Bill Text: NY S06389 | 2021-2022 | General Assembly | Introduced
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
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. LBD10876-01-1S. 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 orS. 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 the18adoptive 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 any32proceeding involving the child, pursuant to section three hundred eight-33y-four-c of the social services law, and provided further that notice in34an adoption proceeding, pursuant to this section shall not be required35to 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 secondS. 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 section10three 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 of48section 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 known51addresses of all persons required to be given notice of the proceeding,52pursuant to section three hundred eighty-four-c, and there shall be53shown by the petition or by affidavit or other proof satisfactory to the54court that there are no persons other than those set forth in the peti-55tion who are entitled to notice pursuant to such section.] No person who 56 has received such notice and been afforded an opportunity to be heardS. 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-14nate parental rights pursuant to section three hundred eighty-four-c of15this 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-32nate 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-53nate 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 otherS. 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 petition19shall set forth the names and last known addresses of all persons20required to be given notice of the proceeding, pursuant to this section21and section three hundred eighty-four-c of this title, and there shall22be shown by the petition or by affidavit or other proof satisfactory to23the court that there are no persons other than those set forth in the24petition who are entitled to notice pursuant to the provisions of this25section 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[,49and 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 sexualS. 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 paragraph12(d) of subdivision four of section three hundred eighty-four-b, a person13served pursuant to this section may appear and present evidence only in14the 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 hundred19eighty-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.