El caso de Aylan

A child in foster care can, with some exceptions, be surrendered by their parent(s) outside of the court. The surrender of a child in foster care that is not executed before a judge of the Family Court or the Surrogate’s Court must be signed by the parent(s) in the presence of at least two witnesses and in front of a notary public or other officer

authorized to “take proof of deeds.” However, if the child being surrendered is in foster care and the caseworker is unsure of the parent’s capacity to comprehend the meaning of the surrender, a judicial surrender should be taken. Also, if the parent signing the surrender is in foster care, an extra-judicial surrender may not be used; a judicial surrender before the Family Court is required.

[SSL §§ 383-c(4); and SSL 384 (2) & (3); 18 NYCRR 421.6 (d) (e) & (k)]

Caseworkersshould consult with their supervisor or agency attorney to learn about their agency’s policies and practices regarding extra-judicial surrenders.

1. Required Witnesses

Two persons must witness a SSL §383-c extra-judicial surrender. At least one witness must be an employee of the authorized agency trained in accordance with OCFS regulations to accept surrenders. The second witness must be either a social worker with a Master’s in Social Work (MSW) degree, licensed clinical social worker, or an attorney duly admitted to the practice of law in NYS who is not an employee, volunteer,

consultant, agent of, or attorney for, the authorized agency taking the surrender. A required witness may serve as the notary public at the surrender if the witness is licensed as a notary public.

Employee Witness

An employee who will serve as a witness for extra-judicial surrenders must receive in-service training and instruction on the taking of extra-judicial surrenders. At a minimum, the in-service training and instruction must cover the following:

 responsibilities of the employee witness to require that the surrender instrument is read in full to the parent(s) or guardian(s) in their principal languages;

 right of the parent(s) or guardian(s) to be provided the opportunity to ask questions about the surrender or its execution and to have these questions answered;

 responsibility of the agency to make sure that the parent(s) or guardian(s) understand their rights and the consequences of signing the surrender (which must be specified in bold print on the first page of the instrument);

 responsibility of the agency to make sure that supportive counseling is offered to the parent(s) or guardian(s);

 requirement for the affidavits to be completed by the witnesses;

 responsibility of the agency to make sure that the parent(s) or guardian(s) understand the procedures for revocation of the surrender; and that the parent(s) or guardian(s) sign and receive copies of the surrender instrument;  responsibility of the witness to know the required surrender forms and their

content; the form for the required affidavits and their contents; the

requirements for revoking the surrender; and the requirements for submitting the signed surrender to the court. [18 NYCRR 421.6(e)(2)]

Non-Employee Witness

The following conditions must be met for the impartial selection and independence of non-employee witnesses:

 Any certified social worker or attorney duly admitted to the practice of law in NYS may serve as a witness to an extra-judicial surrender.

 The same person may not serve exclusively as the only non-employee witness for an authorized agency.

 Any person serving as a non-employee witness for a surrender cannot be an employee of an agency or organization contractually or financially responsible for, or involved with, the delivery of services to the child or his or her family.  Any person serving as a non-employee witness may not be related within the

second degree to an employee witness to the same surrender. [18 NYCRR 421.6(e)(2)(ii)(b)]

Note: a relative within the second degree means a person with whom one quarter of an individual’s genes is shared (i.e., grandparent, grandchild, uncle, aunt, nephew, niece, half-sibling)8

Witnesses’ Affidavits

Both witnesses before whom a surrender is executed and acknowledged must complete affidavits attesting to the facts and circumstances of the execution of the surrender.

The affidavits of the employee and non-employee witness must recite:  the date, time and place where the surrender was executed;

 that a copy of the executed surrender was provided to the parent(s) or guardian(s);

 that the surrender was read in full to the parent(s) or guardian(s) in their principal languages and the parent(s) or guardian(s) were given an opportunity to ask questions and obtain answers about the nature and consequences of the surrender, including when there is a conditional surrender; the consequences of, and procedures to be followed in cases of a substantial failure of a material (important) condition, if any, contained in the surrender; and the obligation to provide the authorized agency with a designated mailing address, as well as any subsequent changes in the address at which the parent may receive notices about any substantial failure of a material condition (unless such notification is expressly waived by a statement written by the parent and appended to or included in the surrender);

 that the parent(s) or guardian(s) executed and acknowledged the surrender. The employee witness affidavit must also recite:

 when supportive counseling was offered to the parent(s) or guardian(s) and whether the parent(s) or guardian(s) accepted the counseling; and if accepted, when the supportive counseling was provided and the nature of such

counseling.

2. Parent’s Mental Capacity

To enter into a legally binding agreement, the parent must have sufficient mental competency to knowingly agree to the terms and conditions of the surrender. The term

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“mental competency” refers both to intellectual ability and freedom from any mental condition that might impair a person’s understanding of the consequences of signing the agreement.

