NY State Senate Bill 2017-S4765A

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

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 20, 2018	committed to rules
Feb 06, 2018	advanced to third reading
Feb 05, 2018	2nd report cal. amended 4765a
Jan 30, 2018	1st report cal.343
Jan 03, 2018	referred to children and families
Jun 06, 2017	reported and committed to rules
Feb 27, 2017	referred to children and families

Votes

- Jan 30, 2018 - Children And Families Committee Vote
  S4765A
  
  5
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: Jan 30, 2018
      
      aye (5)
      
      Avella
      
      Bonacic
      
      Helming
      
      Persaud
      
      Savino
      
      aye wr (1)
      
      Serino
      
      excused (1)
      
      Montgomery
  Jun 6, 2017 - Children And Families Committee Vote
  S4765A
  
  5
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: Jun 6, 2017
      
      aye (5)
      
      Avella
      
      Bonacic
      
      Montgomery
      
      Persaud
      
      Savino
      
      aye wr (1)
      
      Helming
      
      excused (1)
      
      Serino

Bill Amendments

Original

A (Active)

2017-S4765 - 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 2015-2016 Legislative Session:: S7221

2017-S4765 - Summary

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

2017-S4765 - Sponsor Memo

                                
 
BILL NUMBER: S4765            REVISED MEMO 02/26/2018

SPONSOR: AVELLA
 
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 Advisory and Rules Committee.

As noted by the Court of Appeals in Mailer ofJacob, 86 N.Y.2d 651
(1995), legislation enacted in 1990 authorizing surrenders of the
parental rights in 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 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 written 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
section 112-b of the Domestic Relations Law, which requires that agree-
ments for post-adoption contact be approved by the court as being in the
children's best interests in order to be legally enforceable, the stat-
utes were designed to provide judicial oversight that would assure a
child's best interests through procedures that are fair to birth
parents, adoptive parents, authorized agencies and, most important,
affected 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 surren-
ders, particularly extra-judicial surrenders, upon the assumption that
informal agreements or side letters of understanding would be enforcea-
ble even though they were not presented to the Family or Surrogate's
Court for approval and thus no approval was incorporated into any writ-
ten 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
as to surrenders pursuant to section 384 of the Social Services Law of
children not in foster care, as well as extrajudicial surrenders of
children both in and out of foster care that are executed by birth moth-
ers while in the hospital immediately after giving birth. See Social
Services Law §§ 383-c(5(b).*

In light of this experience and what appear to be deviations from the
clear letter and intent of the statute, we submit this measure explicit-
ly requiring that all conditions accompanying surrenders, of a child
whether in or 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, 2019), an agreement designat-
ing 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) 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 must be represented by coun-
sel and such counsel must have been present at the execution of the
surrender and informed the surrendering party or parties of the require-
ments for enforceability of the.agreement. Agreements for post-adoption
contact between the surrendered child and birth siblings and half-si-
blings, 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 section 262 of the Family
Court Act and section 384 of the Social Services Law with respect to the
right to counsel for surrendering parents. Social Services Law section
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 regard-
ing 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 section 384(4).

The need for this measure is illustrated by the case of Matter of Kaylee
0. 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), 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 post-adoption contact,
but neither the extrajudicial 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 determi-
nation 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 unmistakenly thwart the clear intent of the
Legislature in enacting the conditional surrender provisions of sections
383-c and 384 of the Social Services Law, as well as the requirements
for post-adoption contact agreements in section 112-b of the Domestic
Relations Law. 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.

 
2017-18 LEGISLATIVE HISTORY:

OCA 2017-18
Senate 4765-A (Sen. Avella) (advanced to 3'd Rdg.)

 
2016 LEGISLATIVE HISTORY:

OCA 2016-93
Senate 7221 (Sen. Avella) (committed to Rules)

 
2014 LEGISLATIVE HISTORY:

OCA 2014-86

 
2012 LEGISLATIVE HISTORY:

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


*Notwithstanding Social Services Law section 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 section 384 contains no reference
to counsel, that section is included in section 262(a)(iv) of the Family
Court Act. This measure would correct both of these omissions. Signif-
icantly, in the case of extrajudicial 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).

2017-S4765 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4765
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             February 27, 2017
                                ___________
 
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD06664-01-7

 S. 4765                             2
 
 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
 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  EIGHTEEN,  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.
   §  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;
   § 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-

 S. 4765                             3
 
 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
 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.
   § 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 EIGHTEEN, 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.
   § 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;

 S. 4765                             4
 
   (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  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
   § 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.
   §  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

 S. 4765                             5
 
 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
 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 EIGHTEEN, 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

 S. 4765                             6
 
 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.
   (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.
   § 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

 S. 4765                             7
 
 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
 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.
   §  9. This act shall take effect on the first of January next succeed-
 ing the date on which it shall have become a law.

