How do I terminate my ex-husband's parental rights for abandonment?

02/13/2007 - Category:Paternity - Parental Rights - State: TX #697

Full Question:

My daughter has requested to be adopted by her stepfather, my husband, who has been the only real father she has had since my divorce from her biological father when she was 4. We have joint custody, with standard visitation rights for him, but he has not had steady visitation since the first 3 years or so after the divorce, and has only seen her twice in the past 3 years. He has a long record of drug possession and DUIs, and moved out of state a year ago. He is about $50,000 behind in child support for her and her older sister who is now 18. My younger daughter is 16 and will be 17 in June. At this point is it necessary to have her biological father agree to give up his parental rights? If so, can physical and financial abandonment be reason to terminate his rights? When she turns 17 can my daughter choose to terminate the legal relationship? How old can a child be to be able to be adopted? At this late age, would it be better to simply change her name legally, and would her biological father have to agree to that? We want to do what is in her best interest, and after considering this for quite some time, she has decided that she wants my husband to be her legal father and to take his last name.

Answer:

In Texas, a 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
(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 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 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) and;
(xiii) Section 43.26 (possession or promotion of child pornography)

(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 Protective and Regulatory Services or an authorized agency for not less than six months, and:
(i) the department or authorized agency 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 Protective and Regulatory 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, as defined by Section 261.001 or
(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; and

(2) that termination is in the best interest of the child.

An adoption in Texas may be open or anonymous, private or through an agency, or some combination of these types of adoption.

Most of the laws and regulations concerning adoptions are applicable to so-called stranger adoption or unrelated adoption. That is, people seek out a child to adopt through an acquaintance or an agency. Many of the procedures required to adopt in Texas apply to both agency and private adoptions. International adoptions are quite similar to domestic adoptions, but additional requirements and procedures apply.

Adoption may take place within a family. This kind of adoption sometimes is called a relative adoption. A stepparent who is responsible for providing the care, love, discipline, and guidance for the children of his or her spouse may formalize the relationship by adopting the stepchildren. A grandparent, aunt, or uncle may adopt a child when the child's birth parent has become unable to care for the child. As with any adoption, a relative adoption can happen only if both natural parents agree.

In Texas, it is possible for an adult to be adopted by another, older adult. The person sought to be adopted must consent to the adoption and must be present at the final hearing.

Open Versus Closed Adoption
If the adoptive and birth parents know each other and remain in touch after the adoption, the adoption is said to be open. If they do not know each other and do not stay in touch after the adoption, it is said to be closed. Usually, open adoptions are privately arranged between the adoptive parents and the birth parents. People may make these arrangements through doctors, attorneys, nurses, or friends.

Open and closed adoptions are not the only two options available to parents; they exist at opposite ends of a continuum of choices. The degree of openness in an adoption is determined by the parties involved and may be quite complex. Most important to a successful adoption is that all expectations regarding openness and the role both sets of parents will play are clearly communicated and understood by all parties. Adoption facilitators or attorneys can assist in ensuring the most secure adoption plan in the best interests of the child.

Who May Adopt?
Any adult in Texas may file a petition to adopt a child. Commonly, married couples apply to become adoptive parents, although single, separated, and divorced people have the right to adopt in Texas. Married people must adopt together, however; one spouse may not seek to adopt a child without the consent and joint petition of the other spouse. There is no particular age, housing situation, social background, or income level that makes certain people more qualified to be adoptive parents than others. It is prohibited by Texas law to discriminate against a person in an adoption because of his or her race or ethnicity, or to deny a person the right to adopt a particular child for these reasons. Some people may be required to provide additional information to an agency considering their application. For instance, working parents might be required to demonstrate how child care will be provided. The Texas Department of Protective and Regulatory Services provides various services to people wishing to adopt, including adoption placement.

Initiating an Adoption
Before an adoption of a child can commence, the child's birth parents must voluntarily give up their parental rights by signing a document relinquishing all legal rights with regard to the child. Another way parental rights are terminated is involuntarily: the parents are declared unfit by a court of law. For example, a court may find that a parent has abandoned the child, severely abused the child, or has shown such little interest in caring for the child that he or she is not competent to be a parent. Usually, when birth parents relinquish their right to raise a child, however, they do so consensually. The right to care for the child and make decisions on his or her behalf may be given over to an adoption agency, discussed below, prior to the child's placement with his or her adoptive parents.

