Senate Bill S8054

2009-2010 Legislative Session

Relates to conditional surrenders of parental rights in family court and surrogate's court

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Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 03, 2010	referred to children and families

2009-S8054 (ACTIVE) - Details

Current Committee:: Senate Children And Families
Law Section:: Domestic Relations Law
Laws Affected:: Amd §112-b, Dom Rel L; amd §262, Fam Ct Act; amd §§383-c & 384, Soc Serv L

2009-S8054 (ACTIVE) - Summary

Relates to conditional surrenders of parental rights in family court and surrogate's court.

2009-S8054 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S8054

TITLE OF BILL:
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 court and surrogate's court

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.

As noted by the Court of Appeals in Matter of Jacob, 86 NY2d 651
(1995), legislation enacted in 1990 authorizing surrenders of
parental rights to contain conditions including, among others,
designation of specific adoptive parents and delineation of
post-adoption contact, reflected the first recognition of open
adoptions under New York State Law. See L. 1990, c. 479. This
legislation, along with subsequent amendments, created a framework to
enable parents surrendering children to authorized child care
agencies for the purposes of adoption to be able to seek judicial
enforcement of agreed-upon conditions to the extent that those
conditions comported with the children's best interests.

Over the ensuing two decades, however, we have seen all too many cases
in which the goals behind this legislation have not been met, and in

which what
appeared to be plain terms of the statutes have not been followed. All
too frequently, birth parents have been induced to execute
surrenders, particularly extra-judicial surrenders, upon the
assumption that informal agreements or side letters of understanding
would be enforceable even though they were not presented to the
Family or Surrogate's Court for approval and were not incorporated
into any written court order. Although surrenders of children in
foster care must contain notices in "conspicuous bold print on the
first page" of the right to counsel, including the right to appointed
counsel if indigent, many birth parents executing surrenders are
unrepresented, particularly in the instances of surrenders pursuant
to Social Services Law §384 of children who are not in foster care,
as well as of extra-judicial surrenders of children both in and out
of foster care that are executed by birth mothers while in the
hospital immediately after giving birth. See Social Services Law
§§383-c(5(b).

For the foregoing reason, we submit this measure expressly to require
that all conditions accompanying surrenders, both of children in and
out of foster care, be approved by Family or Surrogate's Court as
being in the child's best interests and be incorporated into a court
order. Moreover, the measure prohibits extra-judicial surrenders
executed on or after the effective date of the statute (January 1,
2011) from containing any conditions. Only judicial surrenders

executed on or after that date, could contain enforceable conditions
and birth parents executing surrenders would have to be so advised.
Agreements for postadoption contact between the surrendered child and
birth siblings and halfsiblings, where either the child and/or
siblings or half-siblings are 14 years of age or older, would
likewise require their written consent to be enforceable. A copy of
the court order incorporating any post-adoption contact agreement or
other conditions must be given to all parties to the agreement. The
measure also would correct omissions in Family Court Act §262 and
Social Services Law §384 with respect to the right to counsel for
surrendering parents. Social Services Law §383-c would be added to
the categories of cases for which there is a
right to appointed counsel for indigent adults and the provision
regarding notice of the right to counsel contained in Social Services
Law §383-c would be added to Social Services Law §384(4).

The need for this measure is well illustrated by Matter of the
Adoption of Jack ex rel. David B., 18 Misc.3d 397 (Fam. Ct., Monroe
Co., 2007). In that case, Family Court deferred finalization of an
adoption pending execution of new
surrenders by the child's birth parents because the original
extra-judicial surrenders, executed by those birth parents, referred
to an agreement for postadoption contact, but neither the
extra-judicial surrenders, nor the agreement, was presented to the
Court for approval. The Court noted that the proposed adoptive
parents and birth parents intended the post-adoption contact
agreement "to be exempt from court review and not enforceable in
court," which it found "particularly troubling, because the birth
parents did not have counsel and because the terms of the agreement
are not included in the surrender." With no judicial review of the
agreement, no attorney for the affected child was appointed, no best
interests determination was made and no showing was offered as to the
extent of post-adoption contact expected to occur following execution
of the surrender but prior finalization of the adoption. The
existence of this unenforceable "side agreement" was deemed to
"cast[] a cloud over the surrenders themselves."
The Court stated:

Agreements made outside of the surrender instrument, especially
made by birth parents unrepresented by counsel, leave the court with
no way of knowing whether impermissible inducements contributed to
the signing of the instrument and leave the surrender open for
challenge in the future by the birth parents.