If the caseworker has reason to believe that a parent may not have sufficient mental competency to fully comprehend the surrender or its impact, he or she should consult with the agency’s attorney before allowing the parent to sign a surrender. The agency attorney may decide to bring the matter to the attention of the court. Some courts will order that the parent be examined by a mental health professional immediately before the parent signs the surrender.

If the surrendering parent is under the treatment of a psychiatrist, it would be advisable to ask the psychiatrist to interview the parent immediately before taking the surrender. If appropriate, the psychiatrist should be asked to certify in writing that the parent is capable of understanding the meaning of signing the surrender and is therefore competent to do so. The psychiatrist’s statement should be kept in the agency file with the surrender.

When there is a question of the mental capacity of the parent, it is recommended that the agency seek a judicial surrender. If the parent lacks the mental capacity to sign a surrender, it is recommended that the agency initiate proceedings for the involuntary termination of parental rights.

3. Seeking Judicial Approval of the Extra-Judicial Surrender

No later than 15 days after the parent signs the SSL §383-c extra-judicial surrender, the agency to which the child was surrendered must file an application and accompanying affidavits from all the witnesses for approval of the extra-judicial

surrender. The affidavit must be filed with the court in which the adoption proceeding is expected to be filed or, if not known, the Family Court or Surrogate’s Court in the county in which the agency has its principal office. If the child being surrendered is in foster care as a result of a proceeding pursuant to Article 10 or 10-A of the FCA or SSL §358-a, the application must be filed in the Family Court that exercised jurisdiction over such proceeding.

Notice of the proceeding to approve the extra-judicial surrender must be given to the following people:

 the person who signed (executed) the surrender;

 any out-of-wedlock father who fits one of the categories specified in section 384-c(2) of the SSL (see Chapter 7 for information about notice to unwed fathers);

 other persons as the judge or surrogate may, in his or her discretion, prescribe. [SSL §383-c (4)(d)]

The law states that no person who receives notice of an approval of the surrender proceeding, and has thus been afforded an opportunity to be heard in court, may

Notification of Surrender Approval to Adoptive Parent(s)

If the court approves the surrender, the attorney for the petitioning authorized agency must promptly serve notice of the approval to the person(s) who have been approved to adopt the child and advise that he or she may commence an adoption proceeding. Also, the prospective adoptive parent(s) must be advised of the procedures necessary for the adoption of the child and that the agency will cooperate with the parent(s) in the provision of necessary documentation to the court. (See section E for the agency’s requirements upon the court’s order approving the surrender.) [SSL §383-c(8)]

Recording of Surrender Instrument with County Clerk

Once the SSL §383-c surrender is approved by the court, the agency must take steps to make sure that the surrender is recorded in a bound book in the office of the county clerk where the surrender is executed, or where the principal office of the agency is located. The book is maintained by the county clerk, must be kept under seal and is subject to inspection and examination only as provided for in SSL §§372(3) and (4). [SSL §383-c(5)(f)]

Disapproval of the Surrender

If the court disapproves the surrender, the surrender must be deemed a nullity (invalid) and without force or effect, and the court may direct that any subsequent surrender must be a judicial surrender before the court. [SSL §383-c (4)(f)] The

caseworker, in consultation with the supervisor and agency attorney, will need to inform the parent(s) of the disapproval of the surrender and decide on the appropriate next steps to achieve permanency for the child.

4. Revocation of an Extra-Judicial Surrender

A revocation of an extra-judicial surrender pursuant to SSL §383-c will be effective if it is in writing and postmarked or received by the court named in the surrender within 45 days of the signing (execution) of the surrender. Such a surrender will be deemed a nullity (invalid) and the child must be returned to the care and custody of the authorized agency. The absence of judicial approval of an extra-judicial surrender does not affect the period for revocation of the surrender. [SSL 383-c(6)]

A revocation of the surrender more than 45 days after its signing will not be effective if the child has been placed in an adoptive home. For the purposes of the

revocation of an extra-judicial surrender, no child will be considered to have been placed in the home of adoptive parents unless the fact of such placement, the date of the placement, the date of the agreement pertaining to the placement, and the names and addresses of the adoptive parents have been recorded in a bound volume maintained by the agency for the purpose of recording such information in chronological order. [SSL§383-c (6)]

If the agency mails or delivers a revocation of an extra-judicial surrender to the court named in the surrender more than 45 days after its execution and the child has not been placed in an adoptive home, the surrender is deemed a nullity (invalid). A child is only considered placed in an adoptive home when there is a signed adoption placement agreement.

F. SURRENDER BY A MINOR PARENT OR A PARENT IN FOSTER CARE