CJ C.S.H.B. 1091 75(R)BILL ANALYSIS
JUVENILE JUSTICE & FAMILY ISSUES
C.S.H.B. 1091
By: Goodman
3-27-97
Committee Report (Substituted)
BACKGROUND
In 1996, 862 adoptions were consummated in Texas. As of August 31, 1996,
1400 children were legally free for adoption and in Texas Department of
Protective and Regulatory Services (TD PRS) foster care. Before an
adoption can take place, the parental rights of the biological parents
must be terminated, which involves the final, irreversible severance of
all legal rights and duties between the parents and the children. Texas
Family Code (TFC) Chapter 161 governs the termination of parental rights
by the state. TFC Chapter 162 governs the adoption processes where the
biological parents of a child are replaced by adoptive legal parents.
TFC Chapters 161 and 162 are in need of revision to facilitate the
adoption process so that children may be more quickly taken out of foster
care and placed in stable homes.
PURPOSE
The purpose of H.B. 1091 as introduced is to streamline the adoption
process by amending TFC Chapters 161 and 162 relating to: termination of
parental rights, contestation of adoption proceedings, preferential
setting of adoption cases, appointment of confidential intermediaries, and
elimination of duplicate paperwork. Unlike previous bills, this bill
clarifies current law regarding the revocation of affidavits of
relinquishment of parental rights. H.B. 1091 also contains nonsubstantive
"clean up" of the statutes. The bill amends Penal Code Chapter 25, stating
that a person commits an offense by advertising in the public media that
they will place a child in adoption, or provide a child for adoption.
H.B. 1091 Facilitates termination of parental rights by providing that:
a) Termination is permitted when a pregnancy results from sexual assault
and prohibited sexual conduct under the Penal Code.
b) A voluntary affidavit of relinquishment of parental rights that is
revokable by its own terms may be revoked within ten (10) days. An
affidavit of relinquishment designating TD PRS, or a licensed
child-placing agency, as the managing conservator is irrevocable. Any
other affidavit of relinquishment is revocable unless it states that it is
irrevocable for a stated period not to exceed sixty (60) days.
c) An order relating to the termination of parental rights may not be
contested after six months.
Establishment of parental rights:
A father may register with the paternity registry administered by the
bureau of vital statistics by filing a form placed in hospitals, birthing
centers, clerks offices and other locations. The registry protects the
parental rights of fathers assuming responsibility for children they may
have fathered. The father may not assert any interest in a child if he
does not register within thirty days of the child's birth. The mother may
contest an alleged fathers paternity within thirty days of receipt of a
fathers paternity registration from the bureau. Information contained in
the registry is confidential and may be released to authorized parties
only.
Provisions for confidential intermediaries:
The court may appoint a person meeting certain qualifications as
confidential intermediary on application of a party in the adoption. An
intermediary assists in the location of adoptee, adoptive parents,
biological parents, or biological siblings if those persons are over the
age of eighteen. The intermediary has access to specific confidential
adoption records from the court, childplacing agency, or adoption
registry. The information obtained by an intermediary remains
confidential. Contact between the parties resulting from the efforts of an
intermediary must be by mutual consent.
The courts may accept an adoptive parent's criminal history information
from TD PRS or a childplacing agency, if the information is less than one
year old. (Eliminates duplication of effort on the part of adoptive
parents.) The courts may authorize an adoptive home screening to be
performed.
H.B. 1091 also:
a) Reduces the time frame for contesting an adoption from two years to six
months.
b) Clarifies that a child or biological parent has the right not to
participate in an adoption registry.
c) Requires agencies providing, or participating in, an adoption registry
to send duplicate information to the central registry to facilitate
voluntary matching in an adoption
d) Requires the courts to give adoption cases preferential settings.
f) Provides for "clean up" of the code relating to the transfer of the
central registry from TD PRS to the bureau of vital statistics.
RULEMAKING AUTHORITY
Rule making authority is granted to the Texas Board of Health to make
rules and adopt minimum standards for the bureau of vital statistics to
administer the provisions of TFC Sec. 162.420.