It was precisely the need to avoid unenforceable or impermissibly
induced side agreements in adoptions that led the legislature to
amend Social Services Law §384 to provide a procedure for enforceable
postadoption agreements that balance the rights of the parents and
proposed adoptive parents within the context of the child's best
interest (see L. 2005, Ch. 3, eff. August 23, 2005).... By defining
the right to enforce post-adoption contact agreements and providing
judicial oversight to assure that agreements promote the child's best

interest, the statutory framework has reduced or avoided possible
litigation.

It is this court's view that the parties are not permitted to agree to
terms that contradict the
statutory requirements or the purpose of the statute, which is to
clarify and protect the rights of birth parents, prospective adoptive
parents and promote the best interests of the child.

Declining to accept the surrenders, the Court held:

The existence of an unenforceable side agreement for post-adoption
contact made by unrepresented parents, which has not been provided to
the court or reviewed by any court, creates doubts as to whether the
surrenders were knowingly and voluntarily executed by the birth
parents. Moreover, the failure of the adoption agency to apply to
Erie County Surrogate's Court for approval of the surrender means
that there has been no best interest review of the surrender.

Regrettably, the foregoing is not an isolated case. Apparently, side
agreements never presented to any court for approval are common
statewide, clearly thwarting the legislative intent behind the
conditional surrender provisions of Social Services Law §§383-c and
384, as well as the requirements for postadoption contact agreements
in Domestic Relations Law § 112-b. Enactment of this measure would
ensure necessary judicial oversight, thereby protecting both the
fairness of the surrender process for all parties and the best
interests of the children involved.

This measure, which would have no fiscal impact upon the State, would
take effect on January 1, 2011.

2010 LEGISLATIVE HISTORY:
None. New proposal.

2009-S8054 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8054

                            I N  S E N A T E

                              June 3, 2010
                               ___________

Introduced  by  Sen.  MONTGOMERY  --  (at request of the Office of Court
  Administration) -- 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, the family court act and the
  social services law, in relation to conditional surrenders of parental
  rights in family court and surrogate's court

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivisions  1  and  2  of section 112-b of the domestic
relations law, subdivision 1 as added by section 63 of part A of chapter
3 of the laws of 2005 and subdivision 2 as amended by chapter 41 of  the
laws of 2010, are amended to read as follows:
  1.  Nothing in this section shall be construed to prohibit the parties
to a proceeding under this  chapter  from  entering  into  an  agreement
regarding communication with or contact between an adoptive child, adop-
tive parent or parents and a birth parent or parents and/or the adoptive
child's  biological  siblings  or half-siblings, PROVIDED, HOWEVER, THAT
SUCH AN AGREEMENT SHALL NOT BE LEGALLY ENFORCEABLE UNLESS THE  TERMS  OF
THE  AGREEMENT HAVE BEEN INCORPORATED INTO A WRITTEN ORDER THAT HAS BEEN
APPROVED AND ENTERED BY THE COURT IN ACCORDANCE WITH SUBDIVISION TWO  OF
THIS SECTION.
  2.  Agreements  regarding communication or contact between an adoptive
child, adoptive parent or parents, and a birth parent or parents  and/or
biological siblings or half-siblings of an adoptive child IN AN ADOPTION
FROM  AN  AUTHORIZED  AGENCY shall not be legally enforceable unless the
terms of the agreement are  incorporated  into  a  written  court  order
entered in accordance with the provisions of this section.  AN AGREEMENT
FOR  CONTACT  OR COMMUNICATION BETWEEN THE CHILD AND HIS OR HER SIBLINGS
OR HALF-SIBLINGS WHERE THE CHILD AND/OR SIBLINGS  OR  HALF-SIBLINGS  ARE
FOURTEEN  YEARS  OF  AGE  OR  OLDER SHALL NOT BE ENFORCEABLE UNLESS SUCH
CHILD, SIBLING OR HALF-SIBLING CONSENTS TO THE AGREEMENT IN WRITING. The
court shall not incorporate  an  agreement  regarding  communication  or
contact  into  an order unless the terms and conditions of the agreement
have been set forth in writing  and  consented  to  in  writing  by  the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD16660-02-0

