jurisdiction. Saavedra v. Schmidt, 96 S.W.3d 533, 541 (Tex. App.—Austin 2002, no pet.). But see In re T.B., 497 S.W.3d 640, 651 (Tex. App.—Fort Worth 2016, pet. denied) (there can be implied determination that court in state with continuing jurisdiction is declining jurisdiction if that court fails to communicate with Texas court for over six months, despite repeated attempts to contact). A court may decline jurisdiction by making a determination that it is an inconvenient forum and another court is a more appropriate forum. This determination is made based on the facts that exist at the time the court is called on to make the determination, not the facts at the time the case was filed. In re C.H., 595 S.W.3d 272, 277–78 (Tex. App.—Amarillo 2019, no pet.).
§ 51.4Termination and Adoption
Actions to terminate the parent-child relationship and to grant an adoption are often interrelated. Two separate proceedings are recommended, but occasionally the circumstances will justify a combined proceeding.
COMMENT: For a full discussion of these options, as well as other important topics involved in both proceedings, see chapter 50 of this manual.
[Sections 51.5 through 51.10 are reserved for expansion.]
Adoption establishes the parent-child relationship between the child and the adoptive parent or parents.
The name of the child shall be omitted from the style, and the case shall be styled “In the Interest of a Child.” Tex. Fam. Code § 102.008(a). The petition must contain the information required by Family Code section 102.008(b), except that the name of the child may be omitted. Tex. Fam. Code § 102.008(b)(2). See Tex. Fam. Code § 102.008(b).
The first numbered paragraph of the petition must include an allegation of the intended discovery level. Tex. R. Civ. P. 190.1.
The first pleading by each party must contain the information set forth in section 152.209 of the Family Code unless all the parties reside in Texas. See Tex. Fam. Code § 152.209.
Venue for an adoption suit may be in the county where the child resides or where the petitioners reside. The adoption does not have to be filed in the court of continuing jurisdiction. Generally, if the suit is not filed in the court with continuing, exclusive jurisdiction that court may, but is not required to, transfer the suit affecting the parent-child relationship to the court in which the adoption suit is filed. However, if the suit is filed in another court in the county where the child resides, transfer is mandatory. See Tex. Fam. Code §§ 103.001(b), 155.201(a–1), 155.202–.203.
§ 51.14Qualifications of Petitioner
Subject to the requirements of Family Code chapter 102, any adult may petition to adopt a child who may be adopted. Tex. Fam. Code § 162.001(a).
If a petitioner is married, both spouses must join in the petition. Tex. Fam. Code § 162.002(a).
The fact that a petitioner is a member of the armed forces, the national guard, or a reserve component of the armed forces may not be considered by the court or any person performing an adoption evaluation or home screening as a negative factor in determining whether the adoption is in the child’s best interest or whether the petitioner would be a suitable parent. Tex. Fam. Code § 162.0025.
An original suit affecting the parent-child relationship may be brought by any person authorized by Family Code section 102.003. See Tex. Fam. Code § 102.003. In particular, an original suit seeking only an adoption may be brought by a stepparent of the child (when the petition is joined by the petitioner’s spouse, Tex. Fam. Code § 162.002(a)); 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.
A pregnant woman or a parent may execute a statement to confer standing in a suit for termination or adoption, which will give the prospective adoptive parents standing to file suit. Tex. Fam. Code §§ 102.003(a)(14), 102.0035.
Any child residing in Texas at the time a petition is filed may be adopted if—
1.the parent-child relationship between the child and each living parent has been terminated or a termination suit is joined with the adoption proceeding;
2.the parent whose rights have not been terminated is the spouse of the petitioner in a stepparent adoption (in which case the parent must join in the stepparent’s petition for adoption as evidence of the parent’s consent, Tex. Fam. Code § 162.010(b));
3.the child is at least two years old, the parent-child relationship has been terminated with respect to one parent, the person seeking adoption has been a managing conservator or has had actual care, possession, and control of the child for a period of six months preceding the adoption or is the child’s former stepparent, and the nonterminated parent consents to the adoption; or
4.the child is at least two years old, the parent-child relationship has been terminated with respect to one parent, and the person seeking the adoption is the child’s former stepparent and has been a managing conservator or has had actual care, possession, and control of the child for a period of one year preceding the adoption.
Tex. Fam. Code § 162.001(b). The term residence of the child is defined in Family Code section 103.001(c). See Tex. Fam. Code § 103.001(c).
