BILL NUMBER: S4203A

SPONSOR: SAVINO
 
TITLE OF BILL:  An act to amend the family court act and the social
services law, in relation to orders committing guardianship and custody
of a child

 
PURPOSE:

To allow post-termination visitation and/or contact between children and
their birth parents or sibling in termination of parental rights
proceedings provided it is deemed in the best interest of the child.

 
SUMMARY OF PROVISIONS:

§ 1 - Amends § 634 of the family court act permitting, if proper, an
order of post-termination visitation and/or contact

§ 2 - amends § 384-b of the social service law to add four new subdivi-
sions 14-17:

              

- Allows for granting of visitation/contact with a birth parent or
sibling if in best interest of child.

- Court has discretion to determine level of supervisor for
visitation/contact.

- Provides for notification of involved parties of standing to partic-
ipate in best interest post-termination visitation/contact hearing.

- Allows all parties of a post-termination visitation/contact order
ability to move the court to enforce or modify the order.

- Siblings rights to seek contact under certain section of the domestic
relation law are not limited under these subdivisions

§ 3 - provides for an effective date of 30 days after signed into law.

 
EXISTING LAW:

The current law in New York provides for open adoption and post-termina-
tion contact when a parent voluntarily surrenders his or her parental
rights' but does not give courts any authority to allow for contact
between children and biological parents after a parent's rights have
been terminated.

 
JUSTIFICATION:

Research shows that children benefit from strong, healthy family bonds.
Under current law, Family Court Judges are not allowed to protect the
rights of children to contact or visit with their parents and siblings
after parental rights have been terminated, even when the court deems it
in the best interest of the children. This bill provides that, if it is
truly in the best interest of the children to stay connected with their
families, then judges may allow them to do so, in a manner that is safe
and appropriate.

The current law in New York provides for open adoption and post-termina-
tion contact when a parent voluntarily surrenders his or her parental
rights" but does not give courts any authority to allow for contact
between children and biological parents after a parent's rights have
been terminated." In a 2012 case called Matter of Hailey ZZ, the New
York Court of Appeals clearly stated that New York family court judges
do not have the authority to order post-termination contact between a
biological parent and her child, even when such an order would be in
that child's best interest.iv The Court reasoned that "the Legislature,
the entity best suited to balance the critical social policy choices and
the delicate issues of family relations involved in such matters; has
not sanctioned judicial imposition of post termination contact where
parental rights are terminated after a contested proceeding."v

This legislation seeks to recognize the value that post-termination
contact between children and biological parents and/or siblings has for
many children, especially those that may have strong bonds with their
biological family. Specifically, it would provide the Court with the
discretion to order contact and communication between the child and the
parent, custodian or sibling, subject to the best interests of the
child. This contact may include, but is not limited to, supervised or
unsupervised visitation, telephone calls, emails, letters, exchange of
pictures, social media, and skype or other forms of video chat.

The bill ensures that parents and children who are parties to the termi-
nation proceeding, as well as the child's pre-adoptive foster parents,
have standing to participate in the best interest post-termination visi-
tation and/or contact hearing.

While the termination of a parent's right to a child may ultimately be
best for that child, a growing body of research has shown that retaining
some contact with a biological family or parent may also be in that
child's best interest."' Even when a biological parent is unable to care
for their child, post-termination contact allows the child to retain a
relationship with his or her parent and/or sibling and may allow that
biological parent to play a positive role in the child's life. Most
children placed in the foster care system already have established
significant ties to their biological parents and other family
members.vii Even children who enter foster care at birth and are ulti-
mately adopted will likely have had regular contact and strong bonds
with their biological families for a lengthy time period, even years,
prior to the time the parent-child relationship is legally severed.viii

Children who enter foster care and are eventually adopted can experience
long-term emotional consequences stemming from the break-up of the
biological family, the disruption in the children's most basic source of
security, and the feelings of displacement that follow.Ix Children who
have been adopted may experience insecurity and doubt in future
relationships, based on the termination of the biological parent-child
relationship.

