Section 384 of the SSL prescribes the surrender process where neither the parent nor the child is in foster care. This surrender process authorizes transfer of guardianship and custody of the child to either a social services district or a voluntary authorized agency. Agencies are strongly encouraged to use judicial surrenders when the surrender involves a child of minor parents or a parent of any age with questionable capacity. If the agency has any doubts about the surrendering parent(s)’ understanding of the instrument or their mental capacity to enter into a legally binding agreement, a judicial surrender should be sought.
There is no OCFS-prescribed surrender form for a child who is not in foster care (SSL §384). Many agencies have developed their own pre-printed surrender form. The SSL requires that such forms include at least the following provisions:
The agency is authorized and empowered to consent to the adoption of the child in the place of the person signing the instrument.
An Adoption Information Registry birth parent registration consent form, stating whether or not the parent(s)’ consent to the receipt of identifying information by
the child, upon registration with the registry once the adoptee reaches the age of 18. This consent can be revoked by the birth parent(s) at any time.
Terms and conditions that have been agreed to by the parties. If terms and conditions have been agreed to by the parties and included in the surrender instrument, the surrender instrument must also contain the provisions regarding “substantial failure of a material condition of the surrender” pursuant to Chapter 76 of the Laws of 2002 (see Section B).
A copy of the surrender must be given to the surrendering parent after the parent has signed it. The surrender must include the following statement: “I, (name of
surrendering parent), this ___ day of __________, _____, have received a copy of this surrender (signature of surrendering parent).” The surrendering parent must acknowledge the delivery and date of the delivery in writing on the surrender.
The surrender form may also include the following provisions:
The person signing the instrument waives the right to receive notice of the adoption.
The parent will have no right to revoke the surrender after 30 days have elapsed from the date of the signing (execution) of the surrender and the child has been placed with adoptive parents. The standards for when a child is considered as having been placed for adoption are the same as for an SSL §383-c surrender. [SSL 384(5)]
Children Likely to Remain in the Care of the Social Services Official for More than 30 Days
The social services official who accepts the surrender agreement for guardianship and custody of the child must determine if the child is likely to remain in the care of that official for a period to exceed 30 consecutive days. If such is the case, within 30 days of such determination, the official must petition the Family Court for approval of the surrender either in the county or city where the official has an office. The court must determine, and state in the court order, that removal of the child from his or her home was in the best interests of the child and that it would be contrary to the child’s best interests to continue in his or her own home. The court must also find that reasonable efforts were made to prevent removal and that reasonable efforts were made to make it possible for the child to safely return home, or that reasonable efforts were not required. The requirements for filing this petition and the standards used by he Family Court are detailed in section 358-a of the SSL.
Revocation of Consent
The surrender instrument should contain a provision regulating a parent’s ability to revoke the surrender. Section 384 of the SSL contains procedures for the revoking of signed (executed) surrenders as follows:
Section 384(5) of the SSL provides that if the agreement so states, the parent (except in cases of fraud, coercion, or duress) cannot revoke, or bring a court proceeding seeking to revoke, his or her surrender if more than 30 days have
elapsed since the execution of the surrender, and the child has been placed for adoption.
The law further states that the child will not be considered to have been placed in the home of adoptive parents unless the fact of the placement, its date, and the names and addresses of the adoptive parents are recorded in chronological order in a bound book kept by the agency for this purpose (see Chapter 7). [SSL §384(5)]
Any person with whom an authorized agency has placed a child for adoption, and any person having custody of the child for more than 12 months through an authorized agency for the purpose of providing foster care, has the right to intervene in a proceeding commenced to set aside a surrender executed under section 384 of the SSL. [SSL §384(3)]
The provision regarding revocation of the surrender applies only if it is included in the surrender agreement. If the clause is included, the surrender cannot be revoked after the child has been placed in the home of adoptive parents with the facts of the placement recorded in a bound volume, and 30 days have elapsed since the execution of the surrender. If any of these conditions have not been satisfied, the parent is entitled to seek to revoke the surrender. Furthermore, even where these conditions are present, the parent still may seek to annul the instrument on the grounds of “fraud, duress or coercion in the execution or inducement of the surrender.” [SSL 384(5)]
Proceeding to Determine Custody of a Surrendered Child Placed for Adoption
Inan action or proceeding to determine the custody of a child not in foster care who was surrendered for adoption and placed in an adoptive home, orto revoke or annul a surrender of such child placed in an adoptive home,the birth parents will have no right to the child superior to that of the adoptive parent(s). The custody of the child will be awarded solely on the basis of the best interests of the child. [SSL §384(6)]
Chapter Five
Termination of Parental Rights
and Expedited Adoptions
Sections In This Chapter
A. Termination of Parental Rights Overview...1 B. Abandonment ...7 C. Permanent Neglect... 13 D. Mental Illness and Mental Retardation ... 28 E. Severe Abuse and Repeated Abuse... 36 F. Death of the Parent(s) ... 50 G. Expedited Adoptions ... 51
A. TERMINATION OF PARENTAL RIGHTS OVERVIEW
IMPORTANT NOTE TO CASEWORKERS
This chapter contains detailed information about the termination of parental rights (TPR) and procedures for expedited adoptions. Some of this is technical, legal information that is provided for the caseworker’s information, even though the agency attorney will have primary responsibility for knowing the technical details of the process. However, since the caseworker will be involved throughout the process of terminating parental rights, and will need to work closely with the agency attorney, it is helpful if the caseworker is familiar with the steps and language involved with the process.
