Texas Child Protection Law Bench Book

2024 version: As effective October 1, 2024

C. Hearing

1. Persons Who Should Always Be Present at an Adoption Hearing

•   Adoptive parents;

•   Assigned caseworker; and

•   Legal advocate for the child and/or guardian ad litem/Court Appointed Special Advocate (CASA).

Attendance at the Adoption Hearing by the petitioner is required. If joint petitioners are spouses, and it would be unduly difficult for one of the petitioners to appear at the hearing, the court may waive the attendance of that petitioner if the other spouse is present. Tex. Fam. Code § 162.014(a).

A child to be adopted who is 12 years old or older shall attend the hearing. The court may waive this requirement in the best interest of the child. Tex. Fam. Code § 162.014(b).

2. Additional Persons Who May Be Present at a Contested Adoption Hearing

•   Agency attorney;

•   Parties contesting the adoption; and

•   Attorneys for all parties.

Special Issue: In a contested adoption, enough time must be set aside for the careful completion of the hearing. Each court must determine the time required for contested hearings and establish a docket to accommodate such hearings without the need for postponements and delays.

3. Adoption Hearing Takes Precedent Over Other Settings

If the social studies and criminal history records are filed, the adoption hearing is to be set and heard preferentially to any other civil case not given preference by other law. Tex. Fam. Code § 162.0045.

Special Issue: A number of judges have developed a special ceremony for consummating an adoption, including letting the child bang the gavel, the judge descending from the bench to join the family in pronouncement, and including all extended family members and guests in the proceedings. Most families will want to take photos with the judge when the hearing is concluded. Judges can support timely permanency by holding more than one Adoption Day each year (i.e. in addition to the annual Adoption Day every November), by holding 30- or 60-day adoption progress hearings to closely track efforts to find an adoptive home as well as efforts to consummate adoption, and by engaging in candid discussions about adoption with older children.

4. Additional Information

The court may not delay or deny an adoption because a petitioner is a member of military or on the basis of race or ethnicity. Tex. Fam. Code § 162.0025 and Tex. Fam. Code § 162.015.

DFPS or an SSCC may not set a maximum age or maximum age differential for an adoptive parent but may consider the health and expected lifespan of each prospective adoptive parent when determining best interest. Tex. Fam. Code § 162.604.

If a petition requesting termination has been joined by a petition requesting adoption, the court shall also terminate the parent-child relationship at the same time the adoption order is rendered. The court must make separate findings that the termination is in the best interest of the child and that the adoption is in the best interest of the child. Tex. Fam. Code § 162.016(a).

Special Issue: Some jurisdictions prefer to utilize the same court which handled the termination of parental rights case for the adoption proceedings involving the same child. If the proceeding is a combined termination and adoption, courts may want to set forth the conditions and circumstances explicitly and thoroughly under which parental termination and consent to adoption is obtained, including determining whether the consent was voluntary and informed and that all alternatives to adoption were explained. A thorough record protects the court and adoptive parents if there is a later attempt to set aside the termination and/or adoption.

DFPS is required to provide information to each person seeking to adopt a child placed for adoption by DFPS regarding the right of a child's sibling to file a suit for access to the child. Tex. Fam. Code § 162.0086(a).

Special Issue: Although the Texas Family Code attempts to provide finality for children by limiting the time for appeals and restricting direct or collateral attacks on a judgment of termination of parental rights, the Texas Legislature has also recognized the countervailing interest of the child's family. Tex. Fam. Code § 162.0086 (Information Regarding Sibling Access) requires DFPS to provide to each person seeking to adopt a child information regarding the right of a child's sibling to file suit for access to that child under Tex. Fam. Code § 102.0045 and Tex. Fam. Code § 153.551.

The sibling of a child who is separated from the child because of an action taken by DFPS may request access to the child by filing an original suit or a suit in modification as provided by Tex. Fam. Code Chapter 156, and the court shall order reasonable access to the child by the child's sibling if the court finds that access is in the best interest of the child. Tex. Fam. Code § 153.551.

Upon granting the adoption, the court may order the sealing of the court's file. Tex. Fam. Code § 162.021(a).

5. Rehoming

The Regulated Custody Transfer of Adopted Child under the Texas Family Code prohibits and criminalizes the practice of “rehoming” a child. A parent, managing conservator, or guardian of an adopted child may not transfer permanent physical custody of the child to any person who is not a relative or stepparent of the child or an adult who has a significant and long-standing relationship with the child unless: (1) the parent, managing conservator, or guardian files a petition with a court of competent jurisdiction requesting a transfer of custody; and (2) the court approves the petition. Tex. Fam. Code § 162.026. Transfer to DFPS for a short term is allowed.