Senate Bill S7888

2017-2018 Legislative Session

Relates to non-marital fathers in adoption, surrender and termination of parental rights proceedings and consents to adoptions in family and surrogate's courts

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Archive: Last Bill Status - In Assembly 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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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 19, 2018	referred to children and families delivered to assembly passed senate ordered to third reading cal.2005 committee discharged and committed to rules
Mar 06, 2018	referred to children and families

Votes

- Jun 19, 2018 - Floor Vote
  S7888
  
  Aye
  
  62
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  1
  
  Abstained
  
  0
  - - Floor Vote: Jun 19, 2018
      
      aye (62)
      
      Addabbo Jr.
      
      Akshar
      
      Alcantara
      
      Amedore
      
      Avella
      
      Bailey
      
      Benjamin
      
      Bonacic
      
      Boyle
      
      Breslin
      
      Brooks
      
      Carlucci
      
      Comrie
      
      DeFrancisco
      
      Dilan
      
      Felder
      
      Flanagan
      
      Funke
      
      Gallivan
      
      Gianaris
      
      Golden
      
      Griffo
      
      Hamilton
      
      Hannon
      
      Helming
      
      Hoylman-Sigal
      
      Jacobs
      
      Kaminsky
      
      Kavanagh
      
      Kennedy
      
      Klein
      
      Krueger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Little
      
      Marcellino
      
      Marchione
      
      Mayer
      
      Montgomery
      
      Murphy
      
      O'Mara
      
      Ortt
      
      Parker
      
      Peralta
      
      Persaud
      
      Phillips
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serino
      
      Serrano
      
      Seward
      
      Stavisky
      
      Stewart-Cousins
      
      Tedisco
      
      Valesky
      
      Young
      
      excused (1)
      
      Croci
  Jun 19, 2018 - Rules Committee Vote
  S7888
  
  Aye
  
  24
  
  Nay
  
  0
  
  Aye with Reservations
  
  1
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Rules Committee Vote: Jun 19, 2018
      
      aye (24)
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Dilan
      
      Flanagan
      
      Gianaris
      
      Hannon
      
      Kennedy
      
      Klein
      
      Krueger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Little
      
      Marcellino
      
      Montgomery
      
      Parker
      
      Ranzenhofer
      
      Rivera
      
      Robach
      
      Savino
      
      Seward
      
      Stewart-Cousins
      
      Valesky
      
      aye wr (1)
      
      Griffo

2017-S7888 (ACTIVE) - Details

Current Committee:: Assembly Children And Families
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§111 & 111-a, Dom Rel L; amd §384-c, Soc Serv L

2017-S7888 (ACTIVE) - Summary

Relates to non-marital fathers in adoption, surrender and termination of parental rights proceedings and consents to adoptions in family and surrogate's courts.

2017-S7888 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S7888

SPONSOR: AVELLA
 
TITLE OF BILL:

An act to amend the domestic relations law and the social services law,
in relation to non-marital fathers in adoption, surrender and termi-
nation of parental rights proceedings and consents to adoptions in fami-
ly and surrogate's courts

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.

In 1979, the United States Supreme Court, in Caban v. Mohammed, 441 US
388 (1979), held a statute unconstitutional where it failed to afford a
birth father the right to consent to his child's adoption, where the
father had lived with the mother, admitted paternity and had a substan-
tial relationship with, and provided support to, the child.  Following
Caban, the Legislature enacted new criteria defining those putative or
unwed fathers entitled to consent to adoptions ("consent fathers") and
those entitled simply to notice of termination of parental rights,
surrender and adoption proceedings ("notice-only fathers"). Those enti-

tled to notice only may be heard regarding the children's best interests
but do not have veto power over their adoptions. L.1980, c. 575.
Notwithstanding the Legislature's goals of providing "reasonable, unam-
biguous and objective" criteria for notice and consent,{1} experience
with the 1980 statute has demonstrated that it fulfills none of those
intentions. Accordingly, on the advice of our Family Court Advisory and
Rules Committee, we propose this measure to expand and objectify both
the criteria for non-marital fathers to consent to adoptions and the
criteria for those entitled to notice of, but not veto power over,
adoptions.