1. Introduction
When an authorized agency has decided that adoption is in the best interests of a child, and the parents will not sign a surrender, or a surrender is not appropriate given the case circumstances, the agency should petition the court to terminate parental rights (SSL 384-b). Sometimes, the court may order the agency to file a petition to terminate parental rights.
The decision whether to file a petition to terminate parental rights must be evaluated by the agency on a child-specific basis and be made in accordance with a child’s best interests. Whenever a social services district determines that a petition to terminate parental rights should be filed, the social services district must also make reasonable efforts to identify, recruit, process, and approve a qualified family for the adoption of the child, if these steps have not already taken place. [18 NYCRR 431.9(e)(3)]
An action to legally free the child—either the filing of the petition to terminate parental rights or seeking a surrender from the parent(s)—must be initiated within 30 days of the establishment of the permanency planning goal (PPG) of adoption, and the child must be freed within 12-months after the PPG of adoption is established. For all termination proceedings, a “child” is defined as a person under the age of 18.
The law specifies the grounds under which the court, acting on a petition from the agency, can terminate parental rights and commit the guardianship and custody of a child to the agency. Each of these grounds is discussed in detail in this chapter. The grounds are:
Abandonment
Permanent neglect
Mental illness or mental retardation
Severe or repeated abuse
Death [of the parent(s)] (SSL §384-b)
The courts in New York State with jurisdiction to terminate parental rights and
commit the guardianship and custody of a child to an authorized agency are the Family Court and the Surrogate’s Court. The law specifies the jurisdiction of each court, as follows:
The Family Court has exclusive jurisdiction over any termination proceeding brought upon grounds of:
Mental illness or mental retardation
Permanent neglect
Severe or repeated abuse
Both the Family Court and Surrogate’s Court have jurisdiction over:
Any termination proceeding brought on the grounds of: (a) abandonment
(b) the parent or parents whose consent to adoption otherwise would be required are dead
Cases in which a child was placed or continued in foster care pursuant to an Article 10 or Article 10-a of the Family Court Act, or as a result of a voluntary placement by the parent/guardian (SSL section 358-a).
Multiple court proceedings about a child and one or more siblings or half- siblings who are placed in foster care through the same commissioner.
The standard of proof needed for the court to grant an order terminating parental rights and committing the guardianship and custody of a child, based on a finding of one or more of the grounds listed above, is “clear and convincing” evidence.1 For Native American children subject to the federal Indian Child Welfare Act (ICWA), the standard is “beyond a reasonable doubt.”2
If the court decides in favor of the social services district and terminates parental rights, the court transfers guardianship and custody of the child to an authorized agency and the child is legally free for adoption. When this transfer occurs, there are specific steps the agency must take, which are discussed in Chapter 6. These include notifying the prospective adoptive parents (if identified) that an adoption proceeding may be
commenced. The agency must notify the current foster parents that the child in their care has been freed for adoption and assist the foster parents in completing an application to adopt, if they want to adopt and have not already completed the application. Prospective adoptive parents may submit a petition to adopt a child to the court in which the TPR proceeding is being heard, even before that proceeding is concluded. [SSL §384-b(10)] There is the requirement for the child to be placed with the pre-adoptive family for at least three months before the order of adoption in most cases [§112 of the DRL]. 2. Best Interests Determination
Unless there is an exception allowed in regulation (see list of exceptions below), the social services district is required to make a determination as to whether the best interests of the child would be served through termination of his or her parent’s parental rights six months after the child is removed from the home and every six months
thereafter [18 NYCRR 431.9(a)]. This determination is made by evaluating the status of the relationship of the child in foster care with his or her birth family. If it is determined that termination of the parental rights of the parent(s) would be in the child’s best
interests, or if the Family Court has directed that a proceeding to terminate parental rights be started, the agency must take appropriate steps to promptly initiate proceedings to terminate parental rights.
In making the determination to terminate parental rights, the agency must consider the following [18 NYCRR 431.9(b)]:
Whether there are indications of parental rejection of the child, which may include the failure of the parent(s), since the child was removed, or since the most recent permanency hearing, to:
1
Before the court can make a finding, the credibility and persuasiveness of evidence presented must rise to a specific level. There are three standards of proof. The type of proceeding determines which level of proof is required.
