Establishes procedures regarding orders of post-termination visitation and/or contact between a child and such child's parent and for modification of such orders.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9000
SPONSOR: Tapia TITLE OF BILL:
An act to amend the family court act and the social services law, in
relation to establishing procedures regarding orders of post-termination
visitation and/or contact between a child and such child's parent
PURPOSE:
To allow post-termination visitation and/or contact between children and
their birth parents 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 five new subdivi-
sions 14-18:
- Allows for granting of post-termination visitation/contact either on
the consent of the parent, child, and foster parents or foster care
agency or after a hearing at which the court finds both that
visitation/contact is in the best interest of the child and that any
party opposing an order of visitation/contact does not have a reasonable
basis for their opposition.
- Specifies that the party moving for an order of post-termination
visitation/contact has the burden of establishing that
visitation/contact is in the best interest of the child and that any
party opposing an order of visitation/contact does not have a reasonable
basis for their opposition.
- Provides for notification of involved parties of standing to partic-
ipate in the hearing, to determine whether there should be post-termina-
tion visitation/contact.
- Requires the consent of a child over 14 to any post-termination
visitation/contact order.
- Grants the family court the discretion to determine the appropriate
form of post-termination visitation and/or contact.
- Bars repeated applications for post-termination visitation/contact
orders once original application has been denied.
- Bars the entry of post-termination visitation/ contact order in cases
of severe or repeated abuse, unless the parent seeking such an order was
not the perpetrator of such abuse.
- Grants all parties to a post-termination visitation/contact order the
ability to move the court to enforce or modify the order where there is
a substantial change in circumstances and in the best interest of the
child. Clarifies that siblings' rights to seek contact under the domes-
tic relation law are not limited by these subdivisions.
- Specifies that failure to comply with the terms of a post-termination
visitation/contact order is not a ground for invalidating either the
underlying termination of parental rights or the child's adoption.
§ 3 - Provides for an effective date of 30 days after signed into law.
JUSTIFICATION:
The Preserving Family Bonds Act reflects a growing national consensus
that openness in adoption is beneficial for adoptees, birth parents, and
adoptive parents(1) and brings New York law in line with the federal
government's most recent guidance on achieving permanency for children
in foster care, Which encouraged states to make greater efforts to main-
tain children's ties to their families and communities of origin even
after adoption(2) This guidance made clear that in the vast majority of
cases, "adoption should be viewed as an opportunity to expand a child's
experience of family rather than replace their previous family," (3) and
that children's relationships with their biological parents, siblings,
and extended family members should continue even after termination of
parental rights and adoption. "Children do not need to have previous
attachments severed in order to form new ones. In fact, they will be
better positioned to develop new relationships if we work to preserve
their original connections, sparing them from additional grief and loss.
(4) Current law in New York provides for open adoption and post-termina-
tion visitation and/or contact when a parent voluntarily surrenders
their 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. For many years, New York State judges in
the Second and Fourth Appellate Divisions were authorized to order post-
termination contact pursuant to case law.(5) That practice changed after
the Court of Appeals held in June 2012 in Matter of Hailey ZZ that judg-
es did not have the explicit authority to grant post-termination
contact. The Court reasoned that "the Legislature, the entity best suit-
ed to balance the critical social policy choices and the delicate issues
of family relations involved in such matters, has not sanctioned judi-
cial imposition of post-termination contact where parental rights are
terminated after a contested proceeding. (6) As a result of the Halley
ZZ decision, parents who do not surrender their parental rights risk
losing all contact with their children if they choose to defend their
rights in a termination of parental rights proceeding and lose-and chil-
dren's ability to remain connected to their parents hinges on the manner
in which their parents' rights were severed. Yet the difference between
a voluntary surrender of parental rights and an involuntary termination
by the court is a procedural one; it has nothing to do with the strength
of the bond between the parent and their child, or the child's need to
maintain some form of contact with their family of origin following
adoption. This legislation seeks to recognize the value that post-ter-
mination contact between children and parents has for many children,
especially those who have strong bonds with their biological family
members. Specifically, it would provide the family court with the
authority to order post-termination visitation and/or contact between a
child and their biological parent after a termination of parental
rights, subject to the best interests of the child. The bill gives the
court the discretion to determine the appropriate type of contact for a
given family, which may include, but is not limited to, supervised visi-
tation by a family member or unsupervised visitation, telephone calls,
emails, letters, exchange of pictures, social media, and skype or other
forms of video chat.
