NY State Senate Bill 2015-S7221

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

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 17, 2016	committed to rules
May 04, 2016	advanced to third reading
May 03, 2016	2nd report cal.
Apr 12, 2016	1st report cal.618
Apr 07, 2016	referred to children and families

Votes

- Apr 12, 2016 - Children And Families Committee Vote
  S7221
  
  6
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: Apr 12, 2016
      
      aye (6)
      
      Avella
      
      Bonacic
      
      Montgomery
      
      Persaud
      
      Savino
      
      Young
      
      aye wr (1)
      
      Serino

2015-S7221 (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
Versions Introduced in 2017-2018 Legislative Session:: S4765

2015-S7221 (ACTIVE) - Summary

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

2015-S7221 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S7221

 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 his Family
Court and Rules Advisory Committee.

As noted by the Court of Appeals in Matter of Jacob, 86 N.Y.2d 651-
(1995), the legislation enacted in 1990 authorizing surrenders of the
parental rights of children to authorized child care agencies 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 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 be able 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 the 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 legally enforceable, the statutes were designed to provide
judicial oversight that would fulfill the children's best interests
through procedures that are fair to birth parents, adoptive parents,
authorized agencies and, most important, the children.

Unfortunately, over 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 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 thus no approval was
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 surrenders pursuant to
Social Services Law § 384 of children who are not in foster care, as
well as extrajudicial 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 §§ 383-45(b).*

In light of this experience and what appear to be deviations from the
clear intent and letter of the statute, we submit this measure
explicitly requiring 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 that the
approval be incorporated into a court order to render them legally
enforceable. To underscore the need for judicial oversight, this
measure requires that, with respect to an extra-judicial surrender
executed on or after the effective date of the statute (January 1,
2017), an agreement designating the prospective adoptive parent or
providing for post-adoption contact would only be enforceable if, in
addition to meeting the requirements that all parties consent in
writing to the conditions and that the court determine that the
agreement is in the child's best interests, two further conditions
must be met, i.e., (i) the party or parties surrendering the child
must attest in a sworn affidavit that it would be an undue hardship to
appear in court to execute the surrender; and (ii) the party or
parties surrendering the child were represented by counsel and such
counsel was present at the execution of the surrender and informed the
surrendering party or parties of the requirements for enforceability
of the agreement. Agreements for post-adoption contact between the
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 an agreement
designating a prospective adoptive parent or authorizing post-adoption
contact must be given to all parties to the agreement. The measure
would also 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).

The need for this measure is illustrated by the case of Matter of
Kaylee O. v. Michael 0., 111 A.D.3d 1273 (4th Dept., 2013). While
deferring to Family Court's determination that a post-adoption contact
agreement would not be in the child's best interests in that case, the
Appellate Division held that the agreement would not be enforceable in
any event because it had not been approved by the court and
incorporated into a court ordered adoption agreement, as required by
Domestic Relations Law § 112-b.

Further, in Matter of the Adoption of Jack ex rel. David B., 18
Misc.3d 397 (Fam. Ct., Monroe Co., 2007), the Family Court, Monroe
County, deferred finalization of an adoption pending execution of new
surrenders by the child's birth parents because the original
extrajudicial 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 Family 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 stated:


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 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.

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 Kaylee 0. v. Michael 0. and Matter of the Adoption of Jack
ex rel. David B., regrettably, were not isolated cases. 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, which would have no impact on the State, would take
effect on the first of January after it shall have become a law.

 2012 LEGISLATIVE HISTORY :

OCA 2012-98
Senate 7585 (Sen. Gallivan) (ref to Rules)

 2014 LEGISLATIVE HISTORY :

OCA 2014-86


* Notwithstanding Social Services Law §§ 383-c(5)(b), section 262 of
the Family Court Act does not enumerate that statute in its list of
categories of cases in which indigent parents have a right to counsel.
Ironically, while Social Services Law § 384 contains no reference to
counsel, that section is included in Family Court Act § 262(a)(iv).
This measure would correct both of these omissions.  Significantly, in
the case of extra judicial surrenders, the right to appointed counsel
for indigent parents is unevenly implemented because such surrenders
do not need to approved by Family or Surrogate's Court to be "valid"
(or, in the case of surrenders of children in foster care, to trigger
the time-limit for irrevocability), even if conditions contained
within them must be court-approved in order to be enforceable. See
Social Services Law §§ 383-c(6)(b); 384(4).

