§ 383-C — Guardianship and custody of children in foster care

§ 383-c. Guardianship and custody of children in foster care. 1.\nMethod. For the purposes of this section, a child in foster care shall\nmean a child in the care and custody of an authorized agency pursuant to\nsection three hundred eighty-four-a of this title or article three,\nseven or ten of the family court act. The guardianship of the person and\nthe custody of a child in foster care under the age of eighteen years\nmay be committed to an authorized agency by a written instrument which\nshall be known as a surrender, and signed:\n (a) if both parents shall then be living, by the parents of such\nchild, or by the surviving parent, if either parent of such child be\ndead;\n (b) if either one of such parents shall have for a period of six\nmonths then next preceding abandoned such child as set forth in section\nthree hundred eighty-four-b of this title, by the other of such parents;\n (c) if such child is born out of wedlock, by the mother of such child,\nand by the father of such child, if such father's consent would be\nrequired for the child's adoption, pursuant to section one hundred\neleven of the domestic relations law;\n (d) if both parents of such child are dead, or if such child is born\nout of wedlock and the mother of such child is dead, by the guardian of\nthe person of such child lawfully appointed, with the approval of the\ncourt or officer which appointed such guardian to be entered of record.\n 2. Terms. (a) Such guardianship shall be in accordance with the\nprovisions of this article and the instrument shall be upon such terms\nand subject to such conditions as may be agreed upon by the parties\nthereto and shall comply with subdivision five of this section;\nprovided, however, that an authorized agency shall not accept a\nsurrender instrument conditioned upon adoption by a particular person,\nunless such person is a certified or approved foster parent, where the\npermanency plan for the child is for the child to be adopted by that\nperson or the agency has fully investigated and approved such person as\nan adoptive parent in accordance with applicable statute and\nregulations. No such agency shall draw or receive money from public\nfunds for the support of any such child except upon the written order or\npermit of the social services official of the county or city sought to\nbe charged with the support of such child.\n (b) If a surrender instrument designates a particular person or\npersons who will adopt a child, such person or persons, the child's\nbirth parent or parents, the authorized agency having care and custody\nof the child and the child's attorney, may enter into a written\nagreement providing for communication or contact between the child and\nthe child's parent or parents on such terms and conditions as may be\nagreed to by the parties. If a surrender instrument does not designate\na particular person or persons who will adopt the child, then the\nchild's birth parent or parents, the authorized agency having care and\ncustody of the child and the child's attorney may enter into a written\nagreement providing for communication or contact, on such terms and\nconditions as may be agreed to by the parties. Such agreement also may\nprovide terms and conditions for communication with or contact between\nthe child and the child's biological siblings or half-siblings, if any.\nIf any such sibling or half-sibling is fourteen years of age or older,\nsuch terms and conditions shall not be enforceable unless such sibling\nor half-sibling consents to the agreement in writing. If the court\nbefore which the surrender instrument is presented for approval\ndetermines that the agreement concerning communication and contact is in\nthe child's best interests, the court shall approve the agreement. If\nthe court does not approve the agreement, the court may nonetheless\napprove the surrender; provided, however, that the birth parent or\nparents executing the surrender instrument shall be given the\nopportunity at that time to withdraw such instrument. Enforcement of any\nagreement prior to the adoption of the child shall be in accordance with\nsubdivision (b) of section one thousand fifty-five-a of the family court\nact. Subsequent to the adoption of the child, enforcement of any\nagreement shall be in accordance with section one hundred twelve-b of\nthe domestic relations law.\n 3. Judicial surrenders. (a) A surrender of a child to an authorized\nagency for the purpose of adoption may be executed and acknowledged\nbefore a judge of the family court or a surrogate in this state. If the\nchild being surrendered is in foster care as a result of a proceeding\nbefore the family court pursuant to article ten or ten-A of the family\ncourt act or section three hundred fifty-eight-a of this chapter, the\nsurrender shall be executed and acknowledged before the family court\nthat exercised jurisdiction over such proceeding and, shall be assigned,\nwherever practicable, to the judge who last presided over such\nproceeding. A surrender executed and acknowledged before a court in\nanother state shall satisfy the requirements of this section if it is\nexecuted by a resident of the other state before a court of record which\nhas jurisdiction over adoption proceedings in that state, and a\ncertified copy of the transcript of that proceeding, showing compliance\nwith paragraph (b) of this subdivision, is filed as part of the adoption\nproceeding in this state.