(Section 26 of C.S.H.B. 1091)
Rule making authority is granted to the Texas Department of Protective and
Regulatory Services to establish minimum qualifications by rule for
persons performing adoptive home screens. (Section 13 of C.S.H.B. 1091)
SECTION BY SECTION ANALYSIS
SECTION 1.Amends TFC Sec. 102.009(a) to make it clear that a man who
files notice of intent to claim paternity is entitled to be served in a
SAPCR.
SECTION 2. Amends TFC Sec. 102.011(b) adding (7) whereby a person
registered with the paternity registry will be under the personal
jurisdiction of the court, even if that person is not a resident of the
state. Strikes text "or" from (6) and redesignates subsections
accordingly.
SECTION 3. Amends TFC Sec. 159.201 to conform to the Uniform Interstate
Family Support Act by adding that a man who registers with the paternity
registry is subject to the personal jurisdiction of Texas courts without
regard to residency.
SECTION 4. Amends Chapter 160 by adding SUBCHAPTER D. PATERNITY REGISTRY
relating to the purpose and establishment of a paternity registry:
Sec. 160.251 Purpose
Sec. 160.252 Required information
Sec. 160.253 Information maintained by registry.
Sec. 160.254 Knowledge of Pregnancy.
Sec. 160.255 Confidentiality.
Sec. 160.256 Notice of Intent to Claim Paternity.
Sec. 160.257 Denial of Registrants Paternity.
Sec. 160.258 Effect of Failure to File Notice of Intent.
Sec. 160.259 Change or Revocation of Registry Information.
Sec. 160.260 Furnishing of Certificate of Registry Search.
Sec. 160.261 Removal of Registrants Name.
Sec. 160.262 Registry Fees.
Sec. 160.263 Admissibility of Information Maintained by Registry.
SECTION 5. Amends TFC Sec. 161.002(b) adding new (2) and (c) where the
rights of the biological father may be terminated if he has not registered
with the paternity registry, and termination does not require personal
service of citation. Redesignates sections accordingly.
SECTION 6. Amends TFC Subchapter A, Chapter 161 by adding Sec. 161.007,
terminating parental rights if a pregnancy is the result of certain
offenses under the Penal Code, and is in the best interest of the child.
SECTION 7. Amends TFC Sec. 161.103, relating to affidavit of voluntary
relinquishment of parental rights:
Strikes text "and" from (8).
Adds (10) where if the relinquishment is revocable, a statement must
inform the parent of the right to revoke within ten (10) days.
Adds (11) that the revocation statement includes information on whom the
revocation is delivered to.
Adds (12) that the revocation statement includes information on whom will
serve as managing conservator, adds text that TD PRS must be designated as
such in writing.
Adds 161.103(c) text "the affidavit may contain." Redesignates (2) and (3)
accordingly.
Adds (d) where a copy of affidavit of relinquishment will be provided to
the parent upon signing.
Adds (e) text clarifying revocability of an affidavit of relinquishment.
Maintains that an affidavit of relinquishment designating TD PRS, or a
licensed child placing agency, is irrevocable.
Strikes redundant text.
Adds (f) where a relinquishment in an affidavit that fails to state that
the relinquishment is irrevocable for a stated time is revocable under
Sec. 161.1035.
Adds (g) stating procedures for revocation of a relinquishment under (e).
SECTION 8. Amends TFC Subchapter B, Chapter 161 by adding new Sec.
161.1035, (1) and (2), stating an affidavit of relinquishment of parental
rights that does not state it is irrevocable for a specific time is
revocable only within 10 days.
SECTION 9. Amends TFC Section 161.106 adding (f), (g), (h), (i) and (j)
clarifying revocable and irrevocable affidavits of relinquishment of
parental rights, a statement of a persons right to revoke within a
specified time frame, and the procedures for revocation.
SECTION 10. Amends TFC Subchapter B, Chapter 161 by adding:
Sec. 161.108, (a), (b)(1)(2)(3) and (c) Release of Child From Hospital or
Birthing Center.
Where at the time an affidavit of relinquishment of parental rights is
executed, the mother of a child with no presumed father, or a father that
has relinquished his rights, may release the child to a licensed child
placing agency, TD PRS or another person. Also procedures for release of
the child, and the hospital will comply without requiring a court order.
Sec. 161.109(a) and (b), Requirement of Paternity Registry Certificate.
