Let Parents End Parental Rights

Section 1. The family court act is amended by adding a new article 6-A to read as follows:

ARTICLE 6-A

PERMANENT TERMINATION OF PARENTAL RIGHTS

UPON APPLICATION OF A PARENT OR GUARDIAN Section 675. Purpose of article.

676. Jurisdiction.

677. Definitions.

678. Originating proceeding for the termination of parental

rights with respect to a permanently neglected child.

679. Issuance of summons.

680. Service of summons.

681. Procedural matters.

682. Nondisclosure of information in exceptional circumstances.

683. Evidence.

684. Hearings.

685. Determination.

686. Adjournments.

687. Disposition on adjudication of permanent neglect.

688. Order dismissing petition.

689. Suspended judgment.

690. Termination of parental rights; further orders.

691. Issuance of warrant; certificate of warrant.

§ 675. Purpose of article. The purpose of this article is to provide the procedures for proceedings initiated in family court by a parent or guardian for the termination of the rights of a respondent-parent upon

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD06533-01-9

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the ground that the respondent-parent has permanently neglected the child.

§ 676. Jurisdiction. The family court shall have exclusive, original jurisdiction over any proceeding brought upon grounds specified in this article.

§ 677. Definitions. As used in this article:

(a) "permanently neglected child" shall mean a child whose respondent-parent or custodian has failed for a period of either at least one year substantially and continuously, or repeatedly, to maintain contact with or plan for the future of the child, although physically and financially able to do so;

(b) "petitioner" or "petitioner-parent" means the parent or guardian commencing the action to terminate the parental rights of the respondent-parent;

(c) "respondent-parent" means the parent whose parental rights are subject to termination;

(d) "fact-finding hearing" means a hearing to determine whether the allegations required by paragraphs one, two and three of subdivision (a) of section six hundred seventy-eight of this article are supported by clear and convincing proof; and

(e) "dispositional hearing" means a hearing to determine what order of disposition should be made in accordance with the best interests of the child.

§ 678. Originating proceeding for the termination of parental rights with respect to a permanently neglected child. (a) A proceeding for the termination of parental rights with respect to a child on the ground of permanent neglect is originated by a petition and notice served upon the respondent-parent or his or her attorney, alleging:

1. the child is a person under eighteen years of age;

2. the child is in the care of one of his or her parents or of a guardian;

3. the child's respondent-parent has failed to maintain contact with or plan for the future of the child, although physically and financially able to do so, for a period of at least one year; and

4. the best interests of the child require that the parental rights of the respondent-parent be terminated.

(b) Such notice shall inform the respondent-parent that the proceeding may result in an order terminating his or her parental rights with respect to the child without the consent of or notice to the respondent-parent. Such notice also shall inform the respondent-parent of his or her right to the assistance of counsel, including any right they may have to have counsel assigned by the court in any case where they are financially unable to obtain counsel. The petition shall set forth the names and last known addresses of the respondent-parent.

§ 679. Issuance of summons. On the filing of a petition under this article, the court may cause a copy of the petition and a summons to be issued, requiring the respondent-parent to show cause why the court should not enter an order committing the guardianship and custody of the child to the petitioner-parent for the reason that the child is permanently neglected by the respondent-parent.

§ 680. Service of summons. (a) Service of a summons and petition under this article shall be made by delivery of a true copy thereof to the person summoned at least twenty days before the time stated therein for appearance. If so requested by the respondent-parent, the court may extend the time for appearance and answer.

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(b) If after reasonable effort, personal service is not made, such substituted service or service by publication as may be ordered by the judge shall be sufficient.

(c) Personal service within or without the state or in a foreign country shall be made in accordance with the provisions of section three hundred seven of the surrogate's court procedure act, as the same may be amended from time to time, with respect to service of a citation.

(d) Service of the summons and other process with a notice as specified herein by publication shall be made in accordance with the provisions of rule three hundred sixteen of the civil practice law and rules, provided, however, that a single publication of the summons or other process with a notice as specified herein in only one newspaper designated in the order shall be sufficient. In no event shall the whole petition be published. The petition shall be delivered to the person summoned at the first court appearance pursuant to section one hundred fifty-four-a of this act. The notice to be published with the summons or other process shall state:

1. the date, time, place and purpose of the proceeding;

2. that upon failure of the person summoned to appear, all of his or her parental rights with respect to the child may be terminated; and

3. that his or her failure to appear shall constitute a denial of his or her interest in the child, which denial may result, without further notice, in the termination of his or her parental rights with respect to the child.

