Bill A8524-2009

Authorizes the family court, in certain situations, to restore a birth parent's parental rights after they have been terminated

Provides a process for a petition to restore previously terminated parental rights under certain circumstances.

Details

Actions

  • Aug 13, 2010: signed chap.343
  • Aug 3, 2010: delivered to governor
  • May 12, 2010: RETURNED TO ASSEMBLY
  • May 12, 2010: PASSED SENATE
  • May 4, 2010: 3RD READING CAL.433
  • May 4, 2010: SUBSTITUTED FOR S3868A
  • Mar 11, 2010: REFERRED TO CODES
  • Mar 11, 2010: delivered to senate
  • Mar 11, 2010: passed assembly
  • Jan 6, 2010: ordered to third reading cal.601
  • Jan 6, 2010: RETURNED TO ASSEMBLY
  • Jan 6, 2010: DIED IN SENATE
  • Jun 22, 2009: REFERRED TO RULES
  • Jun 22, 2009: delivered to senate
  • Jun 22, 2009: passed assembly
  • Jun 22, 2009: ordered to third reading rules cal.554
  • Jun 22, 2009: rules report cal.554
  • Jun 22, 2009: reported
  • Jun 8, 2009: reported referred to rules
  • Jun 2, 2009: reported referred to codes
  • May 27, 2009: referred to judiciary

Votes

Memo

BILL NUMBER:A8524                REVISED 6/10/09

TITLE OF BILL: An act to amend the family court act and the social services law, in relation to restoration of parental rights

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Family Court Advisory and Rules Committee.

This measure would amend provisions of the Family Court Act and the Social Services Law to authorize Family Court, in narrowly-defined circumstances, to restore a birth parent's parental rights after they have been terminated.

New York State has progressed far from the days when adolescents were not deemed candidates for either meaningful permanency planning, foster care or adoption, and when many were simply relegated to congregate care settings and, when they reached 18, released to "independent living," an unrealistic status that for too many meant homelessness. The State's 2005 permanency legislation recognized that teens in out-of-home care require services to start preparing them for independence in adulthood starting at age 14, but, at the same time, that if they are neither living with their own families, nor adopted, they need to have a "significant connection to an adult willing to be a permanency resource..." See L. 2005, c. 3; Family Court Act 51089. Not infrequently, the 'significant connection" that would fulfill a child's best interests turns out to be his or her birth parent, even if the latter's parental rights had already been terminated. At present, however, State law does not provide any procedural vehicle to recognize this fact. This measure would fill that gap.

This measure is similar to legislation enacted in California in 2005 (Chapter 634; Assembly Bill 519){1} and Washington in 2007 (Laws of 2007, ch. 413) to restore birth parents' parental rights. Under this measure, with the consent of the respondent in the original termination of parental rights proceeding, as well as that of the child, a petition to restore parental rights could be filed provided: (i) at least two years had elapsed since issuance of the order transferring guardianship and custody of the child; (ii) the original adjudication terminating parental rights could not have been based upon severe or repeated child abuse; and (iii) the child would have to be under the jurisdiction of the Family Court and have a permanency goal other than adoption. The agency to which guardianship and custody had been committed must consent unless the court finds that the consent had been withheld without good cause. Family Court would be authorized to grant the petition where clear and convincing proof establishes that restoration of parental rights would be in the child's best interests. This restoration would, in effect, revoke the disposition transferring guardianship and custody of the child but would leave in place the fact-finding upon which the termination of parental rights adjudication had been based. A clause also would be added to the permanency hearing order provision permitting

the Court to recommend the filing of a petition to restore parental rights.

Significantly, this measure would add an important option available under the Washington State statute, i.e., that the Court would have the authority to grant the restoration petition conditionally. This option would retain guardianship and custody of the child with the agency but authorize the child to reside with the birth parent on a trial discharge for a period of up. to six months, during which time the agency may be directed to supervise the family and to develop a reunification plan with appropriate transitional services. If temporary restoration proves successful and in the child's best interests, it could be made final at the end of the designated period and guardianship and custody would be transferred at that time to the birth parent. If, however, the child were removed from the birth parent during the designated period by reason of abuse or neglect, the Court could dismiss the restoration petition and direct the agency that retains guardianship and custody to make efforts to further an alternative permanency plan for the child.

