Adoption is the legal process by which a child is voluntarily taken into a family other than the child’s birth family. Once an adoption becomes final, a formal parent–child relationship is formed whereby the adopted child gains the same rights and privileges of a natural child born to the adoptive parents. The adoptive parents acquire similar rights and obligations to the adopted child as if the child was their natural child, including the responsibility for the adopted child’s physical, material and emotional well being.
As a general rule, anyone over the age of eighteen (18) with the economic means to support a child is eligible to adopt, including married, divorced and single people from different religious, cultural and economic backgrounds. There, however, are any number of restrictions that can be placed on an adoption by Texas law, federal law, the law of another country, an adoption agency (if one is used) and even by the birth parent. And, even if all of these hurdles are cleared, the adoption must still be approved by a court.
Adoptions may be categorized in several different ways, including by geography (domestic adoption vs. international adoption), level of confidentiality (open adoption vs. closed adoption) and procedure (agency adoption vs. independent or private adoption).
Domestic Adoption vs. International Adoption
A domestic adoption takes place when both the adoptive parents and the child are citizens of the United States. An international adoption occurs when a United States citizen adopts a child who is a citizen of another country. International adoptions are the most complex because they require extensive planning and research. In addition to meeting the legal requirements of the child’s home country, the adoptive parents also must comply with United States immigration law and Texas law. Depending upon the laws of the foreign country, an international adoption may be completed in the courts of the foreign country (most common), in the United States under a guardianship arrangement, or via an authorized third party in either the foreign country or in the United States.
In an international adoption, the child is not automatically granted United States citizenship. The child must have a special visa obtained by filing an Orphan Petition with the United States Citizenship and Immigration Services. Because of the time lag in processing an Orphan Petition, it should be filed as early as possible in the adoption process.
Open Adoption vs. Closed Adoption
An open adoption–including a stepparent adoption, the most common type of adoption–is an adoption where the birth parents choose the adoptive parents, meet and approve the adoptive parents and contractually determine the amount of contact between themselves, the adoptive parents and the child. In closed adoptions, which are becoming less frequent, the exact opposite occurs. The birth parents and adoptive parents rarely meet or stay in touch, and once the adoption is final, the files are usually sealed.
Agency Adoption vs. Independent Adoption
An agency adoption is completed through either a state owned or privately owned agency. Adoption agencies typically have long waiting lists, set their own criteria for adoption and may choose not to work with certain types of adoptive parents. Despite these hurdles, many people seeking to adopt work with adoption agencies to find a birth mother. Adoptive parents must work with an agency if their birth mother needs financial assistance beyond her basic medical, legal and counseling expenses.
An independent adoption (also known as a direct placement or private adoption) is the most prevalent method of adopting newborns. An independent adoption is the exact opposite of an agency adoption. Without the restrictions of an agency adoption, the birth parents may exert more control over who adopts their child and the adoption process. An independent adoption also provides adoptive parents with more options because they are not limited by arbitrary criteria imposed by adoption agencies.
Termination of Parental Rights Prior to Adoption
Before a child can be adopted in Texas, the birth parents’ parental rights must be terminated. Termination of parental rights may be voluntary or involuntary. A voluntary termination is automatically accomplished when the birth parents sign a voluntary relinquishment of parental rights.
Parental rights are sacred and not easily terminated involuntarily. A court may terminate parental rights without the consent of a birth parent if the court finds by clear and convincing evidence that a parent has, for example:
- voluntarily left the child alone or in the possession of another person (not the parent) and expressed an intent not to return.
- voluntarily left the child alone or in the possession of another person (not the parent) without expressing an intent to return and/or providing adequate support of the child, and remained away for a period of at least three (3) months.
- voluntarily left the child alone or in the possession of another person without providing adequate support of the child and remained away for a period of at least six (6) months.
- knowingly placed or allowed the child to remain in conditions or surroundings that endanger the physical or emotional well being of the child.
- engaged in conduct, or knowingly placed the child with persons who engaged in conduct, that endangers the physical or emotional well being of the child.
- abandoned the child without identifying the child or furnishing means of identification, and the child’s identity cannot be ascertained by the exercise of reasonable diligence.
- voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child during her pregnancy and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment, and remained apart from the child or failed to support the child after birth.
- been the major cause of:(a) the failure of the child to be enrolled in school; or(b) the child’s absence from the child’s home without the consent of the birth parents or guardian for a substantial length of time or without the intent to return.
- executed an unrevoked or irrevocable affidavit of relinquishment of parental rights.
- been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child.
- had his or her parent–child relationship terminated with respect to another child.
- constructively abandoned the child who has been in the permanent or temporary care of the Texas Department of Family and Protective Services or an authorized agency for not less than six (6) months, and:
(a) the department or authorized agency has made reasonable efforts to return the child to the parent;
(b) the parent has not regularly visited or maintained significant contact with the child; and
(c) the parent has demonstrated an inability to provide the child with a safe environment.
- failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary care of the Texas Department of Family and Protective Services for not less than nine (9) months as a result of the child’s removal from the parent.
- used a controlled substance in a manner that endangered the health or safety of the child, and:
(a) failed to complete a court–ordered substance abuse treatment program; or
(b) after completion of a court–ordered substance abuse treatment program, continued to abuse a controlled substance.
- knowingly engaged in criminal conduct that has resulted in the parent’s:
(a) conviction of an offense; and
(b) confinement or imprisonment and inability to care for the child for not less than two (2) years.
- been the cause of the child being born to be addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription.
- delivered the child to a designated emergency infant care provider without expressing an intent to return for the child.
If a parent’s rights are involuntarily terminated, his or her consent is not required in order to finalize an adoption.
In some circumstances, a father not married to the mother of his child may want to protect his legal rights concerning the child without filing a paternity action. To do so, the father must register with the Paternity Register maintained by the Bureau of Vital Statistics in Austin, Texas and maintain a current address with the Paternity Register. Thereafter, should there be a legal action to terminate the rights of any alleged father in connection with the child, the Paternity Register must be searched. Any man who registered with the Paternity Register in connection with the child must be given notice of the legal proceeding so that he may participate in the proceeding, assert paternity and/or request genetic testing. If, however, a search of the Paternity Register does not reveal the name and current address of any potential father, the termination proceedings may go forward without any further attempt to locate or notify any alleged father.
Once parental rights are terminated, the adoptive parents file a petition for adoption with the court, at which time the court will order a social study to be conducted by a social worker. The social study consists of a home study, criminal background check, employment check, medical check and securing letters of recommendation from friends and family. After this information is secured, the social worker prepares and files a report with the court. Assuming the report is positive, and once the child has lived with the adoptive parents for at least six (6) months, the adoption may be finalized.
The Texas, federal and international laws governing adoption are complicated. If you are considering adoption as a way to expand your family, or are interested in locating your birth parents, call Sonya Coffman. Adoption should be one of the most joyful days in the life of a family, not one bogged down in legal red tape. Because . . . family matters.