BILL NUMBER:A8524                REVISED 6/10/09

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 51089.  Not infrequent-
ly,  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 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.  The
agency to which guardianship and custody had been committed must consent
unless  the  court finds that the consent had been withheld without good
cause. 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, i.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} Judg-
es 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  I  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 them.

M. Freundlich, Time  Running  Out:  Teens  in  Foster  Care  (Children's
Rights,  Legal  Aid Society Juvenile Rights Division & Lawyers for Chil-
dren, 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 T. Of Child and Family Advo-
cacy 329 (Spring, 2004).

Although several Family Court judges in  New  York  have.vacated  termi-
nation of parental rights orders upon consent, no clear procedural vehi-

cle  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.  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 N.Y.2d 89(1982):

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.    More-
over,  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 appel-
late 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 recommenda-
tions.{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 clays after it becomes a Saw.

2008 Legislative History: S4543-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 Welfare 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.nyc.gov/html/ocs/pdf/asfa  5.pdf).  See also, A. Lowe, "Families for
Teens Overview," Eighth Annual Children's Law Institute 197, 199  (Prac-
ticing 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.b.3d 346 (1" Dept., 2005).

{5} "Child  Welfare  Watch  Recommendations  and  Solutions,"  15  Child
Welfare Watch 3,4 (Winter, 2008).