S. 8054                             2

parties  to the agreement, including the attorney representing the adop-
tive child. The court shall not enter a proposed order unless the  court
IN  WHICH  THE SURRENDER WAS EXECUTED OR, WITH RESPECT TO EXTRA-JUDICIAL
SURRENDERS EXECUTED BEFORE JANUARY FIRST, TWO THOUSAND ELEVEN, THE COURT
that  approved  the  surrender of the child determined and stated in its
order that the communication with or contact between the adoptive child,
the prospective adoptive parent or parents and a birth parent or parents
and/or biological siblings or half-siblings, as agreed upon and  as  set
forth in the agreement, would be in the adoptive child's best interests.
Notwithstanding  any other provision of law, a copy of the order entered
pursuant to this section incorporating the post-adoption contact  agree-
ment  shall  be  given  to  all parties who have agreed to the terms and
conditions of such order.
  S 2. Paragraph (iv) of subdivision (a) of section 262  of  the  family
court  act, as amended by chapter 437 of the laws of 2006, is amended to
read as follows:
  (iv) the parent, foster parent, or other  person  having  physical  or
legal  custody of the child in any proceeding under article ten or ten-A
of this act or section three hundred fifty-eight-a, THREE HUNDRED EIGHT-
Y-THREE-C, three hundred eighty-four or three hundred  eighty-four-b  of
the  social  services  law,  and  a  non-custodial parent or grandparent
served with notice pursuant to  paragraph  (e)  of  subdivision  two  of
section three hundred eighty-four-a of the social services law;
  S  3.  Subdivision  2  of  section 383-c of the social services law is
amended by adding a new paragraph (c) to read as follows:
  (C) WHERE THE PARENT EXECUTING A JUDICIAL  SURRENDER  ENTERS  INTO  AN
AGREEMENT  CONTAINING CONDITIONS, INCLUDING, BUT NOT LIMITED TO, IDENTI-
FYING THE PROSPECTIVE ADOPTIVE PARENT OR PARENTS OR PRESCRIBING COMMUNI-
CATION OR CONTACT WITH THE CHILD AND  THE  ADOPTIVE  PARENT  OR  PARENTS
AND/OR  BETWEEN THE CHILD AND HIS OR HER BIOLOGICAL SIBLINGS OR HALF-SI-
BLINGS FOLLOWING THE SURRENDER AND ADOPTION OF THE CHILD, THE  AGREEMENT
SHALL NOT BE LEGALLY ENFORCEABLE UNLESS:
  (I)  FOR  SURRENDERS  EXECUTED ON OR AFTER JANUARY FIRST, TWO THOUSAND
ELEVEN, THE SURRENDER IS EXECUTED BEFORE A JUDGE;
  (II) THE TERMS OF THE AGREEMENT ARE APPROVED BY THE COURT AND INCORPO-
RATED INTO  A  WRITTEN  COURT  ORDER  ENTERED  IN  ACCORDANCE  WITH  THE
PROVISIONS OF THIS SUBDIVISION;
  (III) THE TERMS AND CONDITIONS OF THE AGREEMENT HAVE BEEN SET FORTH IN
WRITING  AND  CONSENTED  TO  IN WRITING BY THE PARTIES TO THE AGREEMENT,
INCLUDING THE ATTORNEY REPRESENTING THE CHILD;
  (IV) THE COURT DETERMINED AND STATED IN ITS ORDER THAT THE  TERMS  AND
CONDITIONS  AS AGREED UPON AND AS SET FORTH IN THE AGREEMENT WOULD BE IN
THE CHILD'S BEST INTERESTS;
  (V) IN THE CASE OF AN AGREEMENT FOR CONTACT OR  COMMUNICATION  BETWEEN
THE  CHILD  AND  HIS  OR  HER  SIBLINGS OR HALF-SIBLINGS WHERE THE CHILD
AND/OR SIBLINGS OR HALF-SIBLINGS ARE FOURTEEN YEARS OF AGE OR OLDER, THE
CHILD AND SIBLING OR HALF-SIBLING CONSENT TO THE AGREEMENT IN WRITING.
  THE WRITTEN ORDER APPROVING THE AGREEMENT SHALL BE ISSUED AT THE  TIME
THE PARENT EXECUTES A JUDICIAL SURRENDER OR, WITH RESPECT TO EXTRA-JUDI-
CIAL  SURRENDERS  EXECUTED BEFORE JANUARY FIRST, TWO THOUSAND ELEVEN, AT
THE TIME THE COURT APPROVES THE  SURRENDER.  NOTWITHSTANDING  ANY  OTHER
PROVISION  OF  LAW, A COPY OF THE ORDER ENTERED PURSUANT TO THIS SECTION
INCORPORATING THE POST-SURRENDER  AND  POST-ADOPTION  CONTACT  AGREEMENT
SHALL  BE  GIVEN  TO ALL PARTIES WHO HAVE AGREED TO THE TERMS AND CONDI-
TIONS OF SUCH ORDER.

