§ 384 — Guardianship and custody of children not in foster care

§ 384. Guardianship and custody of children not in foster care. 1.\nMethod. The guardianship of the person and the custody of a child who is\nnot in foster care under the age of eighteen years may be committed to\nan authorized agency by a written instrument which shall be known as a\nsurrender, 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, by the other of such\nparents;\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. The instrument shall recite that the authorized agency is\nthereby authorized and empowered to consent to the adoption of such\nchild in the place and stead of the person signing the instrument, and\nmay recite that the person signing the instrument waives any notice of\nsuch adoption; provided, however, that an authorized agency shall not\naccept a surrender instrument conditioned upon adoption by a particular\nperson, unless the agency has fully investigated and certified or\napproved such person as a qualified adoptive parent. Any surrender\ninstrument subject to the provisions of this section shall include an\nadoption information registry birth parent registration consent form,\nstating whether or not such biological parent or parents whose consent\nis subject to the provisions of this section, consents to the receipt of\nidentifying information by the child to be adopted, upon registration\nwith the adoption information registry established by section forty-one\nhundred thirty-eight-c of the public health law and upon the adoptee\nreaching the age of eighteen. If such consent is made, it shall be\nrevocable by either of the biological parents at any time. The\nrevocation of the consent by one of the parents shall revoke the consent\nof both parents. The failure of a biological parent to complete the\nconsent 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.\nNo such agency shall draw or receive money from public funds for the\nsupport of any such child except upon the written order or permit of the\nlocal social services official of the county or city sought to be\ncharged 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.\n If a surrender instrument does not designate a particular person or\npersons who will adopt the child, then the child's birth parent or\nparents, the authorized agency having care and custody of the child and\nthe child's attorney may enter into a written agreement providing for\ncommunication or contact, on such terms and conditions as may be agreed\nto by the parties. Such agreement also may provide terms and conditions\nfor communication with or contact between the child and the child's\nbiological sibling or half-sibling, if any. If any such sibling or\nhalf-sibling is fourteen years of age or older, such terms and\nconditions shall not be enforceable unless such sibling or half-sibling\nconsents to the agreement in writing. If the court before which the\nsurrender instrument is presented for approval determines that the\nagreement concerning communication and contact is in the child's best\ninterests, the court shall approve the agreement. If the court does not\napprove the agreement, the court may nonetheless approve the surrender;\nprovided, however, that the birth parent or parents executing the\nsurrender instrument shall be given the opportunity at that time to\nwithdraw such instrument. Enforcement of any agreement prior to the\nadoption of the child shall be in accordance with subdivision (b) of\nsection one thousand fifty-five-a of the family court act. Subsequent to\nthe adoption of the child, enforcement of any agreement shall be in\naccordance with section one hundred twelve-b of the domestic relations\nlaw.\n 3. Instrument. The instrument herein provided shall be executed and\nacknowledged (a) before any judge or surrogate in this state having\njurisdiction over adoption proceedings, except that if the child is\nbeing surrendered as a result of, or in connection with, a proceeding\nbefore the family court pursuant to article ten or ten-A of the family\ncourt act, the instrument shall be executed and acknowledged 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; or (b) in the presence of one or more witnesses and\nacknowledged by such witness or witnesses, in the latter case before a\nnotary public or other officer authorized to take proof of deeds, and\nshall be recorded in the office of the county clerk in the county where\nsuch instrument is executed, or where the principal office of such\nauthorized agency is located, in a book which such county clerk shall\nprovide and shall keep under seal. Such record shall be subject to\ninspection and examination only as provided in subdivisions three and\nfour of section three hundred seventy-two of this title. Notwithstanding\nany other provision of law, if the parent surrendering the child for\nadoption is in foster care the instrument shall be executed before a\njudge of the family court.\n Whenever the term surrender or surrender instrument is used in any law\nrelating to the adoption of children who are not in foster care, it\nshall mean and refer exclusively to the instrument hereinabove described\nfor the commitment of the guardianship of the person and the custody of\na child to an authorized agency by his parents, parent or guardian; and\nin no case shall it be deemed to apply to any instrument purporting to\ncommit the guardianship of the person and the custody of a child to any\nperson other than an authorized agency, nor shall such term or the\nprovisions of this section be deemed to apply to any instrument\ntransferring the care and custody of a child to an authorized agency\npursuant to section three hundred eighty-four-a of this chapter.\n Any person or persons having custody of a child for the purpose of\nadoption through an authorized agency shall be permitted as a matter of\nright, as an interested party, to intervene in any proceeding commenced\nto set aside a surrender purporting to commit a guardianship of the\nperson or custody of a child executed under the provisions of this\nsection. Such intervention may be made anonymously or in the true name\nof said person.