The grounds for termination of a parent-child relationship are found in Subchapter A of Chapter 161 of the Texas Family Code, entitled “Termination of the Parent-Child Relationship.” The grounds for involuntary termination of parental rights from the Texas Family Code will be found below. To involuntarily terminate a parent’s rights, the court has to find that one of the factors for termination set forth in the Texas Family Code exists, and additionally that it is in the best interests of the child that that parent’s rights be terminated.
Additionally, a parent can sign an Affidavit of Voluntary Relinquishment of Parental Rights and if a court finds that the termination is in the child’s best interest, it will terminate the parent’s rights because of the voluntary relinquishment. Also, in recent years, there has been a change in the law, which will be discussed on another page, where a father who discovers that he is not the biological father of a child after establishment of paternity can in some situations petition successfully to terminate his legal paternity, and thus end his duty to pay child support.
GROUNDS FOR INVOLUNTARY TERMINATION FROM THE TEXAS FAMILY CODE ARE FOUND BELOW:
Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD RELATIONSHIP. (a) In this section, "born addicted to alcohol or a controlled substance" means a child:
(1) who is born to a mother who during the pregnancy used a controlled substance, as defined by Chapter 481, Health and Safety Code, other than a controlled substance legally obtained by prescription, or alcohol; and
(2) who, after birth as a result of the mother's use of the controlled substance or alcohol:
(A) experiences observable withdrawal from the alcohol or controlled substance;
(B) exhibits observable or harmful effects in the child's physical appearance or functioning; or
(C) exhibits the demonstrable presence of alcohol or a controlled substance in the child's bodily fluids.
(b) The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
(1) that the parent has:
(A) voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return;
(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months;
(C) voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months;
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
(F) failed to support the child in accordance with the parent's ability during a period of one year ending within six months of the date of the filing of the petition;
(G) 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;
(H) voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth;
(I) contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261;
(J) been the major cause of:
(i) the failure of the child to be enrolled in school as required by the Education Code; or
(ii) the child's absence from the child's home without the consent of the parents or guardian for a substantial length of time or without the intent to return;
(K) executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by this chapter;
(L) 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 under the following sections of the Penal Code, or under a law of another jurisdiction that contains elements that are substantially similar to the elements of an offense under one of the following Penal Code sections, or adjudicated under Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following Penal Code sections:
(i) Section 19.02 (murder);
(ii) Section 19.03 (capital murder);
(iii) Section 19.04 (manslaughter);
(iv) Section 21.11 (indecency with a child);
(v) Section 22.01 (assault);
(vi) Section 22.011 (sexual assault);
(vii) Section 22.02 (aggravated assault);
(viii) Section 22.021 (aggravated sexual assault);
(ix) Section 22.04 (injury to a child, elderly individual, or disabled individual);
(x) Section 22.041(abandoning or endangering child);
(xi) Section 25.02 (prohibited sexual conduct);
(xii) Section 43.25 (sexual performance by a child);
(xiii) Section 43.26 (possession or promotion of child pornography);
(xiv) Section 21.02 (continuous sexual abuse of young child or children);
(xv) Section 20A.02 (a)(7) or (8) (trafficking of persons); and
(xvi) Section 43.05 (a)(2) (compelling prostitution);
(M) had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state;
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment;
(O) 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 managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child;
(P) used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and:
(i) failed to complete a court-ordered substance abuse treatment program; or
(ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance;
(Q) knowingly engaged in criminal conduct that has resulted in the parent's:
(i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition;
(R) been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription;
(S) voluntarily delivered the child to a designated emergency infant care provider under Section 262.302 without expressing an intent to return for the child; or
(T) been convicted of:
(i) the murder of the other parent of the child under Section 19.02 or 19.03, Penal Code, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 19.02 or 19.03, Penal Code;
(ii) criminal attempt under Section 15.01, Penal Code, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 15.01, Penal Code, to commit the offense described by Subparagraph (i); or
(iii) criminal solicitation under Section 15.03, Penal Code, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 15.03, Penal Code, of the offense described by Subparagraph (i); and
(2) that termination is in the best interest of the child.
WILL THE COURT TERMINATE A PARENT’S RIGHTS?
In our experience, an El Paso County Court will usually not terminate a parent’s rights, even where one of the grounds for termination exists, unless someone else is willing to come into the picture, to step into the shoes of the parent whose rights are being terminated, and assume parenthood over the child, by adopting the child. (The exception to this occurs in CPS cases, where the Court will not infrequently terminate a parent’s rights even if no one else is stepping into the picture to adopt at the time of termination). The reason for this is that a parent has a duty to support a child, and the courts tend to find that it is not in the best interests of the child to terminate the rights of a parent who has an obligation to pay child support, if no one else is stepping into the shoes of that parent to assume the responsibility to support the child.
