senate Bill S3868A
(D) 25th Senate District
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed/Vetoed by Governor
Provides a process for a petition to restore previously terminated parental rights under certain circumstances.
TITLE OF BILL :
An act to amend the family court act and the social services law, in
relation to restoration of parental rights
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.
This measure would amend provisions of the Family Court Act and the
Social Services Law to authorize Family Court, in narrowly-defined
circumstances, to restore a birth parent's parental rights after they
have been terminated.
New York State has progressed far from the days when adolescents were
not deemed candidates for either meaningful permanency planning,
foster care or adoption, and when many were simply relegated to
congregate care settings and, when they reached 18, released to
"independent living," an unrealistic status that for too many meant
homelessness. The State's 2005 permanency legislation recognized that
teens in out-of-home care require services to start preparing them for
independence in adulthood starting at age 14, but, at the same time,
that if they are neither living with their own families, nor adopted,
they need to have a "significant connection to an adult willing to be
a permanency resource..." See L. 2005, c. 3; Family Court Act §1089.
Not infrequently, the "significant connection" that would fulfill a
child's best interests turns out to be his or her birth parent, even
if the latter's parental rights had already been terminated. At
present, however, State law does not provide any procedural vehicle to
recognize this fact. This measure would fill that gap.
This measure is similar to legislation enacted in California in 2005
(Chapter 634; Assembly Bill 519 (1) and Washington in 2007 Laws of
2007, ch. 413 to restore birth parents' parental rights. Under this
measure, with the consent of the petitioner and respondent in the
original termination of parental rights proceeding, as well as that of
the child, a petition to restore parental rights could be filed
provided: (i) at least two years had elapsed since issuance of the
order transferring guardianship and custody of the child; (ii) the
original adjudication terminating parental rights could not have been
based upon severe or repeated child abuse; and (iii) the child would
have to be under the jurisdiction of the Family Court and have a
permanency goal other than adoption. Family Court would be authorized
to grant the petition where clear and convincing proof establishes
that restoration of parental rights would be in the, child's best
interests. This restoration would, in effect, revoke the disposition
transferring, guardianship and custody of the child but would leave in
place the fact-finding upon which the termination of parental rights
adjudication had been based. A clause also would be added to the
permanency hearing order provision permitting the Court to recommend
the filing of a petition to restore parental rights.
Significantly, this measure would add an important option available
under the Washington State statute, ,:e., that the Court would have
the authority to grant the restoration petition conditionally. This
option would retain guardianship and custody of the child with the
agency but authorize the child to reside with the birth parent on a
trial discharge for a period of up to six months, during which time
the agency may be directed to supervise the family and to develop a
reunification plan with appropriate transitional services. If
temporary restoration proves successful and in the child's best
interests, it could be made final at the end of the designated period
and guardianship and custody would be transferred at that time to the
birth parent. If, however, the child were removed from the birth
parent during the designated period by reason of abuse or neglect, the
Court could dismiss the restoration petition and direct the agency
that retains guardianship and custody to make efforts to further an
alternative permanency plan for the child.
Even without a statute, child welfare professionals in New York have
reported cases in which facts mirroring the criteria contained in this
measure have spurred efforts by parties and adolescents to get Family
Court to vacate orders terminating parental rights.
See D. Riggs, "Permanence Can Mean Going Home," Adoptalk(North
American Council on Adoptable Children; Spring, 2006). In fact,
guidelines for adolescent cases issued by the New York City
Administration for Children's Services in 2003 recognize that "the
best permanency resource for a young person who has been freed for
adoption may be a member of the child's birth family, including a
parent from whom the child has been freed."(2) Judges report that,
notwithstanding termination of parental rights, teens aging out of
foster care often return to their birth families, and, as one child
welfare professional was quoted as saying:
The way families are drawn together against all odds whatever the
circumstances r think is exemplified by just how many kids do we see
aging out of the foster care system and where do they go? They go
home....even kids whose parents' rights have been terminated...
The bonds that hold families together are powerful and often the
system works to strain or shatter or destroy them rather than build on
M. Freundlich, Time Running Out: Teens in Foster Care (Children's
Rights, Legal Aid Society Juvenile Rights Division & Lawyers for
Children, Nov., 2003), p. 67.
