Senate Bill S7585

2011-2012 Legislative Session

Relates to agreements between parents executing a judicial surrender prescribing contact between the child and his or her biological siblings

download bill text pdf

Archive: Last Bill Status - In Senate Committee Rules 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

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 05, 2012	referred to rules

2011-S7585 (ACTIVE) - Details

Current Committee:: Senate Rules
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

2011-S7585 (ACTIVE) - Summary

Relates to agreements between parents executing a judicial surrender prescribing contact between the child and his or her biological siblings.

2011-S7585 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S7585

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 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 N.Y.2d 651
(1995), the 1990 legislation authorizing surrenders of parental
rights to contain conditions, e.g., designation of specific adoptive
parents and delineation of post-adoption contact, reflected the first
recognition of "open adoptions" under State law. See L. 1990, c. 479.
This legislation and its subsequent amendments created a framework to
enable parents surrendering children to authorized child care
agencies for purposes of adoption to seek judicial enforcement of
agreed-upon conditions to the extent that the conditions comport with
the children's best interests. With detailed provisions for birth
parents to receive notice of the consequences of their surrenders,
sections 383-c and 384 of the Social Services Law were designed to
ensure that birth parents would be fully aware of the ramifications
of their surrenders and the remedies for enforcement of the conditions.

Coupled with provisions of Domestic Relations Law § 112-b, which
requires that agreements for post-adoption contact be approved by the
court as being in the children's best interests in order to be
enforceable, the statutes were designed to provide judicial oversight
that would fulfill those best interests through procedures that are
fair to birth parents, adoptive parents, authorized agencies and,
most important, the children.

Unfortunately, two decades of experience have revealed all too many
cases in which these legislative goals 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 an
assumption that informal agreements or side letters of understanding
would be enforceable even if not presented to Family or Surrogate's
Court for approval and if 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, many birth parents executing surrenders are unrepresented.

In light of these deviations from the clear intent and letter of the
statute, we are submitting this measure explicitly 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

before being enforceable. To underscore the need for judicial
oversight, this measure prohibits extrajudicial surrenders executed
on or after its effective date (January 1, 2013) from containing any
conditions. Only in judicial surrenders executed on or after that
date could there be enforceable conditions and birth parents
executing surrenders would have to be so advised. Agreements for
post-adoption contact between a surrendered child and birth siblings
and half-siblings, where either the child and/or siblings or
half-siblings are 14 years of age or older, would likewise require
their written consent in order 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 the 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 as well as notice of the right to
supportive counseling contained in Social Services Law §383-c, would
be added to Social Services Law §384(4).

Need for enactment of this measure is illustrated in 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 a child's birth
parents because the original extra-judicial surrenders, executed by
birth parents, referred to an agreement for post-adoption contact,
but neither the extra-judicial surrenders, nor the agreement, had
been 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 child had been appointed,
no best interests determination had been made and no clarity was
offered as to the extent of post-adoption contact contemplated to
occur following execution of the surrender but prior to the adoption
finalization. The existence of this unenforceable "side agreement"
was deemed to "cast a cloud over the surrenders themselves." The
Court wrote:

o 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.

o 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
post adoption agreements that balance the rights of the parents and

proposed adoptive parents within the context of the child's best
interest (see L. 2005, c. 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.

o 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.

Matter of the Adoption of Jack ex rel. David B., regrettably, is not
an isolated case.
Apparently, side agreements never presented to any court for approval
have become common practice statewide and clearly thwart the clear
intent of the Legislature in
enacting the conditional surrender provisions of Social Services Law
§§383-c and 384, as well as the requirements for post-adoption
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 would take effect on the first of January after it shall
have become a law.

2012 Legislative History:
None. New proposal.

2011-S7585 (ACTIVE) - Bill Text download pdf

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

                                  7585

                            I N  S E N A T E

                              June 5, 2012
                               ___________

Introduced by Sen. GALLIVAN -- (at request of the Office of Court Admin-
  istration)  --  read twice and ordered printed, and when printed to be
  committed to the Committee on Rules

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 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.

                                                           LBD15859-01-2

S. 7585                             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 THIRTEEN, 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  agreement  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  2-a. Paragraph (iv) of subdivision (a) of section 262 of the family
court act, as amended by chapter 3 of the laws of 2012,  is  amended  to
read as follows:
  (iv) the parent or person legally responsible, 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  EIGHTY-THREE-C,  three  hundred eighty-four or
three hundred eighty-four-b of the social services law, and a non-custo-
dial 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
THIRTEEN, 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

S. 7585                             3

AND/OR SIBLINGS OR HALF-SIBLINGS ARE FOURTEEN YEARS OF AGE OR OLDER, THE
CHILD AND SIBLING OR HALF-SIBLING CONSENTS 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 THIRTEEN, 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 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 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 THIRTEEN, 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 THIRTEEN 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 THIRTEEN 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

S. 7585                             4

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  THIRTEEN  OR  A
JUDICIAL  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
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  THIRTEEN  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  THIRTEEN, 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:
  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  THIRTEEN  IN  WHICH  AN  AGREEMENT
CONTAINING  CONDITION HAS BEEN MADE. Notwithstanding any other provision
of law, a surrender for adoption executed by a parent, parents or guard-
ian who is in foster care AND A SURRENDER EXECUTED ON OR  AFTER  JANUARY
FIRST,  TWO  THOUSAND  THIRTEEN  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

S. 7585                             5

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-
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  THIRTEEN,  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  THOUSAND  THIRTEEN, approval, determines that the agreement
[concerning communication 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  surrender;  provided,  however,  that  the birth parent or
parents executing the surrender instrument shall be given  the  opportu-
nity at that time to withdraw such instrument. Enforcement of any agree-
ment  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  agree-
ment  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 fifth undesignated para-
graph as added by chapter 680 of the laws of 2007,  the  sixth  undesig-
nated  paragraph and the closing paragraph as added by chapter 76 of the
laws of 2002 and subparagraphs (i) and (ii) of  the  sixth  undesignated
paragraph  as  amended  by chapter 41 of the laws of 2010, 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

S. 7585                             6

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 THIRTEEN  AND  CONTAINS
CONDITIONS, the instrument shall be executed before a judge of the fami-
ly court.
  (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 THIRTEEN 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:
  (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

S. 7585                             7

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
  (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
SURROGATE 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 on the first of January after it
shall have become a law; provided that section two-a of this  act  shall
take  effect  on  the  same  date and in the same manner as section 3 of
chapter 3 of the laws of 2012, takes effect.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Find your Senator and share your views on important issues.

Do you support this bill?

Senate Bill S7585

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Actions

2011-S7585 (ACTIVE) - Details

2011-S7585 (ACTIVE) - Summary

2011-S7585 (ACTIVE) - Sponsor Memo

2011-S7585 (ACTIVE) - Bill Text download pdf

Comments

Do you support this bill?

Get Status Alerts for 2011-S7585

Senate Bill S7585

Share this bill

Sponsored By

Patrick M. Gallivan

Archive: Last Bill Status - In Senate Committee Rules Committee

Actions

2011-S7585 (ACTIVE) - Details

2011-S7585 (ACTIVE) - Summary

2011-S7585 (ACTIVE) - Sponsor Memo

2011-S7585 (ACTIVE) - Bill Text download pdf

Comments