74(R) HB 659 House Committee Report

BILL ANALYSIS

C.S.H.B. 659
By: Goodman
April 24, 1995
Committee Report (Substituted)

BACKGROUND

Section 161.103, Family Code, provides a mechanism for a parent to
relinquish parental rights to a child. Currently, an affidavit of
relinquishment may provide that it is irrevocable for a period of
time, not to exceed sixty days, except that an affidavit which
designates the Department of Protective and Regulatory Services or
a licensed adoption agency as the managing conservator of the child
is irrevocable. Current law does not provide a period during which
an affidavit of relinquishment can be revoked, therefore, a parent
who changes her/his mind is prevented from revoking an executed
affidavit.

Section 161.105, Family Code, permits an alleged or probable father
to execute an affidavit of waiver of interest to give up any rights
that he may have to a child without admitting that he is the father
of the child. Currently, there is no provision for the revocation
of the affidavit of waiver of interest. Since there is no current
mechanism for a parent to rescind their relinquishment, even
immediately after executing the affidavit, courts tend to look for
reasons to set aside adoptions. This results in unnecessary
hardship for adoptive parents, the child and birth parents.

Section 161.201, Family Code, currently specifies that a petition
for termination which is filed before the child's birth may not be
heard (except for the issuance of temporary orders) until the child
is at least five days old.

PURPOSE

CSHB 659 would reduce future adoption contests by providing a
mechanism for parents to
revoke their affidavit of relinquishment within a short period
after its execution.

CSHB 659 would protect the rights of a mother and father from undue
influence by providing a waiting period of 48 hours from the birth
of a child before a relinquishment could be secured and provide a
period of time for a revocation of an executed affidavit.

This bill would protect adoptive parents from the trauma of
adopting a child only to have a court overturn the adoption since
the parent did not have a reasonable time to change her/his mind.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency or institution.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 161.103, Family Code, as added by House
Bill 655, Acts of the 74th Legislature, Regular Session, 1995, as
follows:

Sec. 161.103. AFFIDAVIT OF VOLUNTARY RELINQUISHMENT OF
PARENTAL
RIGHTS.

(a) Provides that an affidavit for voluntary
relinquishment of parental rights may not be signed before
48 hours after the birth of the child.

(b) Requires an affidavit of relinquishment to contain
a statement concerning
the parent's right to revoke the affidavit if the
revocation is made before the 11th day after execution of
the affidavit, and the name and address of a person to
whom the revocation is to be delivered. Requires an
affidavit of relinquishment to designate a managing
conservator, and if the Department of Regulatory Services is
named as managing conservator, the department must have consented in writing to the designation.

(d) Requires a copy of an affidavit to be provided to
the parent.

(e) Provides that an affidavit of relinquishment is
irrevocable on or after the 11th day after its execution.

(f) Establishes procedures for revoking an affidavit
of relinquishment.

SECTION 2. Amends Section 161.106, Family Code, as added by House
Bill 655, Acts of the 74th Legislature, Regular Session, 1995, by
adding Subsections (f)-(i) as follows:

(f) Requires an affidavit of waiver of interest in a
child to contain a statement
concerning the right of the person executing the
affidavit to revoke before the
11th day after the affidavit is executed.

(g) Requires a copy of an affidavit of waiver of
interest in a child to be provided
to the person executing the affidavit.

(h) Provides that an affidavit of waiver of interest
in a child is irrevocable on
or after the 11th day after the date the affidavit was
executed.

(i) Establishes procedures for revoking an affidavit
of waiver of interest in a
child.

SECTION 3. Amends Subchapter B, Chapter 161, Family Code, as added
by House Bill 655, Acts of the 74th Legislature, Regular Session,
1995, by adding Sections 161.108 and 161.109 as follows:

Sec. 161.108. REVOCATION PERIOD NOT APPLICABLE. Provides
circumstances
under which the revocation period for an affidavit of
relinquishment of parental rights or an affidavit of waiver of
interest in a child is not applicable.

Sec. 161.109. RELEASE OF CHILD FROM HOSPITAL OR BIRTHING
CENTER.
Allows a mother of a newborn child who does not have a
presumed father or whose presumed father has waived interest
or otherwise relinquished parental rights to authorize the
release of the child to a licensed child-placing agency, the DPRS,
or another designated person before or at the time an affidavit
of relinquishment of parental rights
is executed. Establishes requirements for the execution of a
release. Requires a hospital
or birthing center to comply with a release without requiring
a court order.

