Senate Bill S5240A

                                 
BILL NUMBER: S5240

SPONSOR: BRISPORT
 
TITLE OF BILL:

An act to amend the family court act and the social services law, in
relation to establishing procedures regarding orders of post-termination
visitation and/or contact between a child and such child's parent

 
PURPOSE:

To allow post-termination visitation and/or contact between children and
their birth parents in termination of parental rights proceedings
provided it is deemed in the best interest of the child.

 
SUMMARY OF PROVISIONS:

§ 1- Amends section 634 of the family court act permitting, if proper,
an order of post-termination visitation and/or contact.

§ 2 - Amends section 384-b of the social service law to add five new
subdivisions 14-18:
              

-Allows for granting of post-termination visitation/contact either on
the consent of the parent, child, and foster parents or foster care
agency or after a hearing at which the court finds both that
visitation/contact is in the best interest of the child and that any
party opposing an order of visitation/contact does not have a reasonable
basis for their opposition.

-Specifies that the party moving for an order of post-termination
visitation/contact has the burden of establishing that
visitation/contact is in the best interest of the child and that any
party opposing an order of visitation/contact does not have a reasonable
basis for their opposition.

-Provides for notification of involved parties of standing to partic-
ipate in the hearing to determine whether there should be post-termina-
tion visitation/contact.

-Requires the consent of a child over the age of fourteen to any post-
termination visitation/contact order.

-Grants the family court the discretion to determine the appropriate
form of post-termination visitation and/or contact.

-Bars repeated applications for post-termination visitation/contact
orders once original application has been denied.

-Bars the entry of post-termination visitation/ contact order in cases
of severe or repeated abuse, unless the parent seeking such an order was
not the perpetrator of such abuse.

-Grants all parties to a post-termination visitation/contact order the
ability to move the court to enforce or modify the order where there is
a substantial change in circumstances and in the best interest of the
child. Clarifies that siblings' rights to seek contact under the domes-
tic relation law are not limited by these subdivisions.

-Specifies that failure to comply with the terms of a post-termination
visitation/contact order is not a ground for invalidating either the
underlying termination of parental rights or the child's adoption.

§ 3 - Provides for an effective date of 180 days after signed into law.

 
JUSTIFICATION:

The Preserving Family Bonds Act reflects a growing national consensus
that openness in adoption is beneficial for adoptees, birth parents, and
adoptive parents and brings New York law in line with the federal
government's most recent guidance on achieving permanency for children
in foster care, which encouraged states to make greater efforts to main-
tain children's ties to their families and communities of origin even
after adoption. This guidance made clear that in the vast majority of
cases, "adoption should be viewed as an opportunity to expand a child's
experience of family rather than replace their previous family," and
that children's relationships with their biological parents, siblings,
and extended family members should continue even after termination of
parental rights and adoption.  "Children do not need to have previous
attachments severed in order to form new ones. In fact, they will be
better positioned to develop new relationships if we work to preserve
their original connections, sparing them from additional grief and loss.

Current law in New York provides for open adoption and post-termination
visitation and/or contact when a parent voluntarily surrenders their
parental rights but does not give courts any authority to allow for
contact between children and biological parents after a parent's rights
have been terminated.

For many years, New York State judges in the Second and Fourth Appellate
Divisions were authorized to order post-termination contact pursuant to
case law. That practice changed after the Court of Appeals held in June
2012 in Matter of Hailey ZZ that judges did not have the explicit
authority to grant post-termination contact. The Court reasoned that
"the Legislature, the entity best suited to balance the critical social
policy choices and the delicate issues of family relations involved in
such matters, has not sanctioned judicial imposition of post-termination
contact where parental rights are terminated after a contested proceed-
ing.