1. Consent Fathers: Children Over the Age of Six Months (Domestic
Relations Law § 111(1)(d)): Domestic Relations Law § 111(1)(d) sets
forth the standards by which the father of a child who was over six
months old when "placed with adoptive parents" can achieve the status of
a "consent father." Use of the phrase "placed with adoptive parents" has
caused considerable confusion, with the case law noting it could argu-
ably mean when a child is first placed with a family that later becomes
the adoptive resource, or the date that the child's permanency goal is
changed to adoption, or the date of the filing of a termination proceed-
ing, or the point at which the adoptive parents signed an adoptive
placement agreement. See, e.g., Matter of Leake and Watts, Inc. (Kevin
G.), 51 Misc.3d 1207(A) (Fam. Ct., Bx.Co, 2016)(Unrep.); Matter of Tati-
ana R., 17 Misc.3d 443, 455-57 (Kings Co. Fam. Ct. 2007); Matter of
Tasha M., 33 A.D.2d 387 (1st Dept.  2006). This measure provides a
clearer, more objective criterion by substituting a more readily iden-
tifiable point in time, namely, whether the child was over six months
old at the "time of the filing of a petition to terminate parental
rights, application to execute a judicial surrender, petition for
approval of an extra-judicial surrender or extra-judicial consent to
adoption or petition for adoption, whichever is earliest." By using such
a concrete and verifiable event, parties will better understand what
their rights are and needless litigation over the meaning of the terms
of the statute will be avoided.


Beyond clarifying the initial benchmark, this measure incorporates well-
established objective criteria into the determination whether a non-mar-
ital father is a "consent father." "Consent fathers" would include those
who have established legal paternity in a timely manner by having been
adjudicated as the father either by a court of competent jurisdiction or
by having acknowledged paternity on a form recognized by the jurisdic-
tion in which it was executed to have the force and effect of an order
of paternity or filiation. The measure sets time limits for the unwed
father's establishment of paternity that are consistent with a child's
need for prompt resolution of permanency issues: to qualify as a consent
father under D.R.L. § 111(1)(d), the unwed father's legal paternity must
be established within six months of the child's first entry into foster
care or be the result of a court action filed within six months of the
child's birth, so long as that matter was actively prosecuted from the
time of filing until the order was entered.

Elevation of certain legally adjudicated and acknowledged fathers to
"consent fathers" from their current status as "notice only fathers" is
consistent with the recently-enacted statute underscoring the long-re-
cognized need for early identification of all parents and relatives
(paternal and maternal) who may become actively engaged in a child's
life and with whom a child who is the subject of child protective
proceedings might reside. See Family Court Act § 1017 (L.  2015, c.
567).

Further, again eliminating the ambiguous phrase "placement of the child
for adoption," the measure would confer "consent father" status upon a
putative father who openly lived with his child and held himself out as
his or her father "for a period of six months immediately preceding the
earlier of the filing of a petition to terminate parental rights, appli-
cation to execute a judicial surrender, petition for approval of an
extra-judicial surrender or extra-judicial consent to adoption or peti-
tion for adoption."

Finally, this measure incorporates an accepted criterion for the level
of visitation contained in the alternative behavioral criteria for
establishing the status of a "consent father" under D.R.L. § 111(1)(d).
Under the current statute, a non-marital father may qualify as a
"consent father" if he has maintained "substantial and continuous or
repeated contact with the child" as manifested by the payment of child
support and by either visiting the child at least once a month if finan-
cially and physically able to do so or maintaining regular contact with
the child or person or agency having custody of the child if not finan-
cially and physically able to visit.  This measure would modify the
visitation criterion to require visits twice per month, as that is the
standard for foster care visiting contained in regulations of the State
Office of Children and Family Services. See 18 NYCRR § 430.12(c)(4)
(ii)(d)(1)(I).

2. Consent Fathers: Children Under the Age of Six Months (Domestic
Relations Law § 111(1)(e)): Section 111(1)(e) of the Domestic Relations
Law, governing the rights of putative fathers whose newborn non-marital
children are placed for adoption, was declared unconstitutional by the
Court of Appeals in Matter of Raquel Marie X., 76 N.Y.2d 387 (1990),
cert. den. sub nom Robert C. v. Miguel T., 498 U.S. 984 (1990), but
remains in the statute books, a trap for the unwary litigant. The
instant measure would remedy the unconstitutionality and, as with its
proposed amendment regarding D.R.L. § 111(1(d), the measure would
substitute objective criteria for the calculation of the relevant time-
frames.