§ 681. Procedural matters. (a) The provisions of articles one, two and eleven of this act shall apply to the extent that they do not conflict with the specific provisions of this article. In any proceeding under this section, the provisions and limitations of article thirty-one of the civil practice law and rules shall apply to the extent that they do not conflict with the specific provisions of this article. The court shall set a schedule for discovery to avoid unnecessary delay.

(b) In any proceeding brought pursuant to the provisions of this article, neither the privilege attaching to confidential communications between husband and wife, as set forth in section forty-five hundred two of the civil practice law and rules, nor the physician-patient and related privileges, as set forth in section forty-five hundred four of the civil practice law and rules, nor the psychologist-client privilege, as set forth in section forty-five hundred seven of the civil practice law and rules, nor the social worker-client privilege, as set forth in section forty-five hundred eight of the civil practice law and rules, shall be a ground for excluding evidence which otherwise would be admissible.

§ 682. Nondisclosure of information in exceptional circumstances. Upon a finding, which may be made ex parte, that the health, safety, or liberty of the petitioner-parent or the child would be unreasonably put at risk by the disclosure of identifying information, or if an existing order so provides, the court shall order that the address of the child or petitioner or other identifying information not be disclosed in a pleading or other document filed in a proceeding under this article. In determining any motion for a protective order, the court shall consider the need of the respondent-parent for the discovery to assist in the preparation of the case and any potential harm to the child from the discovery.

§ 683. Evidence. Only competent, material and relevant evidence may be admitted in a fact-finding hearing; only material and relevant evidence may be admitted in a dispositional hearing. Evidence of parental contact

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or of failure to maintain contact with a child subsequent to the date of the filing of a petition under this part shall be inadmissible in the fact-finding hearing. Such evidence may be admitted in the dispositional hearing but shall not, of itself, be sufficient as a matter of law to preclude or require an order terminating the respondent-parent's parental rights with respect to the child.

§ 684. Hearings. (a) Upon completion of the fact-finding hearing, the dispositional hearing may commence immediately after the required findings are made; provided, however, that if all parties consent the court may, upon motion of any party or upon its own motion, dispense with the dispositional hearing and make an order of disposition on the basis of competent evidence admitted at the fact-finding hearing.

(b) Reports prepared by the probation service or a duly authorized agency for use by the court prior to the making of an order of disposition shall be deemed confidential information furnished to the court which the court in a proper case may, in its discretion, withhold from or disclose in whole or in part to the petitioner's attorney, counsel, party in interest, or other appropriate person. Such reports may not be furnished to the court prior to the completion of a fact-finding hearing, but may be used in a dispositional hearing or in the making of an order of disposition without a dispositional hearing pursuant to subdivision (a) of this section.

§ 685. Determination. (a) A determination of whether a respondent-parent has failed for a period of either at least one year substantially and continuously, or repeatedly, to maintain contact with or plan for the future of the child, although physically and financially able to do so shall be based on evidence, which may include the following:

1. a respondent-parent's expressions or acts manifesting concern for the child, such as letters, telephone calls and other forms of communication with the child;

2. the payment by the respondent-parent toward the support of the child of a fair and reasonable sum, according to the respondent-parent's means;

3. either: (i) the respondent-parent's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person having lawful custody of the child; or (ii) the respondent-parent's regular communication with the child or with the person having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person having lawful custody of the child;

4. efforts by the respondent-parent to communicate and work with the petitioner-parent, the court and the respondent-parent's attorney or other individuals providing services to the respondent-parent, including correctional, mental health and substance abuse treatment program personnel for the purpose of complying with a service plan or court-ordered plan and repairing, maintaining or building the parent-child relationship;

5. whether the respondent-parent openly lived with the child and/or the petitioner parent for a continuous period of six months within the one year period immediately preceding the filing of the petition and who during such period openly held himself or herself out to be the parent of such child;

6. in the case of a child under the age of six months of age at the time of the filing of the petition, whether the respondent-parent father paid a fair and reasonable sum, in accordance with his means, for the

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medical, hospital and nursing expenses incurred in connection with the petitioner-parent mother's pregnancy and/or with the birth of the child;

7. whether the respondent-parent surrendered or attempted to surrender the child to an authorized agency under the provisions of section three hundred eighty-three-c or three hundred eighty-four of the social services law, or whether a guardian has been appointed for the child under the provisions of section three hundred eighty-four-b of the social services law; or

8. whether the respondent-parent has maintained a meaningful role in his or her child's life in any form; and

9. whether the involvement or continued involvement of the respondent-parent in the child's life is in the child's best interest.

(b) Notwithstanding the provisions of subdivision (a) of this section, the court shall terminate the parental rights of a respondent-parent who has executed an instrument, which shall be irrevocable, denying the paternity of the child, such instrument having been executed after conception and acknowledged or proved in the manner required to permit the recording of a deed.