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How do you find information on making a father relinquish his rights and when a father relinquishes his parental rights is he still obligated to pay court ordered child support in the state of Texas?

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May 26, 2009 6:05PM

You cannot Make a Person Terminate their Legal Right without Adequate Evidence to support a claim:

Introduction A suit to terminate the parent-child relationship can be one of the most psychologically painful suits provided for by the Family Code. Termination of a parent's rights is a drastic remedy that cuts off the relationship between the parent and child for all purposes, except inheritance rights. The United States Supreme Court has emphasized the importance of the family stating that the right to conceive and raise one's children is "essential, a basic civil right of man, and more precious than property rights." Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). The custody, care and nurture of a child reside first with the parents, whose primary function and freedom include preparations for obligations the government can neither supply nor hinder. The integrity of the family unit is a sacred right protected by the United States Constitution. This article examines the grounds for the involuntary termination of a parent's rights, the procedures of a termination suit, the role of the professional in a termination proceeding, mental health issues and the aftermath of termination. This article also addresses the procedures for voluntary termination of a parent's rights and the problems that can arise out of a failed attempt at a voluntary termination. Overview Chapter 161 of Title 5 of the Texas Family Code provides for a suit to terminate the parent-child relationship. The termination of parental rights is complete, final, and irrevocable. It divests forever the parent and child of all legal rights, privileges, duties, and powers between each other except for the child's right to inherit from the terminated parent. A suit for termination may even be filed before the birth of the child. If the suit for termination is filed before the birth of the child, a court may not conduct a hearing in the suit nor render an order other than a temporary order until the child is at least five days old. Texas law provides that a termination suit may either be filed by a private party or a governmental entity. For example, a parent may file a termination suit against the other parent of a child by hiring a private attorney. Alternatively, the Department of Protective and Regulatory Services (commonly referred to as "CPS") may also file a suit to terminate the parent-child relationship. To prevail in a termination suit, the person or entity seeking termination of a parent's right to a child must prove all the elements of such suit by clear and convincing evidence. Clear and convincing evidence has been defined as "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. The standard is obviously subjective and it is left to the province of a court or jury to determine whether there is a firm belief or conviction that the grounds for termination have been met. The standard is meant to protect the right of a parent to enjoy the natural family unit without interference from the drastic remedy of termination. Grounds for Termination Section 161.001 of the Texas Family Code provides the general grounds for an involuntary termination of the parent-child relationship. They are quite numerous and address all types of behavior that justify the termination of a parent's rights. A court may terminate the parent-child relationship if it finds by clear and convincing evidence that termination is in the best interest of the child and the parent has: * voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; *

* voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months; *

* voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months; *

* knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; *

* engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; *

* failed to support the child in accordance with the parent's ability during a period of one year ending within six months of the date of the filing of the petition; *

* abandoned the child without identifying the child or furnishing means of identification, and the child's identity cannot be ascertained by the exercise of reasonable diligence; *

* voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth; *

* contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261 of the Family Code; *

* been the major cause of: *

** the failure of the child to be enrolled in school as required by the Education Code; or ** the child's absence from the child's home without the consent of the parents or guardian for a substantial length of time or without the intent to return; **

* executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights; *

* been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or adjudicated under Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following : murder, capital murder, manslaughter, indecency with a child, assault, sexual assault, aggravated assault, aggravated sexual assault, injury to a child, elderly individual, or disabled individual, abandoning or endangering child, prohibited sexual conduct, sexual performance by a child, and possession or promotion of child pornography; *

* had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct in violation of Texas law because such parent knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child or engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child or substantially equivalent provisions of the law of another state; *

* constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services or an authorized agency for not less than six months, and: *

** the department or authorized agency has made reasonable efforts to return the child to the parent; ** the parent has not regularly visited or maintained significant contact with the child; and ** the parent has demonstrated an inability to provide the child with a safe environment; **

* failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 of the Family Code for the abuse or neglect of the child; *

* used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and: *

** failed to complete a court-ordered substance abuse treatment program; or ** after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance; **

