In the Interest W.E.R.

663 S.W.2d 887, 1983 Tex. App. LEXIS 5541

• Court: Court of Appeals of Texas
• Decided: December 21, 1983
• Docket: 16765
• Status: Published

Opinions

OPINION

ESQUIVEL, Justice.

Appellant, an unmarried man 47 years old, appeals from the denial of his application to adopt a boy who, at the time of the hearing, was about one year old. Appellant claims that the trial court abused its discretion in denying his application solely on the ground he is unmarried. We agree.

The discretion of the trial court in granting or denying an adoption petition is subject to review for abuse. Rubey v. Kuehn, 440 S.W.2d 95, 99 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref'd).

The court made the following statement at the close of the evidence, after terminating the natural mother and father’s relationship with the child:

I am, however, going to deny the adoption of the child by Petitioner, and it is no reflection on your part, Dr. Batres. In fact, you are to be commended for the interest you’ve shown this child.

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But we are talking about a child, who on the 13th of October is going to be one-year old, and I think the proper thing to do is to have the child placed in the managing conservatorship of the Department of Human Resources, who can see to it that the child is placed where there is a mother and father relationship to the child, and there would be a proper family type rearing for this child.

I want to emphasize though, that that is the reason for the Court respectfully denying Petitioner’s application for leave to adopt this child, and I feel it is our responsibility to provide both a mother and father in direct relationship to the child. [Emphasis ours.]

It is clear from the above quoted passage that the court denied appellant’s petition for adoption because it determined that appellant could not “provide both a mother and a father in direct relationship to the child.” From the evidence, we can reach no other conclusion but that the court arrived at this determination based solely upon appellant’s marital status.

In an adoption in Texas, the granting or denial of an adoption is predicated on whether the adoption is in the “best interest of the child.” TEX.FAM.CODE ANN. § 16.08 (Vernon 1975). Any adult in Texas may adopt an adoptable child. Id. § 16.02 (Vernon Supp.1982-1983). The statute says nothing about a one-parent versus a two-parent home.

The court implied that because appellant was a single man, his house was not a home where both a mother and a father relationship could exist and, therefore, was an “[imjproper” family situation. We are not saying that the adoption should have been granted, rather, that the court used an impermissible standard by which to arrive at its best-interest-of-the-child determination.

Neither should this court be heard to say that every time a single adult seeks to adopt a child, such adoption should be granted. Rather, one should not be denied the ability to adopt merely because one is single.

On remand, the appellant may not succeed in adopting the child, for any number of various reasons, including the passage of time. We feel, however, he should be given the opportunity inasmuch as he was denied the adoption for a reason which, standing alone, was unwarranted.

We find that the trial court abused its discretion in denying the adoption solely on the basis of the appellant’s marital status. Since we cannot substitute our judgment for that of the trial court, we reverse the judgment of the trial court and remand the cause for a new hearing. In the Interest of Herd, 537 S.W.2d 950, 954 (Tex.Civ.App.—Amarillo 1976, writ ref’d n.r.e.); Rubey, supra, at 99.