S. 8054                             3

  S 4. Subparagraph (iii) of paragraph (b) of subdivision 4  of  section
383-c  of  the social services law, as amended by chapter 76 of the laws
of 2002, is amended and a new paragraph (g) is added to such subdivision
to read as follows:
  (iii)  that the surrender was read in full to the parent in his or her
principal language and the parent was given an opportunity to ask  ques-
tions  and  obtain  answers regarding the nature and consequences of the
surrender, including, WITH RESPECT TO SURRENDERS EXECUTED BEFORE JANUARY
FIRST, TWO THOUSAND ELEVEN, the consequences of, and  procedures  to  be
followed  in, cases of a substantial failure of a material condition, if
any, contained in the surrender instrument and the obligation to provide
the authorized agency with a designated mailing address, as well as  any
subsequent  changes  in  such  address,  at which the parent may receive
notices regarding any  substantial  failure  of  a  material  condition,
unless  such  notification is expressly waived by a statement written by
the parent and appended to or included in such instrument; and
  (G) AN EXTRA-JUDICIAL SURRENDER MAY NOT BE EXECUTED ON OR AFTER  JANU-
ARY  FIRST,  TWO  THOUSAND  ELEVEN  IN  ANY  CASE IN WHICH ANY AGREEMENT
CONTAINING CONDITIONS IS MADE WITH THE SURRENDERING PARENT  OR  PARENTS,
INCLUDING,  BUT NOT LIMITED TO, AN AGREEMENT IDENTIFYING THE PROSPECTIVE
ADOPTIVE PARENT OR PARENTS OR PRESCRIBING COMMUNICATION  OR  CONTACT  BY
THE  SURRENDERING  PARENT  OR  PARENTS  WITH  THE CHILD AND THE ADOPTIVE
PARENT OR PARENTS AND/OR BETWEEN THE CHILD AND  HIS  OR  HER  BIOLOGICAL
SIBLINGS  OR HALF-SIBLINGS FOLLOWING THE CHILD'S SURRENDER AND ADOPTION.
ANY SUCH AGREEMENT IS ONLY LEGALLY ENFORCEABLE IF APPROVED BY THE  COURT
AND  INCORPORATED INTO A WRITTEN COURT ORDER ENTERED IN CONJUNCTION WITH
THE EXECUTION OF A JUDICIAL  SURRENDER  PURSUANT  TO  PARAGRAPH  (C)  OF
SUBDIVISION TWO OF THIS SECTION.
  S  5. Subparagraphs (ii) and (iii) of paragraph (b), the opening para-
graph of paragraph (c) and the opening paragraph of  subparagraph  (iii)
of  paragraph  (d)  of  subdivision  5  of  section  383-c of the social
services law, subparagraph (ii) of paragraph (b) as amended  by  chapter
601 of the laws of 1994, subparagraph (iii) of paragraph (b) as added by
chapter  479 of the laws of 1990, the opening paragraph of paragraph (c)
as amended by section 43 of part A of chapter 3 of the laws of 2005  and
the  opening paragraph of subparagraph (iii) of paragraph (d) as amended
by chapter 76 of the laws of 2002, are amended to read as follows:
  (ii) that the parent is giving up all rights to  have  custody,  visit
with,  speak  with,  write to or learn about the child, forever, unless,
WITH RESPECT TO AN  EXTRA-JUDICIAL  SURRENDER  EXECUTED  BEFORE  JANUARY
FIRST,  TWO  THOUSAND  ELEVEN  OR A JUDICIAL SURRENDER, the parties have
agreed to different terms pursuant to subdivision two of this section[,]
and unless such terms are written in the surrender, or,  if  the  parent
registers  with  the  adoption  information  register,  as  specified in
section forty-one hundred thirty-eight-d of the public health law,  that
the  parent  may be contacted at anytime after the child reaches the age
of eighteen years, but only if both the parent and the  adult  child  so
choose;
  (iii)  that the child will be adopted without the parent's consent and
without further notice to the parent, and will be adopted by any  person
that  the  agency  chooses,  unless,  WITH  RESPECT TO AN EXTRA-JUDICIAL
SURRENDER EXECUTED BEFORE JANUARY FIRST, TWO THOUSAND ELEVEN OR A  JUDI-
CIAL  SURRENDER,  the surrender paper contains the name of the person or
persons who will be adopting the child; and
  A surrender instrument for a judicial surrender also  shall  state  in
plain  language  in conspicuous bold print at the beginning thereof that