2015-S7221 (ACTIVE) - Bill Text download pdf

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

                                  7221

                            I N  S E N A T E

                              April 7, 2016
                               ___________

Introduced by Sen. AVELLA -- (at request of the Office of Court Adminis-
  tration)  --  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 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  JUDICIAL
APPROVAL  OF  THE  AGREEMENT  HAS BEEN INCORPORATED INTO A WRITTEN ORDER
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 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  AND  SUCH  SIBLING  OR  HALF-SIBLING
CONSENT  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 parties to the agreement, including the
attorney representing the adoptive child. The court shall  not  enter  a

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

                                                           LBD14383-01-6

S. 7221                             2

proposed  order  unless the court IN WHICH THE SURRENDER WAS EXECUTED OR
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.
  WITH  RESPECT  TO  SURRENDERS  EXECUTED ON OR AFTER JANUARY FIRST, TWO
THOUSAND SEVENTEEN, AN  AGREEMENT  REGARDING  COMMUNICATION  OR  CONTACT
FOLLOWING  AN  ADOPTION IS ONLY ENFORCEABLE IF APPROVAL OF THE AGREEMENT
HAS BEEN INCORPORATED INTO AN ORDER  IN  CONJUNCTION  WITH  A  SURRENDER
EXECUTED  BEFORE A JUDGE; PROVIDED, HOWEVER, THAT AN AGREEMENT REGARDING
COMMUNICATION OR CONTACT FOLLOWING  AN  ADOPTION  OF  A  CHILD  FROM  AN
AUTHORIZED  AGENCY  MADE IN CONJUNCTION WITH AN EXTRA-JUDICIAL SURRENDER
MAY BE ENFORCEABLE IF THE FOLLOWING ADDITIONAL CONDITIONS HAVE BEEN MET:
(I) THE PARTY OR PARTIES SURRENDERING THE CHILD ATTEST IN A SWORN  AFFI-
DAVIT  THAT  IT WOULD BE AN UNDUE HARDSHIP TO APPEAR IN COURT TO EXECUTE
THE SURRENDER; AND (II) THE PARTY OR PARTIES SURRENDERING THE CHILD WERE
REPRESENTED BY COUNSEL AND SUCH COUNSEL WAS PRESENT AT THE EXECUTION  OF
THE  SURRENDER  AND  INFORMED  THE  SURRENDERING PARTY OR PARTIES OF THE
REQUIREMENTS FOR ENFORCEABILITY OF THE POST-ADOPTION CONTACT AGREEMENT.
  S 2. 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.  Paragraph  (b)  of subdivision 2 of section 383-c of the social
services law, as amended by chapter 41 of the laws of 2010,  is  amended
to read as follows:
  (b)  (I)  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. SUCH TERMS AND CONDITIONS SHALL BE SET FORTH IN WRIT-
ING AND CONSENTED TO IN WRITING BY THE PARTIES TO THE AGREEMENT, INCLUD-
ING THE ATTORNEY REPRESENTING THE CHILD.
  (II) 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 TERMS AND CONDITIONS SHALL BE SET FORTH IN WRIT-
ING AND CONSENTED TO IN WRITING BY THE PARTIES TO THE AGREEMENT, INCLUD-
ING THE ATTORNEY REPRESENTING THE CHILD.