(a) Where an affidavit of the status of the child under this chapter
states that no probable father is known, that a diligent search of the
paternity registry has been made, and the affidavit must be filed with the
court before a trial on the merits in the suit for termination may be
held.
(b) In a proceeding to terminate parental rights, the court may not
terminate an alleged father's rights without a certificate from the bureau
of vital statistics showing a diligent search has been made, and that no
filing was found.
SECTION 11. Amends TFC Sec. 161.201. Adds text to title, No Final Order
Until Affidavit Becomes Irrevocable. Strikes title text "Child Five Days
Old."
Adds text that the court may not hold a hearing on termination of rights,
or render orders other than temporary orders, until an affidavit of
relinquishment that is revokable under its own terms becomes irrevocable.
Strikes text relating to inability of court to conduct a hearing before
the child is five days old.
SECTION 12. Amends TFC Subchapter C, Chapter 161 by adding:
Sec. 161.221(a) and (b).
(a) An order terminating parental rights, or an affidavit of
relinquishment of those rights, including the rights of a person who has
been served by publication, is not subject to attack after six (6)
months.
(b) An attack on an order terminating parental rights based on an
unrevoked affidavit of relinquishment is limited to fraud, duress or
coercion.
SECTION 13. Amends TFC Subchapter A, Chapter 162 by adding:
Sec. 162.0025(a), (b), and (c), Adoptive Home Screening.
(a) Requiring the court to order an adoptive home screening of the party
requesting the adoption.
(b) The court may appoint an investigator meeting minimum qualifications
set by TD PRS rule.
(c) The cost of the home screening is paid by the applicant seeking to
adopt a child.
SECTION 14. Amends TFC Subchapter A, Chapter 162 by adding:
Sec. 162.0045. Preferential Setting, requiring the court to give
preferential setting to adoption cases.
SECTION 15. Amends TFC Sec. 162.0085(a), adding text where the court shall
accept an applicants criminal history information that is provided by TD
PRS or a licensed child-placing agency, if the information is less than
one year old.
SECTION 16. Amends TFC Sec. 162.012(a), adding text where not withstanding
rule 329, Texas Rules of Civil Procedure, the validity of an adoption
order is not subject to attack after six months. Strikes text referring
two year limitation.
SECTION 17. Amends TFC Sec. 162.018, adding (d) where the court provides
the adoptive parents, and child if over 14, with information on the
voluntary adoption registry. The childplacing agency provides this
information when a relinquishment is signed. The information includes the
right of the biological parent and the child to not participate in the
registry.
SECTION 18. Amends TFC Sec. 162.025, designates (a) and strikes redundant
(a)(1) text relating to facilitation of placement of a child by an
unauthorized person.
SECTION 19. Amends TFC Sec 162.402(7), (11), and (14) by striking text
"department" and adding text "bureau" relating to the central adoption
registry, as clean up of code. Adds definition of "Bureau."
SECTION 20. Amends TFC Sec 162.403(a) and (c) by striking text
"department" and adding text "bureau" relating to the central adoption
registry, as clean up of code.
SECTION 21. Amends TFC Subchapter E, Chapter 162, by adding:
Sec. 162.404 Requirement to Send Information to Central Registry, where an
agency that provides, or participates in, a central registry will send
duplicate information to the central registry.
SECTION 22. Amends TFC Sec. 162.407(b) and (c):
(b) Strikes text "department," adds text "bureau" relating to the central
adoption registry, as clean up of code.
(c) Designates (1) and (2), strikes text in (1) referring to registration
of birth parents/siblings if the registry is unknown or if the registry
refuses the application. Adds text "or" in reference to the birth
parents/siblings registering through the registry of the of an agency or
the central registry.
SECTION 23. Amends TFC Sec. 162.408, strikes text "department", adds text
"Texas Board of Health for the bureau" referring to the rules and minimum
standards applying to proof of identity and confidentiality.
SECTION 24. Amends TFC Sec. 162.411(d), strikes text "department," adds
text "bureau" relating to the central adoption registry, as clean up of
code.
SECTION 25. Amends TFC 162.414(c), strikes text "department" and "of vital
statistics" relating to the central adoption registry, as clean up of
code.
SECTION 26. Amends TFC 162.420 RULEMAKING,
(a) Strikes text "department," adds text "Texas Board of Health" and "for
the bureau" granting the Texas Board of Health the authority to make rules
for the bureau of vital statistics relating to the central registry.