In the absence of statutory guidance, courts have had to determine on a
case-by-case basis whether a father's consent of his infant born out-of-
wedlock is required before the adoption of his infant born out-of-wed-
lock can be approved. This process undermines the confidence with which
adoptions can be planned and impedes achievement of permanent homes for
children by significantly complicating litigation. Moreover, as noted
with respect to older children under D.R.L. § 111(1)(d), in seeking to
apply the judicially-created criteria to determine whether an unwed
father's consent should be required for adoption of a child under the
age of six months, courts struggle with the ambiguous "placed for
adoption" benchmark. This measure thus applies D.R.L. § 111(1)(e) to
infants born within six months of "the filing of a petition to terminate
parental rights, application to execute a judicial surrender, petition
for approval of an extrajudicial surrender or extra-judicial consent to
adoption or petition for adoption, whichever is earliest."

In setting criteria to establish which unwed fathers of infants should
be able to withhold their consent to a proposed adoption, this measure
seeks to provide standards that constitutionally limit these rights to
those fathers who, having learned of the pregnancy or birth, come
forward promptly to assume full parental responsibility, assuming they
have not been prevented from doing so.

The provision of section 111(1)(e) that was struck down in Raquel Marie
X., supra, required the consent of an infant's unwed father only if, for
the six months preceding the child's placement, the father had lived
with the child or mother, held himself out as the child's father, and
provided financial support. The Court of Appeals held the "living
together" requirement to be unacceptable because that requirement had no
bearing on the question of the father's relationship to the newborn
infant and could "easily be used to block the father's rights." Id. This
measure thus substitutes the more objective criteria for an unwed puta-
tive father who would be entitled to receive notice of a judicial
proceeding concerning the child under section 111-a of the Domestic
Relations Law or section 384-c of the Social Services Law, criteria
approved by the United States Supreme Court in Lehr v. Robertson, 463
U.S. 248 (1982). These statutes include, for example, an individual
adjudicated as the father or, one who has been identified as the father
by the mother in a written, sworn statement.

This measure would continue the requirement that, in order to be consid-
ered a "consent father" of an infant, the father must have openly held
himself out to be the father of the child, but again substitutes the
more objective standard of "prior to the filing of a petition to termi-
nate parental rights, application to execute a judicial surrender, peti-
tion for approval of an extra- judicial surrender or extra-judicial
consent to adoption or petition for adoption, whichever is earliest" to
establish the pertinent time-frame. This measure also continues the
requirement that the father have paid "a fair and reasonable sum, in
accordance with his means" for medical expenses, but adds "child
support" as another possible means of financial support. Consistent with
the holding in Adoption of Baby Girl S., 76 N.Y.2d 387 (1990), moreover,
this measure includes a "savings clause" that would exempt an unwed
father from these requirements if he were prevented from fulfilling them
by the person or agency having lawful custody of the child.
The final criterion establishing "consent father" status in this measure
is the requirement that, within 30 days of receiving notice of an
adoption proceeding, termination of parental rights proceeding, proceed-
ing to grant temporary guardianship of the child to a proposed adoptive
parent or notice of the commitment of guardianship and.  custody of the
child by voluntary surrender instrument, the putative father file a
motion to intervene in the proceeding, including an assertion of pater-
nity and request for custody. Significantly, the measure provides that
the unwed putative father's consent shall not be required unless and
until paternity is in fact legally established.

This measure thus cures the constitutional defect identified in Raquel
Marie X., supra, sets forth clearer criteria for adjudicating the status
of unwed putative fathers of infants, and encourages alleged fathers of
infants to assert their claims of paternity promptly so that their chil-
dren may obtain permanent homes in a time frame consistent with their
developmental needs.

3. Notice-only Fathers (Domestic Relations Law § 111-a, Social Services
Law § 384-c): This measure adds two criteria to the eight existing cate-
gories of "notice-only" fathers, that is, those unwed putative fathers
whose consent to a proposed adoption is not required but who nonetheless
are entitled to notice of a termination of parental rights, surrender or
adoption proceeding and afforded the opportunity to be heard on the
issue of their child's best interests.