Even without a statute, child welfare professionals in New York have reported cases in which facts mirroring the criteria contained in this measure have spurred efforts by parties and adolescents to get Family Court to vacate orders terminating parental rights, See D. Riggs, "Permanence Can Mean Going Home," Adoptalk (North American Council on Adoptable Children; Spring, 2006). In fact, guidelines for adolescent cases issued by the New York City Administration for Children's Services in 2003 recognize that "the best permanency resource for a young person who has been freed for adoption may be a member of the child's birth family, including a parent from whom the child has been freed."{2} Judges report that, notwithstanding termination of parental rights, teens aging out of foster care often return to their birth families, and, as one child welfare professional was quoted as saying:

The way families are drawn together against all odds whatever the circumstances I think is exemplified by just how many kids do we see aging out of the foster care system and where do they go? They go home. .even kids whose parents' rights have been terminated...

The bonds that hold families together are powerful and often the system works to strain or shatter or destroy them rather than build on them.

M. Freundlich, Time Running Out: Teens in Foster Care (Children's Rights, Legal Aid Society Juvenile Rights Division & Lawyers for Children, Nov., 2003), p. 67.

As one commentator noted, 'It is never too late for reunification." J. Jensen, "Fostering Interdependence: A Family-Centered Approach to Help Youth Aging Out of Foster Care," 3 Whittier T. Of Child and Family Advocacy 329 (Spring, 2004).

Although several Family Court judges in New York have.vacated termination of parental rights orders upon consent, no clear procedural vehi cle authorizes them to do so.In Matter of Rasheed A., NY Law .Journal, Aug. 3, 2007 (Fam. Ct., Kings Co., 2007) , a Family Court referee awarded guardianship of a severely hyperactive 12-year old child to a birth mother, whose rights had been terminated, on the basis of 'unusual and compelling circumstances." The mother demonstrated that the problems precipitating termination of her parental rights had been resolved and she proved by "substantial evidence" that the child would suffer serious harm were the mother not awarded custody or guardianship.{3} Further, in Matter of Theresa 0. v. Arthur P., 11 Misc.3d 736 (Fam. Ulster Co., 2006), Family Court gave standing to a birth mother to seek custody and eventual adoption of her child, notwithstanding an earlier surrender. The Court rejected the argument that the doctrine of res judicata precluded re-litigation of the child's custody, quoting Friederwitzer v. Friederwitzer, 55 N.Y.2d 89(1982):

The only absolute in the law governing custody of children is that there are no absolutes.

In Matter of Tiffany A. v. Margaret H.,171 Misc.2d 786(Fam. Ct., Kings Co., 1996), however, Family Court denied standing to a birth parent, whose rights had been terminated, to seek custody of her child. Moreover, in Matter of Frederick 5., 178 Misc.2d 152 (Fam. Ct., Kings Co., 1998), Family Court noted that neither the Family Court Act, nor the Social Services Law, contain a provision permitting a Court to set aside or vacate an order terminating parental rights and that the authority contained in CPLR 5015 must be utilized 'sparingly" and only in the most "compelling" circumstances, A 14-year-old child's change of heart regarding adoption by his aunt did not, in the Court's view, constitute such circumstances, although the child's consent would be needed for an adoption to be approved. At the same time, there is considerable appellate authority in New York for ordering new dispositional hearings in termination of parental rights cases when it becomes clear that the child is older and does not want to be adopted, as well as a few cases in which the birth parent had made progress and the child pressed for reunification.{4}

Recognizing that no legal pathway exists to restore the family ties of the State's "legal orphans" - youth whose parental ties were terminated but with no prospect of adoption - a recent report of the Center for an Urban Future included support for this measure as one of its recommendations.{5} Clearly, the statutory vacuum must be filled so that courts have clear authority to fulfill their statutory duty to find permanent homes for children, including authority in prescribed circumstances to restore parental rights.

This measure, which would have no fiscal impact upon the State, would take effect 90 clays after it becomes a Saw.

2008 Legislative History: S4543-a (Soc Serv, Ch+ Fams)/A 10810 (Codes).

{1} Since the California statute became effective in January, 2006, 14 parents have had parental rights restored, according to the Children's

Law Center of Los Angeles. See K. Hurley, "When You Can't Go Home: Should Teens Have Means to Regain Legal Ties to their Parents?," 15 Child Welfare Watch 18, 20 (Winter, 2008).

{2} N.Y.C. Admin. for Children's Services, "Implementation of the Adoption and Safe Families Act, Part V: Family-based Concurrent Planning for Youth with Goals of Independent Living" (2003)(on-line at www.nyc.gov/html/ocs/pdf/asfa 5.pdf). See also, A. Lowe, "Families for Teens Overview," Eighth Annual Children's Law Institute 197, 199 (Practicing Law Institute, 2005).