The highest level of proof, “beyond a reasonable doubt,” is used in criminal proceedings.
An intermediate standard of proof is “clear and convincing,” which is used when special constitutional rights are involved, such as in the termination of parental rights (SSL §384b).
The lowest standard of proof is “preponderance of evidence,” which is used in most civil cases. This standard is satisfied in looking at all possibilities one possibility is more than 50% likely. Allegations of abuse/neglect must be proven by a “preponderance of evidence.”
2 Ibid.
request visits with the child;
cooperate with the agency in planning and arranging visits with the child, although physically and financially able to do so;
communicate with the child regularly by phone or letter if there is physical or financial inability to visit;
keep appointments to visit the child as arranged;
keep the agency informed as to his/her whereabouts;
keep appointments with agency staff that may have been arranged to assist the parent with those problems which affect the parent’s ability to care for the child;
use community resources as arranged or suggested by the agency or other involved agencies, or ordered by the court, to resolve or correct the problems which impair parental ability to care for the child; or
demonstrate a willingness and capacity to plan for the child’s discharge, taking whatever steps are necessary to provide an adequate, safe, and stable home and parental care for the child within a reasonable period of time.
Whether there are indications that efforts to encourage and strengthen the parental relationship would not be in the child’s best interests as evidenced by:
addiction to alcohol or drugs to such a degree that the parent’s ability to function in a mature and reasonable manner is impaired, or antisocial behavior to a degree that the parent is frequently incarcerated;
consistent, expressed hostility toward the child or evidence of neglect and/or abuse during periods when the child has visited the parent;
consistent, expressed resistance on the part of a child, who is of sufficient maturity and intelligence to make such judgment, to accept visits from the parent; or resistance on the part of a small child without sufficient maturity or judgment who exhibits resistance or defensive behavior; e.g., continual crying when parents visit, bedwetting, compulsive scratching, nervous habits, only evident when the child is with parents, but not evident in everyday behavior in the foster home;
the parent’s mental illness, manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if the child were returned to the custody of the parent, the child would be in danger of becoming a neglected child; or
the parent’s mental retardation manifested by impairment in adaptive behavior to such an extent that if the child were returned to the custody of the parent, the child would be in danger of becoming a neglected child. [18 NYCRR 431.9(b)]
Note: See Section D of this chapter for the regulatory definition and a discussion of parent’s mental illness and parent’s mental retardation.
3. Regulatory Standards for Filing a TPR Petition
In making the decision to terminate parental rights, the social services district must also follow certain standards that are included in law and regulations for filing a petition for termination of parental rights [SSL §384-b(3)(1); 18 NYCRR 431.9(e)(1&(2)]:
A social services district must file a petition to terminate parental rights if one of the following events occurs:
The child has been in foster care for 15 of the most recent 22 months.
A court has determined the child to be an abandoned child.
A court has made a determination that the parent has been convicted of the murder or voluntary manslaughter of another child of the parent; the attempt, facilitation, conspiracy, or solicitation to commit such a murder or manslaughter; or a felony assault that resulted in serious bodily injury to the child or to another child of the parent.
4. Reasons, Including Compelling Reasons, Not to File a TPR Petition
The following case circumstances may constitute a compelling reason not to file a TPR for a particular child. These should not be considered an automatic justification not to file a TPR petition, nor is this list necessarily all-inclusive. It is important that the caseworker consult with both legal and supervisory program agency staff to determine the appropriate course of action for each case. Periodic case conferences are one mechanism for such consultation.
For every child, a case-specific determination must be made to assess whether filing a petition to terminate parental rights would be in the best interests of the child. It is not acceptable to claim a compelling reason simply by virtue of the child’s membership in a broad class of children (e.g., Juvenile Delinquents, Persons In Need of Supervision, Native American children). State law specifically requires a case-by-case determination and does not allow any perceived class of persons to whom the compelling reason standard would apply.
RESOURCES
For a more thorough discussion of the requirement for case-by-case determinations, see:
Adoption and Safe Families Act—Information on the Act’s Implementation Timeframes and Preliminary Guidance About its Termination Requirements, issued as an Informational Letter in 1998 (98-OCFS-INF-03) and available at
ASFA Safety and Permanency, issued as an Information Letter in 2000. (00-OCFS INF-05) and available at
http://www.ocfs.state.ny.us/main/policies/external/OCFS_2000/
Compelling reasons not to file a petition to terminate parental rights may include the following, which are specified in regulation [18 NYCRR 431.9(e((2)]:
The child was placed into foster care as a result of Article 3 (juvenile
delinquency, or JD) or Article 7 (Person in Need of Supervision, or PINS) of the Family Court Act and a review of the specific facts and circumstances of the child’s placement demonstrate that the appropriate permanency goal for the child is either:
return to his or her parent or guardian, or
discharge to another planned living arrangement with a permanency resource.
When adoption is not the appropriate permanency goal for the child.