N.Y. Social Services Law § 383-c: Guardianship and custody of children in foster care

§ 383-c. Guardianship and custody of children in foster care. 1.

Method. For the purposes of this section, a child in foster care shall

mean a child in the care and custody of an authorized agency pursuant to

section three hundred eighty-four-a of this title or article three,

seven or ten of the family court act. The guardianship of the person and

the custody of a child in foster care under the age of eighteen years

may be committed to an authorized agency by a written instrument which

shall be known as a surrender, and signed:

(a) if both parents shall then be living, by the parents of such

child, or by the surviving parent, if either parent of such child be

dead;

(b) if either one of such parents shall have for a period of six

months then next preceding abandoned such child as set forth in section

three hundred eighty-four-b of this title, by the other of such parents;

(c) if such child is born out of wedlock, by the mother of such child,

and by the father of such child, if such father's consent would be

required for the child's adoption, pursuant to section one hundred

eleven of the domestic relations law;

(d) if both parents of such child are dead, or if such child is born

out of wedlock and the mother of such child is dead, by the guardian of

the person of such child lawfully appointed, with the approval of the

court or officer which appointed such guardian to be entered of record.

2. Terms. (a) Such guardianship shall be in accordance with the

provisions of this article and the instrument shall be upon such terms

and subject to such conditions as may be agreed upon by the parties

thereto and shall comply with subdivision five of this section;

provided, however, that an authorized agency shall not accept a

surrender instrument conditioned upon adoption by a particular person,

unless such person is a certified or approved foster parent, where the

permanency plan for the child is for the child to be adopted by that

person or the agency has fully investigated and approved such person as

an adoptive parent in accordance with applicable statute and

regulations. No such agency shall draw or receive money from public

funds for the support of any such child except upon the written order or

permit of the social services official of the county or city sought to

be charged with the support of such child.

(b) If a surrender instrument designates a particular person or

persons who will adopt a child, such person or persons, the child's

birth parent or parents, the authorized agency having care and custody

of the child and the child's attorney, may enter into a written

agreement providing for communication or contact between the child and

the child's parent or parents on such terms and conditions as may be

agreed to by the parties. If a surrender instrument does not designate

a particular person or persons who will adopt the child, then the

child's birth parent or parents, the authorized agency having care and

custody of the child and the child's attorney may enter into a written

agreement providing for communication or contact, on such terms and

conditions as may be agreed to by the parties. Such agreement also may

provide terms and conditions for communication with or contact between

the child and the child's biological siblings or half-siblings, if any.

If any such sibling or half-sibling is fourteen years of age or older,

such terms and conditions shall not be enforceable unless such sibling

or half-sibling consents to the agreement in writing. If the court

before which the surrender instrument is presented for approval

determines that the agreement concerning communication and contact is in

the child's best interests, the court shall approve the agreement. If

the court does not approve the agreement, the court may nonetheless

approve the surrender; provided, however, that the birth parent or

parents executing the surrender instrument shall be given the

opportunity at that time to withdraw such instrument. Enforcement of any

agreement prior to the adoption of the child shall be in accordance with

subdivision (b) of section one thousand fifty-five-a of the family court

act. Subsequent to the adoption of the child, enforcement of any

agreement shall be in accordance with section one hundred twelve-b of

the domestic relations law.

3. Judicial surrenders. (a) A surrender of a child to an authorized

agency for the purpose of adoption may be executed and acknowledged

before a judge of the family court or a surrogate in this state. If the

child being surrendered is in foster care as a result of a proceeding

before the family court pursuant to article ten or ten-A of the family

court act or section three hundred fifty-eight-a of this chapter, the

surrender shall be executed and acknowledged before the family court

that exercised jurisdiction over such proceeding and, shall be assigned,

wherever practicable, to the judge who last presided over such

proceeding. A surrender executed and acknowledged before a court in

another state shall satisfy the requirements of this section if it is

executed by a resident of the other state before a court of record which

has jurisdiction over adoption proceedings in that state, and a

certified copy of the transcript of that proceeding, showing compliance

with paragraph (b) of this subdivision, is filed as part of the adoption

proceeding in this state.

