NY State Senate Bill 2009-S3868

Senate Bill S3868

Signed By Governor

2009-2010 Legislative Session

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

download bill text pdf

Archive: Last Bill Status Via A8524 - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Aug 13, 2010	signed chap.343
Aug 03, 2010	delivered to governor
May 12, 2010	returned to assembly passed senate
May 04, 2010	3rd reading cal.433 substituted for s3868a
May 04, 2010	substituted by a8524
May 03, 2010	advanced to third reading
Apr 28, 2010	2nd report cal.
Apr 27, 2010	1st report cal.433
Feb 02, 2010	reported and committed to codes
Jan 06, 2010	referred to children and families
Jun 02, 2009	print number 3868a
Jun 02, 2009	amend and recommit to codes
May 26, 2009	reported and committed to codes
Apr 02, 2009	referred to children and families

Votes

- May 12, 2010 - Floor Vote
  A8524
  
  61
  
  Aye
  
  0
  
  Nay
  
  1
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: May 12, 2010
      
      aye (61)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Aubertine
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Flanagan
      
      Foley
      
      Fuschillo
      
      Golden
      
      Griffo
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Johnson
      
      Klein
      
      Krueger
      
      Kruger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Leibell
      
      Libous
      
      Little
      
      Marcellino
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Morahan
      
      Nozzolio
      
      Onorato
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Robach
      
      Saland
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Volker
      
      Winner
      
      Young
      
      absent (1)
      
      Sampson
  Apr 27, 2010 - Codes Committee Vote
  S3868
  
  15
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Codes Committee Vote: Apr 27, 2010
      
      aye (15)
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Duane
      
      Flanagan
      
      Huntley
      
      Klein
      
      Lanza
      
      Parker
      
      Perkins
      
      Saland
      
      Sampson
      
      Schneiderman
      
      Squadron
      
      Volker
      
      aye wr (1)
      
      Golden
  Feb 2, 2010 - Children And Families Committee Vote
  S3868
  
  6
  
  Aye
  
  0
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: Feb 2, 2010
      
      aye (6)
      
      Duane
      
      Huntley
      
      Marcellino
      
      McDonald
      
      Montgomery
      
      Schneiderman

Bill Amendments

Original

A (Active)

2009-S3868 - Details

Law Section:: Family Court Act
Laws Affected:: Add Art 6 Part 1-A §§635 - 637, amd §1089, Fam Ct Act; amd §384-b, Soc Serv L

2009-S3868 - Summary

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

2009-S3868 - Sponsor Memo

                                 BILL NUMBER:  S3868

 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 §1089.
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) and Washington in 2007  Laws of 2007,
ch. 413  to restore birth parents' parental rights. Under this
measure, with the consent of the petitioner and 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. 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, ie., 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." 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 J. 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 vehicle 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. Further, in Matter of Theresa 0.  v.
Arthur P., 11 Misc.3d 736 (Fam. Ct.,

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 S., 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.

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 days after it becomes a law.

 2008 LEGISLATIVE HISTORY :

S.4543-0 (Soc Serv, Ch+ Fams)/A.10810 (Codes).

2009-S3868 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3868

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 2, 2009
                               ___________

Introduced  by  Sen.  MONTGOMERY  --  (at request of the Office of Court
  Administration) -- read twice and ordered printed, and when printed to
  be committed to the Committee on Children and Families

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10367-01-9

S. 3868                             2

CUSTODY HAD BEEN COMMITTED CONSENT TO THE RELIEF REQUESTED IN THE  PETI-
TION; 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
ALL OF THE PARTIES AND THE CHILD HAVE CONSENTED AND  THAT  THE  REQUIRE-
MENTS OF SECTION SIX HUNDRED THIRTY-FIVE OF THIS PART HAVE BEEN MET.
  (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

S. 3868                             3

  (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.

co-Sponsors

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2009-S3868A (ACTIVE) - Details

Law Section:: Family Court Act
Laws Affected:: Add Art 6 Part 1-A §§635 - 637, amd §1089, Fam Ct Act; amd §384-b, Soc Serv L

2009-S3868A (ACTIVE) - Summary

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

2009-S3868A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3868A

 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 §1089.
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 petitioner and 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. 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, ,: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 r 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 J 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 vehicle 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. Ct., 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 days after it becomes a law.

 2008 LEGISLATIVE HISTORY :

S 4543-a (Soc Serv, Ch+ Fams)/A.10810 (Codes).


 FOOTNOTES :

(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 We/fare 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.nvc.gov/html/acs/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.D. 3d 348 (1st Dept., 2005).

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

2009-S3868A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3868--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 2, 2009
                               ___________

Introduced  by Sens. MONTGOMERY, HUNTLEY -- (at request of the Office of
  Court Administration) -- read twice  and  ordered  printed,  and  when
  printed  to  be committed to the Committee on Children and Families --
  reported favorably from said committee and committed to the  Committee
  on  Codes  -- committee discharged, bill amended, ordered reprinted as
  amended and recommitted to said committee

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10367-02-9

S. 3868--A                          2

  (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

S. 3868--A                          3

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. 3868--A                          4

  S 4. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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Senate Bill S3868

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