Requirements for the Reinstatement of Parental Rights

The law is complicated and has many requirements. Because of this, it may be helpful to speak with a lawyer about whether you are eligible to have your rights reinstated.

The law requires:

1.   The petition for termination of your parental rights must have been filed by the Department of Family and Protective Services (also sometimes called DFPS, “the Department," or CPS). 

If the petition was filed by an individual – such as the other parent – then it is not possible to have parental rights reinstated under Texas law.

2.   The child has not been adopted. 

If a child has been adopted, a Petition for Reinstatement cannot be filed for that child.

3.   The child is not the subject of an adoption placement agreement.

An adoption placement agreement generally means that a licensed foster or adoptive family has signed an agreement that they will adopt the child; the child is often already living in the home and the adoption process will usually begin within six months. A Petition for Reinstatement cannot be filed for a child who is in an adoption placement agreement.

4.   A child who is 12 years old or older must consent (or agree to) a parent’s rights being reinstated.

• If you know that the child aged 12 or older will not consent, it may not be possible to file a Petition for Reinstatement.
• However, some parents may not be in contact with their child and may not know if the child will consent or not. In this case, you can ask an attorney or one of the child’s advocates to help you gather information about the child and what the child wants.

5.   At least two years have passed since your parental rights were terminated.

Count from the date the judge signed your Order for Termination of Parental Rights. It is not possible to have your rights reinstated before this date.

6.   There is no pending appeal for the termination order.

No appeals court is currently reviewing your case. If your termination case is still going through an appeal, it is not possible to have your rights reinstated at this time.

7.   A parent who has filed a previous Petition for Reinstatement and was denied must wait one year from the date of the denial before filing a new Petition for Reinstatement.

If you filed a Petition for Reinstatement for this child already and the judge would not reinstate your rights, you must wait another year before asking again.

8.   You have taken steps to show rehabilitation since your parental rights were terminated.

The safety concerns leading to the termination must have been addressed. The steps a parent has taken can include: mental health and substance abuse treatment, stable employment, stable housing, or other personal changes.

Texas Family Code 161.003

At the hearing, you have to provide evidence that shows each of these things:

1. The reinstatement of your parental rights is in the child's best interests;
2. At least two years have passed since the issuance of the order terminating parental rights and an appeal of the order is not pending;
3. The child has not been adopted and is not the subject of an adoption placement agreement;
4. If the child is 12 years of age or older, the child consents to the reinstatement and desires to reside with you;
5. You have remedied the conditions that were the grounds for terminating your parental rights; and
6. And finally, that you are willing and capable of performing your parental duties and maintaining the health, safety, and welfare of the child. These include:
   • directing the moral and/or religious training of the child;
   • choosing the residence of the child;
   • taking care of the child and providing them with love and attention;
   • controlling the child (for example, making sure that they do not break the law and do things they are supposed to like going to school and the doctor);
   • safely and reasonably disciplining the child;
   • protecting the child from abuse, neglect, and other harm;
   • supporting the child financially and providing them with clothes, food, shelter, medical and dental care;
   • making appropriate decisions about the child’s education, including any special education services that they may need.
   • See Texas Family Code 151.001 for the full list of parental rights and duties.

Texas Family Code 161.303(c)

While courts have broad discretion in determining what is in the child’s “best interest,” judges look at the following factors from the Texas Supreme Court case, Holley v. Adams, as a guide:

1. the desires of the child;
2. the emotional and physical needs of the child now and in the future;
3. the emotional and physical danger to the child now and in the future;
4. the parental abilities of the individual seeking custody;
5. the programs available to assist the individuals to promote the best interest of the child;
6. the plans for the child made by the individual seeking custody or the agency;
7. the stability of the home or proposed placement;
8. the acts or omissions of the parent that indicate that the existing parent-child relationship is not a proper one; and
9. any excuse for the parent’s acts or omissions.

Read Best Interest of the Child Standard for more information.