Termination of Parental Rights - Tex. Fam. Code 161

Question 1

Parental Rights are of “Constitutional Dimensions”

Answer 1

The natural right existing between parents and their children is of constitutional dimensions. A termination decree is complete, final, irrevocable and divests for all time that natural right as well as all legal rights, privileges, duties and powers with respect to each other except for the child’s right to inherit. Consequently, termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent.”

Case - Holick v. Smith

Question 2

Strong Presumption to Keep Children With Their Parents

Answer 2

Actions which break the ties between a parent and a child ‘can never be justified without the most solid and substantial reasons.’ Particularly in an action which permanently sunders those ties, should the proceedings be strictly scrutinized. This court has always recognized the strong presumption that the best interests of a minor is usually served by keeping custody in the natural parents. ‘The presumption is based upon a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible, and, as well, the best atmosphere for the mental, moral and emotional development of the child.

Case - Wiley v. Spratlan

Question 3

Can Be Terminated in One of Two Ways

Answer 3

Voluntarily:
* Affidavit of Voluntary Relinquishment, TFC §161.103
* Affidavit of Waiver of Interest in Child, TFC §161.106

Involuntarily:
* Grounds, TFC §161.001
* Against an alleged father, TFC §161.002
* Can bring successive suits for termination, TFC §161.004
* After a failed abortion, TFC §161.006

Question 4

Standard is Clear and Convincing

Answer 4

“In parental termination cases, due process mandates a clear and convincing evidence standard of proof. ’Due process compels this heightened standard because terminating the parent-child relationship imposes permanent, irrevocable consequences.’ Because of this high evidentiary burden at trial, we have concluded that appellate review in parental termination also warrants a heightened standard of review.”

Question 5

Involuntary Termination Requires Two Elements

Answer 5

In a proceeding to terminate the parent-child relationship brought under §161.001, petitioner must establish by clear and convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (1) [now subsection (b)(1)] of §161.001 (termed a predicate violation); and (2) that termination is in the best interest of the child. The factfinder must find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. If multiple predicate violations under §161.001 (1) [now §161.001(b)(1)] …only one predicate violation is necessary to a termination judgment.”

Question 6

Voluntary Termination:
Affidavit of Relinquishment

Answer 6

• A document signed, witnessed, and notarized, by a parent that indicates his/her intent to terminate his/her rights to his/her child.
• Affidavit MUST BE:
  1. Signed after the birth of the child, but not before 48 hours after the birth of the child, by a parent, whether or not a minor, whose parental rights are to be relinquished.
  2. Witnessed by two credible persons; and
  3. Verified before a person authorized to take oaths.

Question 7

Affidavit of relinquishment Must Contain

Answer 7

1. Name, county of residence, and age of the parent whose parental rights are being relinquished;
2. The name, age, and birth date of the child;
3. The names and addresses of the guardians of the person and estate of the child, if any;
4. A statement that the affiant is or is not presently obligated by court order to make payments for the support of the child;
5. A full description and statement of the value of all property owned or possessed by the child;
6. An allegation that termination of the parent-child relationship is in the best interest of the child;
7. One of the following, as applicable:
   -The name and county of residence of the other parent;
   -Statement that the parental rights of the other parent have been terminated by death or court order; or
   -A statement that the child has no presumed father;
8. A statement that the parent has been informed of parental rights and duties;
9. A statement that the relinquishment is revocable, that the relinquishment is irrevocable, or that the relinquishment is irrevocable for a stated period of time;
10. If the relinquishment is revocable, a statement in boldfaced type concerning the right of the parent signing the affidavit to revoke the relinquishment only if the revocation is made before the 11th day after the date the affidavit is executed;
11. If the relinquishment is revocable, the name, and address of a person to whom the revocation is to be delivered; and
12. The designation of a prospective adoptive parent, the Department of Family and Protective Services, if the department has consented in writing to the designation, or a licensed child-placing agency to serve as managing conservator of the child and the address of the person or agency.

Question 8

Affidavit of Relinquishment
May Contain

Answer 8

• Waiver of process in a suit to terminate the parent-child relationship filed under this chapter (161) or in a suit to terminate joined with a petition for adoption; and
• A consent to the placement of the child for adoption by the Department of Family and Protective Services or by a licensed child-placing agency.

Question 9

Affidavit of Relinquishment
Copy to Parent

Answer 9

Tex. Fam. Code §161.103 (d) requires that a copy of the affidavit be provided to the parent that signed the affidavit.

Question 10

Affidavit of Relinquishment Revocability

Answer 10

(e) The relinquishment in an affidavit that designates the TDFPS or a licensed child-placing agency to serve as the managing conservator is irrevocable. A relinquishment in any other affidavit of relinquishment is revocable unless it expressly provides that it is irrevocable for a stated period of time not to exceed 60 days after the date of its execution.
(f) A relinquishment in an affidavit of relinquishment of parental rights that fails to state that the relinquishment is irrevocable for a stated period of time is revocable as provided by Tex. Fam. Code §161.1035.
(g) To revoke a relinquishment under subsection (e) the parent must sign a statement witnessed by two credible persons and verified before a person authorized to take oaths. A copy of the revocation shall be delivered to the person designated in the affidavit. If a parent attempting to revoke a relinquishment under this subsection has knowledge that a suit for termination of the parent-child relationship has been filed based on the parent’s affidavit of relinquishment of parental rights, the parent shall file a copy of the revocation with the clerk of the court.

