There are a variety of ways for Texans to enlarge their families through adoption, including placement by the state through the Texas Department of Family and Protective Services, placement by a licensed agency, placement by the child’s birth parents (“private adoption”), and international adoption. This article is intended to help those considering adoption make informed decisions by answering commonly asked questions and by providing a list of available resources. The information should not be substituted for the advice of an attorney.
“Open” and “Closed” Adoptions
Depending on the type of adoption, adoptive parents can have some, little, or no contact with the birth parents. In a completely open adoption, the parents meet each other and participate in post-placement visits. Closed adoptions, on the other hand, are completely anonymous, and most commonly take place through the Texas Department of Family and Protective Services. Both of these types of adoptions are rare. Most adoptions are considered “semi-open” – the adoptive parents meet the birth mother (and in some instances the birth father) during the adoption process, and exchange pictures and letters as the child grows up.
Texas Department of Family and Protective Services
Texas Department of Family and Protective Services (DFPS) has a large listing of children available for adoption. These children have been removed from their parents or guardians for abuse and/or neglect, and many have behavioral, learning, medical, or psychological issues. Many of these children are non-infants and come from mixed racial backgrounds. Many loving parents have found satisfying and fulfilling solutions to their quests for enlarged families through an adoption from DFPS. A search for a child should always include contact with the adoption
supervisor at your local DFPS office. For additional information, go to www.dfps.state.tx.us
and select the adoptions and foster care link.
Texas law states that a person who is not the natural or adoptive parent of the child, legal guardian of the child, or a licensed child-placing agency may not serve as an intermediary between a prospective adoptive parent and an expectant parent or parent of a minor child. An intermediary cannot identify the parties for each other, facilitate the placement of the child, or place the child for adoption. Therefore, private adoptions cannot be completely confidential. If an adoptive couple has found a baby, they must deal with the birth mother directly and not through an intermediary.
The reason for the authorization of private adoptions, according to legislative history, is to allow a birth parent to have some say in choosing adoptive parents. For example, a family can collectively decide that the child’s grandparents, or some other close family relative, will become the adoptive parents. Private adoptions are also allowed where the birth mother herself places the child for adoption with a non-family member.
Questions surrounding private adoptions often arise regarding the expenses the proposed adoptive parents can legally pay. It is a crime in Texas to “buy” a baby or to pay money for the placement of a child. A birth mother cannot choose adoptive parents based upon which set of proposed adoptive parents presents the most attractive financial package (car, rent, or cash, for example).
Proposed adoptive parents can only pay “reasonable medical, legal, and counseling expenses” related to the health of the child. Reasonable medical expenses include doctor’s fees, prescriptions, etc. Paying questionable charges may subject both the adoptive and the birth parents to possible criminal charges.
As a general rule, pay the birth mother no money. You cannot give the birth mother a $5,000 check and simply note on it “for medical expenses.” Instead of giving money to the birth mother for medical expenses, pay the medical provider directly. Although you cannot legally pay an attorney for the placement of a child, you may pay reasonable attorneys fees relating to his or her preparation of documents and representation in proceedings to terminate the birth parents’ rights to the child and in the adoption proceedings. Because the law contains unanswered questions, we strongly recommend that you secure the legal help and advice of someone experienced with and knowledgeable about the adoption field.
In an international adoption, the child being adopted is a foreign national and there are a number of different legal issues that must be considered and dealt with. We highly recommend you speak with an experienced international adoption agency and/or attorney before proceeding. There are a number of steps that must be carefully completed or you may not be able to bring the child home to the United States.
First, not all countries allow American citizens to adopt. If you are interested in a particular country, you can check the U.S. State Department’s website to see if an adoption is even an option for that country.
Next, you need to consider whether or not the child will be able to immigrate to the United States. At least one of the prospective adoptive parents must be a U.S. citizen. In order to obtain a visa and travel to the U.S., the adoptive child must either have been abandoned by both parents or the sole remaining parent must be unable to provide for the child and be willing to irrevocably release the child for emigration and adoption in writing. In the typical international adoption, you would seek “advance processing” to obtain pre-approval to adopt internationally before identifying a specific child. This process takes a number of months but is definitely worth it. Even if you have identified a child, the advance processing route may be the better choice for a smoother adoption and immigration.
