Involuntary Termination of Parental Rights for Step-Parent Adoption

[Des101]

My question involves adoption law for the State of: Texas

My husband and I have filed to terminate my daughters' bio father's rights so my husband can adopt them. The girls are 11 and 12 and want the adoption.

Their bio father was just released on parole after serving 1 year of a 4 year sentence on a felony theft conviction. He has never paid the court ordered child support or medical insurance and has not had any contact with the children since before he was incarcerated. We have filed for involuntary termination based on abandonment and non-payment of support.

He has not provided me or the attorney general with any updated contact information since his release. He is not listed in the phone book, he has not contacted me, and I've done google searches on him and all his local family members, but cannot find current contact information. When we filed, we petitioned the court to notify him by publication.

Here is my question: When/if we receive a default judgment terminating his rights, can he effectively fight back in an appeal because he was served by publication?

[Dogmatique]

This why ideally you need an attorney - service by publication can be tricky and you don't want to give him ANY chance at overturning the adoption.

Please at least get an initial consult with a local adoption attorney.

Good luck!

[Des101]

We have spoken to a couple, thank you.
We've researched extensively and are trying to be as concientious as possible; it's all just so nerve wracking.

[aardvarc]

Do you have a gut feeling about whether he'll be relieved for there to be an adoption and thus willing to cooperate to speed up that process, or if he wants to be a part of the children's lives and is likely to fight it? Here's why I ask:

Their bio father was just released on parole after serving 1 year of a 4 year sentence on a felony theft conviction. He has never paid the court ordered child support or medical insurance and has not had any contact with the children since before he was incarcerated. We have filed for involuntary termination based on abandonment and non-payment of support.

The problem are these points, which actually work in dad's favor:

1) his crime was a property crime, not a violent one

2) his behavior was good enough to get parole after 1 year of a 4 year sentence

3) the court is aware that while incarcerated, no matter how much dad might WANT to see the children, visitation can only take the form of the children coming to the prison, which isn't usually recommended as a good idea - so he won't likely get penalty points for non-visitation during this period (although a pattern of non-contact PRIOR to incarceration won't help his case)

4) prison doesn't pay a wage from which he could pay support even if he wanted to - which legally is a VERY different animal than CHOOSING not to pay or to willingly reman un- or under-employed (same arguement applies, he won't get smacked for missing the past year while incarcerated, but PRIOR failure to pay, especially if he isn't really stepping up to do what he can now that he's out to address arrears can really bite him)

[Des101]

Do you have a gut feeling about whether he'll be relieved for there to be an adoption and thus willing to cooperate to speed up that process, or if he wants to be a part of the children's lives and is likely to fight it? Here's why I ask:

The problem are these points, which actually work in dad's favor:

1) his crime was a property crime, not a violent one

2) his behavior was good enough to get parole after 1 year of a 4 year sentence

3) the court is aware that while incarcerated, no matter how much dad might WANT to see the children, visitation can only take the form of the children coming to the prison, which isn't usually recommended as a good idea - so he won't likely get penalty points for non-visitation during this period (although a pattern of non-contact PRIOR to incarceration won't help his case)

4) prison doesn't pay a wage from which he could pay support even if he wanted to - which legally is a VERY different animal than CHOOSING not to pay or to willingly reman un- or under-employed (same arguement applies, he won't get smacked for missing the past year while incarcerated, but PRIOR failure to pay, especially if he isn't really stepping up to do what he can now that he's out to address arrears can really bite him)

Hello,

He does not want the kids, but I don't believe he will want to let go of them, either. He would rather use them to torment me, if he can, unfortunately.

Since his release, he has made contact twice; the first time, which is how we found out he was released, he just showed up at the girls' school, asking about taking them out of school. The principal called and let us know what was going on, then he left. Two weeks later, he showed up at their school again, this time to have lunch with them. The kids were terrified both times. Then he disappeared again, and we've heard nothing since.

We have records of his complete non-payment of support and spotty visitation before incarceration, as well. However, the lawyers we spoke with gave us the impression that his being incarcerated does not excuse his lack of contact or support in the eyes of the court because there are avenues he could have taken to amend the orders while in jail because of his change in circumstance. Was this information misleading?

Thank you so much for the assistance!

[Dogmatique]

I honestly think, given this information, that you have an uphill battle if you are trying to have his rights terminated for abandonment as Aardvarc has indicated.

Why would the girls be terrified at their father showing up?

When was he actually released?

[Des101]

I honestly think, given this information, that you have an uphill battle if you are trying to have his rights terminated for abandonment as Aardvarc has indicated.

Why would the girls be terrified at their father showing up?

When was he actually released?

Really? :/

They hadn't seen or heard from him in two years, and then he just showed up. It was shocking and unsettling for me, so I guess it was worse for them. We've never spoken badly of him, but we did explain, as neutrally as possible, that he was in jail once he was sentenced, because we didn't want them wondering where he was or why he wasn't seeing them for that long.

I have no idea when he was actually released. I don't know how I would find that out, either.

[Dogmatique]

But he's been in contact at least twice recently, correct?

This does tend to indicate that he's at least trying to become involved. It also shows that he is not willingly trying to abandon his children.

Does he have all of your contact information?

[aardvarc]

However, the lawyers we spoke with gave us the impression that his being incarcerated does not excuse his lack of contact or support in the eyes of the court because there are avenues he could have taken to amend the orders while in jail because of his change in circumstance. Was this information misleading?

Yes, and no. True, he could have filed for a change in child support due to lack of income due to being incarcerated. But all this really impacts is the amount due and that has been accruing in arrears. Theoretically you could fix your own car too...but most people don't because they don't know the basics of how to tell what's wrong, or where to start. Same applies to people in prison. They often have their mind on other issues and access to legal aid for issues not directly related to their incarceration isn't usually readily accessible. Custody issues and support issues are two separate animals...and regardless of how much his child support bill has grown since he didn't move to modify it, the CHIEF focus for the court regarding custody will be whether dad WANTS to be dad or not. That he allowed the bill to get big by not addressing it while incarcerated won't be a determinate factor, just a bigger bill that he'll be facing.

If dad DOES want to continue to be a parent, as has already been evidenced by his two visits at school, and he's willing to show the court a continued desire to do so by keeping his nose clean, obeying the terms of his probation, working to pay down the arrears, and other such positive and productive behaviors, then he has an above average shot at maintaining his parental rights. Although it doesn't happen in every such case, it would be generally acceptable to the court to make visitation occur in a supervised setting, at least for a period of time, (would need more info on WHY the girls are afraid), and, it's possible that the child support issue may already be, or could be made, part of his parole.