* knowingly engaged in criminal conduct that has resulted in the parent's: *

** conviction of an offense; and ** confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition; **

* been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription; *

* voluntarily delivered the child to an emergency medical services provider under Section 262.301 without expressing an intent to return for the child Termination of Alleged Biological Father In today's changing society, the traditional family is not always the norm. The drafters of Family Code legislation have been forced to become more flexible to deal with the changes in family structure. One modern change in the family structure is the increase of children born out of wedlock. In this circumstance, the alleged biological father may either be absent from the child's life even though his identity is known, or the identity of the alleged biological father may not be known by the mother of the child. Section 161.002 of the Family Code provides for the involuntary termination of the parental rights of an alleged biological father. The rights of an alleged biological father may be terminated if: (1) after being served the termination lawsuit, he does not respond by timely filing an admission of paternity or a counterclaim for paternity prior to the final hearing in the suit; or (2) he has not registered with the paternity registry (established by the state of Texas), and after the exercise of due diligence by the petitioner: (A) his identity and location are unknown; or (B) his identity is known but he cannot be located; or (3) he has registered with the paternity registry, but the petitioner's attempt to personally serve the lawsuit at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful, despite the due diligence of the petitioner. Termination of Mentally Ill Parent Oftentimes, a parent is not mentally fit to care for his or her child. In such a situation, that parent has probably already subjected the child to some sort of endangerment. The diagnosis by a mental health professional that a person is mentally ill is rife with severe legal implications for that person, especially when he or she is a parent. The mental health professional must carefully balance the right of a parent to raise his or her child free from interference with the best interest of the child. Strict standards should be adhered to in order to ensure that both interests are protected. Texas law separately provides for grounds for a court to terminate the rights of a mentally ill parent in Family Code section 161.003. The court may order termination of the parent-child relationship in a suit filed by the Department of Protective and Regulatory Services if the court finds that: (1) the parent has a mental or emotional illness or a mental deficiency that renders the parent unable to provide for the physical, emotional, and mental needs of the child; (2) the illness or deficiency, in all reasonable probability, proved by clear and convincing evidence, will continue to render the parent unable to provide for the child's needs until the 18th birthday of the child; (3) the department has been the temporary or sole managing conservator of the child of the parent for the six months preceding the filing of the petition; (4) the department has made reasonable efforts to return the child to the parent; and (5) the termination is in the best interest of the child. Immediately after the filing of a such a suit, the court is required to appoint an attorney ad litem to represent the interests of the parent against whom the suit is brought. The threshold requirement is that the mental illness of the person actually interferes with that person's ability to care for his or her child. The mental illness must further interfere with that person's future ability to care for the child. If both requirements are not met, termination of a parent's rights is not proper. If the person is suffering from a severe mental illness, with no hope that such illness will be "cured", termination of that parent's rights is a virtual certainty. Termination of Own Rights A parent may file a suit for termination of his or her own parent-child relationship as provided by section 161.005 of the Family Code. Such a suit is rare and courts generally frown on this procedure. The court may order termination if termination is in the best interest of the child. In this scenario, custody may be turned over to the Department of Protective and Regulatory Services. The more common procedure to terminate a person's own rights is to execute an affidavit of voluntary relinquishment or an affidavit of waiver of interest in the child, both discussed hereinbelow. Termination After Attempted Abortion In some circumstances, a child may be born alive as the result of an attempted abortion. Texas law allows for a petition requesting termination of the parent-child relationship with respect to a parent if the child was born alive as the result of an attempted abortion. TEX.FAM.CODE ANN. § 161.006. This type of suit is extremely rare. In such a suit, the parent may not be the person filing the suit. A court or jury may not terminate the parent-child relationship with respect to a parent who: (1) had no knowledge of the abortion; or (2) participated in or consented to the abortion for the sole purpose of preventing the death of the mother. For example, a father who had no knowledge of an attempted abortion by the mother may not have his parental rights terminated pursuant to this ground. Termination When Pregnancy Results From Criminal Act The court may order the termination of the parent-child relationship of a