NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2199A
SPONSOR: Joyner 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 OF BILL:
The bill will be known as the "Preserving Family Bonds" Act. This bill
grants family court judges the discretion to order continued visitation
and/or contact between children and their birth parents and/or their
siblings after a parent's rights have been terminated. The judge may
grant post-termination contact at the disposition hearing in a termi-
nation of parental rights proceeding when such contact is deemed by the
Court to be in the child or children's best interests.
SUMMARY OF PROVISIONS:
* ensures that the provisions governing post-termination visitation
and/or contact, included in Social Services Law section 384-b apply to
judges conducting termination of parental rights disposition hearings
pursuant to the Family Court Act.
* amends the social services law to authorize family court judges to
order post-termination visitation and/or contact to the parent, custo-
dian and/or sibling who is a party to the proceeding if visitation
and/or contact is in the child or children's best interests. Any party
to the post-termination visitation and/or contact order, including
foster or adoptive parents, will have notice of the hearing. The court
will have the authority to enforce or modify the order based on a show-
ing of good cause and the best interests of the child.
* provides that the bill shall take effect 30 days after being signed
into law.
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. The Preserving Family Bonds Act
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(i) but does not give courts any authority to allow for contact
between children and biological parents after a parent's rights have
been terminated.(ii) In a 2012 case called Matter of Halley 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.(iii) The Court reasoned that "the Legisla-
ture, 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 proceed-
ing."(iv) This legislation seeks to recognize the value that post-termi-
nation 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.(v) 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 estab-
lished significant ties to their biological parents and other family
members.(vi) 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.(vii)
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.(viii) 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.(ix)
Many adopted children, no matter the process of their adoptions, find
themselves curious about their biological parents and their biological
ancestry.(x) Satisfying a child's curiosity about where they come from
has been directly correlated to a child's wellbeing. 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."(xi) 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.(xii)
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.
i. Social Services Law § 383.
ii. Matter of Halley ZZ, 19 N.Y.3d 422 (2012).
iii. Id.
iv. Id.
v. See, e.g., Solangel Maldonado, Permanency v. Biology: Making the Case
for Post-Adoption Contact, 37 CAP. U. L. Ray. 321, 326-28 (2 008)
(reviewing recent studies); Kirsten Widner, Continuing the Evolution:
Why California Should Amend Family Code Section 8616.5 to Allow Visita-
tion in All Postadoption Contact Agreements, 44 SAN DIEGO L. Rev. 355,
367-68 (2007).
vi. See Child Welfare Information Gateway, Foster Care Statistics 2014
8(2016), available at
https://www.childwelfare.gov/pubs/factsheets/foster.pdf (last visited
Dec. 2, 2016) (median age of child entering foster care in fiscal year
2014 was 6.4 years).
vii. 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.qov/sites/default/files/cb/afcarsreport22.pdf
(showing 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)
viii. 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/140104.p
df.
ix. Erika Harrison, Benefits of Post Adoption Contact Agreements, 31
CHILD. LEGAL RTS. J. 1, 61 (Spring 2011).
x. 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 "(a)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).
xi. 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, TRAINING268 (2008).
xii. Alexis Williams, Rethinking Social Severance: Post-Termination
Contact Between Birth Parents and Children, 41 CONN. L. REv. 609 (2008).
PRIOR LEGISLATIVE HISTORY:
Assembly: 01/22/19 Referred to Judiciary, 01/03/18 ordered to third
reading cal.575, 06/15/17 Reported, 06/07/17 Reported referred to
Rules/Reported referred to Codes, 5/25/17 Referred to Judiciary
Senate: 03/04/19 Referred to Children and Families, 01/03/18 Referred to
Children and Families, 06/06/27 Reported and committed to Rules,
05/01/17 Referred to Children and Families
FISCAL IMPLICATIONS:
None.
STATE OF NEW YORK
________________________________________________________________________
2199--A
2019-2020 Regular Sessions
IN ASSEMBLY
January 22, 2019
___________
Introduced by M. of A. JOYNER, DAVILA, JAFFEE, WRIGHT, JEAN-PIERRE,
WALKER, ARROYO, L. ROSENTHAL, EPSTEIN, SAYEGH, DICKENS, SIMON,
WILLIAMS, LAVINE, HEVESI, CRUZ -- Multi-Sponsored by -- M. of A.
DE LA ROSA, PRETLOW -- read once and referred to the Committee on
Judiciary -- reported and referred 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 orders committing guardianship and custody of a child
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 634 of the family court act, as amended by chapter
2 666 of the laws of 1976, is amended to read as follows:
3 § 634. Commitment of guardianship and custody; further orders. The
4 court may enter an order under section six hundred thirty-one committing
5 the guardianship and custody of the child to the petitioner on such
6 conditions, if any, as it deems proper, including but not limited to, an
7 order of post-termination visitation and/or contact pursuant to section
8 three hundred eighty-four-b of the social services law.
9 § 2. Section 384-b of the social services law is amended by adding
10 three new subdivisions 14, 15 and 16 to read as follows:
11 14. Upon application by any party to a proceeding under this section,
12 the court shall conduct a post-termination visitation and/or contact
13 hearing, which may be held concurrently with a dispositional hearing.
14 (a) Parents and subject children who are parties to the termination
15 proceeding under article six of the family court act or this section, as
16 well as the subject child's foster parents, or kinship caregiver, shall
17 have notice of and standing to participate in the best interest post-
18 termination visitation and/or contact hearing.
19 (b) The applicant shall have the burden of proof that post-termination
20 visitation and/or contact is in the child's best interest.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00489-02-9
A. 2199--A 2
1 (c) The court may grant the application and include in the order
2 committing the guardianship and custody of a child pursuant to this
3 section, the granting of visitation and/or contact to the parent, custo-
4 dian, half sibling and/or sibling who is a party to the proceeding,
5 provided such visitation and/or contact with the child is found by the
6 court to be in the best interest of the child. If the application for
7 post-termination contact is denied after this dispositional hearing, the
8 applicant shall not have standing to bring the same application in any
9 other proceeding regarding the same child. However, if the court grants
10 any visitation and/or contact, an application to modify the order, upon
11 a showing of substantial change in circumstances, may still be brought.
12 (d) The court shall have discretion, depending on the best interest of
13 the child, to determine the level of supervision of any visitation
14 and/or contact.
15 (e) The court in its order shall indicate such person or persons that
16 were given notice of the proceeding and whether such person or persons
17 appeared.
18 15. All parties to a post-termination visitation and/or contact order
19 pursuant to subdivision fourteen of this section, as well as any person
20 who subsequently becomes the child's legal guardian, custodian or adop-
21 tive parent, may move the court to enforce or modify the order. Any
22 modification shall be based on a showing of a substantial change in
23 circumstances and the best interests of the child.
24 16. Nothing in subdivision fourteen or fifteen of this section shall
25 be construed to limit the rights of half siblings or siblings to seek
26 contact pursuant to subdivision nine of this section or section seven-
27 ty-one of the domestic relations law following a termination of parental
28 rights or adoption.
29 § 3. This act shall take effect on the thirtieth day after it shall
30 have become a law.