SECTION 4. Amends Section 161.201, Family Code, as added by House
Bill 655, Acts of the 74th Legislature, Regular Session, 1995, to
prohibit a hearing on a petition to terminate parental rights in a
proceeding in which an affidavit relinquishing parental rights or
an affidavit of waiver of interest in a child has been executed
until after the date the affidavit becomes irrevocable.

SECTION 5. Amends Subchapter C, Chapter 161, Family Code, as added
by House Bill 655, Acts of the 74th Legislature, Regular Session,
1995, by adding Section 161.211 as follows:

Sec. 161.211. DIRECT OR COLLATERAL ATTACK ON TERMINATION
ORDER. Provides that an order terminating parental rights of
a person who has been personally
served or has executed an affidavit of relinquishment or an
affidavit of waiver of interest
is not subject to direct or collateral attack after the sixth
month after the date the order
was rendered. Provides that an order terminating the parental
rights of a person
served by citation by publication is not subject to direct or
collateral attack after the
second anniversary of the date the order was rendered. Limits
any attack on an order based on an unrevoked affidavit to issues
relating to fraud, duress, or coercion in the execution of
the affidavit.

SECTION 6. Amends Section 162.012(a), Family Code, as added by
House Bill 655, Acts of the 74th Legislature, Regular Session,
1995, to provide that an adoption order is not subject to attack
after the sixth month after the date the order was rendered.

SECTION 7. Makes application of this Act prospective.

SECTION 8. Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

CSHB 659 deletes from HB 659 a provision authorizing a mother to
waive the required 48 hour waiting period before signing an
affidavit of relinquishment. CSHB 659 requires an affidavit of
relinquishment to contain the name and address of a person to whom
a revocation is to be delivered, requires a copy of the affidavit
to be provided to the parent, and establishes procedures for
revoking the affidavit. CSHB 659 requires an affidavit of waiver
of interest in a child to contain a statement concerning the right
to revoke, requires a copy of the affidavit to be provided to the
person executing the affidavit, and establishes procedures for
revoking the affidavit. CSHB 659 adds sections relating to
situations in which revocation periods are not applicable, the
release of a child from a hospital or birthing center, and direct
or collateral attacks on termination orders. CSHB 659 provides
that an adoption order is not subject to attack after the sixth
month after the date the order was rendered.

SUMMARY OF COMMITTEE ACTION

H.B. 659 was considered in a public hearing on 22 March 1995.

The following persons testified in favor of the bill:
Mary Cullinane, representing herself and Birthmothers, Texas
Coalition for Openness in Adoption;
Alicia Kay Lanier Boone, representing herself and
Birthmothers, Texas Coalition for Openness in Adoption;
Dina E. Feil, representing herself and Birthmothers/Social
Workers/Texas Coalition for Openness in Adoption;
Geri Bischoff, representing herself and Texas Coalition for
Openness in Adoption;
Nancy Baxter, representing herself and Searchline of Texas
Inc.;
Bill Betzen, representing himself and Texas Coalition for
Openness in Adoption;
Bree Buchanan, Legal Aid Society of Central Texas on behalf of
individual clients;
John J. Sampson, representing himself.

The following persons testified against the bill:
Robert Parkhill, representing himself and Christian Homes of
Abilene;
Dennis Dale Ashton, LOS Social Services;
Heather Lopez-Cespero, representing herself;
Karalyn Heimlich, Texas Association of Licensed Children's
Services;
Heidi Bruegel Cox, herself and The Gladney Center;
Michelle Stone, representing herself.

The following persons testified neutrally on the bill:
Howard Baldwin, Texas Department of Protective and Regulatory
Services;
Robert L. Green Jr., himself and Primary Nurturing Fathers of
Texas, Texas Fathers Alliance;

The bill was left pending in committee.

H.B. 659 was scheduled for consideration in a formal meeting on 11
April 1995. No action was taken on that date.

On 12 April 1995, H.B. 659 was considered in a public hearing. The
committee considered a complete substitute. One (1) amendment was
offered to the substitute and was adopted without objection. The
substitute to H.B. 659 was adopted without objection. The Chair
directed the staff to incorporate the amendment into the
substitute. H.B. 659 was reported favorably as substituted with the
recommendation that it do pass and be printed by a record vote of
5 ayes, 0 nays, 0 pnv, 4 absent.