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

As noted by the Court of Appeals in Matter of Jacob, 86 NY2d 651 (1995), legislation enacted in 1990 authorizing surrenders of parental rights 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 New York State Law. See L. 1990, c. 479. This legislation, along with subsequent amendments, created a framework to enable parents surrendering children to authorized child care agencies for the purposes of adoption to be able to seek judicial enforcement of agreed-upon conditions to the extent that those conditions comported with the children's best interests.

Over the ensuing two decades, however, we have seen all too many cases in which the goals behind this legislation have not been met, and in which what appeared to be plain terms of the statutes have not been followed. All too frequently, birth parents have been induced to execute surrenders, particularly extra-judicial surrenders, upon the assumption that informal agreements or side letters of understanding would be enforceable even though they were not presented to the Family or Surrogate's Court for approval and were not incorporated into any written court order. Although surrenders of children in foster care must contain notices in "conspicuous bold print on the first page" of the right to counsel, including the right to appointed counsel if indigent, many birth parents executing surrenders are unrepresented, particularly in the instances of surrenders pursuant to Social Services Law §384 of children who are not in foster care, as well as of extra-judicial surrenders of children both in and out of foster care that are executed by birth mothers while in the hospital immediately after giving birth. See Social Services Law §§383-c(5(b).

For the foregoing reason, we submit this measure expressly to require that all conditions accompanying surrenders, both of children in and out of foster care, be approved by Family or Surrogate's Court as being in the child's best interests and be incorporated into a court order. Moreover, the measure prohibits extra-judicial surrenders executed on or after the effective date of the statute (January 1, 2011) from containing any conditions. Only judicial surrenders

executed on or after that date, could contain enforceable conditions and birth parents executing surrenders would have to be so advised. Agreements for postadoption contact between the surrendered child and birth siblings and halfsiblings, where either the child and/or siblings or half-siblings are 14 years of age or older, would likewise require their written consent to be enforceable. A copy of the court order incorporating any post-adoption contact agreement or other conditions must be given to all parties to the agreement. The measure also would correct omissions in Family Court Act §262 and Social Services Law §384 with respect to the right to counsel for surrendering parents. Social Services Law §383-c would be added to the categories of cases for which there is a right to appointed counsel for indigent adults and the provision regarding notice of the right to counsel contained in Social Services Law §383-c would be added to Social Services Law §384(4).

The need for this measure is well illustrated by Matter of the Adoption of Jack ex rel. David B., 18 Misc.3d 397 (Fam. Ct., Monroe Co., 2007). In that case, 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 postadoption contact, but neither the extra-judicial surrenders, nor the agreement, was presented to the 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 affected child was appointed, no best interests determination was made and no showing was offered as to the extent of post-adoption contact expected to occur following execution of the surrender but prior finalization of the adoption. The existence of this unenforceable "side agreement" was deemed to "cast[] a cloud over the surrenders themselves." The Court stated:

Agreements made outside of the surrender instrument, especially 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 postadoption agreements that balance the rights of the parents and proposed adoptive parents within the context of the child's best interest (see L. 2005, Ch. 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.

Regrettably, the foregoing is not an isolated case. Apparently, side agreements never presented to any court for approval are common statewide, clearly thwarting the legislative intent behind the conditional surrender provisions of Social Services Law §§383-c and 384, as well as the requirements for postadoption contact agreements in Domestic Relations Law § 112-b. Enactment of this measure would ensure necessary judicial oversight, thereby protecting both the fairness of the surrender process for all parties and the best interests of the children involved.

This measure, which would have no fiscal impact upon the State, would take effect on January 1, 2011.

2010 LEGISLATIVE HISTORY: None. New proposal.