\n (b) Before a judge or surrogate approves a judicial surrender, the\njudge or surrogate may order that notice of the surrender proceeding be\ngiven to such persons as the judge or surrogate may, in his or her\ndiscretion, prescribe. At the time that a parent appears before a judge\nor surrogate to execute and acknowledge a surrender, the judge or\nsurrogate shall inform such parent of the right to be represented by\nlegal counsel of the parent's own choosing and of the right to obtain\nsupportive counseling and of any right to have counsel assigned pursuant\nto section two hundred sixty-two of the family court act, section four\nhundred seven of the surrogate's court procedure act, or section\nthirty-five of the judiciary law. The judge or surrogate also shall\ninform the parent of the consequences of such surrender, including\ninforming such parent that the parent is giving up all rights to have\ncustody, visit with, speak with, write to or learn about the child,\nforever, unless the parties have agreed to different terms pursuant to\nsubdivision two of this section, or, if the parent registers with the\nadoption information register, as specified in section forty-one hundred\nthirty-eight-d of the public health law, that the parent may be\ncontacted at any time after the child reaches the age of eighteen years,\nbut only if both the parent and the adult child so choose. The court\nshall determine whether the terms and conditions agreed to by the\nparties pursuant to subdivision two of this section are in the child's\nbest interests before approving the surrender. The judge or surrogate\nshall inform the parent that where a surrender containing conditions has\nbeen executed, the parent is obligated to provide the authorized agency\nwith a designated mailing address, as well as any subsequent changes in\nsuch address, at which the parent may receive notices regarding any\nsubstantial failure of a material condition, unless such notification is\nexpressly waived by a statement written by the parent and appended to or\nincluded in such instrument. The judge or surrogate also shall inform\nthe parent that the surrender shall become final and irrevocable\nimmediately upon its execution and acknowledgment. The judge or\nsurrogate shall give the parent a copy of such surrender upon the\nexecution thereof.\n 4. Extra-judicial surrenders. (a) In any case where a surrender is not\nexecuted and acknowledged before a judge or surrogate pursuant to\nsubdivision three of this section, such surrender shall be executed and\nacknowledged by the parent, in the presence of at least two witnesses,\nbefore a notary public or other officer authorized to take proof of\ndeeds. At least one witness shall be an employee of an authorized agency\ntrained, in accordance with the regulations of the department of\nchildren and family services, to receive surrenders. At least one\nwitness shall be a person who is either a licensed master social worker,\nlicensed clinical social worker or an attorney and who is not an\nemployee, volunteer, consultant or agent of or attorney for the\nauthorized agency to which the child is being surrendered. The\ncommissioner of the office of children and family services, after\nconsultation with the chief administrator of the courts, shall\npromulgate standards to help ensure the impartial selection and\nindependence of such witnesses. Any witness may, if so commissioned,\nserve as notary under this subdivision.\n (b) The authorized agency to which the child was surrendered shall\nfile an application for approval of the extra-judicial surrender with\nthe court in which the adoption proceeding is expected to be filed or,\nif not known, the family or surrogate's court in the county in which the\nagency has its principal office. If the child being surrendered is in\nfoster care as a result of a proceeding before the family court pursuant\nto article ten or ten-A of the family court act or section three hundred\nfifty-eight-a of this chapter, the application shall be filed in the\nfamily court that exercised jurisdiction over such proceeding and, shall\nbe assigned, wherever practicable, to the judge who last presided over\nsuch proceeding. The application shall be filed no later than fifteen\ndays after execution of such surrender. The application shall be\naccompanied by affidavits from all the witnesses before whom the\nsurrender was executed and acknowledged as provided for in paragraph (a)\nof this subdivision, stating:\n (i) the date, time and place where the surrender was executed and\nacknowledged;\n (ii) that the parent was provided with a copy of the surrender;\n (iii) that the surrender was read in full to the parent in his or her\nprincipal language and the parent was given an opportunity to ask\nquestions and obtain answers regarding the nature and consequences of\nthe surrender, including the consequences of, and procedures to be\nfollowed in, cases of a substantial failure of a material condition, if\nany, contained in the surrender instrument and the obligation to provide\nthe authorized agency with a designated mailing address, as well as any\nsubsequent changes in such address, at which the parent may receive\nnotices regarding any substantial failure of a material condition,\nunless such notification is expressly waived by a statement written by\nthe parent and appended to or included in such instrument; and\n (iv) that the parent executed and acknowledged the surrender.