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

In 1979, the United States Supreme Court, in Caban v. Mohammed, 441 US 388 (1979), held a statute unconstitutional that failed to afford a birth father the right to consent to his child's adoption, where he had lived with the mother; admitted paternity and had a substantial relationship with, and provided support to, the child. Following Caban, the Legislature enacted new criteria defining those putative or non-marital fathers who are entitled to consent to adoptions ("consent fathers") and those who are entitled simply to notice of termination of parental rights, surrender and adoption proceedings ("notice-only fathers"). Those entitled 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, unambiguous and objective" criteria for notice and consent, experience with the 1980 statute has demonstrated that it fulfills none of those intentions. Therefore, we submit 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 (Domestic Relations Law § 111):

This measure establishes a new, objective benchmark for determining the applicable criteria for assessing whether a putative father should be accorded the status of a "consent father." Current law establishes different criteria for determining whether a non-marital father is a "consent father," depending upon whether a child was less than or more than six months old when he or she was "placed with the adoptive parents." See Domestic Relations Law §§ 111(1)(d), 111(1)(e). This measure would substitute 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" for the phrases "placed with the adoptive parents" and "placed for adoption."*

The phrase "placed with the adoptive parents" has generated decades of confusion over whether it denotes the original placement with the particular adoptive family at a point where their status was not yet "adoptive" or the later point at which the adoptive parents signed an adoptive placement agreement or, alternatively, the hard-to-pinpoint moment at which foster parents were identified by the child care agency as the adoptive resources for the child. Interpretation of the phrase to connote the point at which the adoptive parents signed an adoptive placement agreement has been problematic since it, in effect,

has rendered the six-month distinction inapplicable to the vast majority of foster children, virtually all of whom are over six months old at the point where the agreement has been signed. As the Appellate Division, First Department, recognized in dicta in Matter of Tasha M., 33 A.D.3d 387 (1st Dept, 2006), such an interpretation is not meaningful since the determination whether a person is a "consent father" is a "threshold issue" that must generally be determined well in advance of the signing of an adoptive placement agreement. In fact, statutes and regulations preclude the signing of the adoptive placement agreement until the child has already been freed for adoption, but the Court is required to make a determination regarding "consent fathers" as a part of a termination of parental rights proceeding.** This measure would instead articulate a far more readily-identifiable point in time for determining whether to apply the over-six-months or under-six-months criteria.

Using the new benchmark for those children who were over six months old, this measure recognizes additional categories of non-marital fathers who should be accorded the right to consent to adoptions of their children.*** Those criteria would include, inter alia, those named on a child's birth certificate or acknowledgment of paternity, those adjudicated as fathers in New York or another state or territory, those whose acknowledgment of paternity or order of filiation in another country is determined to be entitled to comity, those who maintained substantial and continuous or repeated contact with the child through visits at least twice per month or through regular communication, and those who lived with the child for six months immediately prior to the earlier point of the child's placement in foster care or placement for adoption.

Affording non-marital fathers named on the child's birth certificate or acknowledgment of paternity, or adjudicated as fathers in New York or another state or territory, the right to consent to the adoption of their children reflects the increasing recognition and utilization of these means of establishing fatherhood. The Federal Personal Responsibility and Work Opportunities Recognition Act (Public Law 104-193) required states, as a condition of receiving Federal child support funding under Title IV-D of the Social Security Act, to implement simple means of legally establishing paternity through voluntary acknowledgments, including hospital-based programs to encourage their use, and to accord full faith and credit to acknowledgments from other states - requirements that have sharply increased the use and recognition of acknowledgments nationally. Further, the Act required genetic testing to be admissible in paternity proceedings and to be presumptive proof of paternity, changes that have increased paternity adjudications and have reduced contested cases. See 42 U.S.C.A. § 666(a)(5).**** Taken together, these changes, accompanied by parallel increases in societal perceptions of the status of fathers of out-of-wedlock children, militate in favor of recognizing fathers whose paternity has been established through these means as "consent fathers."

Additionally, this measure retains but, again, clarifies the alternative behavioral criteria for establishing the status of a "consent father." Apart from legally establishing paternity, non-marital fathers may demonstrate their entitlement to be "consent fathers" through maintaining "substantial and continuous or repeated

contact with the child." This may be demonstrated by payment of child support, visiting the child, regularly communicating with the child or living with the child for a six-month period. The measure would modify the visiting criterion to require visits twice per month, the standard for foster care visiting contained in the regulations of the State Office of Children and Family Services. See 18 N.Y.C.RR. 430.12(c)(4)(ii)(d)(1)(i). Further, with respect to the living-together criterion, it would substitute a six-month period "immediately preceding the earlier of the placement of the child for adoption or placement of the child in foster care" for the existing requirement of "six months within the one year period immediately preceding the placement of the child for adoption."*****