{3} See also K. Hurley, supra, at 20-21.

{4} See, e.g., Matter of Anna Maria C., 29 A.D.3d 992 (2d Dept., 2006); Matter of Eugene L., 22 A.b.3d 346 (1" Dept., 2005).

{5} "Child Welfare Watch Recommendations and Solutions," 15 Child Welfare Watch 3,4 (Winter, 2008).


Text

STATE OF NEW YORK ________________________________________________________________________ 8524 2009-2010 Regular Sessions IN ASSEMBLY May 27, 2009 ___________
Introduced by M. of A. SCARBOROUGH, WEINSTEIN, ESPAILLAT -- (at request of the Office of Court Administration) -- read once and referred to the Committee on Judiciary AN ACT to amend the family court act and the social services law, in relation to restoration of parental rights THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Article 6 of the family court act is amended by adding a new part 1-A to read as follows: PART 1-A MODIFICATION OF DISPOSITION; RESTORATION OF PARENTAL RIGHTS SECTION 635. PETITION TO RESTORE PARENTAL RIGHTS. 636. ORIGINATING A PROCEEDING TO RESTORE PARENTAL RIGHTS; SERVICE AND VENUE. 637. BURDEN OF PROOF, DISPOSITION AND FINDINGS. S 635. PETITION TO RESTORE PARENTAL RIGHTS. A PETITION TO MODIFY A DISPOSITION ORDERED PURSUANT TO SUBDIVISION (C) OF SECTION SIX HUNDRED THIRTY-ONE OF THIS ARTICLE OR PARAGRAPH (A) OF SUBDIVISION THREE OF SECTION THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW IN ORDER TO RESTORE PARENTAL RIGHTS MAY BE FILED IN ACCORDANCE WITH THIS PART WHERE THE FOLLOWING CONDITIONS ARE MET: (A) THE ORDER COMMITTING GUARDIANSHIP AND CUSTODY OF THE CHILD HAD BEEN ISSUED TWO OR MORE YEARS PRIOR TO THE DATE OF FILING OF THE PETI- TION UNDER THIS SECTION; AND (B) THE ORDER COMMITTING GUARDIANSHIP AND CUSTODY OF THE CHILD HAD BEEN BASED UPON AN ADJUDICATION UPON GROUNDS ENUMERATED IN PARAGRAPH (B), (C) OR (D) OF SUBDIVISION FOUR OF SECTION THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW; AND (C) THE PETITION ALLEGES THAT THE PETITIONER OR PETITIONERS AND THE RESPONDENT OR RESPONDENTS IN THE PROCEEDING IN WHICH GUARDIANSHIP AND CUSTODY HAD BEEN COMMITTED CONSENT TO THE RELIEF REQUESTED IN THE PETI-
TION OR THAT THE PETITIONER OR PETITIONERS WITHHELD CONSENT TO THE RELIEF REQUESTED IN THE PETITION WITHOUT GOOD CAUSE; AND (D) THE CHILD IS FOURTEEN YEARS OF AGE OR OLDER, REMAINS UNDER THE JURISDICTION OF THE FAMILY COURT, HAS NOT BEEN ADOPTED, DOES NOT HAVE A PERMANENCY GOAL OF ADOPTION AND CONSENTS TO THE RELIEF REQUESTED IN THE PETITION. S 636. ORIGINATING A PROCEEDING TO RESTORE PARENTAL RIGHTS; SERVICE AND VENUE. (A) A PROCEEDING TO MODIFY THE DISPOSITION IN ORDER TO RESTORE PARENTAL RIGHTS MAY BE ORIGINATED BY THE FILING OF A PETITION BY THE CHILD'S ATTORNEY, BY THE AGENCY OR INDIVIDUAL TO WHOM GUARDIANSHIP AND CUSTODY OF THE CHILD HAD BEEN COMMITTED OR BY THE RESPONDENT OR RESPONDENTS IN THE TERMINATION OF PARENTAL RIGHTS PROCEEDING. THE PETI- TION SHALL BE SERVED UPON THE CHILD'S ATTORNEY, THE AGENCY OR INDIVIDUAL TO WHOM GUARDIANSHIP AND CUSTODY OF THE CHILD HAD BEEN COMMITTED AND THE RESPONDENT OR RESPONDENTS IN THE TERMINATION OF PARENTAL