Bill Text: NY S04765 | 2017-2018 | General Assembly | Amended


Bill Title: Relates to conditional surrender of parental rights in family and surrogate's court.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2018-06-20 - COMMITTED TO RULES [S04765 Detail]

Download: New_York-2017-S04765-Amended.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                         4765--A
                               2017-2018 Regular Sessions
                    IN SENATE
                                    February 27, 2017
                                       ___________
        Introduced by Sen. AVELLA -- (at request of the Office of Court Adminis-
          tration)  --  read  twice  and ordered printed, and when printed to be
          committed to the Committee on Children and Families -- recommitted  to
          the  Committee on Children and Families in accordance with Senate Rule
          6, sec. 8 -- reported favorably from said committee, ordered to  first
          report,  amended  on  first  report,  ordered  to  a second report and
          ordered reprinted, retaining its place in the order of second report
        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. Agreements regarding communication or contact between  an  adoptive
    14  child,  adoptive parent or parents, and a birth parent or parents and/or
    15  biological siblings or half-siblings of an adoptive child shall  not  be
    16  legally  enforceable  unless the terms of the agreement are incorporated
    17  into a written court order entered in accordance with the provisions  of
    18  this  section.  An  agreement  for  contact or communication between the
    19  child and his or her siblings or half-siblings where  the  child  and/or
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06664-02-8

        S. 4765--A                          2
     1  siblings  or  half-siblings are fourteen years of age or older shall not
     2  be enforceable unless  such  child  and  such  sibling  or  half-sibling
     3  consent  to the agreement in writing. The court shall not incorporate an
     4  agreement  regarding  communication  or contact into an order unless the
     5  terms and conditions of the agreement have been set forth in writing and
     6  consented to in writing by the parties to the agreement,  including  the
     7  attorney  representing  the  adoptive child. The court shall not enter a
     8  proposed order unless the court in which the surrender was  executed  or
     9  the court that approved the surrender of the child determined and stated
    10  in its order that the communication with or contact between the adoptive
    11  child,  the prospective adoptive parent or parents and a birth parent or
    12  parents and/or biological siblings or half-siblings, as agreed upon  and
    13  as  set  forth  in  the agreement, would be in the adoptive child's best
    14  interests. Notwithstanding any other provision of law,  a  copy  of  the
    15  order  entered  pursuant to this section incorporating the post-adoption
    16  contact agreement shall be given to all parties who have agreed  to  the
    17  terms and conditions of such order.
    18    With  respect  to  surrenders  executed on or after January first, two
    19  thousand nineteen,  an  agreement  regarding  communication  or  contact
    20  following  an  adoption is only enforceable if approval of the agreement
    21  has been incorporated into an order  in  conjunction  with  a  surrender
    22  executed  before a judge; provided, however, that an agreement regarding
    23  communication or contact following  an  adoption  of  a  child  from  an
    24  authorized  agency  made in conjunction with an extra-judicial surrender
    25  may be enforceable if the following additional conditions have been met:
    26  (i) the party or parties surrendering the child attest in a sworn  affi-
    27  davit  that  it would be an undue hardship to appear in court to execute
    28  the surrender; and (ii) the party or parties surrendering the child were
    29  represented by counsel and such counsel was present at the execution  of
    30  the  surrender  and  informed  the  surrendering party or parties of the
    31  requirements for enforceability of the post-adoption contact agreement.
    32    § 2. Paragraph (iv) of subdivision (a) of section 262  of  the  family
    33  court  act,  as  amended by chapter 3 of the laws of 2012, is amended to
    34  read as follows:
    35    (iv) the parent or person legally responsible, foster parent, or other
    36  person having physical or legal custody of the child in  any  proceeding
    37  under  article  ten or ten-A of this act or section three hundred fifty-
    38  eight-a, three hundred  eighty-three-c,  three  hundred  eighty-four  or
    39  three hundred eighty-four-b of the social services law, and a non-custo-
    40  dial  parent or grandparent served with notice pursuant to paragraph (e)
    41  of subdivision two of section three hundred eighty-four-a of the  social
    42  services law;
    43    §  3.  Paragraph  (b)  of subdivision 2 of section 383-c of the social
    44  services law, as amended by chapter 41 of the laws of 2010,  is  amended
    45  to read as follows:
    46    (b)  (i)  If  a surrender instrument designates a particular person or
    47  persons who will adopt a child, such  person  or  persons,  the  child's
    48  birth  parent  or parents, the authorized agency having care and custody
    49  of the child and the child's attorney[,] may enter into a written agree-
    50  ment providing for communication or contact between the  child  and  the
    51  child's  parent or parents on such terms and conditions as may be agreed
    52  to by the parties. Such terms and conditions shall be set forth in writ-
    53  ing and consented to in writing by the parties to the agreement, includ-
    54  ing the attorney representing the child.
    55    (ii) If a surrender instrument does not designate a particular  person
    56  or  persons  who  will adopt the child, then the child's birth parent or

        S. 4765--A                          3
     1  parents, the authorized agency having care and custody of the child  and
     2  the  child's  attorney  may enter into a written agreement providing for
     3  communication or contact, on such terms and conditions as may be  agreed
     4  to by the parties. Such terms and conditions shall be set forth in writ-
     5  ing and consented to in writing by the parties to the agreement, includ-
     6  ing the attorney representing the child.
     7    (iii)  Such agreement also may provide terms and conditions for commu-
     8  nication with or contact between the child and  the  child's  biological
     9  siblings  or  half-siblings, if any. If any such sibling or half-sibling
    10  is fourteen years of age or older, such terms and conditions  shall  not
    11  be  enforceable  unless  such  sibling  or  half-sibling consents to the
    12  agreement in writing.
    13    (iv) If the court before which the surrender instrument  is  presented
    14  for  approval determines that the agreement concerning communication and
    15  contact is in the child's best interests, the court  shall  approve  the
    16  agreement  and  incorporate  such approval into a written court order, a
    17  copy of which shall be given to the  parties.  If  the  court  does  not
    18  approve  the agreement, the court may nonetheless approve the surrender;
    19  provided, however, that  the  birth  parent  or  parents  executing  the
    20  surrender  instrument  shall  be  informed  that  the  agreement  is not
    21  enforceable in a court of law and shall be given the opportunity at that
    22  time to withdraw such instrument.
    23    (v) Enforcement of any agreement prior to the adoption  of  the  child
    24  shall  be  in  accordance  with  subdivision (b) of section one thousand
    25  fifty-five-a of the family court act. Subsequent to the adoption of  the
    26  child,  enforcement of any agreement shall be in accordance with section
    27  one hundred twelve-b of the domestic relations law.
    28    § 4. Subdivision 4 of section 383-c of  the  social  services  law  is
    29  amended by adding a new paragraph (g) to read as follows:
    30    (g)  A  surrender  of a child, executed on or after January first, two
    31  thousand nineteen, which  is  made  in  conjunction  with  an  agreement
    32  containing  conditions,  including,  but not limited to, identifying the
    33  prospective adoptive parent or parents or prescribing  communication  or
    34  contact with the child and the adoptive parent or parents and/or between
    35  the  child and his or her biological siblings or half-siblings following
    36  the surrender and adoption of the  child  shall  be  executed  before  a
    37  judge;  provided,  however,  that  such an agreement made in conjunction
    38  with an  extra-judicial  surrender  executed  after  such  date  may  be
    39  enforceable  if  the  following  conditions have been met in addition to
    40  those delineated in paragraph (b) of this subdivision: (i) the party  or
    41  parties surrendering the child attest in a sworn affidavit that it would
    42  be  an  undue  hardship to appear in court to execute the surrender; and
    43  (ii) the party or parties surrendering the  child  were  represented  by
    44  counsel  and  such counsel was present at the execution of the surrender
    45  and informed the surrendering party or parties of the  requirements  for
    46  enforceability of the agreement.
    47    § 5. Subparagraphs (ii) and (iii) of paragraph (b) of subdivision 5 of
    48  section  383-c  of the social services law, subparagraph (ii) as amended
    49  by chapter 601 of the laws of 1994 and subparagraph (iii)  as  added  by
    50  chapter 479 of the laws of 1990, are amended to read as follows:
    51    (ii)  that  the  parent is giving up all rights to have custody, visit
    52  with, speak with, write to or learn about the child, forever, unless the
    53  parties have agreed to different terms pursuant to  subdivision  two  of
    54  this  section[,]  and  unless such terms are written in the surrender or
    55  are written in an agreement approved by the court in an order in accord-
    56  ance with such  subdivision,  or,  if  the  parent  registers  with  the

        S. 4765--A                          4
     1  adoption information register, as specified in section forty-one hundred
     2  thirty-eight-d  of  the  public  health  law,  that  the  parent  may be
     3  contacted at anytime after the child reaches the age of eighteen  years,
     4  but only if both the parent and the adult child so choose;
     5    (iii)  that the child will be adopted without the parent's consent and
     6  without further notice to the parent, and will be adopted by any  person
     7  that  the  agency  chooses,  unless  the surrender paper or an agreement
     8  approved by the court in an order in accordance with subdivision two  of
     9  this  section  contains  the  name  of the person or persons who will be
    10  adopting the child; and
    11    § 6. Paragraph (b) of subdivision 2  of  section  384  of  the  social
    12  services  law,  as amended by chapter 41 of the laws of 2010, is amended
    13  to read as follows:
    14    (b) (i) If a surrender instrument designates a  particular  person  or
    15  persons  who  will  adopt  a  child, such person or persons, the child's
    16  birth parent or parents, the authorized agency having care  and  custody
    17  of the child and the child's attorney[,] may enter into a written agree-
    18  ment  providing  for  communication or contact between the child and the
    19  child's parent or parents on such terms and conditions as may be  agreed
    20  to by the parties. Such terms and conditions shall be set forth in writ-
    21  ing and consented to in writing by the parties to the agreement, includ-
    22  ing the attorney representing the child.
    23    (ii)  If a surrender instrument does not designate a particular person
    24  or persons who will adopt the child, then the child's  birth  parent  or
    25  parents,  the authorized agency having care and custody of the child and
    26  the child's attorney may enter into a written  agreement  providing  for
    27  communication  or contact, on such terms and conditions as may be agreed
    28  to by the parties. Such terms and conditions shall be set forth in writ-
    29  ing and consented to in writing by the parties to the agreement, includ-
    30  ing the attorney representing the child.
    31    (iii) Such agreement also may provide terms and conditions for  commu-
    32  nication  with  or  contact between the child and the child's biological
    33  sibling or half-sibling, if any.  If the child or any  such  sibling  or
    34  half-sibling  is  fourteen years of age or older, [such terms and condi-
    35  tions] an agreement for contact or communication between the  child  and
    36  his  or  her  siblings  or half-siblings shall not be enforceable unless
    37  such child, sibling or half-sibling consents to the agreement  in  writ-
    38  ing.
    39    (iv)  If  the court before which the surrender instrument is presented
    40  for execution or approval, determines  that  the  agreement  [concerning
    41  communication  and  contact] is in the child's best interests, the court
    42  shall approve the agreement and incorporate such approval into a written
    43  court order, a copy of which shall be given to the parties. If the court
    44  does not approve the agreement, the court may  nonetheless  approve  the
    45  surrender; provided, however, that the birth parent or parents executing
    46  the  surrender  instrument  shall  be informed that the agreement is not
    47  enforceable in a court of law and shall be given the opportunity at that
    48  time to withdraw such instrument. Enforcement of any agreement prior  to
    49  the adoption of the child shall be in accordance with subdivision (b) of
    50  section one thousand fifty-five-a of the family court act. Subsequent to
    51  the  adoption  of  the  child,  enforcement of any agreement shall be in
    52  accordance with section one hundred twelve-b of the  domestic  relations
    53  law.
    54    §  7.  Subdivision  3  of  section  384 of the social services law, as
    55  amended by chapter 479 of the laws of 1990,  the  opening  paragraph  as
    56  amended by chapter 185 of the laws of 2006, the fifth undesignated para-

        S. 4765--A                          5
     1  graph  as  added  by chapter 680 of the laws of 2007, the sixth undesig-
     2  nated paragraph and the closing paragraph as added by chapter 76 of  the
     3  laws  of  2002, and subparagraphs (i) and (ii) of the sixth undesignated
     4  paragraph  as  amended  by chapter 41 of the laws of 2010, is amended to
     5  read as follows:
     6    3. Instrument and intervention.   (a) The instrument  herein  provided
     7  shall  be executed and acknowledged [(a)] (i) before any judge or surro-
     8  gate in this state having jurisdiction over adoption proceedings, except
     9  that if the child is being surrendered as a result of, or in  connection
    10  with,  a  proceeding  before the family court pursuant to article ten or
    11  ten-A of the family court act, the  instrument  shall  be  executed  and
    12  acknowledged  in  the family court that exercised jurisdiction over such
    13  proceeding and shall be assigned, wherever practicable, to the judge who
    14  last presided over such proceeding; or [(b)] (ii) in the presence of one
    15  or more witnesses and acknowledged by such witness or witnesses, in  the
    16  latter  case  before a notary public or other officer authorized to take
    17  proof of deeds, and shall be recorded in the office of the county  clerk
    18  in  the county where such instrument is executed, or where the principal
    19  office of such authorized agency is located, in a book which such county
    20  clerk shall provide and shall keep under seal.
    21    (b) A surrender of a child, executed on or after  January  first,  two
    22  thousand  nineteen,  which  is  made  in  conjunction  with an agreement
    23  containing conditions, including, but not limited  to,  identifying  the
    24  prospective  adoptive  parent or parents or prescribing communication or
    25  contact with the child and the adoptive parent or parents and/or between
    26  the child and his or her biological siblings or half-siblings  following
    27  the  surrender  and  adoption  of  the  child shall be executed before a
    28  judge; provided, however, that such an  agreement  made  in  conjunction
    29  with  an  extra-judicial  surrender  executed  after  such  date  may be
    30  enforceable if the following conditions have been  met  in  addition  to
    31  those delineated in paragraph (b) of subdivision two of this section:
    32    (i)  the  party  or  parties  surrendering the child attest in a sworn
    33  affidavit that it would be an undue  hardship  to  appear  in  court  to
    34  execute the surrender; and
    35    (ii)  the  party or parties surrendering the child were represented by
    36  counsel and such counsel was present at the execution of  the  surrender
    37  and  informed  the surrendering party or parties of the requirements for
    38  enforceability of the agreement.
    39    (c) Such record shall be subject to inspection and examination only as
    40  provided in subdivisions three and four of section three hundred  seven-
    41  ty-two of this title.
    42    (d)  Notwithstanding any other provision of law, if the parent surren-
    43  dering the child for adoption is in foster care the instrument shall  be
    44  executed before a judge of the family court.
    45    (e) Whenever the term surrender or surrender instrument is used in any
    46  law  relating to the adoption of children who are not in foster care, it
    47  shall  mean  and  refer  exclusively  to  the  instrument  [hereinabove]
    48  described  in this subdivision for the commitment of the guardianship of
    49  the person and the custody of a child to an authorized agency by his  or
    50  her  parents,  parent  or guardian; and in no case shall it be deemed to
    51  apply to any instrument purporting to commit  the  guardianship  of  the
    52  person and the custody of a child to any person other than an authorized
    53  agency,  nor shall such term or the provisions of this section be deemed
    54  to apply to any instrument transferring the care and custody of a  child
    55  to  an authorized agency pursuant to section three hundred eighty-four-a
    56  of this [chapter] title.

        S. 4765--A                          6
     1    (f)(i) Any person or persons having custody of a child for the purpose
     2  of adoption through an authorized agency shall be permitted as a  matter
     3  of  right,  as  an  interested  party,  to  intervene  in any proceeding
     4  commenced to set aside a surrender purporting to commit  a  guardianship
     5  of  the  person  or  custody of a child executed under the provisions of
     6  this section. Such intervention may be made anonymously or in  the  true
     7  name of said person.
     8    (ii)  Any person or persons having custody for more than twelve months
     9  through an authorized agency for the purpose of  foster  care  shall  be
    10  permitted  as a matter of right, as an interested party, to intervene in
    11  any proceeding commenced to set aside a surrender purporting  to  commit
    12  the guardianship of the person and custody of a child executed under the
    13  provisions of this section. Such intervention may be made anonymously or
    14  in  the  true name of said person or persons having custody of the child
    15  for the purpose of foster care.
    16    (g) A copy of such surrender shall be given to [such] the surrendering
    17  parent upon the execution  thereof.  The  surrender  shall  include  the
    18  following  statement: "I, (name of surrendering parent), this ___ day of
    19  __________, _____, have received a copy of this surrender. (Signature of
    20  surrendering parent)". Such surrendering parent shall so acknowledge the
    21  delivery and the date of the delivery in writing on the surrender.
