Authorizes the family court, in certain situations, to restore a birth parent's parental rights after they have been terminated

New York State has progressed far from the days when adolescents were not deemed candidates for either meaningful permanency planning, foster care or adoption, and when many were simply relegated to congregate care settings and, when they reached 18, released to "independent living," an unrealistic status that for too many meant homelessness. The State's 2005 permanency legislation recognized that teens in out-of-home care require services to start preparing them for independence in adulthood starting at age 14, but, at the same time, that if they are neither living with their own families, nor adopted, they need to have a "significant connection to an adult willing to be a permanency resource..." See L. 2005, c. 3; Family Court Act §1089. Not infrequently, the "significant connection" that would fulfill a child's best interests turns out to be his or her birth parent, even if the latter's parental rights had already been terminated. At present, however, State law does not provide any procedural vehicle to recognize this fact. This measure would fill that gap.

This measure is similar to legislation enacted in California in 2005 (Chapter 634; Assembly Bill 519 (1) and Washington in 2007 Laws of 2007, ch. 413 to restore birth parents' parental rights. Under this measure, with the consent of the petitioner and respondent in the original termination of parental rights proceeding, as well as that of the child, a petition to restore parental rights could be filed provided: (i) at least two years had elapsed since issuance of the order transferring guardianship and custody of the child; (ii) the original adjudication terminating parental rights could not have been based upon severe or repeated child abuse; and (iii) the child would have to be under the jurisdiction of the Family Court and have a permanency goal other than adoption. Family Court would be authorized to grant the petition where clear and convincing proof establishes that restoration of parental rights would be in the, child's best interests. This restoration would, in effect, revoke the disposition transferring, guardianship and custody of the child but would leave in place the fact-finding upon which the termination of parental rights adjudication had been based. A clause also would be added to the permanency hearing order provision permitting the Court to recommend the filing of a petition to restore parental rights.

Significantly, this measure would add an important option available under the Washington State statute, ,:e., that the Court would have the authority to grant the restoration petition conditionally. This option would retain guardianship and custody of the child with the agency but authorize the child to reside with the birth parent on a trial discharge for a period of up to six months, during which time the agency may be directed to supervise the family and to develop a reunification plan with appropriate transitional services. If temporary restoration proves successful and in the child's best interests, it could be made final at the end of the designated period and guardianship and custody would be transferred at that time to the birth parent. If, however, the child were removed from the birth parent during the designated period by reason of abuse or neglect, the Court could dismiss the restoration petition and direct the agency that retains guardianship and custody to make efforts to further an alternative permanency plan for the child.

Even without a statute, child welfare professionals in New York have reported cases in which facts mirroring the criteria contained in this measure have spurred efforts by parties and adolescents to get Family Court to vacate orders terminating parental rights.

See D. Riggs, "Permanence Can Mean Going Home," Adoptalk(North American Council on Adoptable Children; Spring, 2006). In fact, guidelines for adolescent cases issued by the New York City Administration for Children's Services in 2003 recognize that "the best permanency resource for a young person who has been freed for adoption may be a member of the child's birth family, including a parent from whom the child has been freed."(2) Judges report that, notwithstanding termination of parental rights, teens aging out of foster care often return to their birth families, and, as one child welfare professional was quoted as saying:

The way families are drawn together against all odds whatever the circumstances r think is exemplified by just how many kids do we see aging out of the foster care system and where do they go? They go home....even kids whose parents' rights have been terminated...

The bonds that hold families together are powerful and often the system works to strain or shatter or destroy them rather than build on them.

M. Freundlich, Time Running Out: Teens in Foster Care (Children's Rights, Legal Aid Society Juvenile Rights Division & Lawyers for Children, Nov., 2003), p. 67.

As one commentator noted, 'It is never too late for reunification." J. Jensen, "Fostering Interdependence: A Family-Centered Approach to Help Youth Aging Out of Foster Care," 3 Whittier J Of Child and Family Advocacy 329 (Spring, 2004).

