STATE OF NEW YORK
________________________________________________________________________
7516
2019-2020 Regular Sessions
IN ASSEMBLY
May 8, 2019
___________
Introduced by M. of A. SIMOTAS, DINOWITZ -- (at request of the Office of
Court Administration) -- read once and referred to the Committee on
Judiciary
AN ACT to amend the domestic relations law, the family court act and the
social services law, in relation to conditional surrenders of parental
rights in family and surrogate's court
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Subdivisions 1 and 2 of section 112-b of the domestic
2 relations law, subdivision 1 as added by section 63 of part A of chapter
3 3 of the laws of 2005 and subdivision 2 as amended by chapter 41 of the
4 laws of 2010, are amended to read as follows:
5 1. Nothing in this section shall be construed to prohibit the parties
6 to a proceeding under this chapter from entering into an agreement
7 regarding communication with or contact between an adoptive child, adop-
8 tive parent or parents and a birth parent or parents and/or the adoptive
9 child's biological siblings or half-siblings, provided, however, that
10 such an agreement shall not be legally enforceable unless the judicial
11 approval of the agreement has been incorporated into a written order
12 entered by the court in accordance with subdivision two of this section.
13 2. (a) Agreements regarding communication or contact between an adop-
14 tive child, adoptive parent or parents, and a birth parent or parents
15 and/or biological siblings or half-siblings of an adoptive child shall
16 not be legally enforceable unless the terms of the agreement are incor-
17 porated into a written court order entered in accordance with the
18 provisions of this section. An agreement for contact or communication
19 between the child and his or her siblings or half-siblings where the
20 child and/or siblings or half-siblings are fourteen years of age or
21 older shall not be enforceable unless such child and such sibling or
22 half-sibling consent to the agreement in writing. The court shall not
23 incorporate an agreement regarding communication or contact into an
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09848-01-9
A. 7516 2
1 order unless the terms and conditions of the agreement have been set
2 forth in writing and consented to in writing by the parties to the
3 agreement, including the attorney representing the adoptive child. The
4 court shall not enter a proposed order unless the court in which the
5 surrender was executed or the court that approved the surrender of the
6 child determined and stated in its order that the communication with or
7 contact between the adoptive child, the prospective adoptive parent or
8 parents and a birth parent or parents and/or biological siblings or
9 half-siblings, as agreed upon and as set forth in the agreement, would
10 be in the adoptive child's best interests. Notwithstanding any other
11 provision of law, a copy of the order entered pursuant to this section
12 incorporating the post-adoption contact agreement shall be given to all
13 parties who have agreed to the terms and conditions of such order.
14 (b) With respect to surrenders executed on or after January first, two
15 thousand twenty, an agreement regarding communication or contact follow-
16 ing an adoption is only enforceable if approval of the agreement has
17 been incorporated into an order in conjunction with a surrender executed
18 before a judge; provided, however, that an agreement regarding communi-
19 cation or contact following an adoption of a child from an authorized
20 agency made in conjunction with an extra-judicial surrender may be
21 enforceable if the following additional conditions have been met: (i)
22 the party or parties surrendering the child attest in a sworn affidavit
23 that it would be an undue hardship to appear in court to execute the
24 surrender; and (ii) the party or parties surrendering the child were
25 represented by counsel and such counsel was present at the execution of
26 the surrender and informed the surrendering party or parties of the
27 requirements for enforceability of the post-adoption contact agreement.
