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

Unfortunately, over 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 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 thus no approval was 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 surrenders pursuant to Social Services Law § 384 of children who are not in foster care, as well as extrajudicial 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 §§ 383-45(b).*

In light of this experience and what appear to be deviations from the clear intent and letter of the statute, we submit this measure explicitly requiring 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 that the approval be incorporated into a court order to render them legally enforceable. To underscore the need for judicial oversight, this measure requires that, with respect to an extra-judicial surrender executed on or after the effective date of the statute (January 1, 2017), an agreement designating the prospective adoptive parent or providing for post-adoption contact would only be enforceable if, in addition to meeting the requirements that all parties consent in writing to the conditions and that the court determine that the agreement is in the child's best interests, two further conditions must be met, i.e., (i) the party or parties surrendering the child must attest in a sworn affidavit that it would be an undue hardship to appear in court to execute the surrender; and (ii) the party or parties surrendering the child were represented by counsel and such counsel was present at the execution of the surrender and informed the surrendering party or parties of the requirements for enforceability of the agreement. Agreements for post-adoption contact between the 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 an agreement designating a prospective adoptive parent or authorizing post-adoption contact must be given to all parties to the agreement. The measure would also 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).

The need for this measure is illustrated by the case of Matter of Kaylee O. v. Michael 0., 111 A.D.3d 1273 (4th Dept., 2013). While deferring to Family Court's determination that a post-adoption contact agreement would not be in the child's best interests in that case, the Appellate Division held that the agreement would not be enforceable in any event because it had not been approved by the court and incorporated into a court ordered adoption agreement, as required by Domestic Relations Law § 112-b.

Further, in Matter of the Adoption of Jack ex rel. David B., 18 Misc.3d 397 (Fam. Ct., Monroe Co., 2007), the Family Court, Monroe County, deferred finalization of an adoption pending execution of new surrenders by the child's birth parents because the original extrajudicial 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 Family 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 stated:

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 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.

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 Kaylee 0. v. Michael 0. and Matter of the Adoption of Jack ex rel. David B., regrettably, were not isolated cases. 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, which would have no impact on the State, would take effect on the first of January after it shall have become a law.

2012 LEGISLATIVE HISTORY :

OCA 2012-98 Senate 7585 (Sen. Gallivan) (ref to Rules)

2014 LEGISLATIVE HISTORY :

OCA 2014-86

* Notwithstanding Social Services Law §§ 383-c(5)(b), section 262 of the Family Court Act does not enumerate that statute in its list of categories of cases in which indigent parents have a right to counsel. Ironically, while Social Services Law § 384 contains no reference to counsel, that section is included in Family Court Act § 262(a)(iv). This measure would correct both of these omissions. Significantly, in the case of extra judicial surrenders, the right to appointed counsel for indigent parents is unevenly implemented because such surrenders do not need to approved by Family or Surrogate's Court to be "valid" (or, in the case of surrenders of children in foster care, to trigger the time-limit for irrevocability), even if conditions contained within them must be court-approved in order to be enforceable. See Social Services Law §§ 383-c(6)(b); 384(4).