S. 7221                             3

  (III)  Such agreement also may provide terms and conditions for commu-
nication with or contact between the child and  the  child's  biological
siblings  or  half-siblings, if any. If any such sibling or half-sibling
is fourteen years of age or older, such terms and conditions  shall  not
be  enforceable  unless  such  sibling  or  half-sibling consents to the
agreement in writing.
  (IV) If the court before which the surrender instrument  is  presented
for  approval determines that the agreement concerning communication and
contact is in the child's best interests, the court  shall  approve  the
agreement  AND  INCORPORATE  SUCH APPROVAL INTO A WRITTEN COURT ORDER, A
COPY OF WHICH SHALL BE GIVEN TO THE  PARTIES.  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  INFORMED  THAT  THE  AGREEMENT  IS NOT
ENFORCEABLE IN A COURT OF LAW AND SHALL BE given the opportunity at that
time to withdraw such instrument.
  (V) 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 4. Subdivision 4 of section 383-c of  the  social  services  law  is
amended by adding a new paragraph (g) to read as follows:
  (G)  A  SURRENDER  OF A CHILD, EXECUTED ON OR AFTER JANUARY FIRST, TWO
THOUSAND SEVENTEEN, WHICH IS  MADE  IN  CONJUNCTION  WITH  AN  AGREEMENT
CONTAINING  CONDITIONS,  INCLUDING,  BUT NOT LIMITED TO, IDENTIFYING THE
PROSPECTIVE ADOPTIVE PARENT OR PARENTS OR PRESCRIBING  COMMUNICATION  OR
CONTACT 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 SURRENDER AND ADOPTION OF THE  CHILD  SHALL  BE  EXECUTED  BEFORE  A
JUDGE;  PROVIDED,  HOWEVER,  THAT  SUCH AN AGREEMENT MADE IN CONJUNCTION
WITH AN  EXTRA-JUDICIAL  SURRENDER  EXECUTED  AFTER  SUCH  DATE  MAY  BE
ENFORCEABLE  IF  THE  FOLLOWING  CONDITIONS HAVE BEEN MET IN ADDITION TO
THOSE DELINEATED IN PARAGRAPH (B) OF THIS SUBDIVISION: (I) THE PARTY  OR
PARTIES SURRENDERING THE CHILD ATTEST IN A SWORN AFFIDAVIT THAT IT WOULD
BE  AN  UNDUE  HARDSHIP TO APPEAR IN COURT TO EXECUTE THE SURRENDER; AND
(II) THE PARTY OR PARTIES SURRENDERING THE  CHILD  WERE  REPRESENTED  BY
COUNSEL  AND  SUCH COUNSEL WAS PRESENT AT THE EXECUTION OF THE SURRENDER
AND INFORMED THE SURRENDERING PARTY OR PARTIES OF THE  REQUIREMENTS  FOR
ENFORCEABILITY OF THE AGREEMENT.
  S 5. Subparagraphs (ii) and (iii) of paragraph (b) of subdivision 5 of
section  383-c  of the social services law, subparagraph (ii) as amended
by chapter 601 of the laws of 1994 and subparagraph (iii)  as  added  by
chapter 479 of the laws of 1990, 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 the
parties have agreed to different terms pursuant to  subdivision  two  of
this  section[,]  and  unless such terms are written in the surrender OR
ARE WRITTEN IN AN AGREEMENT APPROVED BY THE COURT IN AN ORDER IN ACCORD-
ANCE WITH SUCH  SUBDIVISION,  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

S. 7221                             4

that  the  agency  chooses,  unless  the surrender paper OR AN AGREEMENT
APPROVED BY THE COURT IN AN ORDER IN ACCORDANCE WITH SUBDIVISION TWO  OF
THIS  SECTION  contains  the  name  of the person or persons who will be
adopting the child; and
  S  6.  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)  (I)  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. SUCH TERMS AND CONDITIONS SHALL BE SET FORTH IN WRIT-
ING AND CONSENTED TO IN WRITING BY THE PARTIES TO THE AGREEMENT, INCLUD-
ING THE ATTORNEY REPRESENTING THE CHILD.
  (II) 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 TERMS AND CONDITIONS SHALL BE SET FORTH IN WRIT-
ING AND CONSENTED TO IN WRITING BY THE PARTIES TO THE AGREEMENT, INCLUD-
ING THE ATTORNEY REPRESENTING THE CHILD.
  (III)  Such agreement also may provide terms and conditions for commu-
nication 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  condi-
tions]  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 writ-
ing.
  (IV) If the court before which the surrender instrument  is  presented
for  EXECUTION  OR  approval,  determines that the agreement [concerning
communication and contact] is in the child's best interests,  the  court
shall approve the agreement AND INCORPORATE SUCH APPROVAL INTO A WRITTEN
COURT ORDER, A COPY OF WHICH SHALL BE GIVEN TO THE PARTIES. 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 INFORMED THAT  THE  AGREEMENT  IS  NOT
ENFORCEABLE IN A COURT OF LAW AND 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 7. 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:

S. 7221                             5

  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) A SURRENDER OF A CHILD, EXECUTED ON OR AFTER  JANUARY  FIRST,  TWO
THOUSAND  SEVENTEEN,  WHICH  IS  MADE  IN  CONJUNCTION WITH AN AGREEMENT
CONTAINING CONDITIONS, INCLUDING, BUT NOT LIMITED  TO,  IDENTIFYING  THE
PROSPECTIVE  ADOPTIVE  PARENT OR PARENTS OR PRESCRIBING COMMUNICATION OR
CONTACT 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  SURRENDER  AND  ADOPTION  OF  THE  CHILD SHALL BE EXECUTED BEFORE A
JUDGE; PROVIDED, HOWEVER, THAT SUCH AN  AGREEMENT  MADE  IN  CONJUNCTION
WITH  AN  EXTRA-JUDICIAL  SURRENDER  EXECUTED  AFTER  SUCH  DATE  MAY BE
ENFORCEABLE IF THE FOLLOWING CONDITIONS HAVE BEEN  MET  IN  ADDITION  TO
THOSE DELINEATED IN PARAGRAPH (B) OF SUBDIVISION TWO OF THIS SECTION:
  (I)  THE  PARTY  OR  PARTIES  SURRENDERING THE CHILD ATTEST IN A SWORN
AFFIDAVIT THAT IT WOULD BE AN UNDUE  HARDSHIP  TO  APPEAR  IN  COURT  TO
EXECUTE THE SURRENDER; AND
  (II)  THE  PARTY OR PARTIES SURRENDERING THE CHILD WERE REPRESENTED BY
COUNSEL AND SUCH COUNSEL WAS PRESENT AT THE EXECUTION OF  THE  SURRENDER
AND  INFORMED  THE SURRENDERING PARTY OR PARTIES OF THE REQUIREMENTS FOR
ENFORCEABILITY OF THE AGREEMENT.
  (C) 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.
  (D)  Notwithstanding any other provision of law, if the parent surren-
dering the child for adoption is in foster care the instrument shall  be
executed before a judge of the family court.
  (E) 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.
  (F)(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

S. 7221                             6

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.
  (G) 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.
  (H) Where the parties have agreed that the surrender shall be  subject
to  conditions  pursuant to subdivision two of this section, the instru-
ment 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
  (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 8. 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

S. 7221                             7

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
A 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, PROVIDED, HOWEVER, THAT AN AGREE-
MENT MADE IN CONJUNCTION WITH  A  SURRENDER  THAT  CONTAINS  CONDITIONS,
INCLUDING,  BUT  NOT  LIMITED  TO,  IDENTIFYING THE PROSPECTIVE ADOPTIVE
PARENT OR PARENTS OR PRESCRIBING COMMUNICATION OR CONTACT 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 SURRENDER AND
ADOPTION OF THE CHILD SHALL BE ENFORCEABLE IN A COURT OF LAW ONLY IF THE
REQUIREMENTS OF SUBDIVISIONS TWO AND THREE OF  THIS  SECTION  HAVE  BEEN
MET.
  S  9. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.

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Senate Bill S7221

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Apr 12, 2016 - Children And Families Committee Vote

Children And Families Committee Vote: Apr 12, 2016

2015-S7221 (ACTIVE) - Details

2015-S7221 (ACTIVE) - Summary

2015-S7221 (ACTIVE) - Sponsor Memo

2015-S7221 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S7221

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Sponsored By

Tony Avella

Archive: Last Bill Status - In Senate Committee Rules Committee

2015-S7221 (ACTIVE) - Details

2015-S7221 (ACTIVE) - Summary

2015-S7221 (ACTIVE) - Sponsor Memo

2015-S7221 (ACTIVE) - Bill Text download pdf

Comments