parent and a child if the court finds that: (1) the parent has been convicted of the offense of sexual assault, aggravated sexual assault or prohibited sexual conduct; (2) as a direct result of the commission of the offense by the parent, the victim of the offense became pregnant with the parent's child; and (3) termination is in the best interest of the child. TEX.FAM.CODE ANN. § 161.007. It is clear that when a crime has been committed against a woman and that crime results in her pregnancy, the man who has been convicted of the crime will have his parental rights terminated. One problem with this ground for termination is that it requires a conviction of the criminal offense. Unfortunately, many sexual assaults are not reported so this ground may not be employed to terminate the offender's rights absent a conviction. Affidavit of Voluntary Relinquishment of Parental Rights Section 161.103 of the Family Code also provides for the voluntary relinquishment of a parent's rights. Most typically, this is the procedure that is employed to terminate a parent's rights so that another person may adopt the child. One or both parents may use such procedure to terminate his or her rights to a child rather than present the matter for a trial in court. The voluntary termination of a parent's rights can be a very difficult and tricky process. If the parent attempts to revoke the affidavit, there may be problems in terminating that parent's rights. It is not uncommon for a biological parent to change his or her mind during the process. Texas laws, however, provide safeguards in the event a parent attempts to revoke the affidavit. The requisites of the affidavit for voluntary relinquishment are very specific and must be adhered to. An affidavit for voluntary relinquishment of parental rights must be: (1) signed after the birth of the child, but not before 48 hours after the birth of the child, by the 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. The affidavit must contain: (1) the name, address, 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 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: (A) the name and address of the other parent; (B) a statement that the parental rights of the other parent have been terminated by death or court order; or (C) a statement that the child has no presumed father and that an affidavit of status of the child has been executed; (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 Protective and Regulatory 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. The affidavit may contain a consent to the placement of the child for adoption by the Department of Protective and Regulatory Services or by a licensed child-placing agency. The relinquishment in an affidavit that designates the Department of Protective and Regulatory Services or a licensed child-placing agency to serve as the managing conservator is irrevocable. Revocability of Certain Affidavits The time frame to revoke an affidavit of relinquishment is narrow as provided by Family Code section 161.035. It gives the parent the chance to change his or her mind during the appropriate time frame and also balances the rights of the future parents of the child. An affidavit that is made revocable is only revocable before the 11th day after the affidavit was executed. An affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child that fails to state that the relinquishment or waiver is irrevocable for a stated time is: (1) revocable only if the revocation is made before the 11th day after the date the affidavit is executed; and (2) irrevocable on or after the 11th day after the date the affidavit is executed. Rights of Designated Managing Conservator Pending Court Appointment A person, licensed child-placing agency, or authorized agency 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 to a possessory conservator until such time as these rights and duties are modified or terminated by court order. The superior right to possession of the child and the accompanying rights and duties are a necessary corollary for the parent assuming control of the child. Such rights are those which are naturally invested in the parent of a child. Accordingly, when a biological parent waives those rights by affidavit, it is necessary to transfer those rights to another person or entity assuming the responsibilities of a parent. TEX.FAM.CODE ANN. § 161.004. Affidavit of Status of Child An affidavit of status of a child is necessary when a mother wishes to voluntarily terminate her own parental rights and the child has no "presumed father". TEX.FAM.CODE ANN. § 161.005. A presumed father is generally defined as (1) a man who is married to the mother while the child is born or the child is born not more than 300 days after the marriage was terminated, or (2) a man who has married or attempted to marry the child's mother after the birth of the child and he has either (a) filed a written acknowledgment of paternity, (b) consents in writing to be named as the child's father on the birth certificate or (c) he is obligated to support the child under a written voluntary promise or by court order. An attempted marriage not in strict compliance with the law will not relieve a man of presumed father status. If the child has no presumed father, an affidavit must be: (1) signed by the mother, whether or not a minor; (2) witnessed by two credible persons; and (3) verified before a person authorized to take oaths. The affidavit must: (1) state that the mother is not and has not been married to the alleged father of the child; (2) state that the mother and alleged father have not attempted to marry under the