The new criteria include:

*any person who has established legal paternity in another state, terri-
tory or country through execution of an acknowledgment of paternity
recognized by that jurisdiction as having the force and effect of an
order of paternity or filiation; and

*with respect to a child in foster care, any person who has filed a
paternity or custody petition prior to issuance of any order freeing the
child for adoption in which he alleges he is the father of the child and
where the petition remains pending despite his diligent efforts to pros-
ecute it.

This measure also modifies two of the existing criteria for "notice-
only" fathers to include:

*any person adjudicated by a court of competent jurisdiction to be the
father of the child; and

*any person who is openly living with the child, not necessarily also
with the child's mother, at the time the proceeding is initiated or at
the time the child was placed in the care of an

2017-S7888 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7888
 
                             I N  S E N A T E
 
                               March 6, 2018
                                ___________
 
 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 and the social services  law,
   in  relation  to non-marital fathers in adoption, surrender and termi-
   nation of parental rights proceedings and  consents  to  adoptions  in
   family and surrogate's courts
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraphs (d) and (e) of subdivision 1 of section  111  of
 the domestic relations law, as added by chapter 575 of the laws of 1980,
 are amended to read as follows:
   (d)  Of  the  father, whether adult or infant, of a child born out-of-
 wedlock and [placed with the adoptive  parents]  more  than  six  months
 [after  birth]  OLD AT THE TIME OF THE FILING OF A PETITION TO TERMINATE
 PARENTAL RIGHTS, APPLICATION TO EXECUTE A JUDICIAL  SURRENDER,  PETITION
 FOR APPROVAL OF AN EXTRA-JUDICIAL SURRENDER OR EXTRA-JUDICIAL CONSENT TO
 ADOPTION  OR  PETITION  FOR ADOPTION, WHICHEVER IS EARLIEST, but only if
 such father [shall have] HAS:
   (I) ESTABLISHED LEGAL PATERNITY BY  HAVING  BEEN  ADJUDICATED  AS  THE
 FATHER  BY  A  COURT OF COMPETENT JURISDICTION OR BY HAVING ACKNOWLEDGED
 PATERNITY IN A FORM DULY EXECUTED PURSUANT TO SECTION FORTY-ONE  HUNDRED
 THIRTY-FIVE-B  OF  THE  PUBLIC HEALTH LAW OR IN A FORM RECOGNIZED BY THE
 STATE, TERRITORY OR COUNTRY IN WHICH IT WAS EXECUTED TO HAVE  THE  FORCE
 AND  EFFECT OF AN ORDER OF PATERNITY OR FILIATION, SO LONG AS SAID LEGAL
 PATERNITY:
   A. WAS ESTABLISHED WITHIN SIX MONTHS OF THE CHILD'S FIRST  ENTRY  INTO
 FOSTER CARE; OR
   B.  WAS  THE  RESULT  OF A COURT ACTION FILED WITHIN SIX MONTHS OF THE
 CHILD'S BIRTH THAT WAS ACTIVELY PROSECUTED UNTIL THE ORDER WAS  ENTERED;
 OR
   (II) OPENLY LIVED WITH THE CHILD AND OPENLY HELD HIMSELF OUT TO BE THE
 FATHER  OF  SUCH  CHILD FOR A PERIOD OF SIX MONTHS IMMEDIATELY PRECEDING
 THE EARLIER OF THE FILING OF A PETITION TO  TERMINATE  PARENTAL  RIGHTS,
 APPLICATION TO EXECUTE A JUDICIAL SURRENDER, PETITION FOR APPROVAL OF AN
 EXTRA-JUDICIAL  SURRENDER OR EXTRA-JUDICIAL CONSENT TO ADOPTION OR PETI-

 TION FOR ADOPTION; OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD14586-01-8

