- How often must an Assistant Attorney General hear from one of the parties “Can’t I just give up my rights?” or “Why can’t he just give up his rights?” Termination of parental rights can of course be done, but should it and how is it to be accomplished is the question. Additionally, what role does the AAG play in these scenarios?
- This paper will provide an overview of the issues involved with the termination process from prerequisites to filing to evidence to completion. Separately the presentation will discuss some recent case law and its implication on statutory construction. Please feel free to ask questions at any time.
- Termination of the parent-child relationship has been compared to the “death penalty.” Courts are forced to weigh the constitutionally protected rights of parents against the best interest of children. Rulings in contested termination cases are difficult at best. Both the Texas and United States Constitutions protect the parent-child relationship and must be considered in contested cases for termination of parental rights. Stanley v. Illinois, 405 U.S. 645 (1972).
- In addition to federally mandated scrutiny of involuntary termination of parental rights, the Indian Child Welfare Act, 25 U.S.C.§1901 et. seq. (ICWA) is a federal statute that provides additional protection specifically to American Indian children. Each Native American tribe has jurisdiction over termination cases involving a child or parent member of the tribe. The practitioner must verify whether the child or parent involved in the termination of the child is a member or eligible to be a member of a tribe, and follow the ICWA accordingly. The specifics of ICWA are outside this article.
A. Preliminary Considerations
- A suit terminating the parent-child relationship is considered a suit affecting the parent-child relationship. (§ 101.032(a) – hereinafter, all statutory references are to the Texas Family Code or TFC, unless specified otherwise.) Prior to filing an Original Petition to Terminate the Parent-Child Relationship, the parties will need to answer the following questions.
- Does the Indian Child Welfare Act (ICWA) apply to this case? 25 U.S.C. §1901 et. seq.
- Does the Interstate Compact on the Placement of Children (ICPC) apply to this case? TEX. FAM CODE §162.101
- Does the child have a presumed father as defined in §151.002 or does the Paternity Registry apply?
1. Does the ICWA apply?
- If you have determined that the child, or the parent placing the child, is a member of a tribe, or eligible for membership as set out in the Act, you will need to contact the tribe and proceed with caution. A good case for review of the topic is located at Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 [Tex.App.Houston [14th Dist.] 1995, n.w.h.).
- If the ICWA applies, the practitioner must notify the tribe that a termination/adoption is pending so that tribe may have a right to intervene. (25 U.S.C. §1912(a)). Further, there is a 10-day waiting period before a parent may execute a relinquishment, which must be strictly adhered to or the termination is void. 25 U.S.C. §1913(a). This ten day period probably will have passed by the time the Attorney general’s office is informed of the issue.
2. Does ICPC apply?
- If the child and the prospective adoptive parents reside in different states and the adoptive parent(s) is not exempt under TFC § 162.102, then the practitioner and parties must comply with the Compact. The Compact regulates the movement of children from state to state for the purpose of adoption. Always contact the compact administrator for each state involved to verify compliance with each state’s requirements. In Texas, contact the office at Texas Department of Family and Protective Services, P.O. Box 149030, Austin, Texas 78714, Telephone: (512) 438- 3376.
- The parties must comply with the Compact in both the “sending” and the “receiving” states. Failure to comply is a Class B misdemeanor. On conviction, “the Court shall revoke any license to operate as a child-care facility, or child-care institution .. • . and shall revoke any license or certification of the individual, agency or corporation necessary to practice in this state.” §162.107. This seems to on its face to apply to the AG representing the state and is also most notably an issue if adoption is contemplated.
- The severity of this issue is viewed in the Kansas Court of Appeals opinion which held that the revocation of mother’s consent to adoption of her twins was the proper remedy for failure to comply with the ICPC. The mother, a resident of Missouri when she signed her consents, placed her children with a prospective adoptive couple in Kansas. The Court determined that the placement triggered the ICPC. Further, the Court found that both the mother and the adoptive parents failed to comply with ICPC. As a result, the Court instead of adopting a best interest of the child exception to ICPC, opted to require strict compliance with ICPC. Matter of Adoption of A.M.M. 1998 WL 748, 80 (Kan.App.)
- Regardless of whether ICPC applies to the situation you may face, the Texas Family Code §162.002 requires a verified statement that either ICPC has been complied with or that ICPC does not apply. Rodriguez v. Lutheran Social Services, Inc., 814 S.W.2d 152 (Tex.App.-San Antonio 1991, writ denied.)
3. Does the Child have a Presumed Father?
Texas Family Code §160.102 defines who is a presumed father. If the biological father is a presumed father, his rights may NOT be terminated unless one of the grounds for termination listed in TFC §161.001 are established by clear and convincing evidence. A presumed father can execute a Father’s Affidavit of Relinquishment pursuant to §161.103 Texas Family Code to establish a ground for termination. The practitioner and parties should be careful to ensure that the mandatory requirements of the statute are included in the Father’s Affidavit of Relinquishment and that the execution of the document strictly complies with the code.
A minor can execute a relinquishment. If the biological father is not the presumed father, but is an alleged biological father or probable father, the statutes permit different methods of termination listed below:
a) Voluntary Termination §161.106
A “probable” father may disclaim any interest in a child even prior to the child’s birth by executing a Waiver of Interest pursuant to TFC §161.106. The Waiver must be signed by the man alleged to be the father, witnessed by two credible persons and verified. The statute does not require the probable father to admit that he is the father or that he had a sexual relationship with the mother of the child.
b) Default Termination §161.102
An alleged biological father’s parental rights may be terminated if, after he is served with citation, he does not respond by timely filing an admission of paternity or a counter-claim for paternity under TFC § 160 prior to the final hearing.
c) Unknown Father
What if the name and/or address of the alleged biological father is unknown, or is known as listed in the Paternity Registry? The practitioner must carefully evaluate this situation. The practitioner must follow the provisions of §160.401 et seq.