The adoption forms in this manual, except for a stepparent adoption, presuppose that all necessary terminations have already taken place. If that is not the case, see section 50.2 in this manual for a discussion of whether to use a one-step or two-step procedure.
§ 51.16Required Six Months’ Residence
The child to be adopted must have lived at least six months in the home of the petitioner. The court may waive this requirement if the waiver is in the best interest of the child. Tex. Fam. Code § 162.009. For a discussion of the need for a waiting period, see Catholic Charities of the Diocese of Galveston, Inc. v. Harper, 337 S.W.2d 111 (Tex. 1960).
Managing Conservator: The managing conservator, if one has been appointed, must consent to the adoption in writing, and the consent must be filed in the record. Because a managing conservator is entitled to service of citation under Family Code section 102.009(a), the consent should contain a waiver of citation. The requirement of written consent by the managing conservator does not apply if the managing conservator is a petitioner. The court may waive the requirement of consent by the managing conservator if it finds the consent is being refused or has been revoked without good cause. Tex. Fam. Code § 162.010(a).
If the managing conservator is the spouse of the adopting parent and has joined as a petitioner, no further consent is required. Tex. Fam. Code § 162.010(b).
Child: If the child to be adopted is twelve years of age or older, the child’s consent to the adoption must be given in writing or in court. The court may waive this requirement if it would serve the child’s best interest. Tex. Fam. Code § 162.010(c).
Revocation: Before an order granting adoption is rendered, any required consent may be revoked by filing a signed revocation with the court. Tex. Fam. Code § 162.011.
§ 51.18Criminal History Report
In an adoption suit the court must order each petitioner to obtain that person’s own criminal history record information in the manner provided in section 411.128 of the Government Code. The court shall accept a person’s criminal history record information that is provided by the Texas Department of Family and Protective Services or by a licensed child-placing agency that received the information from the department if the information was obtained not more than one year before the date the court ordered the history to be obtained. Tex. Fam. Code § 162.0085.
The person must provide the Department of Public Safety the name and address of the court in which the suit is pending and the date the adoption is scheduled to be heard. Tex. Gov’t Code § 411.128.
In a suit for adoption, an adoption evaluation must be conducted as provided in chapter 107 of the Family Code. Tex. Fam. Code § 162.003. Provisions regarding adoption evaluations are found in Tex. Fam. Code. §§ 107.151–.163.
§ 51.20Health, Social, Educational, and Genetic History Report
Before placing a child for adoption with any person other than the child’s stepparent, grandparent, or aunt or uncle by birth, marriage, or prior adoption, the Texas Department of Family and Protective Services, a licensed child-placing agency, or the child’s parent or guardian shall compile a report on the available health, social, educational, and genetic history of the child. The department must ensure that each agency, contractor, or other person placing a child for adoption receives a copy of any portion of the report prepared by the department. Tex. Fam. Code § 162.005(a)–(c).
The information to be included in the report, described in Family Code section 162.007, is very comprehensive and includes any history of physical, sexual, or emotional abuse. See Tex. Fam. Code § 162.007. See form 53-23 in this manual.
If the child is placed for adoption by a person or entity other than the department, a licensed child-placing agency, or the child’s parent or guardian, the placing person or entity must prepare the report. Tex. Fam. Code § 162.005(d).
The placing person or entity is required to provide the prospective adoptive parents a copy of the report, edited to protect the identity of birth parents and their families, as early as practicable before the first meeting of the adoptive parents with the child. Tex. Fam. Code § 162.005(e).
Before a petition for adoption by a person other than the child’s stepparent, grandparent, aunt, or uncle may be granted, a copy of the report signed by the child’s adoptive parents and, if appropriate, a certificate from the Department of Family and Protective Services acknowledging receipt of the report must be filed. Tex. Fam. Code § 162.008.
If the child is placed for adoption by a person or entity other than the Department of Family and Protective Services or a licensed child-placing agency and the child is being adopted by anyone other than the child’s stepparent, grandparent, aunt, or uncle, the person or entity who places the child must file the report with the department. Tex. Fam. Code § 162.006(e).
The prospective adoptive parents generally have a right to examine the records relating to the child. Tex. Fam. Code § 162.0062(a), (c). The records must include any investigation of abuse in which the child was alleged or confirmed to be the victim of sexual abuse while residing in a foster home. Tex. Fam. Code § 162.0062(b). A prospective adoptive parent with whom the child is placed before adoption is entitled to examine information about the child’s health history. Tex. Fam. Code § 162.0062(a–1).
