ADOPTIONS IN TEXAS: A Brief Overview

By MELODY B. ROYALL

This article provides an overview of the different types of adoptions available today and the documentation needed for each. Throughout this article, the birth mother is referred to as the one who makes the adoptive placement. This does not mean that birth fathers are not involved with the process, but as a practical matter, most adoptive placements are arranged by the biological mothers. Because the facts of each adoption are unique, the information in this article is of a very general nature. The specific adoption procedures for any given case should be discussed with an adoption attorney or an agency representative.

Types of Domestic Adoptions
Basically, there are three types of domestic adoptions. Domestic adoptions can be arranged by a licensed child-placement agency, or they can be arranged privately between the birth mother and the adoptive parents. If an agency is involved, it can either be run privately or it can be a state agency, such as the Department of Children and Family Protective Services (formerly Children’s Protective Services). The third type of domestic adoption is called a designated adoption, and it is a cross between an agency and a private adoption.
A private adoption, also known as an independent adoption, is an adoption where the birth mother and the adoptive parents actually work directly with one another to arrange the details of the adoption. Because of this direct contact, there is no confidentiality. In private adoptions, the relinquishments that the birth parents sign will contain the full name and address of the adoptive parents.
The initial contact between the birth mother and the adoptive parents is usually based upon the referral of a friend or an acquaintance. Texas has made it a Class B misdemeanor for anyone, including an attorney, to act as an intermediary between a prospective adoptive parent and an expectant mother in identifying the parties to each other.1 A strict reading of this law means that one cannot even disclose to a close friend whose daughter was pregnant that he or she knows the name of a family who is looking to adopt. This law, which is quite broad in its scope, has not been challenged at the appellate court level and may raise constitutional issues.2
Despite this prohibition, adoptive couples often turn to facilitators to help them locate a birth mother. The couple will pay a fee to the facilitator who will use the money to advertise around the country for birth mothers. When a birth mother contacts the facilitator, they determine the type of family she is seeking. Later, the facilitator will provide her with profiles of the adoptive parents so that she can select a family. Once a match is made, the facilitator’s job is completed and the adoptive parents and birth mother work directly with one another to pursue the adoption.
In an agency adoption, the birth mother actually relinquishes her parental rights to the agency. The agency then becomes the Managing Conservator of the child and will be the one who actually makes the adoptive placement. The policy varies from agency to agency, but most agencies today permit the birth mother to review profiles from various families and have input into the decision about which family will be best for her child. Nevertheless, the final decision is the responsibility of the agency.
Agency adoptions are still confidential, but in some cases the parties choose to exchange some identifying information. If the adoptive parent is working with a state agency, then he or she need to understand that the children available through that agency have generally been removed from their homes because of abuse or neglect. The children are often older, and because of their circumstances, they may suffer physical and/or emotional problems. Private agencies typically place infants, although occasionally they may have an older child relinquished to the agency.
A designated adoption is a hybrid between a private and agency adoption. These adoptions usually begin as a private adoption and then, for one reason or another, the parties decide to involve an agency. In a designated adoption, the match is actually made by the parties before the agency becomes involved. Once an agency is involved, the birth parents will actually relinquish custody to the agency based upon the agency’s agreement to place the baby with the family previously chosen by the birth parents.
Designated adoptions can be used by the parties if they are seeking to maintain some degree of confidentiality or if they want to assist the birth mother with living expenses during the pregnancy. In an agency adoption, the agency can provide the birth mother with financial assistance during her pregnancy and for up to six weeks postpartum. However, in a private adoption, it is a felony to provide for any living expenses; the adoptive parents can only provide money for medical care, counseling and legal work.
Finally, another reason to choose a designated adoption is to comply with another state’s laws. For example, if the child will be traveling to another state for the adoption, the other state may not recognize independent adoptions or require agency-to-agency placements. In such cases, a designated adoption will circumvent the bar.