\n 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 said person or persons having custody of the child\nfor the purpose of foster care.\n A copy of such surrender shall be given to such surrendering parent\nupon the execution thereof. The surrender shall include the following\nstatement: "I, (name of surrendering parent), this ___ day of\n__________, _____, have received a copy of this surrender. (Signature of\nsurrendering parent)". Such surrendering parent shall so acknowledge the\ndelivery and the date of the delivery in writing on the surrender.\n Where 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 such\nfailure. Such petition filed by a parent or attorney for the child must\nbe filed prior 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 4. Upon petition by an authorized agency, a judge of the family court,\nor a surrogate, may approve such surrender, on such notice to such\npersons as the surrogate or judge may in his or her discretion\nprescribe. If the child is being surrendered as a result of, or in\nconnection with, a proceeding before the family court pursuant to\narticle ten or ten-A of the family court act, the petition shall be\nfiled in the family court that exercised jurisdiction over such\nproceeding and shall be assigned, wherever practicable, to the judge who\nlast presided over such proceeding. The petition shall set forth the\nnames and last known addresses of all persons required to be given\nnotice of the proceeding, pursuant to section three hundred\neighty-four-c of this title, and there shall be shown by the petition or\nby affidavit or other proof satisfactory to the court that there are no\npersons other than those set forth in the petition who are entitled to\nnotice pursuant to such section. No person who has received such notice\nand been afforded an opportunity to be heard may challenge the validity\nof a surrender approved pursuant to this subdivision in any other\nproceeding. However, this subdivision shall not be deemed to require\napproval of a surrender by a surrogate or judge for such surrender to be\nvalid.\n 5. If a duly executed and acknowledged adoption surrender shall so\nrecite, no action or proceeding may be maintained by the surrendering\nparent or guardian for the custody of the surrendered child or to revoke\nor annul such surrender where the child has been placed in the home of\nadoptive parents and more than thirty days have elapsed since the\nexecution of the surrender or where the purpose of such action or\nproceeding is to return the child to or vest the child's custody in any\nperson other than the parent or guardian who originally executed such\nsurrender. This subdivision shall not bar actions or proceedings brought\non the ground of fraud, duress or coercion in the execution or\ninducement of a surrender.\n For the purposes of this subdivision, no child shall be deemed to have\nbeen placed in the home of adoptive parents unless the fact of such\nplacement, the date thereof, the date of the agreement pertaining\nthereto and the names and addresses of the adoptive parents shall have\nbeen recorded in a bound volume maintained by the agency for the purpose\nof recording such information in chronological order.\n Where the parties have agreed that the surrender shall be subject to\nconditions pursuant to subdivision two of this section and where there\nhas been a substantial failure of a material condition prior to the\nfinalization of the adoption of the child, the agency shall notify the\nparent thereof, unless such notice is expressly waived by a statement\nwritten by the parent and appended to or included in such instrument,\nand shall notify the court and the law guardian for the child within\ntwenty days of such failure. In any such case, the authorized agency\nshall file 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 within thirty days of such\nfailure, except for good cause shown, in order for the court to review\nsuch failure and, where necessary, to hold a hearing; provided, however,\nthat, in the absence of such a filing, the parent and/or law guardian\nfor the child may file such a petition at any time up to sixty days\nafter notification of the failure. Such a petition filed by a parent or\nlaw guardian must be filed prior to the adoption. Nothing in this\nparagraph shall limit the rights and remedies available to the parties\nand the law guardian pursuant to section one hundred twelve-b of the\ndomestic relations law with respect to a failure to comply with a\nmaterial condition of a surrender subsequent to the finalization of the\nadoption of a child.\n 6. In an action or proceeding to determine the custody of a child not\nin foster care surrendered for adoption and placed in an adoptive home\nor to revoke or annul a surrender instrument in the case of such child\nplaced in an adoptive home, the parent or parents who surrendered such\nchild shall have no right to the custody of such child superior to that\nof the adoptive parents, notwithstanding that the parent or parents who\nsurrendered the child are fit, competent and able to duly maintain,\nsupport and educate the child. The custody of such child shall be\nawarded solely on the basis of the best interests of the child, and\nthere shall be no presumption that such interests will be promoted by\nany particular custodial disposition.\n 7. Upon acceptance of a judicial surrender or approval of an\nextra-judicial surrender pursuant to this section, the court shall\nschedule an initial freed child permanency hearing pursuant to section\none thousand eighty-nine of the family court act.\n 8. 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 listed in subdivision two of section three hundred\neighty-four-c of this title. 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 subdivision 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 9. Acceptance of a judicial surrender or approval of an extra-judicial\nsurrender pursuant to this section shall not be construed to terminate\nany rights of the child to contact his or her siblings. For purposes of\nthis section, "siblings" shall include half-siblings and those who would\nbe deemed siblings or half siblings but for the surrender, termination\nof parental rights or death of a parent.\n