Lack of Biological Mother's Consent Dooms Adoption Claim by Mother's Former Partner

Lesbian lover's bid to adopt child she helped care for fails in the absence of natural mother's consent. Termination of parental rights of the biological mother (who had child by artificial insemination) as a predicate for adoption was not an issue. Former partner's petition for visitation rights as de facto "co-parent" also fails on standing grounds.

FROM THE OPINION OF THE DALLAS COURT OF APPEALS IN 05-08-00568-CV

Adoption Claims

In her third and fourth issues, K.V. asserts the court erred in dismissing her claims for adoption without a hearing on the merits and after finding she had standing. As stated, T.S. moved to dismiss K.V.'s adoption claims on the ground, among others, that she would not consent and had not consented to the adoption.

Consent is a requirement, separate from standing, for adoption under family code section 162.001 and also for adoption by estoppel. See Tex. Fam. Code Ann. § 162.001; Luna v. Rodriguez, 906 S.W.2d 576, 579 (Tex. App.-Austin 1995, no writ) (agreement to adopt essential element of adoption by estoppel).

At the hearing on standing, T.S. denied consenting that K.V. could adopt M.K.S. Numerous other witnesses, many of whom testified on K.V.'s behalf, also testified they were unaware of any agreement to adopt. When asked for evidence of any agreement to adopt, K.V. testified about acts by T.S. that showed, in K.V.'s opinion, an agreement to adopt. Such acts included naming M.K.S. at birth M.K.S.-V. so that M.K.S. would share K.V.'s name; holding K.V. out as M.K.S.'s mom; and, “talking about [K.V.] adopting [M.K.S.]. But K.V. stopped short of testifying to an actual agreement.

Without consent or an agreement, however, K.V. cannot adopt M.K.S. and the trial court did not err in dismissing her adoption claims. We resolve K.V.'s third and fourth issues against her.

We affirm the trial court's “final judgment dismissing suit.”

SOURCE: Opinion of the Fifth Court of Appeals (Dallas) in
IN RE M.K.S.-V., No. 05-08-00568-CV (Tex.App.- Dallas [5th Dist.] Aug. 31, 2009)