(b) Before a judge or surrogate approves a judicial surrender, the

judge or surrogate may order that notice of the surrender proceeding be

given to such persons as the judge or surrogate may, in his or her

discretion, prescribe. At the time that a parent appears before a judge

or surrogate to execute and acknowledge a surrender, the judge or

surrogate shall inform such parent of the right to be represented by

legal counsel of the parent's own choosing and of the right to obtain

supportive counseling and of any right to have counsel assigned pursuant

to section two hundred sixty-two of the family court act, section four

hundred seven of the surrogate's court procedure act, or section

thirty-five of the judiciary law. The judge or surrogate also shall

inform the parent of the consequences of such surrender, including

informing such parent that the parent is giving up all rights to have

custody, visit with, speak with, write to or learn about the child,

forever, unless the parties have agreed to different terms pursuant to

subdivision two of this section, or, if the parent registers with the

adoption information register, as specified in section forty-one hundred

thirty-eight-d of the public health law, that the parent may be

contacted at any time after the child reaches the age of eighteen years,

but only if both the parent and the adult child so choose. The court

shall determine whether the terms and conditions agreed to by the

parties pursuant to subdivision two of this section are in the child's

best interests before approving the surrender. The judge or surrogate

shall inform the parent that where a surrender containing conditions has

been executed, the parent is obligated to provide the authorized agency

with a designated mailing address, as well as any subsequent changes in

such address, at which the parent may receive notices regarding 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 such instrument. The judge or surrogate also shall inform

the parent that the surrender shall become final and irrevocable

immediately upon its execution and acknowledgment. The judge or

surrogate shall give the parent a copy of such surrender upon the

execution thereof.

4. Extra-judicial surrenders. (a) In any case where a surrender is not

executed and acknowledged before a judge or surrogate pursuant to

subdivision three of this section, such surrender shall be executed and

acknowledged by the parent, in the presence of at least two witnesses,

before a notary public or other officer authorized to take proof of

deeds. At least one witness shall be an employee of an authorized agency

trained, in accordance with the regulations of the department of

children and family services, to receive surrenders. At least one

witness shall be a person who is either a licensed master social worker,

licensed clinical social worker or an attorney and who is not an

employee, volunteer, consultant or agent of or attorney for the

authorized agency to which the child is being surrendered. The

commissioner of the office of children and family services, after

consultation with the chief administrator of the courts, shall

promulgate standards to help ensure the impartial selection and

independence of such witnesses. Any witness may, if so commissioned,

serve as notary under this subdivision.

(b) The authorized agency to which the child was surrendered shall

file an application for approval of the extra-judicial surrender with

the court in which the adoption proceeding is expected to be filed or,

if not known, the family 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 before the family court pursuant

to article ten or ten-A of the family court act or section three hundred

fifty-eight-a of this chapter, the application shall be filed in the

family court that exercised jurisdiction over such proceeding and, shall

be assigned, wherever practicable, to the judge who last presided over

such proceeding. The application shall be filed no later than fifteen

days after execution of such surrender. The application shall be

accompanied by affidavits from all the witnesses before whom the

surrender was executed and acknowledged as provided for in paragraph (a)

of this subdivision, stating:

(i) the date, time and place where the surrender was executed and

acknowledged;

(ii) that the parent was provided with a copy of the surrender;

(iii) that the surrender was read in full to the parent in his or her

principal language and the parent was given an opportunity to ask

questions and obtain answers regarding the nature and consequences of

the surrender, including the consequences of, and procedures to be

followed in, cases of a substantial failure of a material condition, if

any, contained in the surrender instrument and the obligation to provide

the authorized agency with a designated mailing address, as well as any

subsequent changes in such address, at which the parent may receive

notices regarding 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 such instrument; and

(iv) that the parent executed and acknowledged the surrender.

(c) The authorized agency to which a child is surrendered pursuant to

this subdivision must affix an affidavit to the application, by an

employee responsible for providing or arranging supportive counseling,

which specifies:

(i) when supportive counseling was offered to the parent by the

authorized agency;

(ii) whether the parent accepted the offer of supportive counseling;

and

(iii) if accepted, when supportive counseling was provided and the

nature of such supportive counseling.

(d) Before a judge or surrogate approves an extra-judicial surrender,

the judge or surrogate shall order notice to be given to the person who

executed the surrender and to such other persons as the judge or

surrogate may, in his or her discretion, prescribe. No person who has

received such notice and been afforded an opportunity to be heard may

challenge the validity of a surrender approved pursuant to this

subdivision in any other proceeding. Nothing in this section shall be

deemed to dispense with the consent to adopt if otherwise required of

any person who has not executed the surrender.

(e) The agency to which the child is surrendered promptly shall notify

such court of any correspondence or communication received from the

parent or a person on the parent's behalf subsequent to the execution of

the surrender and prior to a final order of adoption of the child, if

such correspondence or communication could reasonably indicate the

parent's wish to revoke the surrender.