RIGHTS PROCEED- ING, AS WELL AS THE ATTORNEY OR ATTORNEYS WHO REPRESENTED THE RESPONDENT OR RESPONDENTS IN THE TERMINATION OF PARENTAL RIGHTS PROCEEDING. A CERTIFIED COPY OF THE ORDER COMMITTING GUARDIANSHIP AND CUSTODY SHALL BE ATTACHED TO THE PETITION. (B) UPON THE FILING OF A PETITION UNDER THIS PART, THE COURT MAY CAUSE A SUMMONS TO BE ISSUED TO THE CHILD, THE AGENCY OR INDIVIDUAL TO WHOM GUARDIANSHIP AND CUSTODY OF THE CHILD HAD BEEN COMMITTED AND THE RESPONDENT OR RESPONDENTS IN THE TERMINATION OF PARENTAL RIGHTS PROCEED- ING. THE SUMMONS SHALL BE SERVED IN ACCORDANCE WITH SECTION SIX HUNDRED SEVENTEEN OF THIS ARTICLE, ACCOMPANIED BY A COPY OF THE PETITION AND THE CERTIFIED ORDER OF COMMITMENT SOUGHT TO BE MODIFIED. (C) THE PETITION SHALL BE FILED BEFORE THE COURT THAT EXERCISED JURIS- DICTION OVER THE MOST RECENT PERMANENCY PROCEEDING INVOLVING THE CHILD AND SHALL BE ASSIGNED, WHEREVER PRACTICABLE, TO THE FAMILY COURT JUDGE WHO PRESIDED OVER THAT PROCEEDING OR THE PROCEEDING TO TERMINATE PARENTAL RIGHTS. (D) WHEREVER PRACTICABLE, THE CHILD SHALL BE REPRESENTED BY THE SAME ATTORNEY THAT REPRESENTED THE CHILD IN THE MOST RECENT PERMANENCY PROCEEDING AND THE PARENT OR PARENTS SHALL BE REPRESENTED BY THE SAME ATTORNEY OR ATTORNEYS WHO REPRESENTED THE PARENT OR PARENTS IN THE TERMINATION OF PARENTAL RIGHTS PROCEEDING. WHERE THIS IS NOT PRACTICA- BLE, OR WHERE THE COURT GRANTS A REQUEST BY THE ATTORNEY OR ATTORNEYS TO BE RELIEVED, THE COURT SHALL IMMEDIATELY ASSIGN A NEW ATTORNEY OR ATTOR- NEYS, AS APPLICABLE. S 637. BURDEN OF PROOF, DISPOSITION AND FINDINGS. (A) THE PETITIONER SHALL HAVE THE BURDEN OF PROOF BY CLEAR AND CONVINCING EVIDENCE THAT RESTORATION OF PARENTAL RIGHTS IS IN THE CHILD'S BEST INTERESTS, THAT THE REQUIREMENTS OF SECTION SIX HUNDRED THIRTY-FIVE OF THIS PART HAVE BEEN MET AND THAT ALL OF THE PARTIES AND THE CHILD HAVE CONSENTED OR, IF THE PETITIONER IN THE PROCEEDING IN WHICH GUARDIANSHIP AND CUSTODY HAVE BEEN COMMITTED FAILED TO CONSENT TO THE RELIEF REQUESTED, THAT SUCH FAILURE WAS WITHOUT GOOD CAUSE. (B) THE COURT SHALL STATE ON THE RECORD THE REASON OR REASONS FOR ITS DISPOSITION OF THE PETITION. THE COURT MAY MAKE THE FOLLOWING ORDERS OF DISPOSITION: (I) THE COURT MAY GRANT THE PETITION, MODIFY THE ORDER OF DISPOSITION PREVIOUSLY ENTERED IN THE TERMINATION OF PARENTAL RIGHTS PROCEEDING AND TRANSFER GUARDIANSHIP AND CUSTODY OF THE CHILD TO THE BIRTH PARENT OR PARENTS, PROVIDED, HOWEVER, THAT THE FINDINGS OF FACT RENDERED PURSUANT TO SECTION SIX HUNDRED TWENTY-TWO OF THIS ARTICLE OR SUBDIVISION FOUR OF SECTION THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW THAT