laws of this state or another state or nation; (3) state that paternity has not been established under the laws of any state or nation; and (4) contain one of the following, as applicable: (A) the name and whereabouts of a man alleged to be the father; (B) the name of an alleged father and a statement that the affiant does not know the whereabouts of the father; (C) a statement that an alleged father has executed a statement of paternity under Chapter 160 of the Family Code and an affidavit of relinquishment of parental rights and that both affidavits have been filed with the court; or (D) a statement that the name of an alleged father is unknown. The affidavit of status of child may be executed at any time after the first trimester of the pregnancy of the mother. The problem that arises out of a termination of a man's parental rights who is not a presumed father is that the mother is not always truthful as to his whereabouts or has not really made a diligent search for him. In this case, when an absent man's rights are terminated, it is not unusual for him to attempt to later come back and establish his parental rights. This will create potential problems as to whether he was given fair notice and whether he was given fair due process by the law. If the man does not act expeditiously to establish his rights as the father, he is less likely to overturn the termination order. A man is presumed to have knowledge that he potentially has a child when he engages in the act of sexual intercourse with a woman. Accordingly, he could attempt to establish his rights to the child by registering in Texas' state paternity registry after the act of sexual intercourse with a woman. Although this procedure is hardly practical, it does provide a safeguard for potential fathers. Requirement of Paternity Registry Certificate Another procedural safeguard exists for an unknown father. If an affidavit of status of child states that the father of the child is unknown and no probable father is known, a certificate from the bureau of vital statistics signed by the registrar that a diligent search has been made of the paternity registry maintained by the bureau and that a registration has not been found pertaining to the father of the child in question must be filed with the court before a trial on the merits in the suit for termination may be held. TEX.FAM.CODE ANN. § 161.009. In a proceeding to terminate parental rights in which the alleged or probable father has not been personally served with citation or signed an affidavit of relinquishment or an affidavit of waiver of interest, a court may not terminate the parental rights of the alleged or probable father, whether known or unknown, unless a certificate from the bureau of vital statistics signed by the registrar states that a diligent search has been made of the paternity registry maintained by the bureau and that a filing or registration has not been found pertaining to the father of the child in question. Affidavit of Waiver of Interest in Child Rather than sign an affidavit of voluntary relinquishment of a child, it is more typical for a man to sign an affidavit of wavier of interest in the child pursuant to Family Code section 161.106.. A man may sign an affidavit disclaiming any interest in a child 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 must be: (1) signed by the man, whether or not a minor; (2) witnessed by two credible persons; and (3) verified before a person authorized to take oaths. 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 against the man in a suit in which the man 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 authorized agency to establish the affiant's paternity of the child. A waiver in an affidavit that designates the Department of Protective and Regulatory Services or a licensed child-placing agency to serve as the managing conservator is irrevocable. A waiver in any other affidavit is revocable unless it expressly provides that it is irrevocable. A waiver in an affidavit that fails to state that the waiver is irrevocable is revocable only is such revocation is made on or before the 11th day after the affidavit was executed. Although there is some ambiguity in the statute as to the stated time period that an affidavit may be made expressly revocable, the safer practice is to assume that such waiver may only be made revocable for 11 days after the affidavit's execution. An affidavit that contains a waiver that is revocable must contain: (1) a statement in boldfaced type concerning the right of the person who executed the affidavit to revoke the affidavit only if the revocation is made before the 11th day after the date the affidavit is executed; and (2) the name and address of the person to whom the revocation is to be delivered. To revoke a waiver, the person who executed the affidavit must sign a statement witnessed by two credible persons and verified before a person authorized to take oaths. If a person attempting to revoke an affidavit has knowledge that a suit for termination of the parent-child relationship based on the person's waiver of interest in a child has been filed, the person shall file a copy of the revocation with the clerk of the court in which the termination is proceeding. Missing Parent or Relative As set out in Family Code section 161.107, if a parent of the child has not been personally served in a suit in which the Department of Protective and Regulatory Services seeks termination, the department must make a diligent effort to locate that parent. If a parent has not been personally served and cannot be located, the department shall make a diligent effort to