When the birth parents' parental rights are terminated, they must sign a legal document relinquishing their rights. The document must clearly state their wish to place the child for adoption and their belief that the adoption is in the best interests of the child. If the biological father of the child is not involved in the preliminary part of the adoption proceedings, an attempt must be made to locate him before the adoption can be finalized. Usually, this is accomplished by publishing a notice in the leading newspaper in the county in which he resides. If he cannot be located, the adoption still can be completed as long as this notice requirement has been met.

The consent of the birth mother may not be obtained until 48 hours after the child is born. This is to ensure that her consent is free and voluntary. The form must be witnessed by two people and verified by a notary. Once the birth mother has signed the relinquishment form, it cannot be revoked for 60 days. During this 60-day period, a judge decides whether to accept the consent form and terminate parental rights. A child over the age of 12 must consent to be adopted.

People wishing to adopt must file an adoption petition with the court. An adoption agency must file supporting documents, including a report on the investigation of the child and the social study, discussed below.

Qualification
Adoption agencies conduct a rather extensive examination of people who wish to adopt, to ensure that they are fit to do so. This is called a "home study" or "social study." The agency also assesses the child's needs and creates a record that includes a history and verification that the child is free for adoption. The child's record includes social, educational, and genetic backgrounds, as well as a medical history and information regarding any history of abuse. The social study of the potential adoptive arents is an investigation of criminal, marital, medical, and employment backgrounds. It also includes an interview, the purpose of which is to ascertain whether the potential parents are ready for the responsibilities of parenting. Some of the issues covered in the home study include:

Is the house clean and safe?
Is there room for the child?
How long have the applicants been married?
Are both people eager to adopt?
Do the applicants have any experience with children?
Can they afford to have a child?
Will one parent stay home with the child or will they use day care?

The goal of the interview and examination process is not to make sure the applicants have a lot of money, a big house, or a great deal of education. It is meant to verify that adoption is the appropriate choice for the couple and that they will be able to meet the specific needs of the child they are seeking to adopt. The home study also is an opportunity for the potential parents to obtain information from the agency worker and to have their questions answered. Even if people arrange an adoption independent of an agency, a public or private agency still must conduct an investigation and social study.

Finalizing the Adoption
All adoptions must be finalized in court, generally six months after the child has been living in his or her new home. Only under special circumstances may the requirement that the child live in the home for six months be waived. This requirement is a way to ensure the placement is successful. If all conditions are satisfactory, the court enters a final adoption order. At this point, the new birth certificate is issued, and the legal rights and responsibilities of parenting go into effect. A final order of adoption is--as its sounds--final. It may not be challenged by the birth parents or other parties although the adoptive parents' fitness, if it became an issue, could be challenged in a separate court proceeding).

The age of majority in Texas is 18.

Texas Name Change Law
Name Change Action Allowed: In Texas, an adult may change their name by filing an action in the county court, in the county in which they reside, with appropriate forms. A parent, managing conservator, or guardian of a child may file a petition requesting a change of name of the child in the county where the child resides with appropriate forms.

Who is an adult?; A person who has attained the age of 18 years is considered an adult.

Is there any reason why a person might not be allowed to change his or her name?; Yes.
The court must find:

(1) that the name change is for the benefit of or in the interest of the Petitioner; and
(2) that the requested name change is consistent with the public interest. A person is not allowed to change their name in order to avoid judgments or legal actions against him or her, or to avoid debts and obligations. A person can not change their name to defraud any person.

Requirements for Name Change Order: For an order of name change to be granted, the court must find the name change in the interest or to the benefit of the petitioner and in the interest of the public. A change of name upon marriage, dissolution, or divorce meets these requirements.

Is Publication of a Notice Required? No, but for a minor seeking a name change but certain parties are entitled to "citation" or notice. The following persons are entitled to citation in a suit for a minor name change:

(1) a parent of the child whose parental rights have not been terminated;
(2) any managing conservator of the child; and
(3) any guardian of the child.

Can individuals "object" to my Petition for Name Change?; Yes. Any reasonable objections made to the court may influence the court's findings as to whether the change of name is consistent with the public interest.

Procedures: The process for obtaining a name change for an adult in the State of Texas begins with the filing of a Petition with the County Court in the jurisdiction in which the Petitioner resides. The Petition informs the Court of the Petitioner's name, the name the Petitioner wishes to adopt, the reasons for the requested change of name, and other personal information required by statute.

After the Petition is filed and the required filing fee has been paid, if the court is satisfied that the required information has been provided in the Petition, the Court may Order the change of name if the Court finds it in the interest or to the benefit of the Petitioner and in the public interest.

Who May File; Venue:
An adult may file a petition requesting a change of name in the county of the adult's place of residence.; [Texas Family Code, Title 2 Child in Relation to Family, Chapter 45 Change of Name, Subchapter B.; Change of Name of Adult, Sec. 45.101.]

Requirements of Petition.
(a) A petition to change the name of an adult must be verified and include:

(1) the present name and place of residence of the petitioner;
(2) the full name requested for the petitioner;
(3) the reason the change in name is requested; and
(4) whether the petitioner has been the subject of a final felony conviction; and
(5) whether the petitioner is subject to the registration requirements of Chapter 62, Code of Criminal Procedure.
(6) a legible and complete set of the petitioner's fingerprints on a fingerprint card format acceptable to the Department of Public Safety and the Federal Bureau of Investigation.

(b) The petition must include each of the following or a reasonable explanation why the required information is not included:

(1) the petitioner's:
(A) full name;
(B) sex;
(C) race;
(D) date of birth;
(E) driver's license number for any driver's license issued in the 10 years preceding the date of the petition;
(F) social security number; and
(G) assigned FBI number, state identification number, if known, or any other reference number in a criminal history record system that identifies the petitioner;

(2) any offense above the grade of Class C misdemeanor for which the petitioner has been charged; and
(3) the case number and the court if a warrant was issued or a charging instrument was filed or presented for an offense listed in Subsection (b)(2).;

Order:
(a) The court shall order a change of name under this subchapter for a person other than a person with a final felony conviction or a person subject to the registration requirements of Chapter 62, Code of Criminal Procedure, if the change is in the interest or to the benefit of the petitioner and in the interest of the public.

(b) A court may order a change of name under this subchapter for a person with a final felony conviction if, in addition to the requirements of Subsection (a), the person has:

(1) received a certificate of discharge by the pardons and paroles division of the Texas Department of Criminal Justice or completed a period of probation ordered by a court and not less than two years have passed from the date of the receipt of discharge or completion of probation; or
(2) been pardoned.

Change of Name of Minor

B'45.001. Who May File; Venue
A parent, managing conservator, or guardian of a child may file a petition requesting a change of name of the child in the county where the child resides.

B'45.002. Requirements of Petition
(a) A petition to change the name of a child must be verified and include:

(1) the present name and place of residence of the child;
(2) the reason a change of name is requested;
(3) the full name requested for the child;
(4) whether the child is subject to the continuing exclusive jurisdiction of a court under Chapter 155; and
(5) whether the child is subject to the registration requirements of Chapter 62, Code of Criminal Procedure.

(b) If the child is 10 years of age or older, the child s written consent to the change of name must be attached to the petition.

Sec. 45.003. CITATION.
(a) The following persons are entitled to citation in a suit under this subchapter:

(1) a parent of the child whose parental rights have not been terminated;
(2) any managing conservator of the child; and
(3) any guardian of the child.

(b) Citation must be issued and served in the same manner as under Chapter 102.

Sec. 45.004. ORDER.
(a) The court may order the name of a child changed if:

(1) the change is in the best interest of the child; and
(2) for a child subject to the registration requirements of Chapter 62, Code of Criminal Procedure:
(A) the change is in the interest of the public; and
(B) the person petitioning on behalf of the child provides the court with proof that the child has notified the appropriate local law enforcement authority of the proposed name change.

b) If the child is subject to the continuing jurisdiction of a court under Chapter 155, the court shall send a copy of the order to the central record file as provided in Chapter 108.



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02/13/2007 - Category: Parental Rights - State: TX #697

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