S. 8054                             4

the surrender becomes final and irrevocable immediately  upon  execution
and acknowledgement, and that the parent cannot bring a case in court to
revoke  the  surrender  or to regain custody of the child.  [Where] WITH
RESPECT  TO  AN  EXTRA-JUDICIAL SURRENDER EXECUTED BEFORE JANUARY FIRST,
TWO THOUSAND ELEVEN OR A JUDICIAL  SURRENDER,  WHERE  the  parties  have
agreed  that  the  surrender  shall be subject to conditions pursuant to
subdivision two of this section, the instrument shall further  state  in
plain language that:
  that a revocation of the surrender more than forty-five days after its
signing  will  not be effective if the child has been placed in an adop-
tive home, and the surrender shall be  final  and  irrevocable  and  the
parent  cannot  revoke  the surrender or bring a case in court to revoke
the surrender or regain custody of the child, and that the  agency  will
not  notify the parent when the child is placed in an adoptive home, and
the parent may lose all rights at the end of the forty-five  day  period
without  further  notice.  [Where]  WITH RESPECT TO A SURRENDER EXECUTED
BEFORE JANUARY FIRST, TWO THOUSAND ELEVEN, WHERE the parties have agreed
that the surrender shall be subject to conditions pursuant  to  subdivi-
sion  two  of  this section, the instrument shall further state in plain
language that:
  S 6. Subdivision 7 of section 383-c of the  social  services  law,  as
added by chapter 479 of the laws of 1990, is amended to read as follows:
  7.  Surrenders by persons in foster care AND SURRENDERS EXECUTED ON OR
AFTER JANUARY FIRST, TWO THOUSAND ELEVEN IN WHICH AN AGREEMENT  CONTAIN-
ING  CONDITION  HAS  BEEN MADE.   Notwithstanding any other provision of
law, a surrender for adoption executed by a parent, parents or  guardian
who  is  in  foster  care  AND  A SURRENDER EXECUTED ON OR AFTER JANUARY
FIRST, TWO THOUSAND ELEVEN CONTAINING CONDITIONS shall be executed  only
before a judge of the family court.
  S  7.  Paragraph  (b)  of  subdivision  2 of section 384 of the social
services law, as amended by chapter 41 of the laws of 2010,  is  amended
to read as follows:
  (b)  If  a  surrender  instrument  designates  a  particular person or
persons who will adopt a child, such  person  or  persons,  the  child's
birth  parent  or parents, the authorized agency having care and custody
of the child and the child's attorney, may enter into a  written  agree-
ment  providing  for  communication or contact between the child and the
child's parent or parents on such terms and conditions as may be  agreed
to by the parties.
  If  a  surrender  instrument does not designate a particular person or
persons who will adopt the child,  then  the  child's  birth  parent  or
parents,  the authorized agency having care and custody of the child and
the child's attorney may enter into a written  agreement  providing  for
communication  or contact, on such terms and conditions as may be agreed
to by the parties. Such agreement also may provide terms and  conditions
for  communication  with  or  contact  between the child and the child's
biological sibling or half-sibling, if any. If THE  CHILD  OR  any  such
sibling  or  half-sibling is fourteen years of age or older, [such terms
and conditions] AN AGREEMENT FOR CONTACT OR  COMMUNICATION  BETWEEN  THE
CHILD  AND HIS OR HER SIBLINGS OR HALF-SIBLINGS shall not be enforceable
unless such CHILD, sibling or half-sibling consents to the agreement  in
writing.  ANY PROVISION IN A SURRENDER INSTRUMENT IDENTIFYING A PROSPEC-
TIVE  ADOPTIVE  PARENT  OR  PARENTS  OR ANY AGREEMENT UNDER THIS SECTION
CONTAINING ANY CONDITIONS, INCLUDING, BUT NOT  LIMITED  TO,  IDENTIFYING
THE  PROSPECTIVE ADOPTIVE PARENT OR PARENTS OR PRESCRIBING COMMUNICATION
OR CONTACT SHALL NOT BE LEGALLY ENFORCEABLE UNLESS THE TERMS AND  CONDI-