As one commentator noted, 'It is never too late for reunification." J.
Jensen, "Fostering Interdependence: A Family-Centered Approach to Help
Youth Aging Out of Foster Care," 3 Whittier J Of Child and Family
Advocacy 329 (Spring, 2004).
Although several Family Court judges in New York have vacated
termination of parental rights orders upon consent, no clear
procedural vehicle authorizes them to do so. In Matter of Rasheed A.,
NY Law Journal, Aug. 3,2007 (Fam. Ct., Kings Co., 2007) , a Family
Court referee awarded guardianship of a severely hyperactive 12-year
old child to a birth mother, whose rights had been terminated, on the
basis of "unusual and compelling circumstances." The mother
demonstrated that the problems precipitating termination of her
parental rights had been resolved and she proved by "substantial
evidence" that the child would suffer serious harm were the mother not
awarded custody or guardianship.(3) Further, in Matter of Theresa 0 v.
Arthur P, 11 Misc.3d 736 (Fam. Ct., Ulster Co., 2006), Family Court
gave standing to a birth mother to seek custody and eventual adoption
of her child, notwithstanding an earlier surrender. The Court rejected
the argument that the doctrine of res judicata precluded re-litigation
of the child's custody, quoting Friederwitzer v. Friederwitzer, 55
The only absolute in the law governing custody of children is that
there are no absolutes.
In Matter of Tiffany A. v. Margaret H., 171 Misc.2d 786(Fam. Ct.,
Kings Co., 1996), however, Family Court denied standing to a birth
parent, whose rights had been terminated, to seek custody of her
child. Moreover, in Matter of Frederick 5.,178 Misc.2d 152 (Fam. Ct.,
Kings Co., 1998), Family Court noted that neither the Family Court
Act, nor the Social Services Law, contain a provision permitting a
Court to set aside or vacate an order terminating parental rights and
that the authority contained in CPLR 5015 must be utilized "sparingly"
and only in the most ·compelling" circumstances. A 14-year-old child's
change of heart regarding adoption by his aunt did not, in the Court's
view, constitute such circumstances, although the child's consent
would be needed for an adoption to be approved. At the same time,
there is considerable appellate authority in New York for ordering new
dispositional hearings in termination of parental rights cases when it
becomes clear that the child is older and does not want to be adopted,
as well as a few cases in which the birth parent had made progress and
the child pressed for reunification.(4)
Recognizing that no legal pathway exists to restore the family ties of
the State's "legal orphans" - youth whose parental ties were
terminated but with no prospect of adoption - a recent report of the
Center for an Urban Future included support for this measure as one of
its recommendations.(5) Clearly, the statutory vacuum must be filled
so that courts have clear authority to fulfill their statutory duty to
find permanent homes for children, including authority in prescribed
circumstances to restore parental rights.
This measure, which would have no fiscal impact upon the State, would
take effect 90 days after it becomes a law.
2008 LEGISLATIVE HISTORY :
S 4543-a (Soc Serv, Ch+ Fams)/A.10810 (Codes).
(1) Since the California statute became effective in January, 2006, 14
parents have had parental rights restored, according to the Children's
Law Center of Los Angeles. See K. Hurley, "When You Can't Go Home:
Should Teens Have Means to Regain Legal Ties to their Parents?," 15
Child We/fare Watch 18, 20 (Winter, 2008).
(2) N.Y.C. Admin. for Children's Services, "Implementation of the
Adoption and Safe Families Act, Part V: Family-based Concurrent
Planning for Youth with Goals of Independent Living" (2003)(on-line at
www.nvc.gov/html/acs/pdf/asfa 5.pdf). See also, A. Lowe, "Families for
Teens Overview,'; Eighth Annual Children's Law Institute 197,199
(Practicing Law Institute, 2005).
(3) See also K. Hurley, supra, at 20-21.
(4) See, e.g., Matter of Anna Maria C., 29 A.D. 3d 992 (2d Dept.,
2006): Matter of Eugene L., 22 A.D. 3d 348 (1st Dept., 2005).
(5) "Child Welfare Watch Recommendations and Solutions," 15 Child
Welfare Watch 3,4 (Winter, 2008).
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