FORMED THE BASIS FOR THE ADJUDICATION TERMINATING PARENTAL RIGHTS SHALL REMAIN; OR (II) THE COURT MAY DISMISS THE PETITION, IN WHICH CASE THE COMMITMENT OF GUARDIANSHIP AND CUSTODY OF THE CHILD TO THE AUTHORIZED AGENCY OR INDIVIDUAL WOULD CONTINUE AND A PERMANENCY HEARING WOULD BE REQUIRED TO BE HELD AS SCHEDULED IN ACCORDANCE WITH ARTICLE TEN-A OF THIS ACT; OR (III) THE COURT MAY GRANT THE PETITION CONDITIONALLY FOR A DESIGNATED PERIOD OF UP TO SIX MONTHS, DURING WHICH TIME GUARDIANSHIP AND CUSTODY OF THE CHILD SHALL REMAIN WITH THE LOCAL SOCIAL SERVICES DISTRICT OR AUTHORIZED AGENCY WHILE THE CHILD MAY VISIT WITH, OR BE PLACED ON A TRIAL DISCHARGE WITH, THE BIRTH PARENT OR PARENTS. THE COURT SHALL DIRECT THE DISTRICT OR AGENCY TO SUPERVISE THE CHILD'S BIRTH PARENT OR PARENTS, DEVELOP A REUNIFICATION PLAN AND PROVIDE APPROPRIATE TRANSI- TIONAL SERVICES TO THE CHILD AND BIRTH PARENT OR PARENTS AND REPORT TO THE PARTIES, ATTORNEY FOR THE CHILD AND THE COURT NOT LATER THAN THIRTY DAYS PRIOR TO THE EXPIRATION OF THE DESIGNATED PERIOD. THE COURT SHALL SCHEDULE THE PROCEEDING TO BE HEARD PRIOR TO THE EXPIRATION OF THE DESIGNATED PERIOD AND SHALL DETERMINE WHETHER TO GRANT THE PETITION PERMANENTLY IN ACCORDANCE WITH PARAGRAPH (I) OF THIS SUBDIVISION OR DISMISS THE PETITION IN ACCORDANCE WITH PARAGRAPH (II) OF THIS SUBDIVI- SION. THE COURT SHALL STATE ITS REASONS FOR ITS DETERMINATION. IF THE PETITION IS PERMANENTLY GRANTED, THE CHILD'S CUSTODY AND GUARDIANSHIP SHALL BE TRANSFERRED TO THE BIRTH PARENT OR PARENTS. IF THE CHILD HAS BEEN REMOVED FROM THE CUSTODY OF THE BIRTH PARENT OR PARENTS PRIOR TO THE EXPIRATION OF THE DESIGNATED PERIOD BY REASON OF A REPORT OF SUSPECTED CHILD ABUSE OR MALTREATMENT, THE COURT SHALL SCHEDULE THE PROCEEDING TO BE HEARD ON NOTICE TO THE PARTIES AND ATTORNEY FOR THE CHILD, MAY TERMINATE THE TRIAL DISCHARGE AND MAY DISMISS THE PETITION IN ACCORDANCE WITH PARAGRAPH (II) OF THIS SUBDIVISION. S 2. Item (III) of clause (B) of subparagraph (viii) of paragraph 2 of subdivision (d) of section 1089 of the family court act, as added by section 27 of part A of chapter 3 of the laws of 2005, is amended and a new item (IV) is added to read as follows: (III) recommend that the office of children and family services inves- tigate the facts and circumstances concerning the discharge of responsi- bilities for the care and welfare of such child by a local social services district pursuant to section three hundred ninety-five of the social services law[.]; AND (IV) RECOMMEND THAT THE ATTORNEY FOR THE CHILD, LOCAL SOCIAL SERVICES DISTRICT OR AGENCY FILE A PETITION PURSUANT TO PART ONE-A OF ARTICLE SIX OF THIS ACT TO RESTORE THE PARENTAL RIGHTS OF A CHILD WHO HAS BEEN FREED FOR ADOPTION. S 3. The section heading of section 384-b of the social services law, as added by chapter 666 of the laws of 1976, is amended and a new subdi- vision 13 is added to read as follows: Guardianship and custody of destitute or dependent children; commit- ment by court order; MODIFICATION OF COMMITMENT AND RESTORATION OF PARENTAL RIGHTS. 13. A PETITION TO MODIFY A DISPOSITION OF COMMITMENT OF GUARDIANSHIP AND CUSTODY IN ORDER TO RESTORE PARENTAL RIGHTS MAY BE BROUGHT IN ACCORDANCE WITH PART ONE-A OF ARTICLE SIX OF THE FAMILY COURT ACT WHERE THE CONDITIONS ENUMERATED IN SECTION SIX HUNDRED THIRTY-FIVE OF SUCH PART HAVE BEEN MET. S 4. This act shall take effect on the ninetieth day after it shall have become a law.

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