 S. 7888                             2
 
   (III) maintained substantial and continuous or repeated  contact  with
 the  child  as manifested by[: (i)] the payment by the father toward the
 support of the child of a fair and  reasonable  sum,  according  to  the
 father's means, and either [(ii) the father's]:
   A.  visiting  the  child at least [monthly] TWICE PER MONTH when phys-
 ically and financially able to do so and not prevented from doing so  by
 the  person  or authorized agency having lawful custody of the child[,];
 or [(iii) the father's regular communication]
   B. REGULARLY COMMUNICATING with the child or with the person or agency
 having the care or custody of the child, when physically [and] OR finan-
 cially unable to visit the child or  prevented  from  doing  so  by  the
 person or authorized agency having lawful custody of the child.
   [The]  FOR PURPOSES OF THIS SUBPARAGRAPH, THE subjective intent of the
 father, whether expressed or otherwise, unsupported by evidence of  acts
 specified  in  this  [paragraph]  SUBPARAGRAPH  manifesting such intent,
 shall not preclude a determination that the father  failed  to  maintain
 substantial and continuous or repeated contact with the child. In making
 such  a determination, the court shall not require a showing of diligent
 efforts by any person or agency to encourage the father to  perform  the
 acts  specified  in  this  [paragraph]  SUBPARAGRAPH. [A father, whether
 adult or infant, of a child born out-of-wedlock, who openly  lived  with
 the  child  for  a period of six months within the one year period imme-
 diately preceding the placement of the child for adoption and who during
 such period openly held himself out to be the father of such child shall
 be deemed to have maintained substantial and continuous contact with the
 child for the purpose of this subdivision.]
   (e) Of the father, whether adult or infant, of a  child  born  out-of-
 wedlock  who  is  under  the age of six months at the time [he is placed
 for] OF THE FILING OF A PETITION TO TERMINATE PARENTAL RIGHTS,  APPLICA-
 TION  TO  EXECUTE  A  JUDICIAL  SURRENDER, A PETITION FOR APPROVAL OF AN
 EXTRA-JUDICIAL SURRENDER OR EXTRA-JUDICIAL  CONSENT  TO  adoption  OR  A
 PETITION  FOR  ADOPTION,  WHICHEVER  IS  EARLIEST, but only if: (i) such
 father [openly lived with the child or the child's mother for a  contin-
 uous  period  of  six  months immediately preceding the placement of the
 child for adoption] IS A PERSON ENTITLED TO NOTICE PURSUANT TO  SUBDIVI-
 SION  TWO  OF  SECTION ONE HUNDRED ELEVEN-A OF THIS TITLE OR SUBDIVISION
 TWO OF SECTION THREE HUNDRED EIGHTY-FOUR-C OF THE SOCIAL  SERVICES  LAW;
 and  (ii)  such  father openly held himself out to be the father of such
 child [during such period] PRIOR TO THE FILING OF A PETITION  TO  TERMI-
 NATE  PARENTAL RIGHTS, APPLICATION TO EXECUTE A JUDICIAL SURRENDER PETI-
 TION FOR APPROVAL  OF  AN  EXTRA-JUDICIAL  SURRENDER  OR  EXTRA-JUDICIAL
 CONSENT  TO  ADOPTION  OR  PETITION  FOR ADOPTION, WHICHEVER IS EARLIER,
 UNLESS PREVENTED FROM SO DOING BY THE PERSON  OR  AGENCY  HAVING  LAWFUL
 CUSTODY  OF  THE CHILD; and (iii) such father paid a fair and reasonable
 sum, in accordance with his means, for the medical, hospital and nursing
 expenses incurred in connection with the mother's pregnancy or with  the
 birth  of  the child OR CHILD SUPPORT, UNLESS PREVENTED FROM SO DOING BY
 THE PERSON OR AGENCY HAVING LAWFUL CUSTODY OF THE CHILD; AND  (IV)  UPON
 RECEIVING NOTICE OF AN ADOPTION PROCEEDING PURSUANT TO THE PROVISIONS OF
 THIS  CHAPTER,  OR A NOTICE OF A PROCEEDING TO TERMINATE PARENTAL RIGHTS
 PURSUANT TO SECTION THREE HUNDRED EIGHTY-FOUR-B OF THE  SOCIAL  SERVICES
 LAW,  OR  A  NOTICE OF THE COMMITMENT OF THE GUARDIANSHIP AND CUSTODY OF
 THE CHILD BY VOLUNTARY SURRENDER INSTRUMENT PURSUANT  TO  SECTION  THREE
 HUNDRED  EIGHTY-THREE-C  OR  SECTION  THREE  HUNDRED  EIGHTY-FOUR OF THE
 SOCIAL SERVICES LAW, OR A NOTICE OF  A  PROCEEDING  TO  GRANT  TEMPORARY
 GUARDIANSHIP  OF  THE  CHILD  TO  A PROPOSED ADOPTIVE PARENT PURSUANT TO

