Adoption: Adoption is available for both a child and an adult. Adoption in Texas is governed by state statute, currently Chapter 162 of the Texas Family Code.
Any adult residing within Texas may file a petition to adopt another adult. If the adult desiring to adopt is married, then the spouse must join in the petition. Both the adopting adult and the adult to be adopted must attend the court’s hearing before the adopt order is entered; however, the court may waive [hot-link] the requirement for attendance by either the petitioner or the adult to be adopted by written order if “good cause” is shown.
The effect of an adult adoption is: (1) the adopted person is the son or daughter of the adoptive parent for all purposes, and (2) the adopted person is entitled to inherit from and through his/her adoptive parents as though there were his/her biological parents, (3) the adopted person may not inherit from or through his/her biological parents, and (4) a biological parents may not inherit from or through their biological child that is adopted as an adult. “Inherit” means the right to receive property from a parent or their blood antecedents when the person dies without a will, in other words, inheritance through the “statute of descent and distribution”. [hot-link] Therefore, a person who is adopted might “inherit” through a gift (devise) in a valid will of the biological parent whose parental rights have been terminated by the adoption.
A child [hot-link] may be adopted in one of the following circumstances:
(1) by a step-parent when married to a biological parent and the other biological parent’s parental rights have been voluntarily or involuntarily terminated,
(2) the parental rights of both parent’s have been terminated (voluntarily or involuntarily),
(3) the child is at least two years of age and the other parent’s rights have been terminated and the other parent consents to the adoption and
(a) the person seeking to adopt has been either (i) a managing conservator or (ii) had actual care, possession, and control of the child for a period of six months prior to the adoption or (iii) is the child’s former stepparent OR
(b) the person seeking to adopt is (i) the child’s former stepparent and has been a managing conservator or (ii) has had actual care, possession, and control of the child for a period of one year preceding the adoption.
The effect of a child adoption is: A parent-child relationship comes into existence between the adoptive parent(s) and the child “for all purposes”. This includes the right of inheritance. (See “effect of adult adoption” above.) All of the rights and duties of a parent to a child become effective for the adoptive parent(s). Grandparent rights of the biological or adoptive parents are not terminated by the adoption.
Combination of termination and adoption proceedings: The termination of parental rights may be combined with the adoption proceeding. The effect of the combination is efficiency in that the termination and adoption may be accomplished in the same hearing.
Situations in Which Adoptions Occur
There are many situations in which an adoption of a child may occur. One of the most common is the step-parent adoption. Another is adoption of a child born out of wed-lock where the birth mother and the father elect to give up the child for adoption. Another is foreign child adoptions. Another is child protective services becomes involved in cases of sever abuse and/or neglect resulting in a termination of the parental rights of one or both parents. The procedures involved in each of these situations are somewhat different. Two of these situations will be described here.
Step-parent adoption: This situation arises where the biological parents of a child are divorced or the child was born out of wed-lock and the biological parent who has the right to establish the child’s residence (the “primary” conservator) has married a step-parent. The step-parent may wish to adopt his/her step-child and the non-possessory biological parent is willing to allow the adoption by voluntarily having his/her parental rights terminated (unless those rights were previously terminated involuntarily). A pre-dominate motivation is for the child to have the same family name of a step-father. The step-child’s right to inherit from the step-parent may be controlled by the will of the step-parent.
Step-parent adoption procedure: The step-parent adoption procedure is fairly simple and straight forward. First, the parental rights of the non-possessory biological parent must be terminated. This may be accomplished through either an involuntary termination or by voluntary relinquishment of parental rights. The most common practice is for the non-possessory biological parent to voluntarily relinquish his/her parental rights. A non-possessory biological parent may relinquish his/her parental rights by signing a document called an Affidavit of Relinquishment of Parental Rights. Sometimes the father of a child is unknown, however, a man who has had contact with an unmarried mother may sign an Affidavit of Waiver of Interest in Child; this Affidavit may state that the man does not admit to being the father of the child or having a sexual relationship with the mother of the child. Second, a Pre-Adoptive and a Post Placement Social Study must be prepared by a an evaluator who meets minimum qualifications. However, the Health, Social, Educational, and Genetic History Report is not required in step-parent adoptions. The Pre-Adoptive and a Post Placement Social Study may be combined into one report. This Social Study must be on file with the Clerk of the court for a period of at least 14 days prior to a hearing. At the hearing, the court – after the receipt of evidence – will sign an order that terminates the parental rights of the non-possessory biological parent and declares the adoption. These hearings are usually not contested and are routine in nature.
Child born out of wed-lock or foreign child adoptions: This situation arises where an unmarried or a married couple wishes to adopt a child. These adoption proceedings are similar to a step-parent adoption procedure with additional procedures to protect the adoptive parent(s).