As a result of the Halley ZZ decision, parents who do not surrender
their parental rights risk losing all contact with their children if
they choose to defend their rights in a termination of parental rights
proceeding and lose-and children's ability to remain connected to their
parents hinges on the manner in which their parents' rights were
severed. Yet the difference between a voluntary surrender of parental
rights and an involuntary termination by the court is a procedural one;
it has nothing to do with the strength of the bond between the parent
and their child, or the child's need to maintain some form of contact
with their family of origin following adoption.

This legislation seeks to recognize the value that post-termination
contact between children and parents has for many children, especially
those who have, strong bonds with their biological family members.
Specifically, it would provide the family court with the authority to
order post-termination visitation and/or contact between a child and
their biological parent after a termination of parental rights, subject
to the best interests of the child. The bill gives the court the
discretion to determine the appropriate type of contact for a given
family, which may include, but is not limited to, supervised visitation
by a family member or unsupervised visitation, telephone calls, emails,
letters, exchange of pictures, social media, and skype or other forms of
video chat.

If the parent, child, and the child's foster parents, do not all consent
to the order of post-termination visitation and/or contact, the bill
requires the court to hold a hearing to determine whether such an order
is in the child's best interest. The bill ensures that parents and chil-
dren who are parties to the termination proceeding, as well as the
child's foster parents; have standing to participate in this hearing. It
places the burden of establishing that contact would be in the child's
best interest on the party seeking the order of post-termination contact
and requires that party also to establish that any party opposed to the
order lacks a reasonable basis for their opposition.

While the termination of a parent's right to a child may ultimately be
best for that child, a growing body of research has shown that retaining
some contact with a biological family or parent may also be in that
child's best interest. Even when a biological parent is unable to care
for their child, post-termination contact allows the child to retain a
relationship with their parent and may allow that parent to play a posi-
tive role in the child's life. Most children placed in the foster care
system already have established significant ties to their biological
parents and other family members. Even children who enter foster care at
birth and are ultimately adopted will likely have had regular contact
and strong bonds with their biological families for a lengthy time peri-
od, even years, prior to the time the parent-child relationship is
legally severed.

Children who enter foster care and are eventually adopted can experience
long-term emotional consequences stemming from the break-up of the
biological family, the disruption in the children's most basic source of
security, and the feelings of displacement that follow. Children who
have been adopted may experience insecurity and doubt in future
relationships, based on the termination of the biological parent-child
relationship.

Post-termination contact with a child's family of origin, where appro-
priate, may offer several benefits to children who may remain in foster
care or transition into an adoptive family. Continued contact after a
parent's rights have been terminated, whether voluntarily or involuntar-
ily, allows a child to maintain a relationship with his or her biolog-
ical parent. It may also help a child develop a more secure sense of
self by offering them the ability to better understand their parents,
biological family and what led to the termination of the legal relation-
ship. Post-termination contact may also help a child with the transition
that comes after the termination of a parent's rights. This same child
has likely already transitioned from their biological family to foster
care and may now be dealing with the transition to their adoptive fami-
ly. Contact may offer children the opportunity to heal and transition
through communication, where appropriate and safe, with their biological
parents and come to accept their life story. Especially as children age,
they are better equipped to process the emotional burdens of what
happened in their families that led to the termination. Biological
parents can reinforce with their children, through post -termination
contact, that the termination was not the fault of the child and that
the parent still loves and cares for the child, even if he or she is
unable to parent them.

Many adopted children, no matter how their adoption was processed, find
themselves curious about their biological parents and their biological
ancestry. Satisfying a child's curiosity about where they come from has
been directly correlated to a child's well-being.  Studies have shown
that the more children know about their family histories, even negative
family histories, "the lower their anxiety, the higher their self-es-
teem, the more internally controlled they were, the better their family
functioning, the fewer their behavioral problems, and the more cohesive
their families. Post-termination contact, where appropriate, allows
children access to their racial, ethnic, religious and cultural histo-
ries, critical in developing a sense of self. Contact may also become
crucial to them later in life, including the exchange of family medical
and health information.