locate a relative of the missing parent to give the relative an opportunity to request appointment as the child's managing conservator. If the department is not able to locate a missing parent or a relative of that parent and sufficient information is available concerning the physical whereabouts of the parent or relative, the department must request the state agency designated to administer a statewide plan for child support to use the Texas parental locator service to determine the location of the missing parent or relative. The department is required to provide evidence to the court to show what actions were taken by the department in making a diligent effort to locate the missing parent and relative of the missing parent. Release of Child From Hospital or Birthing Center Before or at the time an affidavit of relinquishment of parental rights is executed, the mother of a newborn child may authorize the release of the child from the hospital or birthing center to a licensed child-placing agency, the Department of Protective and Regulatory Services, or another designated person. TEX.FAM.CODE ANN. § 161.108. A release must be: (1) executed in writing; (2) witnessed by two credible adults; and (3) verified before a person authorized to take oaths. The hospital may not pass judgment on the release. A hospital or birthing center must comply with the terms of a release executed without requiring a court order. Criminal Charges Against the Parent Pursuant to Family Code section161.2011, a court many not proceed to final trial in a suit to terminate the parent-child relationship during the time that any criminal charges filed against a parent whose rights are subject to termination in the suit are pending if the criminal charges are directly related to the grounds for which termination of the parent's rights are sought unless it determines that it is in the best interest of the child. The court, however, is not precluded from issuing appropriate temporary orders. The court in which a suit to terminate the parent-child relationship is pending may render an order denying a parent access to a child if the parent is indicted for criminal activity that constitutes a ground for terminating the parent-child relationship. The denial of access must continue until the date the criminal charges for which the parent was indicted are resolved and the court renders an order providing for access to the child by the parent. Order Denying Termination As set out in Family Code section 161.205, if the court does not order termination of the parent-child relationship, it must: (1) dismiss the petition; or (2) render any order in the best interest of the child. Order Terminating Parental Rights If the court finds by clear and convincing evidence grounds for termination of the parent-child relationship, it must render an order terminating the parent-child relationship pursuant to Family Code section 161.206. An order terminating the parent-child relationship divests the parent and the child of all legal rights and duties with respect to each other, except that the child retains the right to inherit from and through the parent unless the court otherwise provides. The court is not precluded from ordering reasonable visitation to a child for a biological or adoptive maternal or paternal grandparent even though a parent's rights have been terminated. Appointment of Managing Conservator on Termination The court may not terminate the rights of both parents or of the only living parent and take no other action. The child's rights mandate that if a court terminates the parent-child relationship with respect to both parents or to the only living parent, the court is required to appoint a suitable, competent adult, the Department of Protective and Regulatory Services, a licensed child-placing agency, or an authorized agency as managing conservator of the child. TEX.FAM.CODE ANN. § 161.207. This person or entity assumes all of the rights and duties concerning the child. Appointment of Department of Protective and Regulatory Services as Managing Conservator If a parent of the child has not been personally served in a suit in which the Department of Protective and Regulatory Services seeks termination, the court that terminates a parent-child relationship may not appoint the Department of Protective and Regulatory Services as permanent managing conservator of the child unless the court determines that: (1) the department has made a diligent effort to locate a missing parent who has not been personally served and a relative of that parent; and (2) a relative located by the department has had a reasonable opportunity to request appointment as managing conservator of the child or the department has not been able to locate the missing parent or a relative of the missing parent. TEX.FAM.CODE ANN. § 161.208. Direct or Collateral Attack on Termination Order Section 161.211 of the Family Code sets forth the limited grounds for a direct or collateral attack on a termination order. The validity of an order terminating the parental rights of a person who has been personally served or who has executed an affidavit of relinquishment of parental rights or an affidavit of waiver of interest in a child or whose rights have been terminated pursuant to the grounds for termination of an alleged biological father is not subject to collateral or direct attack after the sixth month after the date the order was rendered. The validity of an order terminating the parental rights of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month after the date the order was rendered. A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit.