Bill Text: NY S06389 | 2021-2022 | General Assembly | Introduced

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Bill Title: Relates to non-marital parents in adoption, surrender, and termination of parental rights proceedings in family and surrogate courts in order to ensure that unmarried fathers whose children have been removed by the state and placed into foster care do not lose their parental rights to those children without a full and fair opportunity to a hearing regarding their fitness to care for them.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Passed) 2022-12-30 - SIGNED CHAP.828 [S06389 Detail]

Download: New_York-2021-S06389-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          6389

                               2021-2022 Regular Sessions

                    IN SENATE

                                     April 26, 2021
                                       ___________

        Introduced  by Sen. BRISPORT -- read twice and ordered printed, and when
          printed to be committed to the Committee on Children and Families

        AN ACT to amend the domestic relations law and the social services  law,
          in  relation to the rights of non-marital parents in adoption, surren-
          der, and termination of parental rights proceedings  in  family  court
          and  surrogate's  court; and to repeal subdivision 12 of section 384-b
          of the social services law relating thereto

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Paragraphs  (d), (e), and (f) of subdivision 1 of section
     2  111 of the domestic relations law, paragraphs (d) and (e) as  added  and
     3  paragraph  (f)  as  relettered  by  chapter 575 of the laws of 1980, and
     4  paragraph (f) as amended by chapter 666 of the laws of 1976, are amended
     5  to read as follows:
     6    (d) Of any person or authorized agency having lawful custody or  guar-
     7  dianship of the adoptive child;
     8    (e)  In the case of the adoption of a child transferred to the custody
     9  and guardianship of an authorized agency,  foster  parent,  or  relative
    10  pursuant  to  section three hundred eighty-four-b of the social services
    11  law or a child transferred to the custody and guardianship of an author-
    12  ized agency pursuant to section  three  hundred  eighty-three-c  of  the
    13  social services law:
    14    (i)  Of  any person adjudicated by a court of this state or a court of
    15  any other state or territory of the United States to be  the  father  of
    16  the child prior to the filing of a petition to terminate parental rights
    17  to  the  child  pursuant  to  section three hundred eighty-four-b of the
    18  social services law, an application to execute a judicial  surrender  of
    19  rights  to  the  child  pursuant  to  subdivision three of section three
    20  hundred eighty-three-c of the social services law, or an application for
    21  approval of an extra-judicial surrender pursuant to subdivision four  of
    22  section three hundred eighty-three-c of the social services law;

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10876-01-1
        S. 6389                             2

     1    (ii) Of any person who filed a petition in a court in this state seek-
     2  ing  to  be adjudicated the father of the child prior to the filing of a
     3  petition to terminate parental rights to the child pursuant  to  section
     4  three  hundred  eighty-four-b of the social services law, an application
     5  to  execute  a  judicial  surrender  of  rights to the child pursuant to
     6  subdivision three of section three hundred eighty-three-c of the  social
     7  services  law,  or  an  application  for  approval  of an extra-judicial
     8  surrender pursuant to subdivision four of section three hundred  eighty-
     9  three-c of the social services law, provided that the parentage petition
    10  has  been  resolved  in the petitioner's favor or remains pending at the
    11  conclusion of the proceedings pursuant to section three hundred  eighty-
    12  four-b,  three  hundred  eighty-three-c, or three hundred eighty-four of
    13  the social services law;
    14    (iii) Of any person who has executed an  acknowledgment  of  parentage
    15  pursuant  to  section  one  hundred eleven-k of the social services law,
    16  section five hundred sixteen-a of  the  family  court  act,  or  section
    17  forty-one  hundred  thirty-five-b  of the public health law prior to the
    18  filing of a petition to terminate parental rights to the child  pursuant
    19  to  section  three  hundred eighty-four-b of the social services law, an
    20  application to execute a judicial  surrender  of  rights  to  the  child
    21  pursuant to subdivision three of section three hundred eighty-three-c of
    22  the  social services law, or an application for approval of an extra-ju-
    23  dicial surrender pursuant to subdivision four of section  three  hundred
    24  eighty-three-c  of  the social services law, provided that such acknowl-
    25  edgement has not been vacated;
    26    (iv) Of any person who filed an unrevoked notice of  intent  to  claim
    27  parentage  of  the child pursuant to section three hundred seventy-two-c
    28  of the social services law prior to the filing of a petition  to  termi-
    29  nate  parental  rights  to  the  child pursuant to section three hundred
    30  eighty-four-b of the social services law, an application  to  execute  a
    31  judicial  surrender of rights to the child pursuant to subdivision three
    32  of section three hundred eighty-three-c of the social services  law,  or
    33  an  application  for approval of an extra-judicial surrender pursuant to
    34  subdivision four of section three hundred eighty-three-c of  the  social
    35  services law;
    36    (f) In any other adoption proceeding:
    37    (i)  Of  the  father, whether adult or infant, of a child born out-of-
    38  wedlock and placed with the adoptive parents more than six months  after
    39  birth,  but  only  if  such father shall have maintained substantial and
    40  continuous or repeated contact with the child as manifested by:    [(i)]
    41  (A)  the payment by the father toward the support of the child of a fair
    42  and reasonable sum, according to the father's means, and  either  [(ii)]
    43  (B) the father's visiting the child at least monthly when physically and
    44  financially  able to do so and not prevented from doing so by the person
    45  or authorized agency having lawful custody of the child, or [(iii)]  (C)
    46  the  father's regular communication with the child or with the person or
    47  agency having the care or custody of  the  child,  when  physically  and
    48  financially  unable to visit the child or prevented from doing so by the
    49  person or authorized agency having lawful  custody  of  the  child.  The
    50  subjective  intent of the father, whether expressed or otherwise, unsup-
    51  ported by evidence of acts specified in this paragraph manifesting  such
    52  intent,  shall  not  preclude  a determination that the father failed to
    53  maintain substantial and continuous or repeated contact with the  child.
    54  In making such a determination, the court shall not require a showing of
    55  diligent  efforts  by  any  person  or agency to encourage the father to
    56  perform the acts specified in this paragraph. A father, whether adult or
        S. 6389                             3

     1  infant, of a child born out-of-wedlock, who openly lived with the  child
     2  for  a  period  of  six  months  within  the one year period immediately
     3  preceding the placement of the child for adoption and  who  during  such
     4  period  openly  held himself out to be the father of such child shall be
     5  deemed to have maintained substantial and continuous  contact  with  the
     6  child for the purpose of this subdivision[.];
     7    [(e)]  (ii)  Of  the  father, whether adult or infant, of a child born
     8  out-of-wedlock who is under the age of six months  at  the  time  he  is
     9  placed  for  adoption,  but  only if: [(i)] (A) such father openly lived
    10  with the child or the child's mother for  a  continuous  period  of  six
    11  months  immediately  preceding  the placement of the child for adoption;
    12  and [(ii)] (B) such father openly held himself out to be the  father  of
    13  such  child  during such period; and [(iii)] (C) such father paid a fair
    14  and reasonable sum, in accordance  with  his  means,  for  the  medical,
    15  hospital  and  nursing expenses incurred in connection with the mother's
    16  pregnancy or with the birth of the child.
    17    [(f) Of any person or authorized agency having lawful custody  of  the
    18  adoptive child.]
    19    §  2. Subdivision 1 of section 111-a of the domestic relations law, as
    20  amended by chapter 371 of the laws  of  2013,  is  amended  to  read  as
    21  follows:
    22    1.  Notwithstanding  any  inconsistent provisions of this or any other
    23  law, and in addition to the notice requirements of any law pertaining to
    24  persons other than those specified in subdivision two of  this  section,
    25  notice  as  provided  herein  shall be given to the persons specified in
    26  subdivision two of this section of  any  adoption  proceeding  initiated
    27  pursuant  to  this  article  or  of any proceeding initiated pursuant to
    28  section one hundred fifteen-b of this article relating to the revocation
    29  of an adoption consent, when such proceeding involves a child born  out-
    30  of-wedlock  provided, however, that such notice shall not be required to
    31  be given [to any person who previously has  been  given  notice  of  any
    32  proceeding involving the child, pursuant to section three hundred eight-
    33  y-four-c of the social services law, and provided further that notice in
    34  an  adoption  proceeding, pursuant to this section shall not be required
    35  to be given]: (a) in the case of the adoption of a child transferred  to
    36  the  custody and guardianship of an authorized agency, foster parent, or
    37  relative pursuant to section three hundred eighty-four-b of  the  social
    38  services  law  or a child transferred to the custody and guardianship of
    39  an authorized agency pursuant to section three hundred eighty-three-c of
    40  the social services law;  or  (b)  to  any  person  who  has  previously
    41  received  notice  of  any  proceeding  pursuant  to  section one hundred
    42  fifteen-b of this article. In addition to such other requirements as may
    43  be applicable to the petition in any proceeding in which notice must  be
    44  given  pursuant  to this section, the petition shall set forth the names
    45  and last known addresses of all persons required to be given  notice  of
    46  the  proceeding,  pursuant  to this section, and there shall be shown by
    47  the petition or by affidavit or other proof satisfactory  to  the  court
    48  that there are no persons other than those set forth in the petition who
    49  are  entitled to notice. For the purpose of determining persons entitled
    50  to notice of adoption proceedings initiated pursuant  to  this  article,
    51  persons  specified  in subdivision two of this section shall not include
    52  any person who has been convicted of one or more of the following sexual
    53  offenses in this state or convicted of one or more offenses  in  another
    54  jurisdiction  which, if committed in this state, would constitute one or
    55  more of the following offenses, when the child who is the subject of the
    56  proceeding was conceived as a  result:  (A)  rape  in  first  or  second
        S. 6389                             4

     1  degree;  (B)  course  of  sexual  conduct  against  a child in the first
     2  degree; (C) predatory sexual assault; or (D)  predatory  sexual  assault
     3  against a child.
     4    §  3.  Paragraph  (b)  of subdivision 3 of section 383-c of the social
     5  services law, as amended by section 42 of part A of  chapter  3  of  the
     6  laws of 2005, is amended to read as follows:
     7    (b)  Before  a  judge  or surrogate approves a judicial surrender, the
     8  judge or surrogate [shall]  may  order  that  notice  of  the  surrender
     9  proceeding be given to [persons identified in subdivision two of section
    10  three  hundred  eighty-four-c of this title and to] such [other] persons
    11  as the judge or surrogate may, in his or her discretion,  prescribe.  At
    12  the  time  that  a parent appears before a judge or surrogate to execute
    13  and acknowledge a surrender, the judge or surrogate  shall  inform  such
    14  parent  of  the right to be represented by legal counsel of the parent's
    15  own choosing and of the right to obtain supportive counseling and of any
    16  right to have counsel assigned pursuant to section two hundred sixty-two
    17  of the family court act, section four hundred seven of  the  surrogate's
    18  court  procedure  act,  or section thirty-five of the judiciary law. The
    19  judge or surrogate also shall inform the parent of the  consequences  of
    20  such  surrender,  including  informing  such  parent  that the parent is
    21  giving up all rights to have custody, visit with, speak with,  write  to
    22  or  learn  about  the  child, forever, unless the parties have agreed to
    23  different terms pursuant to subdivision two of this section, or, if  the
    24  parent registers with the adoption information register, as specified in
    25  section  forty-one hundred thirty-eight-d of the public health law, that
    26  the parent may be contacted at any time after the child reaches the  age
    27  of  eighteen  years,  but only if both the parent and the adult child so
    28  choose. The court shall  determine  whether  the  terms  and  conditions
    29  agreed to by the parties pursuant to subdivision two of this section are
    30  in  the child's best interests before approving the surrender. The judge
    31  or surrogate shall inform the parent that where a  surrender  containing
    32  conditions  has  been  executed,  the parent is obligated to provide the
    33  authorized agency with a designated mailing  address,  as  well  as  any
    34  subsequent  changes  in  such  address,  at which the parent may receive
    35  notices regarding any  substantial  failure  of  a  material  condition,
    36  unless  such  notification is expressly waived by a statement written by
    37  the parent and appended to or included in such instrument. The judge  or
    38  surrogate  also  shall inform the parent that the surrender shall become
    39  final and irrevocable immediately upon its execution and acknowledgment.
    40  The judge or surrogate shall give the parent a copy  of  such  surrender
    41  upon the execution thereof.
    42    §  4.  Paragraph  (d)  of subdivision 4 of section 383-c of the social
    43  services law, as amended by chapter 394 of the laws of 1993, is  amended
    44  to read as follows:
    45    (d)  Before a judge or surrogate approves an extra-judicial surrender,
    46  the judge or surrogate shall order notice to be given to the person  who
    47  executed  the  surrender[,  to  persons identified in subdivision two of
    48  section three hundred eighty-four-c of this title]  and  to  such  other
    49  persons  as  the  judge  or  surrogate  may,  in  his or her discretion,
    50  prescribe. [The petition shall  set  forth  the  names  and  last  known
    51  addresses  of all persons required to be given notice of the proceeding,
    52  pursuant to section three hundred  eighty-four-c,  and  there  shall  be
    53  shown by the petition or by affidavit or other proof satisfactory to the
    54  court  that there are no persons other than those set forth in the peti-
    55  tion who are entitled to notice pursuant to such section.] No person who
    56  has received such notice and been afforded an opportunity  to  be  heard
        S. 6389                             5

     1  may  challenge  the  validity  of  a surrender approved pursuant to this
     2  subdivision in any other proceeding. Nothing in this  section  shall  be
     3  deemed  to  dispense  with the consent to adopt if otherwise required of
     4  any person who has not executed the surrender.
     5    §  5.  Paragraph  (h)  of subdivision 5 of section 383-c of the social
     6  services law, as added by section 45 of part A of chapter 3 of the  laws
     7  of 2005 and as relettered by chapter 435 of the laws of 2008, is amended
     8  to read as follows:
     9    (h) Upon execution of a surrender instrument, the parent executing the
    10  surrender  shall  provide  information to the extent known regarding the
    11  other parent, any person  to  whom  the  surrendering  parent  had  been
    12  married  at  the  time  of  the conception or birth of the child and any
    13  other person who would be entitled to [notice of a proceeding to  termi-
    14  nate  parental rights pursuant to section three hundred eighty-four-c of
    15  this title] consent to the adoption of the child pursuant to subdivision
    16  one of section one hundred eleven of the domestic relations law.    Such
    17  information  shall  include,  but  not  be  limited to, such parent's or
    18  person's name, last-known address, social  security  number,  employer's
    19  address  and any other identifying information. Any information provided
    20  pursuant to this paragraph shall be recorded in the uniform case  record
    21  maintained  pursuant  to  section  four  hundred nine-f of this article;
    22  provided, however, that the failure to provide  such  information  shall
    23  not invalidate the surrender.
    24    § 6. Subdivision 8 of section 384 of the social services law, as added
    25  by  section 51 of part A of chapter 3 of the laws of 2005, is amended to
    26  read as follows:
    27    8. Upon execution of a surrender instrument, the parent executing  the
    28  surrender  shall  provide  information to the extent known regarding the
    29  other parent, any person  to  whom  the  surrendering  parent  had  been
    30  married  at  the  time  of  the conception or birth of the child and any
    31  other person [who would be entitled to notice of a proceeding to  termi-
    32  nate  parental  rights pursuant to] listed in subdivision two of section
    33  three hundred  eighty-four-c  of  this  title.  Such  information  shall
    34  include,  but  not  be limited to, such parent's or person's name, last-
    35  known address, social security number, employer's address and any  other
    36  identifying  information.  Any  information  provided  pursuant  to this
    37  subdivision shall be recorded in  the  uniform  case  record  maintained
    38  pursuant  to  section  four  hundred  nine-f  of this article; provided,
    39  however, that the failure to provide such information shall not  invali-
    40  date the surrender.
    41    §  7.  Subdivision 1-b of section 384-a of the social services law, as
    42  added by section 53 of part A of chapter 3  of  the  laws  of  2005,  is
    43  amended to read as follows:
    44    1-b.  Upon  accepting the transfer of care and custody of a child from
    45  the parent, guardian or other person to whom care of the child has  been
    46  entrusted,  a local social services official shall obtain information to
    47  the extent known from such person regarding the other parent, any person
    48  to whom the parent transferring care and custody had been married at the
    49  time of the conception or birth of the child, any person  who  would  be
    50  entitled to consent to the adoption of the child pursuant to subdivision
    51  one of section one hundred eleven of the domestic relations law, and any
    52  other  person [who would be entitled to notice of a proceeding to termi-
    53  nate parental rights pursuant to] listed in subdivision two  of  section
    54  three  hundred  eighty-four-c  of  this  title.  Such  information shall
    55  include, but not be limited to, such parent's or  person's  name,  last-
    56  known  address, social security number, employer's address and any other
        S. 6389                             6