\n (c) The authorized agency to which a child is surrendered pursuant to\nthis subdivision must affix an affidavit to the application, by an\nemployee responsible for providing or arranging supportive counseling,\nwhich specifies:\n (i) when supportive counseling was offered to the parent by the\nauthorized agency;\n (ii) whether the parent accepted the offer of supportive counseling;\nand\n (iii) if accepted, when supportive counseling was provided and the\nnature of such supportive counseling.\n (d) Before a judge or surrogate approves an extra-judicial surrender,\nthe judge or surrogate shall order notice to be given to the person who\nexecuted the surrender and to such other persons as the judge or\nsurrogate may, in his or her discretion, prescribe. No person who has\nreceived such notice and been afforded an opportunity to be heard may\nchallenge the validity of a surrender approved pursuant to this\nsubdivision in any other proceeding. Nothing in this section shall be\ndeemed to dispense with the consent to adopt if otherwise required of\nany person who has not executed the surrender.\n (e) The agency to which the child is surrendered promptly shall notify\nsuch court of any correspondence or communication received from the\nparent or a person on the parent's behalf subsequent to the execution of\nthe surrender and prior to a final order of adoption of the child, if\nsuch correspondence or communication could reasonably indicate the\nparent's wish to revoke the surrender.\n (f) The court shall enter an order either approving or disapproving\nthe surrender. If the court disapproves the surrender, the surrender\nshall be deemed a nullity and without force or effect, and the court may\ndirect that any subsequent surrender shall be executed only before the\ncourt in accordance with subdivision three of this section.\n 5. Instrument. (a) There shall be a form of instrument for a judicial\nsurrender and a form of instrument for an extra-judicial surrender.\n (b) The instrument for a judicial surrender and the instrument for an\nextra-judicial surrender shall be in a form prescribed by the\ncommissioner after consultation with the chief administrator of the\ncourts and shall state in plain language in conspicuous bold print on\nthe first page:\n (i) that the parent has the right, before signing the surrender, to\nspeak to a lawyer of her or his own choosing and any other person she or\nhe wishes; to have that lawyer and any other person present with her or\nhim at the time of the signing of the surrender; and has the right to\nask the court to appoint a lawyer free of charge if the parent cannot\nafford to hire one; and has the right to have supportive counseling;\n (ii) that the parent is giving up all rights to have custody, visit\nwith, speak with, write to or learn about the child, forever, unless the\nparties have agreed to different terms pursuant to subdivision two of\nthis section, and unless such terms are written in the surrender, or, if\nthe parent registers with the adoption information register, as\nspecified in section forty-one hundred thirty-eight-d of the public\nhealth law, that the parent may be contacted at anytime after the child\nreaches the age of eighteen years, but only if both the parent and the\nadult child so choose;\n (iii) that the child will be adopted without the parent's consent and\nwithout further notice to the parent, and will be adopted by any person\nthat the agency chooses, unless the surrender paper contains the name of\nthe person or persons who will be adopting the child; and\n (iv) that the parent cannot be forced to sign the surrender paper, and\ncannot be punished if he or she does not sign the paper; and would not\nbe subject to any penalty for refusing to sign the surrender.\n (c) A surrender instrument for a judicial surrender also shall state\nin plain language in conspicuous bold print at the beginning thereof\nthat the surrender becomes final and irrevocable immediately upon\nexecution and acknowledgement, and that the parent cannot bring a case\nin court to revoke the surrender or to regain custody of the child.