Is a claim of Adoption by Estoppel, equitable adoption viable in Texas?

ADOPTION BY ESTOPPEL - ADOPTION WITHOUT FORMALITIES & COURT ORDER

Adoption by estoppel is a remedy applied when efforts to adopt are ineffective because of failure to strictly comply with statutory adoption procedures or because, out of neglect or design, an agreement to adopt is not performed. See Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972, 973-74 (1951); Luna v. Estate of Rodriguez, 906 S.W.2d 576, 579-80 (Tex. App.—Austin 1995, no writ).

Parties who live in a parent-child relationship based on an unperformed agreement to adopt the child do not create the legal status of a parent and child, but a parent’s promises and conduct can create an equitable adoption which allows the child to assert intestate succession rights to the parent’s estate. See Heien v. Crabtree, 369 S.W.2d 28, 30 (Tex. 1963). The burden is on the proponent to establish the existence of the equitable adoption by a preponderance of the evidence. Moran v. Adler, 570 S.W.2d 883, 885 (Tex. 1978). An agreement to adopt between the parties, i.e., between the adoptive parent and the child, or between the adoptive parent and the natural parent, must exist before the trial court may apply the equitable doctrine of adoption by estoppel. Cavanaugh, 235 S.W.2d at 974; In re Estate of Castaneda, 687 S.W.2d 465, 466 (Tex. App.—San Antonio 1985, no writ). Proof of the agreement does not require direct evidence; circumstantial evidence will suffice where it is clear, convincing, and unequivocal. Cavanaugh, 235 S.W.2d at 975, 978.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00011-CV - 10/12/11


After reviewing the evidence presented in favor of the probate court’s finding, we conclude it was legally sufficient to support the finding that there was no agreement by Whiting to adopt Summer. Of the eight witnesses who testified, not one stated that Whiting agreed to adopt Summer. There is no evidence that a formal adoption proceeding was ever contemplated by Whiting, nor is there evidence that Whiting made an express promise to adopt Summer. Although all of the witnesses testified to the loving “father-daughter” relationship between Whiting and Summer, emotional bonds do not impute the legal bond of adoption absent evidence of an agreement to adopt. See Johnson v. Chandler, No. 14-03-00123-CV, 2004 WL 1946077,
at *4 (Tex. App.—Houston [14th Dist.] Sept. 2, 2004, no pet.) (mem. op.); Acevedo v. Acevedo, No. 03-03-00309-CV, 2004 WL 635321, at *3 (Tex. App.—Austin Apr. 1, 2004, no pet.) (mem. op.); see also Estate of Castaneda, 687 S.W.2d at 466 (fact that alleged adoptive father supported appellants and referred to them as his children was insufficient to establish an adoption by estoppel absent evidence of an agreement or promise to adopt). Accordingly, we hold the evidence was legally sufficient to support the finding.

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)