The Pros and Cons of Domestic Adoptions
Many birth mothers prefer private adoptions because these adoptions provide them the opportunity to be actively involved in every phase of the process. The birth mother will control the birthing process by choosing the doctor and the hospital where the baby will be delivered. In private adoptions, the birth mothers frequently get to know the prospective adoptive family better because they have so much contact, which seems to benefit them emotionally.
However, private adoptions are much more work for the adoptive couple because there is not an agency representative to handle all of the details. The adoptive parents must arrange for the payment of medical fees and expenses. They deal directly with the hospital to arrange visitation with the child in the hospital and the release of the baby.
In a private adoption the adoptive parents are also much more involved in the legal process. They often obtain the information for the legal documents and they are required to make court appearances because they are the petitioners in the suit for termination of parental rights. When an agency is involved in the adoption, it handles all of these matters.
The primary benefit to the prospective adoptive parents of a private adoption is simply the opportunity to adopt. Most agencies have long waiting lists. In a private adoption, someone seeking to place a child for adoption could approach the adoptive parents at any time. Additionally, some agencies have age restrictions, which could prohibit older couples from even being considered. Private adoptions are typically less expensive due to the fact that the adoptive family does not have to pay a fee to an agency for the placement of the child.
Agency adoptions likewise offer benefits to both the birth parents and the prospective adoptive parents. In an agency adoption, there is a licensed social worker working with all of the parties involved. These social workers have been trained to deal with many of the emotional issues surrounding adoption. When working with an agency, birth mothers can receive financial assistance during their pregnancy and for a brief period following the delivery of the baby. This type of financial assistance is not available in private adoptions because of restrictions under Texas law. Agencies can also help a birth mother with her schooling so that she does not fall behind during her pregnancy.
Another benefit of an agency to prospective adoptive parents is that they can avoid the emotional roller coaster of becoming psychologically attached to a child before they know that the child is available for adoption. In private placements, the adoptive parents have so much contact with the birth mother that they often become psychologically attached to the child before birth and there is no assurance that the birth mother will ultimately place the baby. In an agency adoption, the adoptive parents may not even be aware of the child’s existence until he or she is legally available for adoption.
From the birth mother’s perspective, an agency might also be attractive because there is the assurance that the agency will become legally responsible for the child, no matter what the child’s medical condition. In private adoptions, if the child is born with medical problems or birth defects, the adoptive parents are not legally obligated to take the child. Agencies however, will accept responsibility for the child, regardless of the child’s medical condition.

International Adoptions
An international adoption is an adoption that is legally consummated in a foreign country. International adoptions have become increasingly more popular as the number of children available for domestic adoptions has decreased, while the demand for infant adoptions has increased.
There are numerous societal factors that contribute to the rise in international adoptions. High abortion rates coupled with more teens choosing to parent mean there are fewer infants available for domestic adoption. At the same time, the number of Americans seeking adoption is increasing because couples are choosing to begin their families later in life, when their fertility is on the decline. High birth rates and poor economic conditions in many foreign countries result in large numbers of children being raised in orphanages that ultimately make the children available for adoption.
Because of the excess of children in orphanages, the requirements for international adoptions are frequently less stringent. Adoptive parents can be assigned a child within a matter of a few days. They can often specify the sex that they prefer and choose physical characteristics such as hair and skin color. Age and marital status are not necessarily disqualifying factors.
Some adoptive families find international adoptions attractive because the chances of birth parents coming forward at a future date to try to disrupt the adoption are slim. Indeed, the fear of birth parents and the potential of costly litigation can be a deterrent to domestic adoptions.
On the other hand, international adoptions do have their drawbacks. Medical history is rarely provided. Many of the birth mothers do not receive adequate prenatal care, and postnatal care for the child may be nonexistent. Children from other countries often will have infectious diseases that are not prevalent in the U.S., such as tuberculosis or hepatitis.
In addition, the adoption process can take from six to twelve months to complete once a child has been assigned to a family. During this time period, the child usually remains in an orphanage where the ratio of children to care givers is very high. As a result, the child may receive very little stimulation at a formative period in his life, which can lead to developmental delays.
There is also a high incidence of Reactive Attachment Disorder in children from orphanages. These children often have difficulties with forming attachments to people. As a result, adoptive families often experience extreme difficulty bonding with such children.
Regardless, once a couple decides to pursue an international adoption, they will work with an agency in the U.S. that will facilitate the international adoption process. The adoptive parents will put together a dossier that is sent to an agency or attorney in the foreign country. The documents that will be included in the dossier will vary from country to country, but each dossier will generally include birth certificates, marriage license, and letters verifying employment, letters of recommendation, proof of financial status, criminal history check and a completed home study.
Preplanning with the Bureau of Citizenship and Immigration Services is required in order to get approval for the child to return to the U.S. with the adoptive parents.3 If both of the adoptive parents travel to see the child before the finalization hearing and the foreign court actually grants an adoption, then the child should be issued an IR-3 visa and he or she will immediately become a citizen upon entering the United States. On the other hand, some countries grant what is called a “simple adoption,” which is not an adoption at all, but actually a guardianship. If only one parent sees the child before the adoption hearing or only a “simple adoption” is granted, then the child will receive an IR-4 visa. With an IR-4 visa it will be necessary for the adoptive parents to complete the adoption in their home state or obtain a registration of the foreign adoption decree in order for the child to become a U.S. citizen.
Texas has recently passed a statute that simplifies the procedure to register an international adoption.4 This process can be used in order to get the international adoption decree recognized so that the child can become a citizen. Although another legal procedure is not required in order to obtain citizenship for a child who entered the country with an IR-3 visa, the registration process can be used if the family wants to obtain a Texas birth certificate.
Essentially, the new statute requires the adoptive family to file a copy of their international decree with the court and provide proof that the copy is an exact duplicate of the original. The statute also requires proof that the decree was entered by a country whose laws do not violate the fundamental principles of human rights or the laws or public policy of this state.5