 S. 7888                             3
 
 SECTION ONE HUNDRED FIFTEEN-C OF  THIS  ARTICLE,  SUCH  FATHER  FILED  A
 MOTION  TO INTERVENE IN THE PROCEEDING, INCLUDING AN ASSERTION OF PATER-
 NITY AND A REQUEST FOR CUSTODY, WITHIN THIRTY DAYS OF THE DATE  OF  SUCH
 NOTICE.
   SUCH  CONSENT SHALL NOT BE REQUIRED UNLESS PATERNITY IS ESTABLISHED IN
 ACCORDANCE WITH THE RELEVANT AND OTHERWISE CONSISTENT PROVISIONS OF  THE
 FAMILY COURT ACT, THE SOCIAL SERVICES LAW AND THE PUBLIC HEALTH LAW.
   §  2.  Subdivisions 1 and 2 of section 111-a of the domestic relations
 law, subdivision 1 as amended by chapter 371 of the laws of 2013, subdi-
 vision 2 as added by chapter 665 of the laws of 1976, paragraph  (e)  of
 subdivision  2 as amended by chapter 862 of the laws of 1977, paragraphs
 (f) and (g) as amended and paragraph (h) of subdivision 2  as  added  by
 chapter 575 of the laws of 1980, are amended to read as follows:
   1.  Notwithstanding  any  inconsistent provisions of this or any other
 law, and in addition to the notice requirements of any law pertaining to
 persons other than those specified in subdivision two of  this  section,
 notice  as  provided  herein  shall be given to the persons specified in
 subdivision two of this section of  any  adoption  proceeding  initiated
 pursuant  to  this  article  or  of any proceeding initiated pursuant to
 section one hundred fifteen-b of this article relating to the revocation
 of an adoption consent, when such proceeding involves a child born  out-
 of-wedlock  provided, however, that such notice shall not be required to
 be given to any person who previously  has  been  given  notice  of  any
 [proceeding]  PETITION  TO  TERMINATE  PARENTAL  RIGHTS,  APPLICATION TO
 EXECUTE A JUDICIAL SURRENDER, PETITION FOR APPROVAL OF AN EXTRA-JUDICIAL
 SURRENDER OR EXTRA-JUDICIAL CONSENT TO  ADOPTION  involving  the  child,
 [pursuant  to section three hundred eighty-four-c of the social services
 law,] and provided further that  notice  in  an  adoption  proceeding[,]
 pursuant to this section shall not be required to be given to any person
 who has previously received notice of any proceeding pursuant to section
 one  hundred  fifteen-b  of  this  article.  In  addition  to such other
 requirements as may be applicable to the petition in any  proceeding  in
 which  notice must be given pursuant to this section, the petition shall
 set forth the names and last known addresses of all persons required  to
 be  given  notice of the proceeding, pursuant to this section, and there
 shall be shown by the petition or by affidavit or other proof  satisfac-
 tory  to  the court that there are no persons other than those set forth
 in the petition who are entitled to notice. For the purpose of determin-
 ing persons entitled to notice of adoption proceedings initiated  pursu-
 ant  to  this  article,  persons  specified  in  subdivision two of this
 section shall not include any person who has been convicted  of  one  or
 more  of the following sexual offenses in this state or convicted of one
 or more offenses in another jurisdiction which,  if  committed  in  this
 state,  would constitute one or more of the following offenses, when the
 child who is the subject of the proceeding was conceived  as  a  result:
 (A) rape in first or second degree; (B) course of sexual conduct against
 a child in the first degree; (C) predatory sexual assault; or (D) preda-
 tory sexual assault against a child.
   2.  Persons  entitled  to  notice, pursuant to subdivision one of this
 section, shall include:
   (a) any person adjudicated by a court [in  this  state]  OF  COMPETENT
 JURISDICTION to be the father of the child;
   (b)  [any  person adjudicated by a court of another state or territory
 of the United States to be the father of the  child,  when  a  certified
 copy  of  the court order has been filed with the putative father regis-