     1  identifying information.  Any  information  provided  pursuant  to  this
     2  subdivision  shall  be  recorded  in  the uniform case record maintained
     3  pursuant to section four  hundred  nine-f  of  this  article;  provided,
     4  however,  that the failure to provide such information shall not invali-
     5  date the transfer of care and custody.
     6    § 8. Paragraph (e) of subdivision 3 of section  384-b  of  the  social
     7  services  law,  as  amended  by section 55 of part A of chapter 3 of the
     8  laws of 2005, is amended to read as follows:
     9    (e) A proceeding under this section is originated  by  a  petition  on
    10  notice  served  upon the child's parent or parents, the attorney for the
    11  child's parent or parents and upon such other persons as the  court  may
    12  in  its  discretion  prescribe. Such notice shall inform the parents and
    13  such other persons that the proceeding may result in  an  order  freeing
    14  the  child  for adoption without the consent of or notice to the parents
    15  or such other persons. Such notice also shall  inform  the  parents  and
    16  such  other persons of their right to the assistance of counsel, includ-
    17  ing any right they may have to have counsel assigned by the court in any
    18  case where they are financially unable to obtain counsel. [The  petition
    19  shall  set  forth  the  names  and  last  known addresses of all persons
    20  required to be given notice of the proceeding, pursuant to this  section
    21  and  section  three hundred eighty-four-c of this title, and there shall
    22  be shown by the petition or by affidavit or other proof satisfactory  to
    23  the  court  that  there are no persons other than those set forth in the
    24  petition who are entitled to notice pursuant to the provisions  of  this
    25  section  or  of section three hundred eighty-four-c of this title.] When
    26  the proceeding is initiated in family court service of the petition  and
    27  other process shall be made in accordance with the provisions of section
    28  six  hundred  seventeen of the family court act, and when the proceeding
    29  is initiated in surrogate's court, service shall be made  in  accordance
    30  with  the  provisions  of section three hundred seven of the surrogate's
    31  court procedure act. When the proceeding is initiated on the grounds  of
    32  abandonment  of  a  child  less  than one year of age at the time of the
    33  transfer of the care and  custody  of  such  child  to  a  local  social
    34  services  official,  the  court shall take judicial notice of efforts to
    35  locate the child's parents or other known  relatives  or  other  persons
    36  legally  responsible  pursuant  to  paragraph (ii) of subdivision (b) of
    37  section one thousand fifty-five of the family court act.
    38    § 9. Subdivision 12 of section 384-b of the  social  services  law  is
    39  REPEALED.
    40    §  10.  Subdivision  1 of section 384-c of the social services law, as
    41  amended by chapter 371 of the laws  of  2013,  is  amended  to  read  as
    42  follows:
    43    1.  Notwithstanding  any  inconsistent  provision of this or any other
    44  law, and in addition to the notice requirements of any law pertaining to
    45  persons other than those specified in subdivision two of  this  section,
    46  notice  as  provided  herein  shall be given to the persons specified in
    47  subdivision two of this section of any proceeding initiated pursuant  to
    48  sections  three hundred fifty-eight-a[,] and three hundred eighty-four[,
    49  and three hundred eighty-four-b] of this [chapter]  title,  involving  a
    50  child  born out-of-wedlock. Persons specified in subdivision two of this
    51  section shall not include any person who has been convicted  of  one  or
    52  more  of the following sexual offenses in this state or convicted of one
    53  or more offenses in another jurisdiction which,  if  committed  in  this
    54  state,  would constitute one or more of the following offenses, when the
    55  child who is the subject of the proceeding was conceived  as  a  result:
    56  [(A)]  (a)  rape  in  first or second degree; [(B)] (b) course of sexual
        S. 6389                             7

     1  conduct against a child in the first degree; [(C)] (c) predatory  sexual
     2  assault; or [(D)] (d) predatory sexual assault against a child.
     3    §  11.  Subdivision  3 of section 384-c of the social services law, as
     4  amended by chapter 575 of the laws  of  1980,  is  amended  to  read  as
     5  follows:
     6    3.  The provisions of this section shall not apply to persons entitled
     7  to notice pursuant  to  section  one  hundred  eleven  of  the  domestic
     8  relations law. The sole purpose of notice under this section shall be to
     9  enable  the person served pursuant to subdivision two of this section to
    10  present evidence to the court relevant to  the  best  interests  of  the
    11  child. [In any proceeding brought upon the ground specified in paragraph
    12  (d) of subdivision four of section three hundred eighty-four-b, a person
    13  served  pursuant to this section may appear and present evidence only in
    14  the dispositional hearing.]
    15    § 12. Subdivision 7 of section 384-c of the social  services  law,  as
    16  added by chapter 665 of the laws of 1976, is amended to read as follows:
    17    7.  No  order of the court in any proceeding pursuant to section three
    18  hundred fifty-eight-a[,] or three hundred eighty-four [or three  hundred
    19  eighty-four-b]  of  this [chapter] title or in any subsequent proceeding
    20  involving  the  child's  custody,  guardianship  or  adoption  shall  be
    21  vacated, annulled or reversed upon the application of any person who was
    22  properly  served  with notice in accordance with this section but failed
    23  to appear, or who waived notice pursuant to  subdivision  five  of  this
    24  section.    Nor shall any order of the court in any proceeding involving
    25  the child's custody, guardianship or adoption be  vacated,  annulled  or
    26  reversed upon the application of any person who was properly served with
    27  notice  in  accordance  with  this section in any previous proceeding in
    28  which the court determined  that  the  transfer  or  commitment  of  the
    29  child's care, custody or guardianship to an authorized agency was in the
    30  child's best interests.
    31    § 13. This act shall take effect immediately.