\nWhere the parties have agreed that the surrender shall be subject to\nconditions pursuant to subdivision two of this section, the instrument\nshall further state in plain language that:\n (i) the authorized agency shall notify the parent, unless such notice\nis expressly waived by a statement written by the parent and appended to\nor included in such instrument, the attorney for the child and the court\nthat approved the surrender within twenty days of any substantial\nfailure of a material condition of the surrender prior to the\nfinalization of the adoption of the child; and\n (ii) except for good cause shown, the authorized agency shall file a\npetition on notice to the parent unless notice is expressly waived by a\nstatement written by the parent and appended to or included in such\ninstrument and the child's attorney in accordance with section one\nthousand fifty-five-a of the family court act within thirty days of such\nfailure, in order for the court to review such failure and, where\nnecessary, to hold a hearing; provided, however, that, in the absence of\nsuch filing, the parent and/or attorney for the child may file such a\npetition at any time up to sixty days after notification of the failure.\nSuch petition filed by a parent or attorney for the child must be filed\nprior to the child's adoption; and\n (iii) the parent is obligated to provide the authorized agency with a\ndesignated mailing address, as well as any subsequent changes in such\naddress, at which the parent may receive notices regarding any\nsubstantial failure of a material condition, unless such notification is\nexpressly waived by a statement written by the parent and appended to or\nincluded in such instrument.\n Nothing in this paragraph shall limit the notice on the instrument\nwith respect to a failure to comply with a material condition of a\nsurrender subsequent to the finalization of the adoption of the child.\n (d) An extra-judicial surrender instrument also shall state in plain\nlanguage in conspicuous bold print at the beginning thereof that:\n (i) the name and address of the court in which the application for\napproval of the extra-judicial surrender will be filed;\n (ii) that a revocation of the surrender will be effective if it is in\nwriting and postmarked or received by the court named in the surrender\nwithin forty-five days of the signing of the surrender; and\n (iii) that a revocation of the surrender more than forty-five days\nafter its signing will not be effective if the child has been placed in\nan adoptive home, and the surrender shall be final and irrevocable and\nthe parent cannot revoke the surrender or bring a case in court to\nrevoke the surrender or regain custody of the child, and that the agency\nwill not notify the parent when the child is placed in an adoptive home,\nand the parent may lose all rights at the end of the forty-five day\nperiod without further notice. Where the parties have agreed that the\nsurrender shall be subject to conditions pursuant to subdivision two of\nthis section, the instrument shall further state in plain language that:\n (A) the authorized agency shall notify the parent, unless such notice\nis expressly waived by a statement written by the parent and appended to\nor included in such instrument, the law guardian for the child and the\ncourt that approved the surrender within twenty days of any substantial\nfailure of a material condition of the surrender prior to the\nfinalization of the adoption of the child; and\n (B) except for good cause shown, the authorized agency shall file a\npetition on notice to the parent unless notice is expressly waived by a\nstatement written by the parent and appended to or included in such\ninstrument and law guardian in accordance with section one thousand\nfifty-five-a of the family court act within thirty days of such failure\nin order for the court to review such failure and, where necessary, to\nhold a hearing; provided, however, that, in the absence of such filing,\nthe parent and/or law guardian for the child may file such a petition at\nany time up to sixty days after notification of the failure. Such\npetition filed by a parent or law guardian must be filed prior to the\nadoption of the child; and\n (C) the parent is obligated to provide the authorized agency with a\ndesignated mailing address, as well as any subsequent changes in such\naddress, at which the parent may receive notices regarding any\nsubstantial failure of a material condition, unless such notice is\nexpressly waived by a statement written by the parent and appended to or\nincluded in such instrument.\n Nothing in this subparagraph shall limit the notice on the instrument\nwith respect to a failure to comply with a material condition of a\nsurrender subsequent to the finalization of the adoption of the child.\n (e) Any surrender instrument subject to the provisions of this section\nshall include an adoption information registry birth parent registration\nconsent form, stating whether or not such biological parent or parents\nwhose consent is subject to the provisions of this section, consents to\nthe receipt of identifying information by the child to be adopted upon\nregistration with the adoption information registry established by\nsection forty-one hundred thirty-eight-c of the public health law and\nupon the adoptee reaching the age of eighteen. If such consent is made,\nit shall be revocable by either of the biological parents at any time.