Mistaken Identity §161.005
An acknowledged or adjudicated father may terminate his rights to a child based on mistaken paternity. The petition must allege:
- a. Petitioner is not the genetic father and
- b. Petitioner did not contest his paternity at the time Petitioner was adjudicated as the father of the child because Petitioner was under a mistaken belief he was the genetic father of the child at the time of the adjudication based on misrepresentation
- c. Petition must be verified.
If the acknowledged or adjudicated father is not the child’s genetic father after genetic testing, the court MUST grant the termination and a best interest analysis shall NOT be considered or factored into whether the termination should be granted. TFC §161.005(c).
Beginning on June 14, 2013, the deadline to file suit under a mistaken identity was changed from one year to two years. TFC §161.005(e). The suit must be filed within 2 years after the date on which he becomes aware he is not the child’s genetic father. TFC §161.005(e).
A man cannot file a suit for termination based on mistaken identity if:
- a. The man is the child’s adoptive father,
- b. The man consented to his wife’s assisted reproduction and the child was conceived by the assisted reproduction or
- c. He is the intended father of the child under a court -validated gestational agreement. § 161.005(d).
PRACTICE NOTE: At the final hearing on the termination, even though a record is made, the parties must prepare a written Statement of Evidence for the court and attach the following exhibits: Affidavit of Status; Affidavit of Birth Father Information; Publisher’s Affidavit and Affidavit of Search and Paternity Registry Certificate, together with other evidence of attempts to locate the unknown or missing father, if applicable.
B. Filing and Finalization Procedure
- When to File
A petition for termination of parental rights may be filed at any time, including prior to the birth of the child (TFC §§102.003(a), 161.102(a)). This timeline to file may be affected by the grounds asserted for the termination. If the original petition is filed prior to the birth, as an unborn child, the court may not conduct a final hearing on the petition until the child is at least five days old. In re: Baby Girl T, 671 S.W.2d 654 (Tex.App.-Ft. Worth 1984, writ refdn.r.e.)
- Where to File
The general rules of where to file the termination follow the same general rules of where to file a Suit Affecting Parent-Child Relationship which may be found in the Texas Family Code, Chapter 103.
- Who Can File
For the most part, the general standing statutes to file a SAPCR under Texas Family Code 102.003 can also be used to file a termination suit. Some grounds for termination require a specific person or entity to file suit. Therefore, prior to filing the practitioner and the parties should review § 161.001 of the Texas Family Code which lists the grounds for termination.
- What to File
a. Original Petition must include the following:
- i. names of petitioners and respondents
- ii. standing requirements (see “Who Can File” above)
- iii. jurisdiction and venue allegations (see TFC §103.001)
- iv. request for service, if necessary (see TFC §102.009);
- v. request for citation by publication, if necessary (see TFC §102.010);
- vi. property owned by child
- vii. grounds for termination (see TFC § 161.001, §161.002, §161.103 and § 161.104);
- viii. statement of best interest (see TFC § 161.001);
- ix. whether a protective order is in effect
- x. ICPC compliance – verified (see TFC 162.002)
- xi. Request for relief
- xii. Request for Guardian Ad Litem appointment for the child – mandatory (see TFC §107.001 and 107.012);
- xiii. Request for Attorney Ad Litem if the biological father is unknown or missing (See TFC 107.001, 160.251 et seq, TRCP 244):
- xiv. Request for appointment of managing conservator (TFC § 161.207 § 161.208)
b. Attachments to the Original Petition:
- i. UCCJEA affidavit (if a party lives outside of Texas) (see §152.209(a)
- ii. Affidavit of relinquishment (see 161.001(1)(K))
- iii. Waiver of interest (see 161.106(a))
- iv. Statement Conferring Standing (see 102.0035(c) and 102.0035(a))
c. Pretrial Filings
- i. Paternity Registry Certificate 161.109, 160.421, 160.422(c)
- ii. Pre-adoptive Social Study 107.0519(b)(c)
- iii. Pre-placement Home Screening 162.0025(see exceptions)
- iv. Medical History report 161.1031(a)
Prior to the filing of a suit for termination and/or adoption a paternity registry certificate must be obtained from the Bureau of Vital Statistics and filed with the court regarding the results of the paternity registry search. This is not required if the father-child relationship has already been established and the man has been served with citation or signed a relinquishment of parental rights. §160.422(d).
PRACTICE NOTES: A petition for termination must specifically plead each ground for termination and cannot be tried by consent. In re Castillo, 101 S.W.3d 174, 178 (Tex.App. -Amarillo 2003, pet. denied)
- What to Do at the Hearing
- a. Offer Evidence. At a hearing on the merits, the parties should offer the Affidavit of Status, Affidavit of Relinquishment, and/or Waiver of Interest, Pre-Placement Home Screening, Publisher’s Affidavit, Paternity, Registry Certificate and Affidavit of Search, if applicable, into evidence.
- b. Present the Decree.
- c. Offer Other Required Documents:
(1) Statement of Evidence, if required
(2) BVS Form VS-165
- d. Genetic test results if filing under a Mistaken Identity.
- What Must Be Included in Final Order
The Order of Termination must include, among other requirements:
- a. findings on termination grounds by clear and convincing evidence;
- b. finding that termination is in the best interest of the child;
- c. appointment of managing conservator;
- d. Order to seal the file; and
- e. may need separate order for a certified copy.