The person or entity who prepares and files the original report is required to update the medical, psychological, and psychiatric information in the report and to furnish the supplemental information to the adoptive parents, should it become available. Tex. Fam. Code § 162.005(f).
A court having jurisdiction of a suit affecting the parent-child relationship may by order waive the making and filing of the report if the child’s biological parents cannot be located and their absence results in insufficient available information to compile a report. Tex. Fam. Code § 162.008(c).
The court must find by a preponderance of the evidence that the adoption is in the best interest of the child. This requirement is in addition to finding that the court has jurisdiction and that the prerequisites to adoption have been met. Tex. Fam. Code § 162.016(b). When considering best interest, the court can look at whether the adoption would result in the child’s loss of access to family. See In re C.J.T., No. 04-14-00621-CV, 2016 WL 413262, at *5 (Tex. App.—San Antonio Feb. 3, 2016, no pet.) (mem. op.).
Jury trials are not permitted in adoption cases. Tex. Fam. Code § 105.002(b).
An order of adoption creates the parent-child relationship between the adopted child and adoptive parents for all purposes. Tex. Fam. Code § 162.017(a).
The adoptive parents and the child, after the child is an adult, are entitled to receive copies of the records and other information (edited for confidentiality) about the child’s history, maintained by the person or entity placing the child for adoption. The placing person or entity has the duty to edit the records and information to protect the identity of the biological parents and any other person whose identity is confidential. The court shall provide information about the voluntary adoption registry under Family Code chapter 162, subchapter E, to the adoptive parents (and to the child, if the child is fourteen years or older). Tex. Fam. Code § 162.0062(d)–(f).
The adopted child inherits from and through the adoptive parents. The terms child, descendant, and issue and other terms denoting the relationship of parent and child include an adopted child unless the context clearly indicates otherwise. Tex. Fam. Code § 162.017(b), (c).
A final order of adoption issued by a court with continuing, exclusive jurisdiction ends a court’s continuing jurisdiction, and any subsequent suit affecting the child shall be commenced as though the child had not been the subject of a suit for adoption or any other suit affecting the parent-child relationship before the adoption. Tex. Fam. Code § 155.001(b)(3). But see the comment in section 51.13 above about the effect of an adoption decree if the order is not issued by the court with continuing, exclusive jurisdiction.
The name of the child may be changed in the adoption order if requested. Tex. Fam. Code § 162.016(c).
The birth certificate for the child can be revised to reflect that the child is the child of the adopting parents. Tex. Health & Safety Code §§ 192.006–.008.
The form entitled “Certificate of Adoption” must be filled out to obtain a new birth certificate. The form is reproduced as form 53-28 in this manual.
The form entitled “Mail Application for Birth Record” must be submitted if the new birth certificate is requested by mail. This form must be accompanied by a photocopy of the valid ID of the person making the request. The form is reproduced as form 53-34 in this manual.
§ 51.26Direct or Collateral Attack
A final adoption decree is not subject to attack on the basis that a health, social, educational, and genetic history report was not filed. Tex. Fam. Code § 162.012(b).
The validity of an adoption order is not subject to attack after six months after the date the order was signed. Tex. Fam. Code § 162.012(a); see In re C.R.P., 192 S.W.3d 823, 826 (Tex. App.—Fort Worth 2006, no pet.). There are no exceptions to the six-month limitation—not even to challenge a purportedly void adoption order, not for good cause, and not for public policy reasons. Hobbs v. Van Stavern, 249 S.W.3d 1, 4 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). A collateral attack on an adoption decree will not be permitted even if the court erroneously applied the substantive law to the case. See Goodson v. Castellanos, 214 S.W.3d 741, 748 (Tex. App.—Austin 2007, pet. denied) (adoption granted to same-sex couple attacked as void).
The question of whether a collateral attack could be used to invalidate an order entered without jurisdiction is still unanswered.
§ 51.27Appointment of Ad Litem or Amicus
The appointment of an amicus attorney, an attorney ad litem, or a guardian ad litem in an adoption proceeding is discretionary with the court. Tex. Fam. Code § 107.021(a).
