Tuesday, July 14, 2009

terminations and adoption in Texas part 2

I know some of you have been on the edge of your seats to get to part 2. Sorry for the delay, been busy busy.

Okay, so we know now about terminating a parent's rights. That is the first step to completing an adoption in Texas. As I stated earlier, there can only be one father and one mother. If a step-father wants to adopt, then bio father must be terminated. However, if someone other than a step-parent wants to adopt then BOTH parent's parental rights must be terminated. This would mean grandparents, uncles, aunts, etc...

Okay, so on to adoptions. This discussion is about private adoptions in Texas and not adoptions through an agency. Everyone knows what an adoption is, so I will just give a brief discussion of what is required to complete the adoption. First you must have a home study done. A home study is where a social worker comes and visits your house and makes sure it is suitable for the child being adopted. The social worker then makes a report to the court that the home is suitable and the adoption should go through. If the home is not suitable, or the people in it are not, then you know the result of that. Social studies can range anywhere from a few hundred dollars to thousands dependent upon where you are and the requirements of that specific court.

The next major expense is the ad litem or amicus attorney. This person is an attorney and represents the interest of the child. An attorney for the child. In a step-parent adoption this requirement can sometimes be waived, but is a requirement in all other adoptions. The purpose of the amicus attorney is again to watch out for the best interests of the child and make a recommendation to the Court for or against the adoption. Guess who pays for this.

Next, the prospective adoptive parent or parents must have a criminal history report submitted to the court. This is done by submitting a fingerprint card to the Department of Public Safety who then mails a copy of the report to the court. Clean record, clean adoption. This is only required for the adopting parent. You bio parents out there with the arm length wrap sheets are safe!

Next there is the health and genetic report. This is not required in a step-parent adoption because the bio parent knows their medical background and probably that of the parent who will be terminated. When the adoption involves non-parents however, it is important to know the biological parent's medical background so that the child's health can be safeguarded. This is a form that must be filled out in detail and filed with the court.

There are a few affidavits that must be filed with the court that I won't go into here. Nothing major.

This is not an all inclusive list of the things that occur in an adoption, but it is pretty close. If you are contemplating an adoption I suggest you contact an attorney and let them handle it so that you do not miss anything. However, if you want to research it more yourself, all the requirements are set out in the Texas Family Code. You can find a link to the Texas Family Code at my website to the right under Resources.

One final word to address the questions that I know will arise. Typically a court will not terminate a parents rights unless there is proof to the court that there is someone who is going to step in and support the child. For example, mother makes $30,000 a year and is struggling to get by. She despises the father and wants to terminate his rights, but there is nobody adopting the child. Father does not pay child support. In this situation the Court most likely will not terminate the parental rights unless there is some other reason to do so, but not for failure to support the child. They want somebody supporting the child or obligated to support the child. They will not let the father off the hook so easy. In my scenario, if the mother made $100,000 per year or there were a step father adopting, the Court may change its position because they know the child will be taken care of financially.

Another point. What happens to child support in a termination? Current child support (i.e. child support in the future) terminates. Back child support is not terminated (absent an agreement by the person owed the money) because that obligation has already accrued and is due and owing. That simple.

Good luck.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!


Lynda said...

Hey Chris,

Thanks a bunch about the blog of holding the parents feet to the fire. That was so timely and almost identical to my situation it was scary!! You saved me from making a HUGE mistake but cost me my usual 14 hour drive for nothing.

Got a question though because it has been bugging me for 2 years now. Dad and I agreed he would have custody. I was manipulated a bit by a third party to sign it so it didn't detail any specifics on visitation and such. But whatever we could agree on or dad would signed it dad was promising the world and he was an angel and yada yada yada. Soon as my son moves in, here comes Mr. Hyde. He wouldn't let me talk to him, wouldn't discuss me coming to visit, etc. So I bided my time, and kept calling every so often and I did get to talk to my son a few times. But about 4-5 months after my son went done there, I called and dad says he is not there. Says that stepmom decided she was leaving him and taking the kids. Dad claims she was cheating on him and accused him of DV and got a restraining order and took all 3 kids of his with her, including mine! I checked in to it and she did do that by claiming that dad had hit my son. But I was NEVER notified of any of this.
Can she do this legally?
And if something was done wrong back then (2 years ago) is there anything I can do now to undo it?

Chris Schmiedeke said...

Lynda, from what you describe, she should not have been able to take the kids from him if they were not hers.

I think you need to get a lawyer to ascertain whether she got any legal paperwork to obtain custody of the children so that you can determine what your next course of action will be.

Good luck.

Lynda said...

Also, since the current court order for visitation was violated, how long do you have to file about that in court? And I am "owed" those days that were denied? In other words, should I attempt to get those days made up and if I do get those days made up, is there still contempt?

Chris Schmiedeke said...

There is no deadline to file an enforcement if the children are still young. You are entitled to make up time for the times you missed. You would have to ask for it in a motion for enforcement.

You really need to contact a lawyer to make sure the contempt is prepared properly. If your paperwork is not in order then there could be "loopholes".

Good luck.

Lynda said...

Yeah I know what you mean. "Loopholes" pretty much sums up why I don't have custody currently. You seem like a sharp lawyer. I would love to meet with you and consider hiring you. However, I don't want to waste your valuable time nor mine. Would you consider taking a case that is 7 hours away (West Texas) from the metroplex? I live here in Irving. We are talking one hour from Midland/Odessa. I sure could use your expertise.

Lynda said...

Another question.. My court order states for summer visitation that I am required to send written notice at least 2 weeks in advance. I did that and the time was not honored. So about a week ago, I sent another letter for a different week which still has not been picked up. Does the 2 week notice period start from the date I postmark and mail my letter or from the date of actual receipt for the other party? I ask because it appears the other party is delaying picking up the mail to prohibit me from getting my son the last available week of summer vacation.

Chris Schmiedeke said...

Lynda, usually the order states what the rules are for notice. It is typically deemed delivered when deposited in the mail. Check your order and see what it says regarding mail notification.

To protect yourself, you probably need to show up at the time and place set out in the order for the time that you have designated to preserve any chance you may have at contempt.

You really need to talk to a local lawyer, and perhaps retain them to pursue an enforcement.

Good luck.

Anonymous said...

Could you tell me how many parents...an average yearly number or maybe a statistic of how many parents have their rights terminated...I am on the receiving end of the termination and I am curious how often this occurs.
Thanks for your input.

Chris Schmiedeke said...

I am sorry, but I really do not know.

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