28 § 2. Paragraph (iv) of subdivision (a) of section 262 of the family
29 court act, as amended by chapter 3 of the laws of 2012, is amended to
30 read as follows:
31 (iv) the parent or person legally responsible, foster parent, or other
32 person having physical or legal custody of the child in any proceeding
33 under article ten or ten-A of this act or section three hundred fifty-
34 eight-a, three hundred eighty-three-c, three hundred eighty-four or
35 three hundred eighty-four-b of the social services law, and a non-custo-
36 dial parent or grandparent served with notice pursuant to paragraph (e)
37 of subdivision two of section three hundred eighty-four-a of the social
38 services law;
39 § 3. Paragraph (b) of subdivision 2 of section 383-c of the social
40 services law, as amended by chapter 41 of the laws of 2010, is amended
41 to read as follows:
42 (b) (i) If a surrender instrument designates a particular person or
43 persons who will adopt a child, such person or persons, the child's
44 birth parent or parents, the authorized agency having care and custody
45 of the child and the child's attorney[,] may enter into a written agree-
46 ment providing for communication or contact between the child and the
47 child's parent or parents on such terms and conditions as may be agreed
48 to by the parties. Such terms and conditions shall be set forth in writ-
49 ing and consented to in writing by the parties to the agreement, includ-
50 ing the attorney representing the child.
51 (ii) If a surrender instrument does not designate a particular person
52 or persons who will adopt the child, then the child's birth parent or
53 parents, the authorized agency having care and custody of the child and
54 the child's attorney may enter into a written agreement providing for
55 communication or contact, on such terms and conditions as may be agreed
56 to by the parties. Such terms and conditions shall be set forth in writ-
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1 ing and consented to in writing by the parties to the agreement, includ-
2 ing the attorney representing the child.
3 (iii) Such agreement also may provide terms and conditions for commu-
4 nication with or contact between the child and the child's biological
5 siblings or half-siblings, if any. If any such sibling or half-sibling
6 is fourteen years of age or older, such terms and conditions shall not
7 be enforceable unless such sibling or half-sibling consents to the
8 agreement in writing.
9 (iv) If the court before which the surrender instrument is presented
10 for approval determines that the agreement concerning communication and
11 contact is in the child's best interests, the court shall approve the
12 agreement and incorporate such approval into a written court order, a
13 copy of which shall be given to the parties. If the court does not
14 approve the agreement, the court may nonetheless approve the surrender;
15 provided, however, that the birth parent or parents executing the
16 surrender instrument shall be informed that the agreement is not
17 enforceable in a court of law and shall be given the opportunity at that
18 time to withdraw such instrument.
19 (v) Enforcement of any agreement prior to the adoption of the child
20 shall be in accordance with subdivision (b) of section one thousand
21 fifty-five-a of the family court act. Subsequent to the adoption of the
22 child, enforcement of any agreement shall be in accordance with section
23 one hundred twelve-b of the domestic relations law.
24 § 4. Subdivision 4 of section 383-c of the social services law is
25 amended by adding a new paragraph (g) to read as follows:
26 (g) A surrender of a child, executed on or after January first, two
27 thousand twenty, which is made in conjunction with an agreement contain-
28 ing conditions, including, but not limited to, identifying the prospec-
29 tive adoptive parent or parents or prescribing communication or contact
30 with the child and the adoptive parent or parents and/or between the
31 child and his or her biological siblings or half-siblings following the
32 surrender and adoption of the child shall be executed before a judge;
33 provided, however, that such an agreement made in conjunction with an
34 extra-judicial surrender executed after such date may be enforceable if
35 the following conditions have been met in addition to those delineated
36 in paragraph (b) of this subdivision: (i) the party or parties surren-
37 dering the child attest in a sworn affidavit that it would be an undue
38 hardship to appear in court to execute the surrender; and (ii) the party
39 or parties surrendering the child were represented by counsel and such
40 counsel was present at the execution of the surrender and informed the
41 surrendering party or parties of the requirements for enforceability of
42 the agreement.