Once you have been pre-approved, you (through an agency most likely) identify a specific child and travel to the foreign country. Each country has a different process and you should talk with your agency about the process in the country you are considering. Next, an Orphan Petition is filed to obtain the child’s visa. In the majority of cases, the actual adoption takes place in the foreign country, and you will receive an IR3 visa for the child. The pre-approval can certainly expedite the “orphan investigation” and the visa process. Under the Child Citizenship Act of 2000, a child that enters the U.S. under an IR3 visa is automatically a United States citizen and a certificate of citizenship will be mailed to you. Upon your return to the U.S. with the child, you may choose to have the foreign adoption recognized by the State of Texas. This court proceeding results in a Texas order formally recognizing the foreign adoption and allows you to obtain a Texas birth certificate for the child. It also allows you to change the child’s name, in the event the name change in the foreign country is incorrect or you have changed your mind. If for some reason the adopting parents have not both seen the child prior to the adoption proceeding or the actual adoption cannot occur in the foreign country, the adoption must be finalized in Texas with the same formalities as a domestic final adoption (for example, you will be required to complete post-placement supervision that meets Texas requirements). After the Texas adoption (or “re-adoption”) is complete, you will be able to obtain a Texas birth certificate and also a certificate of U.S. citizenship.
As with any adoption, legal counsel is invaluable when navigating the complexities of international adoption, particularly with the crucial immigration aspects involved.
If the adoptive parents and the child reside in different states, they must comply with the Interstate Compact laws for placement of children. The Interstate Compact office of each state regulates the movement of children from state to state for purposes of adoption. Generally, both the sending state and the receiving state must approve the placement before the child can leave the sending state. Failure to comply with these laws before removing a child from Texas or bringing a child to Texas from another state is a criminal offense. Once again, seek legal counsel to ensure that requirements of the law are met.
Terminating Birth Parents’ Rights
There are two steps to secure a final adoption, which involve two separate lawsuits. First, the court must terminate the birth parents’ rights to the child. In the second suit, the adoption must be approved by the court.
Birth parents, both father and mother, generally must sign forms (called “relinquishments of rights”) indicating their desire to place a child for adoption before a court will terminate their interests. This applies whether the adoption is private, through an agency, or through DFPS.
If the location or identity of the birth father is unknown, he is nonetheless entitled to notice of the proceedings. You must show the court that you have diligently tried to find him. He can be served with notice of the termination proceeding by publication of notice in a newspaper of general circulation in the county. The court may require publication in the county of birth and/or the county of the birth father’s last known residence. The rules for notice by publication are complex and must be strictly followed. Notice by publication always leaves the door open for the birth father to challenge the adoption, so this avenue should be used only as a last resort to personal service and termination. This is another reason we recommend that you secure professional assistance.
The birth mother’s relinquishment must be freely and voluntarily signed after the birth of the child and after she is free of the effects of any drugs or anesthesia agents incident to the birth. Furthermore, the mother’s relinquishment cannot be signed until the child is at least 48 hours old. In a private adoption, properly signed relinquishments generally cannot be revoked for 60 days. Within this 60-day period, the court generally decides whether to terminate parental rights. A decision to terminate is, except in very unusual situations, permanent. In an agency adoption, the relinquishment is generally irrevocable once it is properly signed.
Termination is the ending of legal rights and relationships that exist between the child and the biological parents. The steps for termination vary according to whether the termination involves a private adoption or an agency adoption. In the termination order, the court will appoint someone as Managing Conservator of the child. A Managing Conservator is responsible to the court for the welfare of the child until the adoption is finalized. The adoption agency, one or both adoptive parents, or the state (in DFPS cases) commonly become Managing Conservator(s).
Check with your hospital to determine its requirements regarding what paperwork must be completed prior to the child being released to the adoptive parents. Hospitals must, by statute, accept a Third Party Release and release the child to whomever the birth mother dictates.
The courts, agencies, and DFPS require a pre-adoptive home screening (also known as a home study) be performed in the home of adoptive parents prior to the placement of the child in the home. The adoptive parents must also obtain a Texas Criminal History Report. Courts generally require that the child live in the home for six months before granting an adoption. During this time, the post-placement supervision requirement is usually fulfilled. This six-month requirement can be waived only if the court finds “good cause.” Generally, this requirement is only waived in private adoptions (including step-parent adoptions) as most agencies will not agree to waiver.
If the child is an American Indian child, very powerful federal laws must be complied with if the child falls under the federal act. The Indian Child Welfare Act is very complicated and if you suspect the child may have an American Indian heritage, you will want to seek legal counsel to ensure the requirements of the act are met.
In all steps of this process, the court must consider the best interests of the child. During the termination process an attorney or guardian (called an amicus attorney or an ad litem in DFPS cases) is commonly appointed by the court to report on the best interests of the child. The law states that a final adoption is truly final. There is generally no way a properly handled adoption can be rescinded or revoked. The infant you recognized long before as “your child” is now so recognized by the law.
Contact us to discuss your adoption questions.
Excerpts taken from Texas Young Lawyers Association publication, Adoption Options.