(f) The court shall enter an order either approving or disapproving

the surrender. If the court disapproves the surrender, the surrender

shall be deemed a nullity and without force or effect, and the court may

direct that any subsequent surrender shall be executed only before the

court in accordance with subdivision three of this section.

5. Instrument. (a) There shall be a form of instrument for a judicial

surrender and a form of instrument for an extra-judicial surrender.

(b) The instrument for a judicial surrender and the instrument for an

extra-judicial surrender shall be in a form prescribed by the

commissioner after consultation with the chief administrator of the

courts and shall state in plain language in conspicuous bold print on

the first page:

(i) that the parent has the right, before signing the surrender, to

speak to a lawyer of her or his own choosing and any other person she or

he wishes; to have that lawyer and any other person present with her or

him at the time of the signing of the surrender; and has the right to

ask the court to appoint a lawyer free of charge if the parent cannot

afford to hire one; and has the right to have supportive counseling;

(ii) that the parent is giving up all rights to have custody, visit

with, speak with, write to or learn about the child, forever, unless the

parties have agreed to different terms pursuant to subdivision two of

this section, and unless such terms are written in the surrender, or, if

the parent registers with the adoption information register, as

specified in section forty-one hundred thirty-eight-d of the public

health law, that the parent may be contacted at anytime after the child

reaches the age of eighteen years, but only if both the parent and the

adult child so choose;

(iii) that the child will be adopted without the parent's consent and

without further notice to the parent, and will be adopted by any person

that the agency chooses, unless the surrender paper contains the name of

the person or persons who will be adopting the child; and

(iv) that the parent cannot be forced to sign the surrender paper, and

cannot be punished if he or she does not sign the paper; and would not

be subject to any penalty for refusing to sign the surrender.

(c) A surrender instrument for a judicial surrender also shall state

in plain language in conspicuous bold print at the beginning thereof

that the surrender becomes final and irrevocable immediately upon

execution and acknowledgement, and that the parent cannot bring a case

in court to revoke the surrender or to regain custody of the child.

Where the parties have agreed that the surrender shall be subject to

conditions pursuant to subdivision two of this section, the instrument

shall further state in plain language that:

(i) the authorized agency shall notify the parent, unless such notice

is expressly waived by a statement written by the parent and appended to

or included in such instrument, the attorney for the child and the court

that approved the surrender within twenty days of any substantial

failure of a material condition of the surrender prior to the

finalization of the adoption of the child; and

(ii) except for good cause shown, the authorized agency shall file a

petition on notice to the parent unless notice is expressly waived by a

statement written by the parent and appended to or included in such

instrument and the child's attorney in accordance with section one

thousand fifty-five-a of the family court act within thirty days of such

failure, in order for the court to review such failure and, where

necessary, to hold a hearing; provided, however, that, in the absence of

such filing, the parent and/or attorney for the child may file such a

petition at any time up to sixty days after notification of the failure.

Such petition filed by a parent or attorney for the child must be filed

prior to the child's adoption; and

(iii) the parent is obligated to provide the authorized agency with a

designated mailing address, as well as any subsequent changes in such

address, at which the parent may receive notices regarding 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 such instrument.

Nothing in this paragraph shall limit the notice on the instrument

with respect to a failure to comply with a material condition of a

surrender subsequent to the finalization of the adoption of the child.

(d) An extra-judicial surrender instrument also shall state in plain

language in conspicuous bold print at the beginning thereof that:

(i) the name and address of the court in which the application for

approval of the extra-judicial surrender will be filed;

(ii) that a revocation of the surrender will be effective if it is in

writing and postmarked or received by the court named in the surrender

within forty-five days of the signing of the surrender; and

(iii) that a revocation of the surrender more than forty-five days

after its signing will not be effective if the child has been placed in

an adoptive home, and the surrender shall be final and irrevocable and

the parent cannot revoke the surrender or bring a case in court to

revoke the surrender or regain custody of the child, and that the agency

will not notify the parent when the child is placed in an adoptive home,

and the parent may lose all rights at the end of the forty-five day

period without further notice. Where the parties have agreed that the

surrender shall be subject to conditions pursuant to subdivision two of

this section, the instrument shall further state in plain language that:

(A) the authorized agency shall notify the parent, unless such notice

is expressly waived by a statement written by the parent and appended to

or included in such instrument, the law guardian for the child and the

court that approved the surrender within twenty days of any substantial

failure of a material condition of the surrender prior to the

finalization of the adoption of the child; and

(B) except for good cause shown, the authorized agency shall file a

petition on notice to the parent unless notice is expressly waived by a

statement written by the parent and appended to or included in such

instrument and law guardian in accordance with section one thousand

fifty-five-a of the family court act within thirty days of such failure

in order for the court to review such failure and, where necessary, to

hold a hearing; provided, however, that, in the absence of such filing,

the parent and/or law guardian for the child may file such a petition at

any time up to sixty days after notification of the failure. Such

petition filed by a parent or law guardian must be filed prior to the

adoption of the child; and

(C) the parent is obligated to provide the authorized agency with a

designated mailing address, as well as any subsequent changes in such

address, at which the parent may receive notices regarding any

substantial failure of a material condition, unless such notice is

expressly waived by a statement written by the parent and appended to or

included in such instrument.

Nothing in this subparagraph shall limit the notice on the instrument

with respect to a failure to comply with a material condition of a

surrender subsequent to the finalization of the adoption of the child.

(e) Any surrender instrument subject to the provisions of this section

shall include an adoption information registry birth parent registration

consent form, stating whether or not such biological parent or parents

whose consent is subject to the provisions of this section, consents to

the receipt of identifying information by the child to be adopted upon

registration with the adoption information registry established by

section forty-one hundred thirty-eight-c of the public health law and

upon the adoptee reaching the age of eighteen. If such consent is made,

it shall be revocable by either of the biological parents at any time.

The revocation of the consent by one of the parents shall revoke the

consent of both parents. The failure of a biological parent to complete

the consent form shall have no effect on the finality of the consent to

adoption. A copy of the form required by this subdivision, shall be

forwarded to the state adoption information registry for inclusion in

the records maintained by such registry. Any fees authorized to be

charged by the state adoption registry for filing documentation with

such registry shall be waived for the form required by this subdivision.

(f) A surrender shall be recorded in the office of the county clerk in

the county where the surrender is executed, or where the principal

office of such authorized agency is located, in a book which such county

clerk shall provide and shall keep under seal. Such record shall be

subject to inspection and examination only as provided in subdivisions

three and four of section three hundred seventy-two of this title.

(g) Whenever the term surrender, surrender paper or surrender

instrument is used in any law relating to the adoption of children in

foster care, it shall mean and refer exclusively to the instrument

described herein for the commitment of the guardianship of the person

and the custody of a child to an authorized agency by the child's

parent, parents or guardian, and in no case shall it be deemed to apply

to any instrument purporting to commit the guardianship of the person

and the custody of a child to any person other than an authorized

agency, nor shall such term or the provisions of this section be deemed

to apply to any instrument transferring the care and custody of a child

to an authorized agency pursuant to section three hundred eighty-four-a

of this title.

(h) Upon execution of a surrender instrument, the parent executing the

surrender shall provide information to the extent known regarding the

other parent, any person to whom the surrendering parent had been

married at the time of the conception or birth of the child and any

other person who would be entitled to consent to the adoption of the

child pursuant to subdivision one of section one hundred eleven of the

domestic relations law. Such information shall include, but not be

limited to, such parent's or person's name, last-known address, social

security number, employer's address and any other identifying

information. Any information provided pursuant to this paragraph shall

be recorded in the uniform case record maintained pursuant to section

four hundred nine-f of this article; provided, however, that the failure

to provide such information shall not invalidate the surrender.

6. Effect of surrender and revocation. (a) If the court disapproves

the surrender pursuant to subdivision four of this section, or if a

revocation of an extra-judicial surrender is mailed and postmarked or

otherwise delivered to the court named in the surrender within

forty-five days of the execution of the surrender, such surrender shall

be deemed a nullity, and the child shall be returned to the care and

custody of the authorized agency.

(b) If a revocation of an extra-judicial surrender is mailed and

postmarked or otherwise delivered to the court named in the surrender

more than forty-five days after its execution and the child has not been

placed in an adoptive home, such surrender shall be deemed a nullity,

and the child shall be returned to the care and custody of the

authorized agency. For the purposes of this subdivision, no child shall

be deemed to have been placed in the home of adoptive parents unless the

fact of such placement, the date thereof, the date of the agreement

pertaining thereto and the names and addresses of the adoptive parents

shall have been recorded in a bound volume maintained by the agency for

the purpose of recording such information in chronological order. The

absence of judicial approval of an extra-judicial surrender shall not

revive, extend or toll the period for revocation of such surrender.