However, if someone, usually a stepparent, is willing the step into the shoes of the parent whose rights are being terminated, provided that the stepparent (or other person petitioning to adopt in the same petition asking for termination of a parent’s rights), provided that that stepparent or other adopting party can show he or she can support and care for the child, and doesn’t have a criminal history that will act as a bar to the adoption (either because the judge in his or her own discretion considers it a bar, or because it is barred by law), the court will usually grant the termination of parental rights and adoption by the stepparent or other adopting party in the same order. The law governing adoptions, including stepparent adoptions, is found in Chapter 162 of the Texas Family Code,
To terminate a parent’s rights in a combined termination and adoption suit, the parent whose rights are being terminated either has to sign an Affidavit of Voluntary Relinquishment of Parental Rights, or the petitioning parties have to have that parent served with legal papers, and once that has been done, have to prove to the court that the grounds for an involuntary termination of parental rights exist. In our practice, what usually occurs in these cases is that the parent whose rights the petitioners (usually a biological parent and a stepparent) have sued to terminate 1) signs the Affidavit of Relinquishment of Parental Rights because he or she wants to cut off his or her duty to pay child support, or 2) cannot be found, so he or she has to be served by substituted service, such as through service upon a friend or relative, or through service by publication, usually in our cases in the El Paso Inc. newspaper. When a party is served by substituted service and fails to file an answer or to appear for the final hearing, the court will appoint an attorney ad litem to appear at the final hearing, to represent the interests of the absent parent, and to ask petitioners what efforts they made to find the parent who is being sued for termination of parental rights before serving that parent through substituted service. The petitioning parties have to show the court that they made a diligent, good faith effort to find the absent parent before resorting to substituted service before the court can grant a termination.
In a combined suit for termination of parental rights and for stepparent adoption, it has to be shown that adoption by the stepparent is in the child’s best interests. Usually, in our practice, by the time a parent and stepparent come to our office to proceed with a combined termination and stepparent adoption case , the stepparent has already unofficially stepped into the role of parent, by providing support and care for the child.
In addition to showing the court that he or she can provide for the child, an adopting stepparent needs to obtain his or her Texas Department of Public Safety Criminal History Record, which has to be filed with the court before the final adoption hearing. If you call our office, we can provide you with instructions on how to obtain that report. The adopting stepparent will need to show the court that he or she doesn’t have any criminal history that will act as a bar to adoption, or which will indicate that adoption by the stepparent is not in the child’s best interests.
Before a stepparent adoption can proceed, the judge appoints either a social worker or the El Paso County Domestic Relations Office to perform a study to determine whether the adoption is in the child’s best interests. The person conducting the study will go to the home of the parent and stepparent, will examine the home, and will ask questions about the parties’ backgrounds, such as their mental and physical health backgrounds, criminal history background, familial backgrounds, educational and employment backgrounds, and questions about income. Sometimes that person will also search public records for information. In 2015 the Texas Legislature modified the law regarding the studies, so that in situations where a parent who has been sued for termination of parental rights is opposing the termination and adoption, the person conducting the social study also studies whether the termination is in the best interest of the child according to direction provided by the court. The person conducting the study prepares and files with the court the study he or she has produced, which will include information obtained during the course of the study, as well as a recommendation regarding whether the adoption (and in contested cases the termination) should proceed.
AD LITEMS APPOINTED TO CHILD
In adoption cases in El Paso County, the court appoints an attorney ad litem to represent the child. That person’s job is to find out whether the child is in favor of the adoption, and to advocate for the child’s position in court. If the child is too young to be able to articulate an opinion or feelings regarding the proposed adoption, the appointed attorney ad litem can substitute his or her judgment regarding what is in the child’s best interests. The court can also, but does not usually, appoint a Guardian ad Litem to represent the interests of the child at the time of the adoption hearing. The Guardian ad Litem does not need to be an attorney, and his or her job is not to present the child’s position regarding the adoption in court, but rather, to express to the court whether the Guardian ad Litem personally believes the adoption is in the child’s best interest. However, in our experience the court does not usually appoint a Guardian ad Litem in stepparent adoption cases.
CHILD’S CONSENT TO ADOPTION REQUIRED IF CHILD IS 12 OR OLDER
Pursuant to Texas Family Code Section 162.010 a child 12 or older must consent in writing or in court to the adoption; however, where the court determines that the adoption is in the child’s best interest the judge can waive this requirement.
In cases where the child was born in Texas, our office once the adoption order is final sends a certified copy to the Texas Department of State Health Services to change the identity of the parent on the birth records as well as to change the child’s name in birth records where his or her name has been changed in the court order.