Post-termination contact, where appropriate, may offer a number of bene-
fits to children who may remain in foster care or transition into an
adoptive family. Continued contact after a parent's rights have been
terminated, whether voluntarily or involuntarily, allows a child to
maintain a social relationship with his or her biological parent and/or
siblings. It may also help a child develop a more secure sense of self
by offering them the ability to better understand their parents, biolog-
ical family and what led to the termination of the legal relationship.
Post-termination contact may also help a child with the transition that
comes after the termination of a parent's rights. This same child has
likely already transitioned from their biological family to foster care,
and may now be dealing with the transition to their adoptive family.
Contact may offer children the opportunity to heal and transition
through communication, where appropriate and safe, with their biological
parents and come to accept their life story.  Especially as children
age, they are better equipped to process the emotional burdens of what
happened in their families that led to the termination. Biological
parents can reinforce with their children, through post-termination
contact, that the termination was not the fault of the child and that
the parent still loves and cares for the child, even if he or she is
unable to parent him or her.x

Many adopted children, no matter the process of their adoptions, find
themselves curious about their biological parents and their biological
ancestry.xi Satisfying a child's curiosity about where they come from
has been directly correlated to a child's well-being. Studies have shown
that the more children know about their family histories, even negative
family histories, "the lower their anxiety, the higher their self-es-
teem, the more internally controlled they were, the better their family
functioning, the fewer their behavioral problems, and the more cohesive
their families."xii Post-termination contact, where appropriate, allows
children access to their racial, ethnic, religious and cultural histo-
ries, critical in developing sense of self. Contact may also become
crucial to them later in life, including the exchange of family medical
and health information.xiii

This bill will bring New York law in line with the realities of families
involved in the child welfare system and will better allow family courts
to tailor termination of parental rights (TPR) dispositional orders to
meet the needs and best interests of children.

 
LEGISLATIVE HISTORY:

2017 Session - S5790 - referred to Children and Families and reported to
Rules
2018 Session - S5790 - referred to Children and Families Committee, no
further action

 
FISCAL IMPLICATIONS:

To be determined

 
EFFECTIVE DATE:
Thirty days after being signed into law.
ii Social Services Law § 383.
iii Matter of Hailey ZZ, 19 N.Y.3d 422 (2012). 'v Id.
v Id.
vi See, e.g., Solangel Maldonado, Permanency v. Biology: Making the Case
for Post-Adoption Contact, 37 CAP. U. L. Rev. 321, 326-28 (2 008)
(reviewing recent studies); Kirsten Widner, Continuing the Evolution:
Why California Should Amend Family Code
Section 8616.5 to Allow Visitation in All Postadoption Contact Agree-
ments, 44 SAN DIEGO L. REv. 355, 367-68 (2007).
vii See Child Welfare Information Gateway, Foster Care Statistics 2014 8
(2016), available at https://www.childwelfare.gov/pubs/factsheet
s/foster.pdf (last visited Dec. 2, 2016) (median age of child entering
foster care in fiscal year 2014 was 6.4 years).
viii U.S. Dep't of.Health and Human Services, Administration for Chil-
dren and Families, The AFCARS Report, Preliminary FY 2014 Estimates as
of July 2015, available at
http://www.acf.hhs.gov/sites/default/files/cb/afcarsreport22.pdf (show-
ing mean time in care for children waiting to be adopted was 32.3
months, with 85% of those children having spent one year or more in
care).
ix See Sandra Stukes Chipungu & Tricia B. Bent-Goodley, Meeting the
Challenges of Contemporary Foster Care, 14 FUTURE CHILD 74 (2004),
available at
https://www.princeton.edu/futureofchildren/publications/docs/14 01
04.pdf.  Erika Harrison, Benefits of Post Adoption Contact Agreements,
31 CHILD. LEGAL RTs. J. 1, 61 (Spring 2011).
xi See Mark Courtney et al., Executive Summary, Midwest Evaluation of
the Adult Functioning of Former Foster Youth: Outcomes at Age 21, 3
(2007) ("Midwest Study") (reporting that " 
Almost all of the young
adults in the Midwest Study sample had maintained at least some family
ties, and in many cases those ties were quite strong."); Dawn J. Post &
Brian Zimmerman, The Revolving Doors of Family Court:  Confronting
Broken Adoptions, 40 CAP. U. L. Res 437, 477 (2012), (finding that
biological family remained involved in the lives of children in 75% of
surveyed cases).
xii Marshal P. Duke et al., Knowledge of Family History As A Clinically
Useful Index of Psychological Well-Being And Prognosis: A Brief Report,
45 PSYCHOTHERAPY THEORY, RESEARCH, PRACTICE, MAINING268 (2008).
xiii Alexis Williams, Rethinking Social Severance: Post-Termination
Contact Between Birth Parents and Children, 41 CONN. L. REV. 609 (
2008).