2017-S4765A (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 2015-2016 Legislative Session:: S7221

2017-S4765A (ACTIVE) - Summary

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

2017-S4765A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S4765A

SPONSOR: AVELLA
 
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), legislation enacted in 1990 authorizing surrenders of the
parental rights in 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 written 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 section 112-b of the Domestic Relations Law, 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 assure a child's best interests through procedures that are
fair to birth parents, adoptive parents, authorized agencies and, most
important, the child.

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 surren-
ders, particularly extra-judicial surrenders, upon the assumption that
informal agreements or side letters of understanding would be enforcea-
ble even though they were not presented to the Family or Surrogate's
Court for approval and thus no approval was incorporated into any writ-
ten 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
as to surrenders pursuant to section 384 of the Social Services Law of
children not in foster care, as well as extrajudicial surrenders of
children both in and out of foster care that are executed by birth moth-
ers while in the hospital immediately after giving birth. See Social
Services Law §§ 383-c(5(b).*

In light of this experience and what appear to be deviations from the
clear letter and intent of the statute, we submit this measure explicit-
ly requiring that all conditions accompanying surrenders, of children
whether in or 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, 2018), an agreement designat-
ing 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 must be represented
by counsel and such counsel must have been 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 incorpo-
rating an agreement designating a prospective adoptive parent or author-
izing post-adoption contact must be given to all parties to the agree-
ment. The measure would also correct the omissions in section 262 of the
Family Court Act and section 384 of the Social Services Law with respect
to the right to counsel for surrendering parents. Social Services Law
section 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 section 384(4).

The need for this measure is illustrated by the case of Matter of Kaylee
0. 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 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 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 determi-
nation 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 O. 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 Legisla-
ture in enacting the conditional surrender provisions of sections 383-c
and 384 of the Social Services Law, as well as the requirements for
post-adoption contact agreements in section 112-b of the Domestic
Relations Law. 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.

 
2017-18 LEGISLATIVE HISTORY:

OCA 2017-18
Senate 4765 ( Sen. Avella) (referred to Children & Families

 
2016 LEGISLATIVE HISTORY:

OCA 2016-93
Senate 7221 (Sen. Avella) (committed to Rules)

 
2014 LEGISLATIVE HISTORY:

OCA 2014-86

 
2012 LEGISLATIVE HISTORY:

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


*Notwithstanding Social Services Law section 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 section 384 contains no reference
to counsel, that section is included in section 262(a)(iv) of the Family
Court Act. This measure would correct both of these omissions. Signif-
icantly, in the case of-extrajudicial 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).

2017-S4765A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4765--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             February 27, 2017
                                ___________
 
 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 -- recommitted  to
   the  Committee on Children and Families in accordance with Senate Rule
   6, sec. 8 -- reported favorably from said committee, ordered to  first
   report,  amended  on  first  report,  ordered  to  a second report and
   ordered reprinted, retaining its place in the order of second report
 
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD06664-02-8

 S. 4765--A                          2
 
 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
 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 NINETEEN,  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.
   § 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;
   §  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

 S. 4765--A                          3
 
 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
 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.
   § 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 NINETEEN, 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.
   § 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

 S. 4765--A                          4
 
 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  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
   § 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.
   §  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-

 S. 4765--A                          5
 
 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
 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  NINETEEN,  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.

 S. 4765--A                          6
 
   (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
 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.
   § 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

 S. 4765--A                          7
 
 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
 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.
   § 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 S4765A

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Jan 30, 2018 - Children And Families Committee Vote

Children And Families Committee Vote: Jan 30, 2018

Jun 6, 2017 - Children And Families Committee Vote

Children And Families Committee Vote: Jun 6, 2017

Bill Amendments

2017-S4765 - Details

2017-S4765 - Summary

2017-S4765 - Sponsor Memo

2017-S4765 - Bill Text download pdf

2017-S4765A (ACTIVE) - Details

2017-S4765A (ACTIVE) - Summary

2017-S4765A (ACTIVE) - Sponsor Memo

2017-S4765A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S4765A

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Sponsored By

Tony Avella

Archive: Last Bill Status - In Senate Committee Rules Committee

Bill Amendments

2017-S4765 - Details

2017-S4765 - Summary

2017-S4765 - Sponsor Memo

2017-S4765 - Bill Text download pdf

2017-S4765A (ACTIVE) - Details

2017-S4765A (ACTIVE) - Summary

2017-S4765A (ACTIVE) - Sponsor Memo

2017-S4765A (ACTIVE) - Bill Text download pdf

Comments