This bill will bring New York law in line with the complex realities of
families involved in the child welfare system and will better allow
family courts to tailor dispositional orders in termination of parental
rights proceedings to meet the needs and best interests of children.

 
PRIOR LEGISLATIVE HISTORY:

2023-24: S8153

Similar to S4203A of the 2019-20 session that was vetoed by the Governor
(VM 268 of 2019), and S6367 of the 2021-22 session that was likewise
vetoed (VM 84 of 2021), this bill addresses the veto as follows:

While maintaining its core commitment to ensuring that children have the
opportunity to maintain contact with their families of origin after
adoption when such contact is in their best interest, the language of
the proposed Preserving Family Bonds Act has been changed in significant
ways in response to concerns raised by the Governor's office, child
protective and foster care agencies, and others. Most importantly, the
bill now has a provision making it clear that an order of post-termina-
tion visitation and/or contact can and should be entered when the
parties all consent; we hope and expect that many such orders will be
issued on this basis. The bill also places an increased burden on the
party seeking an order of post-termination visitation and/or contact
over the opposition of one or more of the other parties. In addition to
establishing that the order sought would be in the child's best inter-
ests, the applicant must now also establish that the party opposing the
order does not have a reasonable basis for their failure to consent.
This latter requirement is based on the caselaw interpreting the
requirements of section 72 of the Domestic Relations Law, which allows a
court to order visitation between a grandparent and their gran dchild
over the objection of the child's parent and which was held to be
constitutional by the Court of Appeals in People ex rel. Sibley on
Behalf of Sheppard v. Sheppard, 54 N.Y.2d 320 (1981).

In the 2019 veto memo, the Governor specifically expressed concerns
about the fact (1) that the bill might permit post-termination visita-
tion and/or contact to be ordered between a child and a parent who
severely or repeatedly abused them; (2) that the bill might permit post-
termination visitation and/or contact to be ordered over the objection
of the child in question; and (3) that the modification provision in the
bill might infringe on the rights of adoptive parents. The bill as now
drafted addresses each of these concerns. The bill carves out exceptions
for children fourteen years of age or older who do not consent to
contact, and for cases of severe or repeated abuse, so that post-termi-
nation visitation and/or contact cannot be ordered in such cases, unless
the party seeking such contact was not the perpetrator of the abuse.
Additionally, the bill contains an updated modification provision that
requires the party seeking to modify the post-termination visitation
and/or contact order to establish (1) a substantial change in circum-
stances justifying such a modification; (2) that the modification is in
the child's best interests; and (3) that any party opposing such a
modification does not have a reasonable basis for their failure to
consent. As discussed above, this latter requirement is based on the
case law regarding D.R.L. § 72, which was held to be constitutional by
the Court of Appeals.

The bill also addresses a number of other concerns that were raised
during the 2019 Legislative session, including concerns about the timing
of applications for post-termination visitation and/or contact and the
possibility that litigation surrounding such applications might delay
permanency for some children. Specifically, the bill clarifies that a
hearing regarding a party's application for an order of post-termination
visitation and/or contact must occur simultaneously with the disposi-
tional hearing in the proceedings to terminate the parent's rights or,
if there is no dispositional hearing, at the point in the proceedings
when the dispositional hearing would have been held, i.e., subsequent to
the close of fact-finding in the termination proceeding and prior to the
entry of an order committing custody and guardianship of the child to
the petitioning foster care agency for the purposes of adoption. The
bill also specifies that an appeal from any order regarding the applica-
tion for post-termination visitation and/or contact shall not provide a
basis for delaying finalization of a child's adoption.

Moreover, this most recent amendment clarifies that a child who is a
party to a post-termination visitation and/or contact hearing must be
represented by an attorney for the child, and that, pursuant to Family
Court Act § 262(a)(iv), the foster parent, adoptive parent, legal guard-
ian or custodian has the right to assigned counsel in any proceedings
pursuant to Social Services Law § 384-b.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law.