In recognition of National Adoption Month, McLeod, Alexander, Powel & Apffel P.C. Firm Officer, James B. Galbraith revisits and updates Adoption Options. Adoption Options was authored by Mr. Galbraith and was originally published by the Texas Young Lawyers Association in 1991.
The are a number of ways that Texans can 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, and international adoption. Legal counsel is invaluable when navigating the complexities of any form of adoption.
“Open” vs. “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 types of adoptions are rare. Most adoptions are considered “semi-open”, where 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
The Texas Department of Family and Protective Services (“DFPS”) has a large listing of children available for adoption. These children have been removed from their birth parents our guardians for abuse and/or neglect, and many have behavioral, learning, medical, and/or psychological issues. Many of these children are non-infants. Many loving parents have found satisfying and fulfilling solutions to their quests for enlarged families through an adoption from DFPS.
Private adoptions involve the placement of the child with adoptive parents by the child’s birth parents. Texas law states that a person who is not the natural or adoptive parent of a child, legal guardian of a 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. As a result, 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.
Private adoptions have been authorized by law to allow a birth parent to have some say in choosing adoptive parents. For example, a family may collectively decide that the child’s grandparents or close family relative will become the adoptive parents. The birth mother may also place the child for adoption with a non-family member.
Questions and controversy surrounding private adoptions often arise regarding the expenses the adoptive parents may legally pay in connection with the adoption. In the State of Texas it is a crime 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 presents the most attractive financial package (car, house, cash, etc.).
Proposed adoptive parents are only allowed to pay “reasonable medical, legal, and counseling expenses” related to the health of the child. Reasonable medical expenses can include doctor’s fees, prescriptions, etc. Paying questionable charges may subject both the adoptive and the birth parents to possible criminal charges.
Proposed adoptive parents should not give the birth money any money directly. They cannot give the birth money a check for $5,000.00 and simply note on it that it is for “medical expenses.” Instead, the proposed adoptive parents should pay the medical provider directly. Although you cannot legally pay an attorney for the placement of a child, you may pay reasonable attorney’s fees related 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.
In an international adoption, the child being adopted is a foreign national. There are a number of critical steps and legal issues which must be carefully completed or you may not be able to bring the child home to the United States.
Not all countries allow American citizens to adopt children from their country. The U.S. State Department maintains a useful database of information that can assist those looking to adopt internationally to see if an adoption is even an option in any given chosen country.
In order 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 United States, 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, in writing, the child for immigration and adoption. Typically, prospective adoptive parents seek “advance processing” to obtain pre-approval to adopt internationally before identifying a specific child. This process takes a number of months, but ultimately makes for a smoother adoption and immigration.
Once the prospective parents have been pre-approved, they, usually through an agency, identify a specific child and travel to the foreign country. Each country has different processes for international adoptions. An Orphan Petition is then filed to obtain a child’s visa. In most cases the adoption takes place in the foreign country, and the parents receive an IR3 visa for the child. Under the Child Citizenship Act of 2000, a child that enters the United States under an IR3 visa automatically gains U.S. citizenship.
Upon returning to the United States with the child, the adoptive parents may choose to have the foreign adoption recognized by the State of Texas. This court proceeding results in an order formally recognizing the foreign adoption and allows the adoptive parents to obtain a Texas birth certificate or change the child’s name.
If the adoptive parents are unable to see the child prior to the adoption proceeding or the proceeding did not occur in the foreign country, the adoption must be finalized in Texas with the same formalities as a domestic adoption.
If the adoptive parents and the child reside in different states, they must comply with the Interstate Compact laws for the placement of children. The Interstate Compact Office of each state regulates the movement of children from state to state for adoption purposes. As a general rule, both the sending and receiving state must approve the placement of the child before the child may leave the sending state.
Adoption of Native American Children
The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 in order to “protect the best interests of Indian children and to promote stability and security of Indian tribes and families.” 25 U.S.C. § 1902. ICWA provides federal requirements that apply to state child custody and adoption proceedings involving a child of Native American ancestry who is a member of or eligible for membership in a federally recognized tribe.
Terminating Birth Parents’ Rights to the Child
Before a child may be adopted, the court must terminate the birth parents’ rights to the child. Birth parents, both father and mother, are generally required to sign forms relinquishing their rights and indicating their desire to place their child for adoption before the court will terminate their interests. This requirement applies regardless of whether the adoption is private, through an agency, or through DFPS.
If the location of the birth father is unknown, the court must be shown that diligent attempts have been made to provide him with notice of the proceedings. The birth father may be served with notice of the termination proceeding by publication of notice in the newspaper. The court may require that the publication be in a newspaper of general circulation in the county of birth and/or the county of the birth father’s last known residence. The rules of notice by publication are complex and must be strictly followed. Notice by publication provides an avenue for the birth father to later challenge the adoption, so this route should be used only as a last resort to personal service and termination.
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 associated with the birth. The mother’s relinquishment may not be signed until the child is at least 48 hours old. In the case of 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. Except in unusual circumstances, the decision to terminate is permanent. In the case of agency adoptions, the relinquishment is generally irrevocable once properly signed.
Termination represents the legal end of the rights and relationship that exists between the child and his or her biological parents. The steps of termination vary according to the type of adoption chosen. A termination will appoint a Managing Conservator of the child who is responsible to the court for the child’s welfare until the adoption is finalized. The adoption agency, one or both of the adoptive parents, or the State are commonly appointed as Managing Conservator.
Parents adopting newborns should check with the hospital where the child is to be born regarding the necessary paperwork needed to be complete prior to the child being released to the adoptive parents. By law, hospitals must accept Third Party Releases and release the infant to whomever the birthmother 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 at least six month before granting an adoption. During this time, the required post-placement supervision process occurs. The six-month requirement may be waived by the court upon a showing of good cause. Generally, waiver only occurs in the case of private adoptions as most agencies will not agree to a waiver.
In all steps of the adoption process, the court must consider the best interests of the child. During the termination process an attorney, or guardian (referred to as 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. A final adoption is truly final and there is generally no way a properly handled adoption may be rescinded or revoked.
This article has been prepared for educational and informational purposes only and does not constitute legal advice. The laws of other states and nations may be entirely different from what is described in this article. Because of these differences, you should not act or rely on any information on this article without seeking the advice of a competent attorney licensed to practice law in your jurisdiction for your particular problem. The author has endeavored to comply with all legal and ethical requirements in writing this article and does not desire to solicit or represent clients based upon their review of any portions of this article which do not comply with the legal or ethical requirements of the jurisdiction in which the client is located. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.
GALVESTON COUNTY ADOPTION DAY FOUNDATION CORDIALLY INVITES YOU TO…
2016 Galveston County
Date: Saturday, November 19, 2016
Time: 10:00 a.m.
Location: Galveston County Justice Center,
600 59th Street, First Floor, Galveston, Texas
Additional Event Information:
2016 Event Chair:
Doryn Glenn; Doryn.Glenn@Co.Galveston.Tx.Us
Jennifer Burnett; Jennifer.Burnett@Co.Galveston.Tx.Us
Shauna Correia; CorreiaLawFirm@Verizon.Net
Look for the event on Facebook at
“Galveston County Adoption Foundation” and check out our website at www.GalvestonAdoptionFoundation.org!