S. 8054                             5

TIONS  ARE  APPROVED  BY THE COURT AND INCORPORATED INTO A WRITTEN COURT
ORDER ENTERED IN ACCORDANCE WITH THE PROVISIONS OF THIS  PARAGRAPH  AND,
WITH RESPECT TO SURRENDERS EXECUTED ON OR AFTER JANUARY FIRST, TWO THOU-
SAND  ELEVEN, UNLESS THE SURRENDER IS EXECUTED BEFORE A JUDGE. THE COURT
SHALL NOT INCORPORATE AN AGREEMENT UNDER  THIS  SECTION  INTO  AN  ORDER
UNLESS  THE TERMS AND CONDITIONS OF THE AGREEMENT HAVE BEEN SET FORTH IN
WRITING AND CONSENTED TO IN WRITING BY THE  PARTIES  TO  THE  AGREEMENT,
INCLUDING THE ATTORNEY REPRESENTING THE CHILD. If the court before which
the surrender instrument is presented for EXECUTION OR, IF, WITH RESPECT
TO  AN EXTRA-JUDICIAL SURRENDER EXECUTED BEFORE JANUARY FIRST, TWO THOU-
SAND ELEVEN, approval determines that the agreement [concerning communi-
cation and contact] is in the child's best interests, the court shall SO
STATE IN ITS ORDER AND SHALL approve the agreement.  NOTWITHSTANDING ANY
OTHER PROVISION OF LAW, A COPY OF THE ORDER  ENTERED  PURSUANT  TO  THIS
SECTION  INCORPORATING  THE  AGREEMENT SHALL BE GIVEN TO ALL PARTIES WHO
HAVE AGREED TO THE TERMS AND CONDITIONS OF SUCH ORDER. If the court does
not approve the agreement, the court may nonetheless approve the surren-
der; provided, however, that the birth parent or parents  executing  the
surrender  instrument  shall  be  given  the opportunity at that time to
withdraw such instrument. Enforcement of  any  agreement  prior  to  the
adoption  of  the  child  shall be in accordance with subdivision (b) of
section one thousand fifty-five-a of the family court act. Subsequent to
the adoption of the child, enforcement of  any  agreement  shall  be  in
accordance  with  section one hundred twelve-b of the domestic relations
law.
  S 8. Subdivision 3 of section 384  of  the  social  services  law,  as
amended  by  chapter  479  of the laws of 1990, the opening paragraph as
amended by chapter 185 of the laws of 2006, the sixth undesignated para-
graph and the closing paragraph as added by chapter 76 of  the  laws  of
2002,  subparagraphs (i) and (ii) of the sixth undesignated paragraph as
amended by chapter 41 of the laws of 2010  and  the  fifth  undesignated
paragraph  as  added  by  chapter 680 of the laws of 2007, is amended to
read as follows:
  3. Instrument AND INTERVENTION.   (A) The instrument  herein  provided
shall  be executed and acknowledged [(a)] (I) before any judge or surro-
gate in this state having jurisdiction over adoption proceedings, except
that if the child is being surrendered as a result of, or in  connection
with,  a  proceeding  before the family court pursuant to article ten or
ten-A of the family court act, the  instrument  shall  be  executed  and
acknowledged  in  the family court that exercised jurisdiction over such
proceeding and shall be assigned, wherever practicable, to the judge who
last presided over such proceeding; or [(b)] (II) in the presence of one
or more witnesses and acknowledged by such witness or witnesses, in  the
latter  case  before a notary public or other officer authorized to take
proof of deeds, and shall be recorded in the office of the county  clerk
in  the county where such instrument is executed, or where the principal
office of such authorized agency is located, in a book which such county
clerk shall provide and shall keep under seal.
  (B) Such record shall be subject to inspection and examination only as
provided in subdivisions three and four of section three hundred  seven-
ty-two of this title.
  (C)  Notwithstanding any other provision of law, if the parent surren-
dering the child for adoption is in foster care OR IF THE  SURRENDER  IS
EXECUTED  ON  OR  AFTER  JANUARY FIRST, TWO THOUSAND ELEVEN AND CONTAINS
CONDITIONS, the instrument shall be executed before a judge of the fami-
ly court.