43 § 5. Subparagraphs (ii) and (iii) of paragraph (b) of subdivision 5 of
44 section 383-c of the social services law, subparagraph (ii) as amended
45 by chapter 601 of the laws of 1994 and subparagraph (iii) as added by
46 chapter 479 of the laws of 1990, are amended to read as follows:
47 (ii) that the parent is giving up all rights to have custody, visit
48 with, speak with, write to or learn about the child, forever, unless the
49 parties have agreed to different terms pursuant to subdivision two of
50 this section[,] and unless such terms are written in the surrender or
51 are written in an agreement approved by the court in an order in accord-
52 ance with such subdivision, or, if the parent registers with the
53 adoption information register, as specified in section forty-one hundred
54 thirty-eight-d of the public health law, that the parent may be
55 contacted at anytime after the child reaches the age of eighteen years,
56 but only if both the parent and the adult child so choose;
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1 (iii) that the child will be adopted without the parent's consent and
2 without further notice to the parent, and will be adopted by any person
3 that the agency chooses, unless the surrender paper or an agreement
4 approved by the court in an order in accordance with subdivision two of
5 this section contains the name of the person or persons who will be
6 adopting the child; and
7 § 6. Paragraph (b) of subdivision 2 of section 384 of the social
8 services law, as amended by chapter 41 of the laws of 2010, is amended
9 to read as follows:
10 (b) (i) If a surrender instrument designates a particular person or
11 persons who will adopt a child, such person or persons, the child's
12 birth parent or parents, the authorized agency having care and custody
13 of the child and the child's attorney[,] may enter into a written agree-
14 ment providing for communication or contact between the child and the
15 child's parent or parents on such terms and conditions as may be agreed
16 to by the parties. Such terms and conditions shall be set forth in writ-
17 ing and consented to in writing by the parties to the agreement, includ-
18 ing the attorney representing the child.
19 (ii) If a surrender instrument does not designate a particular person
20 or persons who will adopt the child, then the child's birth parent or
21 parents, the authorized agency having care and custody of the child and
22 the child's attorney may enter into a written agreement providing for
23 communication or contact, on such terms and conditions as may be agreed
24 to by the parties. Such terms and conditions shall be set forth in writ-
25 ing and consented to in writing by the parties to the agreement, includ-
26 ing the attorney representing the child.
27 (iii) Such agreement also may provide terms and conditions for commu-
28 nication with or contact between the child and the child's biological
29 sibling or half-sibling, if any. If the child or any such sibling or
30 half-sibling is fourteen years of age or older, [such terms and condi-
31 tions] an agreement for contact or communication between the child and
32 his or her siblings or half-siblings shall not be enforceable unless
33 such child, sibling or half-sibling consents to the agreement in writ-
34 ing.
35 (iv) If the court before which the surrender instrument is presented
36 for execution or approval, determines that the agreement [concerning
37 communication and contact] is in the child's best interests, the court
38 shall approve the agreement and incorporate such approval into a written
39 court order, a copy of which shall be given to the parties. If the court
40 does not approve the agreement, the court may nonetheless approve the
41 surrender; provided, however, that the birth parent or parents executing
42 the surrender instrument shall be informed that the agreement is not
43 enforceable in a court of law and shall be given the opportunity at that
44 time to withdraw such instrument. Enforcement of any agreement prior to
45 the adoption of the child shall be in accordance with subdivision (b) of
46 section one thousand fifty-five-a of the family court act. Subsequent to
47 the adoption of the child, enforcement of any agreement shall be in
48 accordance with section one hundred twelve-b of the domestic relations
49 law.