Question 11

Affidavit of Relinquishment
May Not Contain

Answer 11

(h) The affidavit may not contain terms for limited post-termination contact between the child and the parent whose parental rights are to be relinquished as a condition of the relinquishment of parental rights.

Question 12

Revocability of Certain Affidavits

Answer 12

An affidavit of relinquishment of parental rights that fails to state that the relinquishment or waiver is irrevocable for a stated time is:
* Revocable only if the revocation is made before the 11th day after the date the affidavit is executed; and
* Irrevocable on or after the 11th day after the date the affidavit is executed.

Question 13

Affidavit of Relinquishment
Medical History

Answer 13

• A parent who signs an affidavit of voluntary relinquishment of parental rights regarding a biological child must also prepare a medical history report that addresses the medical history of the parent and the parent’s ancestors.
• TDFPS shall adopt a form that a parent may use to comply with this medical history report requirement.
• The medical history report shall be used in preparing the health, social, educational and genetic history report in an adoption.

Question 14

Rights of People Named as Conservator in Affidavit of Relinquishment

Answer 14

• A person, licensed child-placing agency, or the TDFPS designated managing conservator of a child in an irrevocable or unrevoked affidavit of relinquishment has a right to possession of the child superior to the right of the person executing the affidavit, the right to consent to medical, surgical, dental, and psychological treatment of the child, and the rights and duties given by Chapter 153 to a possessory conservator until such time as these rights and duties are modified or terminated by court order.
• Also, are entitled to citation regarding any SAPCR involving the child.

Question 15

Affidavit of Waiver of Interest in a Child

Answer 15

• A man may sign an affidavit disclaiming any interest in a child and waiving notice or the service of citation in any suit filed or to be filed affecting the parent-child relationship with respect to the child.
• The affidavit may be signed before the birth of the child.
• The affidavit shall be:
  -Signed by the man, whether or not a minor;
  -Witnesses by two credible persons; and
  -Verified before a person authorized to take oaths.

Question 16

Affidavit of Waiver of Interest in a Child

Answer 16

• The affidavit may contain a statement that the affiant does not admit being the father of the child or having had a sexual relationship with the mother of the child.
• An affidavit of waiver of interest in a child may be used in a suit in which the affiant attempts to establish an interest in the child. The affidavit may not be used in a suit brought by another person, licensed child-placing agency, or the TDFPS to establish the affiant’s paternity of the child.
• A waiver of interest is irrevocable.
• A copy of the waiver shall be provided to the person who executed the affidavit at the time the person signs the affidavit.

Question 17

The Following Do Not Meet the Clear and Convincing Standard for Termination

Answer 17

• The parent homeschooled the child;
• The parent is economically disadvantaged;
• The parent has been charged with a nonviolent misdemeanor offense other than;
  -An offense under Title 5 Penal Code (criminal homicide, kidnapping, unlawful restraint, and smuggling of people, trafficking of persons, sexual offenses, and assaultive offenses);
  -An offense under Title 6 Penal Code (Offenses against the family); or
  -An offense that involves family violence.
• The parent provided or administered low-THC cannabis to a child for whom the low-THC cannabis was prescribed under Chapter 169 Occupation Code; or
• The parent declined immunization for the child for reasons of conscience, including a religious belief; or
• The parent allowed the child to engage in independent activities that are appropriate and typical for the child’s level of maturity, physical condition, developmental abilities, or culture.

Question 18

An Alleged Father’s Parental Rights May be Terminated If:

Answer 18

1. After being served with citation, he does not respond by timely filing an admission of paternity or a counterclaim for paternity under Chapter 160;
2. The child is over one year of age at the time the petition for termination of the parent-child relationship or for adoption is filed, he has not registered with the paternity registry under Chapter 160 and after the exercise of due diligence by the petitioner:
   -His identity and location are unknown; or
   -His identity is known but he cannot be located;
3. The child is under one year of age at the time the petition for termination of the parent-child relationship or for adoption is filed and he has not registered with the paternity registry under Chapter 160; or
4. He has registered with the paternity registry under Chapter 160 but the petitioner’s attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful, despite petitioner’s due diligence.

• element 4: voluntary parental registry preserves rights to child.

Question 19

Personal Citation Not Necessary on Alleged Father

Answer 19

• The terminationof the rights of an alleged father under Subsection (b)(2) or (3) does not require personal service of citation or citation by publication on the alleged father, and there is no requirement to identify or locate an alleged father who has not registered with the voluntary paternity registry under Chapter 160.
• The termination of rights of an alleged father under Subsection (b)(4) does not require service of citationby publication on the alleged father.
• Court shall not render an order terminating parental rights under subsection (b)(4) unless the court, after reviewing the petitioner’s sworn affidavit describing the petitioner’s effort to obtain personal service of citation on the alleged father and considering any evidence submitted by the attorney ad litem for the alleged father, has found that the petitioner exercised due diligence in attempting to obtain service on the alleged father. The order shall contain specific findings regarding the exercise of due diligence of the petitioner.

Question 20

Terminating an Alleged Father’s Parental Rights Requires:

Answer 20

• Certification that alleged father did not register with the paternity registry.
• The court shall not render an order terminating parental rights under (b)(2) or (3) unless the court receives evidence of a certificate of the results of a search of the paternity registry under Chapter 160 from thevital statistics unit indicating that no man has registered the intent to claim paternity.