Required Documentation
All adoptions, regardless of whether they are international or domestic, will require a home study. The study must be completed by a social worker who works for a licensed agency or by someone with a Masters in Social Work, who has prior experience in the adoption field. A study that is completed before the placement of a child is called a pre-placement screening.6 Follow-up visits, which monitor the adjustment of the child in the home, are called post-placement reports.7
Texas law requires that the pre-placement screening portion of the home study be completed prior to the time that the child is placed in the home. In private adoptions, it is not always feasible to have a completed home study before the child comes into the home of the adoptive parents, but this must be in the court’s file prior to the granting of the termination. In an agency adoption, the Texas licensing criteria require an approved study to be on file before a child can be placed in the home. In most international adoptions, the home study must be completed by a licensed agency and not just a social worker.
All adoptions require a criminal history check before they can be finalized.8 The criminal check is obtained by sending fingerprint cards into the Department of Public Safety; the DPS, in turn, forwards a report to the court. In addition to the DPS records, licensed adoption agencies will check the state registry to determine if the adoptive parents have ever had a finding of child abuse or neglect validated against them. In international adoptions, the adoptive parents must clear an FBI criminal check before they will be granted approval to adopt a child. In a domestic adoption, having a criminal history does not automatically spell disaster for adoptive parents, but it will certainly require additional evidence as to why it would be in the child’s best interest for the court to permit the adoption. Having a criminal history is much more of an issue in international adoptions. Most international adoption agencies will not even consider a family if one of the parents has any type of criminal history.

CONCLUSION
Today, there are many of ways for prospective adoptive parents to start their families. Each option has its own set of benefits and risks, but they all have their rewards. Adoptions are always a journey into the unknown, but the right guidance and counsel can smooth out the trip. Educating your clients about their options is the first step in the adoption process.

Endnotes
1. Tex. Fam. Code § 162.025(a), (c). Essentially, this statute requires the intermediary to be either the (1) natural or adoptive parent of the child, (2) the child’s legal guardian, or (3) a child-placing agency licenced under the Family Code. See Tex. Fam. Code § 162.025(a). 2. However, the statute is discussed very briefly in Justice Owens’ dissenting and concurring opinion in In re L.M.I., 119 S.W.3d 707, 729-30 (Tex. 2003) (Chief Justice Phillips and Justices Hecht and Jefferson joined this opinion). In addition, the statute is discussed in Texas Attorney General Opinion DM-500, which was issued on December 29, 1998. 3. Further information about this agency can be found on its website at http://uscis.gov/graphics/index.htm. 4. See Tex. Fam. Code § 162.023. 5. Tex. Fam. Code § 162.023(a). 6. See generally Tex. Fam. Code § 107.0511. 7. See generally Tex. Fam. Code § 107.052. 8. See Tex. Fam. Code § 162.0085.

Melody B. Royall is a partner and vice president of The Royalls, A Professional Corporation. She earned a B.A. in psychology from the University of Texas and her law degree from the University of Houston Law Center. Royall was trained as a mediator by the American Arbitration Association and she is board certified in Family Law by the Texas Board of Legal Specialization. She is a member of the American Academy of Adoption Attorneys and has been a speaker and author
of papers on adoptions, contested terminations and international adoptions.

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