50 § 7. Subdivision 3 of section 384 of the social services law, as
51 amended by chapter 479 of the laws of 1990, the opening paragraph as
52 amended by chapter 185 of the laws of 2006, the fifth undesignated para-
53 graph as added by chapter 680 of the laws of 2007, the sixth undesig-
54 nated paragraph and the closing paragraph as added by chapter 76 of the
55 laws of 2002, and subparagraphs (i) and (ii) of the sixth undesignated
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1 paragraph as amended by chapter 41 of the laws of 2010, is amended to
2 read as follows:
3 3. Instrument and intervention. (a) The instrument herein provided
4 shall be executed and acknowledged [(a)] (i) before any judge or surro-
5 gate in this state having jurisdiction over adoption proceedings, except
6 that if the child is being surrendered as a result of, or in connection
7 with, a proceeding before the family court pursuant to article ten or
8 ten-A of the family court act, the instrument shall be executed and
9 acknowledged in the family court that exercised jurisdiction over such
10 proceeding and shall be assigned, wherever practicable, to the judge who
11 last presided over such proceeding; or [(b)] (ii) in the presence of one
12 or more witnesses and acknowledged by such witness or witnesses, in the
13 latter case before a notary public or other officer authorized to take
14 proof of deeds, and shall be recorded in the office of the county clerk
15 in the county where such instrument is executed, or where the principal
16 office of such authorized agency is located, in a book which such county
17 clerk shall provide and shall keep under seal.
18 (b) A surrender of a child, executed on or after January first, two
19 thousand twenty, which is made in conjunction with an agreement contain-
20 ing conditions, including, but not limited to, identifying the prospec-
21 tive adoptive parent or parents or prescribing communication or contact
22 with the child and the adoptive parent or parents and/or between the
23 child and his or her biological siblings or half-siblings following the
24 surrender and adoption of the child shall be executed before a judge;
25 provided, however, that such an agreement made in conjunction with an
26 extra-judicial surrender executed after such date may be enforceable if
27 the following conditions have been met in addition to those delineated
28 in paragraph (b) of subdivision two of this section:
29 (i) the party or parties surrendering the child attest in a sworn
30 affidavit that it would be an undue hardship to appear in court to
31 execute the surrender; and
32 (ii) the party or parties surrendering the child were represented by
33 counsel and such counsel was present at the execution of the surrender
34 and informed the surrendering party or parties of the requirements for
35 enforceability of the agreement.
36 (c) Such record shall be subject to inspection and examination only as
37 provided in subdivisions three and four of section three hundred seven-
38 ty-two of this title.
39 (d) Notwithstanding any other provision of law, if the parent surren-
40 dering the child for adoption is in foster care the instrument shall be
41 executed before a judge of the family court.
42 (e) Whenever the term surrender or surrender instrument is used in any
43 law relating to the adoption of children who are not in foster care, it
44 shall mean and refer exclusively to the instrument [hereinabove]
45 described in this subdivision for the commitment of the guardianship of
46 the person and the custody of a child to an authorized agency by his or
47 her parents, parent or guardian; and in no case shall it be deemed to
48 apply to any instrument purporting to commit the guardianship of the
49 person and the custody of a child to any person other than an authorized
50 agency, nor shall such term or the provisions of this section be deemed
51 to apply to any instrument transferring the care and custody of a child
52 to an authorized agency pursuant to section three hundred eighty-four-a
53 of this [chapter] title.
54 (f)(i) Any person or persons having custody of a child for the purpose
55 of adoption through an authorized agency shall be permitted as a matter
56 of right, as an interested party, to intervene in any proceeding
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1 commenced to set aside a surrender purporting to commit a guardianship
2 of the person or custody of a child executed under the provisions of
3 this section. Such intervention may be made anonymously or in the true
4 name of said person.
5 (ii) Any person or persons having custody for more than twelve months
6 through an authorized agency for the purpose of foster care shall be
7 permitted as a matter of right, as an interested party, to intervene in
8 any proceeding commenced to set aside a surrender purporting to commit
9 the guardianship of the person and custody of a child executed under the
10 provisions of this section. Such intervention may be made anonymously or
11 in the true name of said person or persons having custody of the child
12 for the purpose of foster care.
13 (g) A copy of such surrender shall be given to [such] the surrendering
14 parent upon the execution thereof. The surrender shall include the
15 following statement: "I, (name of surrendering parent), this ___ day of
16 __________, _____, have received a copy of this surrender. (Signature of
17 surrendering parent)". Such surrendering parent shall so acknowledge the
18 delivery and the date of the delivery in writing on the surrender.