Elevation of legally adjudicated and acknowledged fathers to "consent fathers" from their current status as "notice only" fathers is consistent with the mandates in the recently-enacted permanency legislation for early identification of suitable non-respondent parents, as well as relatives (both paternal and maternal), with whom children who are the subjects of child protective proceedings might reside. See Family Court Act § 1017 (L. 2005, c. 3). Non-respondent parents must be given notice of the pendency of child protective proceedings and permanency hearings, information regarding where their children have been placed and how they can enforce their rights to visitation, and a warning that they are subject to possible termination of parental rights if they don't involve themselves in planning for their children on a timely basis. See Family Court Act 1035, 1089(b)(1)(i): Child protective and child care agencies' continuing obligations to identify and plan with the fathers of children in their care and to document those efforts are clear from the inception of children's placement in foster care - part of a salutary national trend to spur early identification and involvement of fathers.****** Fathers who come forward promptly, cooperate in permanency planning efforts, maintain regular contact with their children and fulfill their roles as fathers clearly merit the entitlement afforded by this measure to consent to the adoption of their children.

2. Notice-only fathers (Domestic Relations Law § 111-a; Social Services Law § 384-c):

In addition to augmenting alternatives for establishing status as a "consent father," this measure would add two categories of individuals to be entitled to notice of termination of parental rights, surrender and adoption proceedings and the opportunity in those proceedings to be heard regarding their children's best interests. The measure would retain as "notice-only" fathers those named by mothers in written sworn statements and those who have merely filed an intent to claim paternity with the putative father registry. Both of those are unilateral actions, do not carry a support obligation, and are revocable at will, thus warranting retention of the more limited "notice-only" status.*******

The first new category of "notice-only fathers" would include individuals who have filed custody or paternity petitions, served them upon the mother or agency and thereafter appeared in court on the petitions during their children's most recent stays in foster care,

that is, petitions that are still pending at the time of the adoption or termination of parental rights proceeding. This category reflects concern for the right to be heard of a non-marital father, whose attempts to assert his status as father may have been frustrated by the mother's unavailability or the child care agency's unresponsiveness, but who nonetheless has taken some concrete action. The second new category would be comprised of individuals identified in an acknowledgment or order of paternity in another country that has been determined by the Court not to be entitled to comity in New York but for whom the Court has determined that notice should be given.

Advances in establishment of paternity and enhanced expectations concerning the role of non-marital fathers in their children's lives warrant a realignment both of the requirements for consent to adoption by fathers of children born out of wedlock and for notice to fathers of termination, surrender and adoption proceedings. This measure provides that necessary realignment and in so doing will enhance the effectiveness of the permanency planning process for children before the Court.

This measure, which would have no fiscal impact upon the State, would take effect immediately.

2009 Legislative History:

OCA 2009-32 Senate 3875 (Sen. Montgomery) (Passed)

* Inclusion of the filing of the adoption petition as one of the criteria addresses situations, more common in private adoptions, in which a child is freed for adoption within the adoption proceeding, with no prior actions filed.

** See Social Services Law §§ 384-b(12); 18 N.Y.C.R.R. §§ 421.1(d), 421.18(3)(1).

*** This measure does not address the "consent father" criteria applicable to children under six months old, the subject of one of our proposals in prior years. See D.R.L. § 111(1)(e). Since the Court of Appeals, in Matter of Racquel Marie X, 76 N.Y.2d 387(1990), cert. denied, 498 U.S. 984 (1991), ruled unconstitutional the criterion requiring the putative father to have lived with the mother for six months prior to the child's birth, criteria articulated in that decision, rather than the statutory criteria, have been applied to putative fathers of those children.

**** Voluntary paternity acknowledgment procedures and full faith and credit requirements in New York are delineated in Public Health Law 4135-b, Social Services Law § 111-k and Family Court Act § 516-a.

***** Read literally, the existing six-month criterion could only apply to the father of a foster child if the child were surrendered for adoption virtually immediately upon placement in foster care. The minimum thresholds of time in foster care for involuntary termination of parental rights are six months for abandonment and one year for all other grounds, except severe or repeated child abuse.

****** See NYS Office of Children and Family Services, Locating Absent Fathers and Extended Family Guidance Paper (Informational Letter 05-0CFS-INF-05, Sept, 2005); What About the Dads? Child Welfare Agencies' Efforts to Identify, Locate and Involve Nonresident Fathers (US HHS ACYF Children's Bureau, 2006).

*******They thus stand in sharp contrast to paternity acknowledgements, pursuant to Public Health Law § 4135-b, which must be signed by both parents and have strict Federal time-limits and criteria that must be met before they can be revoked. See 42 U.S.CA 666(a)(5)(D) (ii). See also Family Court Act § 516-a(b); Social Services Law § 111-k.