 S. 7888                             4

 try, pursuant to section  three  hundred  seventy-two-c  of  the  social
 services law;
   (c)]  any person who has timely filed an unrevoked notice of intent to
 claim paternity of the child, pursuant to section three  hundred  seven-
 ty-two-c of the social services law;
   [(d)]  (C) any person who is recorded on the child's birth certificate
 as the child's father;
   [(e)] (D) any person who is openly living  with  the  child  [and  the
 child's mother] at the time the proceeding is initiated and who is hold-
 ing himself out to be the child's father;
   [(f)]  (E) any person who has been identified as the child's father by
 the mother in A written, sworn statement;
   [(g)] (F) any person HOLDING HIMSELF OUT AS THE CHILD'S FATHER who was
 married to the child's mother within six months subsequent to the  birth
 of the child and prior to the execution of a surrender instrument or the
 initiation  of  a  proceeding  pursuant to section three hundred eighty-
 four-b of the social services law; [and]
   [(h)] (G) any person who has filed with the putative  father  registry
 an  instrument acknowledging paternity of the child, pursuant to section
 4-1.2 of the estates, powers and trusts law;
   (H) ANY  PERSON  WHO  HAS  ESTABLISHED  LEGAL  PATERNITY  THROUGH  THE
 EXECUTION  OF  AN  ACKNOWLEDGMENT  OF PATERNITY RECOGNIZED BY ANY STATE,
 TERRITORY OR COUNTRY IN WHICH IT WAS EXECUTED  TO  HAVE  THE  FORCE  AND
 EFFECT OF AN ORDER OF PATERNITY OR FILIATION; AND
   (I)  ANY  PERSON  WHO  HAS FILED A PATERNITY OR CUSTODY PETITION FOR A
 CHILD IN FOSTER CARE IN WHICH HE STATES THAT HE IS  THE  FATHER  OF  THE
 CHILD  AND  WHERE  THE  PETITION  REMAINS  PENDING  DESPITE HIS DILIGENT
 EFFORTS TO PROSECUTE IT, SO LONG AS THE  PETITION  WAS  FILED  PRIOR  TO
 ISSUANCE OF ANY ORDER FREEING THE CHILD FOR ADOPTION.
   § 3. Subdivisions 1 and 2 of section 384-c of the social services law,
 subdivision 1 as amended by chapter 371 of the laws of 2013, subdivision
 2 as added by chapter 665 of the laws of 1976, paragraph (e) of subdivi-
 sion 2 as amended by chapter 862 of the laws of 1977, paragraphs (f) and
 (g)  as  amended  and paragraph (h) of subdivision 2 as added by chapter
 575 of the laws of 1980, are amended to read as follows:
   1. Notwithstanding any inconsistent provision of  this  or  any  other
 law, and in addition to the notice requirements of any law pertaining to
 persons  other  than those specified in subdivision two of this section,
 notice as provided herein shall be given to  the  persons  specified  in
 subdivision two of this section of any [proceeding initiated pursuant to
 sections  three  hundred  fifty-eight-a,  three hundred eighty-four, and
 three hundred eighty-four-b of  this  chapter,]  PETITION  TO  TERMINATE
 PARENTAL  RIGHTS,  APPLICATION TO EXECUTE A JUDICIAL SURRENDER, PETITION
 FOR APPROVAL OF AN EXTRA-JUDICIAL SURRENDER OR EXTRA-JUDICIAL CONSENT TO
 ADOPTION involving a child born  out-of-wedlock.  Persons  specified  in
 subdivision  two  of  this  section shall not include any person who has
 been convicted of one or more of the following sexual offenses  in  this
 state  or  convicted  of  one  or  more offenses in another jurisdiction
 which, if committed in this state, would constitute one or more  of  the
 following  offenses, when the child who is the subject of the proceeding
 was conceived as a result:   (A) rape in first  or  second  degree;  (B)
 course of sexual conduct against a child in the first degree; (C) preda-
 tory sexual assault; or (D) predatory sexual assault against a child.
   2.  Persons  entitled  to  notice, pursuant to subdivision one of this
 section, shall include:

 S. 7888                             5
 
   (a) any person adjudicated by a court [in  this  state]  OF  COMPETENT
 JURISDICTION to be the father of the child;
   (b)  [any  person adjudicated by a court of another state or territory
 of the United States to be the father of the  child,  when  a  certified
 copy  of  the court order has been filed with the putative father regis-
 try, pursuant to section three hundred seventy-two-c of this chapter;
   (c)] any person who has timely filed an unrevoked notice of intent  to
 claim  paternity  of the child, pursuant to section three hundred seven-
 ty-two-c of this [chapter] TITLE;
   [(d)] (C) any person who is recorded on the child's birth  certificate
 as the child's father;
   [(e)]  (D)  any  person  who  is openly living with the child [and the
 child's mother] at the time the proceeding is initiated or at  the  time
 the  child  was  placed  in the care of an authorized agency, and who is
 holding himself out to be the child's father;
   [(f)] (E) any person who has been identified as the child's father  by
 the mother in A written, sworn statement;
   [(g)] (F) any person HOLDING HIMSELF OUT AS THE CHILD'S FATHER who was
 married  to the child's mother within six months subsequent to the birth
 of the child and prior to the execution of a surrender instrument or the
 initiation of a proceeding pursuant to  section  three  hundred  eighty-
 four-b OF THIS TITLE; [and]
   [(h)]  (G)  any person who has filed with the putative father registry
 an instrument acknowledging paternity of the child, pursuant to  section
 4-1.2 of the estates, powers and trusts law;
   (H)  ANY  PERSON  WHO  HAS  ESTABLISHED  LEGAL  PATERNITY  THROUGH THE
 EXECUTION OF AN ACKNOWLEDGEMENT OF PATERNITY RECOGNIZED  BY  ANY  STATE,
 TERRITORY  OR  COUNTRY  IN  WHICH  IT WAS EXECUTED TO HAVE THE FORCE AND
 EFFECT OF AN ORDER OF PATERNITY OR FILIATION; AND
   (I) ANY PERSON WHO HAS FILED A PATERNITY OR  CUSTODY  PETITION  FOR  A
 CHILD  IN  FOSTER  CARE  IN WHICH HE STATES THAT HE IS THE FATHER OF THE
 CHILD AND WHERE  THE  PETITION  REMAINS  PENDING  DESPITE  HIS  DILIGENT
 EFFORTS  TO  PROSECUTE IT SO LONG AS THE PETITION WAS FILED PRIOR TO THE
 ISSUANCE OF ANY ORDER FREEING THE CHILD FOR ADOPTION.
   § 4. Section 384-c of the social services law is amended by  adding  a
 new subdivision 8 to read as follows:
   8.  IF A PARTY NOTICED PURSUANT TO THIS SECTION FOR A PROCEEDING UNDER
 SECTION THREE HUNDRED EIGHTY-FOUR-B OF THIS TITLE  APPEARS  AND  ASSERTS
 THAT  HIS  CONSENT  TO ANY ADOPTION OF THE CHILD WOULD BE REQUIRED UNDER
 SECTION ONE HUNDRED ELEVEN OF THE  DOMESTIC  RELATIONS  LAW,  A  HEARING
 SHALL  BE  HELD  PRIOR TO THE FACT-FINDING HEARING. AT SUCH HEARING, THE
 PETITIONER IN THE UNDERLYING PROCEEDING SHALL BEAR THE INITIAL BURDEN OF
 GOING FORWARD WITH EVIDENCE SHOWING THAT THE NOTICED PARTY'S CONSENT  TO
 THE ADOPTION WOULD BE NOT REQUIRED, BUT THE NOTICED PARTY SHALL BEAR THE
 ULTIMATE  BURDEN OF ESTABLISHING BY A PREPONDERANCE OF THE EVIDENCE THAT
 HIS CONSENT WOULD BE REQUIRED UNDER THE DOMESTIC RELATIONS LAW.
   § 5. This act shall take effect on the ninetieth day  after  it  shall
 have become a law and shall apply to petitions for adoption, termination
 of parental rights, approval of extra-judicial surrenders or extra-judi-
 cial consents to adoption or applications to execute judicial surrenders
 filed  on or after such effective date; provided, however, that this act
 shall not apply to cases in which judicial determinations had been  made
 prior  to  such  effective  date  regarding  whether a putative father's
 consent to an adoption would be required or whether he  is  entitled  to
 notice  under  section  111-a  of  the domestic relations law or section
 384-c of the social services law.

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Senate Bill S7888

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Archive: Last Bill Status - In Assembly Committee

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Sponsored By

Tony Avella

Archive: Last Bill Status - In Assembly Committee

Actions

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2017-S7888 (ACTIVE) - Details

2017-S7888 (ACTIVE) - Summary

2017-S7888 (ACTIVE) - Sponsor Memo

2017-S7888 (ACTIVE) - Bill Text download pdf

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