(b) Strikes text "department," "of its," and adds text "bureau," "adopted"
relating to the review of standards adopted by the bureau.
(c) Strikes text "department" and adds text "Texas Board of Health,"
"board", related to sending proposed rules considered by board to
registries under the subchapter and child-placing agencies for comment.
SECTION 27. Amends TFC Sec. 162.421(a) strikes text "department," adds
text "bureau" relating to the central adoption registry, as clean up of
code.
SECTION 28. Amends TFC Sec. 162.422 (a) and (b), strikes text
"department," adds text "bureau" relating to the central adoption
registry, as clean up of code.
SECTION 29. Amends TFC Chapter 162 by adding new Subchapter G,
CONFIDENTIAL INTERMEDIARIES relating to their appointment and functions:
Sec. 162.601 Definitions
Sec. 162.602 Appointment of Confidential Intermediary
Sec. 162.603 Duties and Powers of Confidential Intermediary
Sec. 162.604 Qualifications
Sec. 162.605 Confidentiality
Sec. 162.606 Consent Required
Sec. 162.607 Costs
Sec. 162.608 Penalty
SECTION 30. Amends Penal Code Chapter 25 by adding Sec. 25.09, where a
person commits a Class A misdemeanor, or third degree felony if previously
convicted under this section, by advertising in the public media that they
will place a child in adoption, or provide a child for adoption. Defines
"child" and "public media."
SECTION 31.
(a) The Act takes effect September 1, 1997.
(b) The change in law in the Act applies only to a SAPCR commenced on or
after the effective date of the Act.
(c) The change in law in the Act pertaining to termination of the
parent-child relationship applies only to an affidavit of relinquishment
executed on or after the effective date of the Act.
(d) The change in law in the Act pertaining to the appointment of a
confidential intermediary after the effective date of the Act.
(e) The change in law in the Act pertaining to a criminal offense applies
only to an offense committed on or after the effective date of the Act.
For purposes of the subsection, an offense is committed before the
effective date of the Act if any element of the offense occurs before the
that date.
(f) The change in law made by the Act transferring the central voluntary
adoption registry from TD PRS to the bureau of vital statistics takes
effect January 1, 1998. The department and bureau shall developments and
implement a plan for transfer of the registry before that date.
SECTION 32. Emergency Clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
Section 1. New. Makes it clear that a man who files notice of intent to
claim paternity (with registry) is entitled to be served in a SAPCR.
Section 2. (Former Section 1) Provides that a man who registers is subject
to the personal jurisdiction of Texas Courts regardless of whether he is a
legal resident of Texas or another state.
Section 3. New. Conforms Uniform Interstate Family Support Act (UIFSA) by
adding that a man who registers with the paternity registry is subject to
the personal jurisdiction of the Texas Courts without regard to the
residency of the man.
Section 4. Changes from filed version:
160.251 (d) clarifies that a presumed father or adjudicated father is not
required to register.
160.254 (a) rewritten to make it gender neutral, deleted subsection which
stated mother's misrepresentation is not a reason for failing to register.
The former section raised constitutional issues.
160.258 Clarified that a man who fails to register within 30 days is
barred from asserting any interest in the child unless he has filed a
paternity suit admitting paternity before a termination is granted.
160.262 (c) Adds provision that DPRS or IV-D agency does not have to pay a
fee to get information from the paternity registry.
161.002 (b) clarifies that parental rights of a man who fails to file a
motion with the registry may be terminated if the man's identity is known
but his wherabouts are unknown.
161.002 (c) clarifies that a man who fails to register is not entitled to
citation (personal service) or citation by publication. Only applies to
identity/location unknown or identity known and location unknown.
Section 10. 161.108 clarifies child can be released from hospital to a
licensed child-placing agency, DPRS, or another designated person.
Section 12. Provides termination is subject to attack for 6 mos. Even if
citation is by publication.
Section 13. 162.0025 clarifies DPRS is to adopt rules for the minimum
requirements for home screening (same as with social studies under current
law.)
162.603 (d) added private attorney to persons who must turn over
information to intermediary.
162.604 Qualifications of confidential intermediary changed- private
investigator deleted.