Relates to agreements between parents executing a judicial surrender prescribing contact between the child and his or her biological siblings

As noted by the Court of Appeals in Matter of Jacob, 86 N.Y.2d 651 (1995), the 1990 legislation authorizing surrenders of parental rights to contain conditions, e.g., 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 designed 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 Domestic Relations Law § 112-b, 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 enforceable, the statutes were designed to provide judicial oversight that would fulfill those best interests through procedures that are fair to birth parents, adoptive parents, authorized agencies and, most important, the children.

Unfortunately, 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 surrenders, particularly extra-judicial surrenders, upon an assumption that informal agreements or side letters of understanding would be enforceable even if not presented to Family or Surrogate's Court for approval and if 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, many birth parents executing surrenders are unrepresented.

In light of these deviations from the clear intent and letter of the statute, we are submitting this measure explicitly 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

before being enforceable. To underscore the need for judicial oversight, this measure prohibits extrajudicial surrenders executed on or after its effective date (January 1, 2013) from containing any conditions. Only in judicial surrenders executed on or after that date could there be enforceable conditions and birth parents executing surrenders would have to be so advised. Agreements for post-adoption contact between a 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 incorporating any post-adoption contact agreement or other conditions must be given to all parties to the agreement. The measure also would correct the 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 as well as notice of the right to supportive counseling contained in Social Services Law §383-c, would be added to Social Services Law §384(4).

Need for enactment of this measure is illustrated in 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 a child's birth parents because the original extra-judicial surrenders, executed by birth parents, referred to an agreement for post-adoption contact, but neither the extra-judicial surrenders, nor the agreement, had been 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 child had been appointed, no best interests determination 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 wrote:

o 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.

o 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.

o 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 the Adoption of Jack ex rel. David B., regrettably, is not an isolated case. Apparently, side agreements never presented to any court for approval have become common practice statewide and clearly thwart the clear intent of the Legislature in enacting the conditional surrender provisions of Social Services Law §§383-c and 384, as well as the requirements for post-adoption 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 would take effect on the first of January after it shall have become a law.

2012 Legislative History: None. New proposal.