    22    (h) Where the parties have agreed that the surrender shall be  subject
    23  to  conditions  pursuant to subdivision two of this section, the instru-
    24  ment shall further state in plain language that:
    25    (i) the authorized agency shall notify the parent, unless such  notice
    26  is expressly waived by a statement written by the parent and appended to
    27  or included in such instrument, the attorney for the child and the court
    28  that  approved the surrender within twenty days of any substantial fail-
    29  ure of a material condition of the surrender prior to  the  finalization
    30  of the adoption of the child; and
    31    (ii)  except  for good cause shown, the authorized agency shall file a
    32  petition on notice to the parent unless notice is expressly waived by  a
    33  statement  written  by  the  parent  and appended to or included in such
    34  instrument and the child's attorney in accordance with section one thou-
    35  sand fifty-five-a of the family court act within  thirty  days  of  such
    36  failure, in order for the court to review such failure and, where neces-
    37  sary, to hold a hearing; provided, however, that, in the absence of such
    38  filing,  the  parent and/or attorney for the child may file such a peti-
    39  tion at any time up to sixty days after notification  of  such  failure.
    40  Such  petition filed by a parent or attorney for the child must be filed
    41  prior to the child's adoption; and
    42    (iii) the parent is obligated to provide the authorized agency with  a
    43  designated  mailing  address,  as well as any subsequent changes in such
    44  address, at which the parent may receive notices regarding any  substan-
    45  tial  failure  of  a  material  condition,  unless  such notification is
    46  expressly waived by a statement written by the parent and appended to or
    47  included in such instrument.
    48    Nothing in this paragraph shall limit the  notice  on  the  instrument
    49  with  respect  to  a  failure  to  comply with a material condition of a
    50  surrender subsequent to the finalization of the adoption of the child.
    51    § 8. Subdivision 4 of section 384  of  the  social  services  law,  as
    52  amended  by  chapter  185  of  the  laws  of 2006, is amended to read as
    53  follows:
    54    4. Upon petition by an authorized agency, a judge of the family court,
    55  or a surrogate, may approve such  surrender,  on  such  notice  to  such
    56  persons  as  the  surrogate  or  judge  may  in  his  or  her discretion

        S. 4765--A                          7
     1  prescribe. If the child is being surrendered  as  a  result  of,  or  in
     2  connection  with, a proceeding before the family court pursuant to arti-
     3  cle ten or ten-A of the family court act, the petition shall be filed in
     4  the  family  court  that exercised jurisdiction over such proceeding and
     5  shall be assigned, wherever practicable, to the judge who last  presided
     6  over  such  proceeding.  The petition shall set forth the names and last
     7  known addresses of all persons  required  to  be  given  notice  of  the
     8  proceeding,  pursuant  to  section  three  hundred eighty-four-c of this
     9  title, and there shall be shown by the petition or by affidavit or other
    10  proof satisfactory to the court that there are  no  persons  other  than
    11  those  set  forth in the petition who are entitled to notice pursuant to
    12  such section. At the time that a parent appears before a judge or surro-
    13  gate to execute and acknowledge a surrender or for the judge to  approve
    14  a  surrender,  the  judge  or  surrogate shall inform such parent of the
    15  right to be represented by legal counsel of the  parent's  own  choosing
    16  and  of  the  right  to obtain supportive counseling and of any right to
    17  have counsel assigned pursuant to section two hundred sixty-two  of  the
    18  family  court  act,  section four hundred seven of the surrogate's court
    19  procedure act, or section thirty-five of the judiciary  law.  No  person
    20  who  has  received  such  notice  and been afforded an opportunity to be
    21  heard may challenge the validity of a  surrender  approved  pursuant  to
    22  this  subdivision  in  any  other  proceeding. However, this subdivision
    23  shall not be deemed to require approval of a surrender by a surrogate or
    24  judge for such surrender to be valid, provided, however, that an  agree-
    25  ment  made  in  conjunction  with  a surrender that contains conditions,
    26  including, but not limited  to,  identifying  the  prospective  adoptive
    27  parent or parents or prescribing communication or contact with the child
    28  and  the  adoptive parent or parents and/or between the child and his or
    29  her biological siblings or half-siblings  following  the  surrender  and
    30  adoption of the child shall be enforceable in a court of law only if the
    31  requirements  of  subdivisions  two  and three of this section have been
    32  met.
    33    § 9. This act shall take effect on the first of January next  succeed-
    34  ing the date on which it shall have become a law.
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