19 (h) Where the parties have agreed that the surrender shall be subject
20 to conditions pursuant to subdivision two of this section, the instru-
21 ment shall further state in plain language that:
22 (i) the authorized agency shall notify the parent, unless such notice
23 is expressly waived by a statement written by the parent and appended to
24 or included in such instrument, the attorney for the child and the court
25 that approved the surrender within twenty days of any substantial fail-
26 ure of a material condition of the surrender prior to the finalization
27 of the adoption of the child; and
28 (ii) except for good cause shown, the authorized agency shall file a
29 petition on notice to the parent unless notice is expressly waived by a
30 statement written by the parent and appended to or included in such
31 instrument and the child's attorney in accordance with section one thou-
32 sand fifty-five-a of the family court act within thirty days of such
33 failure, in order for the court to review such failure and, where neces-
34 sary, to hold a hearing; provided, however, that, in the absence of such
35 filing, the parent and/or attorney for the child may file such a peti-
36 tion at any time up to sixty days after notification of such failure.
37 Such petition filed by a parent or attorney for the child must be filed
38 prior to the child's adoption; and
39 (iii) the parent is obligated to provide the authorized agency with a
40 designated mailing address, as well as any subsequent changes in such
41 address, at which the parent may receive notices regarding any substan-
42 tial failure of a material condition, unless such notification is
43 expressly waived by a statement written by the parent and appended to or
44 included in such instrument.
45 Nothing in this paragraph shall limit the notice on the instrument
46 with respect to a failure to comply with a material condition of a
47 surrender subsequent to the finalization of the adoption of the child.
48 § 8. Subdivision 4 of section 384 of the social services law, as
49 amended by chapter 185 of the laws of 2006, is amended to read as
50 follows:
51 4. Upon petition by an authorized agency, a judge of the family court,
52 or a surrogate, may approve such surrender, on such notice to such
53 persons as the surrogate or judge may in his or her discretion
54 prescribe. If the child is being surrendered as a result of, or in
55 connection with, a proceeding before the family court pursuant to arti-
56 cle ten or ten-A of the family court act, the petition shall be filed in
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1 the family court that exercised jurisdiction over such proceeding and
2 shall be assigned, wherever practicable, to the judge who last presided
3 over such proceeding. The petition shall set forth the names and last
4 known addresses of all persons required to be given notice of the
5 proceeding, pursuant to section three hundred eighty-four-c of this
6 title, and there shall be shown by the petition or by affidavit or other
7 proof satisfactory to the court that there are no persons other than
8 those set forth in the petition who are entitled to notice pursuant to
9 such section. At the time that a parent appears before a judge or surro-
10 gate to execute and acknowledge a surrender or for the judge to approve
11 a surrender, the judge or surrogate shall inform such parent of the
12 right to be represented by legal counsel of the parent's own choosing
13 and of the right to obtain supportive counseling and of any right to
14 have counsel assigned pursuant to section two hundred sixty-two of the
15 family court act, section four hundred seven of the surrogate's court
16 procedure act, or section thirty-five of the judiciary law. No person
17 who has received such notice and been afforded an opportunity to be
18 heard may challenge the validity of a surrender approved pursuant to
19 this subdivision in any other proceeding. However, this subdivision
20 shall not be deemed to require approval of a surrender by a surrogate or
21 judge for such surrender to be valid, provided, however, that an agree-
22 ment made in conjunction with a surrender that contains conditions,
23 including, but not limited to, identifying the prospective adoptive
24 parent or parents or prescribing communication or contact with the child
25 and the adoptive parent or parents and/or between the child and his or
26 her biological siblings or half-siblings following the surrender and
27 adoption of the child shall be enforceable in a court of law only if the
28 requirements of subdivisions two and three of this section have been
29 met.
30 § 9. This act shall take effect on the first of January next succeed-
31 ing the date on which it shall have become a law.