S. 8054                             6

  (D) Whenever the term surrender or surrender instrument is used in any
law relating to the adoption of children who are not in foster care,  it
shall  mean  and  refer  exclusively  to  the  instrument  [hereinabove]
described IN THIS SUBDIVISION for the commitment of the guardianship  of
the  person and the custody of a child to an authorized agency by his OR
HER parents, parent or guardian; and in no case shall it  be  deemed  to
apply  to  any  instrument  purporting to commit the guardianship of the
person and the custody of a child to any person other than an authorized
agency, nor shall such term or the provisions of this section be  deemed
to  apply to any instrument transferring the care and custody of a child
to an authorized agency pursuant to section three hundred  eighty-four-a
of this [chapter] TITLE.
  (E)  (I)  Any  person  or  persons  having  custody of a child for the
purpose of adoption through an authorized agency shall be permitted as a
matter of right, as an interested party, to intervene in any  proceeding
commenced  to  set aside a surrender purporting to commit a guardianship
of the person or custody of a child executed  under  the  provisions  of
this  section.  Such intervention may be made anonymously or in the true
name of said person.
  (II) Any person or persons having custody for more than twelve  months
through  an  authorized  agency  for the purpose of foster care shall be
permitted as a matter of right, as an interested party, to intervene  in
any  proceeding  commenced to set aside a surrender purporting to commit
the guardianship of the person and custody of a child executed under the
provisions of this section. Such intervention may be made anonymously or
in the true name of said person or persons having custody of  the  child
for the purpose of foster care.
  (F) A copy of such surrender shall be given to [such] THE surrendering
parent  upon  the  execution  thereof.  The  surrender shall include the
following statement: "I, (name of surrendering parent), this ___ day  of
__________, _____, have received a copy of this surrender. (Signature of
surrendering parent)". Such surrendering parent shall so acknowledge the
delivery and the date of the delivery in writing on the surrender.
  [Where]  (G)  WITH  RESPECT  TO  AN  EXTRA-JUDICIAL SURRENDER EXECUTED
BEFORE JANUARY FIRST, TWO THOUSAND ELEVEN OR A JUDICIAL SURRENDER, WHERE
the parties have agreed that the surrender shall be  subject  to  condi-
tions  pursuant to subdivision two of this section, the instrument shall
further state in plain language that:
  (i) the authorized agency shall notify the parent, unless such  notice
is expressly waived by a statement written by the parent and appended to
or included in such instrument, the attorney for the child and the court
that  approved the surrender within twenty days of any substantial fail-
ure of a material condition of the surrender prior to  the  finalization
of the adoption of the child; and
  (ii)  except  for good cause shown, the authorized agency shall file a
petition on notice to the parent unless notice is expressly waived by  a
statement  written  by  the  parent  and appended to or included in such
instrument and the child's attorney in accordance with section one thou-
sand fifty-five-a of the family court act within  thirty  days  of  such
failure, in order for the court to review such failure and, where neces-
sary, to hold a hearing; provided, however, that, in the absence of such
filing,  the  parent and/or attorney for the child may file such a peti-
tion at any time up to sixty days after notification  of  such  failure.
Such  petition filed by a parent or attorney for the child must be filed
prior to the child's adoption; and