(c) In any case in which the authorized agency determines that the

persons specified in the surrender will not adopt the child or in any

other case of a substantial failure of a material condition prior to the

finalization of the adoption of the child, the agency promptly shall

notify the parent thereof, unless such notice is expressly waived by a

statement written by the parent and appended to or included in such

instrument, and shall notify the court and the law guardian for the

child within twenty days. In any such case, the authorized agency shall

file a petition on notice to the parent unless notice is expressly

waived by a statement written by the parent and appended to or included

in such instrument and law guardian in accordance with section one

thousand fifty-five-a of the family court act, as applicable, within

thirty days, except for good cause shown, in order for the court to

review such failure and, where necessary, to hold a hearing; provided,

however, that, in the absence of such a filing, the parent and/or law

guardian for the child may file such a petition at any time up to sixty

days after the notification of the failure. Such petition filed by a

parent or law guardian must be filed prior to the adoption. Nothing in

this paragraph shall limit the rights and remedies, if any, available to

the parties and the law guardian with respect to a failure to comply

with a material condition of a surrender subsequent to the finalization

of the adoption of the child.

(d) Nothing contained in this section shall bar actions or proceedings

brought on the ground of fraud, duress or coercion in the execution or

inducement of a surrender. No action or proceeding may be maintained by

the surrendering parent or guardian for the custody of the surrendered

child or to revoke or annul such surrender except as provided herein.

7. Surrenders by persons in foster care. Notwithstanding any other

provision of law, a surrender for adoption executed by a parent, parents

or guardian who is in foster care shall be executed only before a judge

of the family court.

8. Adoption proceeding. (a) Upon the court's order approving the

surrender, the attorney for the petitioning authorized agency shall

promptly serve upon persons who have been approved by such agency as the

child's adoptive parents, notice of entry of the order approving the

surrender and advising such persons that they may commence an adoption

proceeding. In accordance with the regulations of the department, the

authorized agency shall advise such persons of the procedures necessary

for adoption of the child. The authorized agency shall cooperate with

such persons in the provision of necessary documentation.

(b) The adoptive parent may commence the adoption proceeding in a

court of competent jurisdiction in accordance with subdivision three of

section one hundred thirteen or subdivision two of section one hundred

fifteen of the domestic relations law, as applicable; provided, however,

that in the case of an extra-judicial surrender, such proceeding shall

be initiated more than forty-five days after the surrender is executed.

Commencement of such a proceeding shall not revive, extend or toll the

period for revocation of an extra-judicial surrender pursuant to this

section.

9. Intervention. (a) Any person or persons having custody of a child

for the purpose of adoption through an authorized agency shall be

permitted as a matter of right, as an interested party, to intervene in

any proceeding commenced to set aside a surrender purporting to commit a

guardianship of the person or custody of a child executed under the

provisions of this section. Such intervention may be made anonymously or

in the true name of such person.

(b) Any person or persons having custody for more than twelve months

through an authorized agency for the purpose of foster care shall be

permitted as a matter of right, as an interested party, to intervene in

any proceeding commenced to set aside a surrender purporting to commit

the guardianship of the person and custody of a child executed under the

provisions of this section. Such intervention may be made anonymously or

in the true name of such person or persons having custody of the child

for the purpose of foster care.

10. Adoption and permanency hearing.

a. Upon acceptance of a judicial surrender or approval of an

extra-judicial surrender pursuant to subdivision three or four of this

section, the court shall inquire whether any foster parent or parents

with whom the child resides, or any relative of the child, or other

person, seeks to adopt such child. If such person or persons do seek to

adopt such child, such person or persons may submit, and the court shall

accept, all such petitions for the adoption of the child, together with

an adoption home study, if any, completed by an authorized agency, or

disinterested person as such term is defined in subdivision three of

section one hundred sixteen of the domestic relations law. The court

shall thereafter establish a schedule for completion of other inquiries

and investigations necessary to complete review of the adoption of the

child and shall immediately set a schedule for completion of the

adoption.

b. Upon acceptance of a judicial surrender or approval of an

extra-judicial surrender pursuant to subdivision three or four of this

section, the court shall schedule an initial freed child permanency

hearing pursuant to section one thousand eighty-nine of the family court

act. Subsequent permanency hearings shall be held pursuant to section

one thousand eighty-nine of the family court act.

11. Acceptance of surrender. Acceptance of a judicial surrender or

approval of an extra-judicial surrender pursuant to this section shall

not be construed to terminate any rights of the child to contact his or

her siblings. For purposes of this section, "siblings" shall include

half-siblings and those who would be deemed siblings or half-siblings

but for the surrender, termination of parental rights or death of a

parent.