Although several Family Court judges in New York have vacated termination of parental rights orders upon consent, no clear procedural vehicle authorizes them to do so. In Matter of Rasheed A., NY Law Journal, Aug. 3,2007 (Fam. Ct., Kings Co., 2007) , a Family Court referee awarded guardianship of a severely hyperactive 12-year old child to a birth mother, whose rights had been terminated, on the basis of "unusual and compelling circumstances." The mother demonstrated that the problems precipitating termination of her parental rights had been resolved and she proved by "substantial evidence" that the child would suffer serious harm were the mother not awarded custody or guardianship.(3) Further, in Matter of Theresa 0 v. Arthur P, 11 Misc.3d 736 (Fam. Ct., Ulster Co., 2006), Family Court gave standing to a birth mother to seek custody and eventual adoption of her child, notwithstanding an earlier surrender. The Court rejected the argument that the doctrine of res judicata precluded re-litigation of the child's custody, quoting Friederwitzer v. Friederwitzer, 55 N.Y.2d 89(1982):

The only absolute in the law governing custody of children is that there are no absolutes.

In Matter of Tiffany A. v. Margaret H., 171 Misc.2d 786(Fam. Ct., Kings Co., 1996), however, Family Court denied standing to a birth parent, whose rights had been terminated, to seek custody of her child. Moreover, in Matter of Frederick 5.,178 Misc.2d 152 (Fam. Ct., Kings Co., 1998), Family Court noted that neither the Family Court Act, nor the Social Services Law, contain a provision permitting a Court to set aside or vacate an order terminating parental rights and that the authority contained in CPLR 5015 must be utilized "sparingly" and only in the most ·compelling" circumstances. A 14-year-old child's change of heart regarding adoption by his aunt did not, in the Court's view, constitute such circumstances, although the child's consent would be needed for an adoption to be approved. At the same time, there is considerable appellate authority in New York for ordering new dispositional hearings in termination of parental rights cases when it becomes clear that the child is older and does not want to be adopted, as well as a few cases in which the birth parent had made progress and the child pressed for reunification.(4)

Recognizing that no legal pathway exists to restore the family ties of the State's "legal orphans" - youth whose parental ties were terminated but with no prospect of adoption - a recent report of the Center for an Urban Future included support for this measure as one of its recommendations.(5) Clearly, the statutory vacuum must be filled so that courts have clear authority to fulfill their statutory duty to find permanent homes for children, including authority in prescribed circumstances to restore parental rights.

This measure, which would have no fiscal impact upon the State, would take effect 90 days after it becomes a law.

2008 LEGISLATIVE HISTORY :

S 4543-a (Soc Serv, Ch+ Fams)/A.10810 (Codes).

Footnotes

(1) Since the California statute became effective in January, 2006, 14 parents have had parental rights restored, according to the Children's Law Center of Los Angeles. See K. Hurley, "When You Can't Go Home: Should Teens Have Means to Regain Legal Ties to their Parents?," 15 Child We/fare Watch 18, 20 (Winter, 2008).

(2) N.Y.C. Admin. for Children's Services, "Implementation of the Adoption and Safe Families Act, Part V: Family-based Concurrent Planning for Youth with Goals of Independent Living" (2003)(on-line at www.nvc.gov/html/acs/pdf/asfa 5.pdf). See also, A. Lowe, "Families for Teens Overview,'; Eighth Annual Children's Law Institute 197,199 (Practicing Law Institute, 2005).

(3) See also K. Hurley, supra, at 20-21.

(4) See, e.g., Matter of Anna Maria C., 29 A.D. 3d 992 (2d Dept., 2006): Matter of Eugene L., 22 A.D. 3d 348 (1st Dept., 2005).

(5) "Child Welfare Watch Recommendations and Solutions," 15 Child Welfare Watch 3,4 (Winter, 2008).