S. 8054                             7

  (iii) the parent is obligated to provide the authorized agency with  a
designated  mailing  address,  as well as any subsequent changes in such
address, at which the parent may receive notices regarding any  substan-
tial  failure  of  a  material  condition,  unless  such notification is
expressly waived by a statement written by the parent and appended to or
included in such instrument.
  Nothing  in  this  paragraph  shall limit the notice on the instrument
with respect to a failure to comply  with  a  material  condition  of  a
surrender subsequent to the finalization of the adoption of the child.
  S  9.  Subdivision  4  of  section  384 of the social services law, as
amended by chapter 185 of the laws  of  2006,  is  amended  to  read  as
follows:
  4. Upon petition by an authorized agency, a judge of the family court,
or  a  surrogate,  may  approve  such  surrender, on such notice to such
persons as  the  surrogate  or  judge  may  in  his  or  her  discretion
prescribe.  If  the  child  is  being  surrendered as a result of, or in
connection with, a proceeding before the family court pursuant to  arti-
cle ten or ten-A of the family court act, the petition shall be filed in
the  family  court  that exercised jurisdiction over such proceeding and
shall be assigned, wherever practicable, to the judge who last  presided
over  such  proceeding.  The petition shall set forth the names and last
known addresses of all persons  required  to  be  given  notice  of  the
proceeding,  pursuant  to  section  three  hundred eighty-four-c of this
title, and there shall be shown by the petition or by affidavit or other
proof satisfactory to the court that there are  no  persons  other  than
those  set  forth in the petition who are entitled to notice pursuant to
such section. AT THE TIME THAT A PARENT APPEARS BEFORE A JUDGE OR SURRO-
GATE TO EXECUTE AND ACKNOWLEDGE A SURRENDER OR FOR THE JUDGE TO  APPROVE
THE  SURRENDER,  THE  JUDGE OR SURROGATE SHALL INFORM SUCH PARENT OF THE
RIGHT TO BE REPRESENTED BY LEGAL COUNSEL OF THE  PARENT'S  OWN  CHOOSING
AND  OF  THE  RIGHT  TO OBTAIN SUPPORTIVE COUNSELING AND OF ANY RIGHT TO
HAVE COUNSEL ASSIGNED PURSUANT TO SECTION TWO HUNDRED SIXTY-TWO  OF  THE
FAMILY  COURT  ACT,  SECTION FOUR HUNDRED SEVEN OF THE SURROGATE'S COURT
PROCEDURE ACT, OR SECTION THIRTY-FIVE OF THE JUDICIARY  LAW.  No  person
who  has  received  such  notice  and been afforded an opportunity to be
heard may challenge the validity of a  surrender  approved  pursuant  to
this  subdivision  in  any  other  proceeding. However, this subdivision
shall not be deemed to require approval of a surrender by a surrogate or
judge for such surrender to be valid.
  S 10. This act shall take effect January 1, 2011.

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Senate Bill S8054

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Archive: Last Bill Status - In Senate Committee Children And Families Committee

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Sponsored By

Velmanette Montgomery

Archive: Last Bill Status - In Senate Committee Children And Families Committee

Actions

2009-S8054 (ACTIVE) - Details

2009-S8054 (ACTIVE) - Summary

2009-S8054 (ACTIVE) - Sponsor Memo

2009-S8054 (ACTIVE) - Bill Text download pdf

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