\nThe revocation of the consent by one of the parents shall revoke the\nconsent of both parents. The failure of a biological parent to complete\nthe consent form shall have no effect on the finality of the consent to\nadoption. A copy of the form required by this subdivision, shall be\nforwarded to the state adoption information registry for inclusion in\nthe records maintained by such registry. Any fees authorized to be\ncharged by the state adoption registry for filing documentation with\nsuch registry shall be waived for the form required by this subdivision.\n (f) A surrender shall be recorded in the office of the county clerk in\nthe county where the surrender is executed, or where the principal\noffice of such authorized agency is located, in a book which such county\nclerk shall provide and shall keep under seal. Such record shall be\nsubject to inspection and examination only as provided in subdivisions\nthree and four of section three hundred seventy-two of this title.\n (g) Whenever the term surrender, surrender paper or surrender\ninstrument is used in any law relating to the adoption of children in\nfoster care, it shall mean and refer exclusively to the instrument\ndescribed herein for the commitment of the guardianship of the person\nand the custody of a child to an authorized agency by the child's\nparent, parents or guardian, and in no case shall it be deemed to apply\nto any instrument purporting to commit the guardianship of the person\nand the custody of a child to any person other than an authorized\nagency, nor shall such term or the provisions of this section be deemed\nto apply to any instrument transferring the care and custody of a child\nto an authorized agency pursuant to section three hundred eighty-four-a\nof this title.\n (h) Upon execution of a surrender instrument, the parent executing the\nsurrender shall provide information to the extent known regarding the\nother parent, any person to whom the surrendering parent had been\nmarried at the time of the conception or birth of the child and any\nother person who would be entitled to consent to the adoption of the\nchild pursuant to subdivision one of section one hundred eleven of the\ndomestic relations law. Such information shall include, but not be\nlimited to, such parent's or person's name, last-known address, social\nsecurity number, employer's address and any other identifying\ninformation. Any information provided pursuant to this paragraph shall\nbe recorded in the uniform case record maintained pursuant to section\nfour hundred nine-f of this article; provided, however, that the failure\nto provide such information shall not invalidate the surrender.\n 6. Effect of surrender and revocation. (a) If the court disapproves\nthe surrender pursuant to subdivision four of this section, or if a\nrevocation of an extra-judicial surrender is mailed and postmarked or\notherwise delivered to the court named in the surrender within\nforty-five days of the execution of the surrender, such surrender shall\nbe deemed a nullity, and the child shall be returned to the care and\ncustody of the authorized agency.\n (b) If a revocation of an extra-judicial surrender is mailed and\npostmarked or otherwise delivered to the court named in the surrender\nmore than forty-five days after its execution and the child has not been\nplaced in an adoptive home, such surrender shall be deemed a nullity,\nand the child shall be returned to the care and custody of the\nauthorized agency. For the purposes of this subdivision, no child shall\nbe deemed to have been placed in the home of adoptive parents unless the\nfact of such placement, the date thereof, the date of the agreement\npertaining thereto and the names and addresses of the adoptive parents\nshall have been recorded in a bound volume maintained by the agency for\nthe purpose of recording such information in chronological order. The\nabsence of judicial approval of an extra-judicial surrender shall not\nrevive, extend or toll the period for revocation of such surrender.\n (c) In any case in which the authorized agency determines that the\npersons specified in the surrender will not adopt the child or in any\nother case of a substantial failure of a material condition prior to the\nfinalization of the adoption of the child, the agency promptly shall\nnotify the parent thereof, unless such notice is expressly waived by a\nstatement written by the parent and appended to or included in such\ninstrument, and shall notify the court and the law guardian for the\nchild within twenty days. In any such case, the authorized agency shall\nfile a petition on notice to the parent unless notice is expressly\nwaived by a statement written by the parent and appended to or included\nin such instrument and law guardian in accordance with section one\nthousand fifty-five-a of the family court act, as applicable, within\nthirty days, except for good cause shown, in order for the court to\nreview such failure and, where necessary, to hold a hearing; provided,\nhowever, that, in the absence of such a filing, the parent and/or law\nguardian for the child may file such a petition at any time up to sixty\ndays after the notification of the failure. Such petition filed by a\nparent or law guardian must be filed prior to the adoption. Nothing in\nthis paragraph shall limit the rights and remedies, if any, available to\nthe parties and the law guardian with respect to a failure to comply\nwith a material condition of a surrender subsequent to the finalization\nof the adoption of the child.