§ 51.28Confidentiality of Records
The clerk of a court that renders an adoption order must transmit to the vital statistics unit a certified report of adoption. The records maintained by the district clerk concerning a child after entry of an order of adoption and the vital statistics unit records on the adoption are confidential and require a court order, for good cause shown, to be accessed. Tex. Fam. Code § 108.003(a), (b).
The court, on the motion of a party or on its own motion, may order the sealing of the file or the sealing of the minutes, or both, in a suit requesting adoption. Tex. Fam. Code § 162.021(a).
§ 51.29Adoption Registry Report
Texas has a mutual consent voluntary adoption registry. See Tex. Fam. Code § 162.403. The clerk of the court in which an adoption is granted must transmit to the central registry of the vital statistics unit a certified report of adoption containing specified information. Tex. Fam. Code § 108.003(a). See form 53-28 in this manual. Adoptees, birth parents, and biological siblings may apply for the disclosure of information. Tex. Fam. Code § 162.406. Before any information is disclosed, both sides must consent in writing to the disclosure. See Tex. Fam. Code §§ 162.407(a), 162.409(a)(6).
§ 51.30Transfer of Permanent Physical Custody of Adopted Child
A parent, managing conservator, or guardian of an adopted child may not transfer permanent physical custody of the child to any person who is not a relative or stepparent of the child or an adult who has a significant and long-standing relationship with the child unless the parent, managing conservator, or guardian files a petition with a court of competent jurisdiction requesting a transfer of permanent physical custody and the court approves the petition. Tex. Fam. Code § 162.026. A transfer of permanent physical custody without court approval is considered an “unregulated transfer” and carries criminal penalties. See Tex. Penal Code § 25.081(b). Conducting, facilitating, or participating in such a transfer without court approval is a felony offense. See Tex. Penal Code § 25.081(b), (c). The offense is generally a third-degree felony but may be a second-degree felony in certain circumstances. See Tex. Penal Code § 25.081(c). There are no criminal penalties if the adopted child is placed with a licensed child-placing agency, the Department of Family and Protective Services, or an adult relative, stepparent, or other adult with a significant and long-standing relationship to the child. See Tex. Penal Code § 25.081(d)(1). There are also no penalties if the child is placed in another state in accordance with the Interstate Compact on the Placement of Children. See Tex. Penal Code § 25.081(d)(4). A temporary placement for a designated short-term period with a specified intent and period for return of the child due to temporary circumstances is also permitted without prior court approval. See Tex. Penal Code § 25.081(d)(3). See form 46-1 in this manual for an authorization agreement to provide temporary care for a child.
Warning: The practitioner should inquire in the initial client interview in any custody or adoption case to determine if the child the subject of the suit was previously adopted. If so, an analysis must be conducted to determine if the case involves the transfer of permanent physical custody and whether court approval will be required. The practitioner should note that the felony penalty for an unregulated transfer applies to a person who facilitates an unregulated transfer, and it is unclear if that would include an attorney who provided legal services to effectuate the transfer.
[Sections 51.31 through 51.40 are reserved for expansion.]
III. General Information on Birth Records
§ 51.41Certificate of Adoption
The Texas Department of State Health Services provides a certificate of adoption form, which is used to amend the birth certificate information to reflect the information about the adoptive parents and the name change for the child. See form 53-28 in this manual. This form is to be signed by the clerk of the court and transmitted to the vital statistics unit.
§ 51.42Birth Record Correction Not Required
Occasionally, even though the child’s status has been changed through an adoption or other proceeding, the child or parents will not want the record changed but will want merely an addition made to it. For example, if an older child is adopted and his name is not changed or if a single person adopts a child, the parties may prefer that the record not be changed to show the child was born to the adopting parents. Instead, a notation of the adoption may be added to the original record. If that is the case, the certificate of adoption should clearly indicate that an addition to, not a change of, the record is desired.
§ 51.43Child Born in Another State
If the child was born in another state, the laws of the other state will control the issuance of the new birth certificate. The attorney should contact the vital statistics department in the state where the child was born to obtain the forms and procedures for correcting birth records.
[Sections 51.44 through 51.50 are reserved for expansion.]
The following websites contain information relating to the topic of this chapter:
ICPC-Regulation 12 (§ 51.2)
https://aphsa.org/AAICPC/AAICPC/Resources.aspx
Texas Department of State Health Services, Central Adoption Registry (§§ 51.29, 51.41)
www.dshs.texas.gov/vs/reqproc/adoptionregistry.shtm