\n (d) Nothing contained in this section shall bar actions or proceedings\nbrought on the ground of fraud, duress or coercion in the execution or\ninducement of a surrender. No action or proceeding may be maintained by\nthe surrendering parent or guardian for the custody of the surrendered\nchild or to revoke or annul such surrender except as provided herein.\n 7. Surrenders by persons in foster care. Notwithstanding any other\nprovision of law, a surrender for adoption executed by a parent, parents\nor guardian who is in foster care shall be executed only before a judge\nof the family court.\n 8. Adoption proceeding. (a) Upon the court's order approving the\nsurrender, the attorney for the petitioning authorized agency shall\npromptly serve upon persons who have been approved by such agency as the\nchild's adoptive parents, notice of entry of the order approving the\nsurrender and advising such persons that they may commence an adoption\nproceeding. In accordance with the regulations of the department, the\nauthorized agency shall advise such persons of the procedures necessary\nfor adoption of the child. The authorized agency shall cooperate with\nsuch persons in the provision of necessary documentation.\n (b) The adoptive parent may commence the adoption proceeding in a\ncourt of competent jurisdiction in accordance with subdivision three of\nsection one hundred thirteen or subdivision two of section one hundred\nfifteen of the domestic relations law, as applicable; provided, however,\nthat in the case of an extra-judicial surrender, such proceeding shall\nbe initiated more than forty-five days after the surrender is executed.\nCommencement of such a proceeding shall not revive, extend or toll the\nperiod for revocation of an extra-judicial surrender pursuant to this\nsection.\n 9. Intervention. (a) Any person or persons having custody of a child\nfor the purpose of adoption through an authorized agency shall be\npermitted as a matter of right, as an interested party, to intervene in\nany proceeding commenced to set aside a surrender purporting to commit a\nguardianship of the person or custody of a child executed under the\nprovisions of this section. Such intervention may be made anonymously or\nin the true name of such person.\n (b) Any person or persons having custody for more than twelve months\nthrough an authorized agency for the purpose of foster care shall be\npermitted as a matter of right, as an interested party, to intervene in\nany proceeding commenced to set aside a surrender purporting to commit\nthe guardianship of the person and custody of a child executed under the\nprovisions of this section. Such intervention may be made anonymously or\nin the true name of such person or persons having custody of the child\nfor the purpose of foster care.\n 10. Adoption and permanency hearing.\n a. Upon acceptance of a judicial surrender or approval of an\nextra-judicial surrender pursuant to subdivision three or four of this\nsection, the court shall inquire whether any foster parent or parents\nwith whom the child resides, or any relative of the child, or other\nperson, seeks to adopt such child. If such person or persons do seek to\nadopt such child, such person or persons may submit, and the court shall\naccept, all such petitions for the adoption of the child, together with\nan adoption home study, if any, completed by an authorized agency, or\ndisinterested person as such term is defined in subdivision three of\nsection one hundred sixteen of the domestic relations law. The court\nshall thereafter establish a schedule for completion of other inquiries\nand investigations necessary to complete review of the adoption of the\nchild and shall immediately set a schedule for completion of the\nadoption.\n b. Upon acceptance of a judicial surrender or approval of an\nextra-judicial surrender pursuant to subdivision three or four of this\nsection, the court shall schedule an initial freed child permanency\nhearing pursuant to section one thousand eighty-nine of the family court\nact. Subsequent permanency hearings shall be held pursuant to section\none thousand eighty-nine of the family court act.\n 11. Acceptance of surrender. Acceptance of a judicial surrender or\napproval of an extra-judicial surrender pursuant to this section shall\nnot be construed to terminate any rights of the child to contact his or\nher siblings. For purposes of this section, "siblings" shall include\nhalf-siblings and those who would be deemed siblings or half-siblings\nbut for the surrender, termination of parental rights or death of a\nparent.\n