If the parent, child, and the child's foster parents, do not all consent
to the order of post-termination visitation and/or contact, the bill
requires the court to hold a hearing to determine whether such an order
is in the child's best interest. The bill ensures that parents and chil-
dren who are parties to the termination proceeding, as well as the
child's foster parents; have standing to participate in this hearing. It
places the burden of establishing that contact would be in the child's
best interest on the party seeking the order of post-termination contact
and requires that party also to establish that any party opposed to the
order lacks a reasonable basis for their opposition.
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.(7) Even when a biological parent is unable to
care for their child, post-termination contact allows the child to
retain a relationship with their parent and may allow that 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.(8) Even children who enter
foster care at birth and are ultimately 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.(9) 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.(10) Children who have been adopted may experi-
ence insecurity and doubt in future relationships, based on the termi-
nation of the biological parent-child relationship.
Post-termination contact with a child's family of origin, where appro-
priate, may offer several benefits 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 involuntar-
ily, allows a child to maintain a relationship with his or her biolog-
ical parent. It may also help a child develop a more secure sense of
self by offering them the ability to better understand their parents,
biological family and what led to the termination of the legal relation-
ship. Post-termination contact may also help a child with the transi-
tion 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 transi-
tion 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. Biolog-
ical parents can reinforce with their children, through post -termi-
nation 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 them.(11) Many adopted children, no matter how their
adoption was processed, find themselves curious about their biological
parents and their biological ancestry.(12) Satisfying a child's curios-
ity 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-esteem, the more internally controlled
they were; the better their family functioning, the fewer their behav-
ioral problems; and the more cohesive their families.(13) Post-termina-
tion contact, where appropriate, allows children access to their racial,
ethnic, religious and cultural histories, critical in developing a sense
of self. Contact may also become crucial to them later in life, includ-
ing the exchange of family medical and health information.(14) This bill
will bring New York law in line with the complex realities of families
involved in the child welfare system and will better allow family courts
to tailor dispositional orders in termination of parental rights
proceedings to meet the needs and best interests of children.
LEGISLATIVE HISTORY:
Similar to 4203A of 2019 Session that was vetoed by the Governor (VM 268
of 2019) This bill addresses the veto as follows:
While maintaining its core commitment to ensuring that children have the
opportunity to maintain contact with their families of origin after
adoption when such contact is in their best interest, the language of
the proposed Preserving Family Bonds Act has been changed in significant
ways in- response to concerns raised by the Governor's office, child
protective and foster care agencies, and others. Most importantly, the
bill now has a provision making it clear that an order of post-termina-
tion visitation and/or contact can and should be entered when the
parties all consent; we hope and expect that many such orders will be
issued on this basis. The bill also places an increased burden on the
party seeking an order of post-termination visitation and/or contact
over the opposition of one or more of the other parties.
In addition to establishing that the order sought would be in the
child's best interests, the applicant must now also establish that the
party opposing the order does not have a reasonable basis for their
failure to consent. This latter requirement is based on the caselaw
interpreting the requirements of section 72 of the Domestic Relations
Law, which allows a court to order visitation. between a grandparent and
their grandchild over the objection of the child's parent and which was
held to be constitutional by the Court of Appeals in People ex rel.
Sibley on Behalf of Sheppard v. Sheppard, 54 N.Y.2d 320 (1981).
In his 2019 veto memo, the Governor specifically expressed concerns
about the fact (1) that the bill might permit post-termination visita-
tion and/or contact to be ordered between a child and a parent who
severely or repeatedly abused them; (2) that the bill might permit post-
termination visitation and/or contact to be ordered over the objection
of the child in question; and (3) that the modification provision in the
bill might infringe on the rights of adoptive parents. The bill as now
drafted addresses each of these concerns.
The bill carves out exceptions for children fourteen years of age or
older who do not consent to contact, and for cases of severe or repeated
abuse, so that post-termination visitation and/or contact cannot be
ordered in such cases, unless the party seeking such contact was not the
perpetrator of the abuse. Additionally, the bill contains an updated
modification provision that requires the party seeking to modify the
post-termination visitation and/or contact order to establish (1) a
substantial change in circumstances justifying such a modification; (2)
that the modification is in the child's best interests; and (3) that any
party opposing such a modification does not have a reasonable basis for
their failure to consent. As discussed above, this latter requirement is
based on the caselaw regarding D.R.L. § 72, which was held to be consti-
tutional by the Court of Appeals.
The bill also addresses a number of other concerns that were raised
during the 2019 Legislative session, including concerns about the timing
of applications for post-termination visitation and/or contact and the
possibility that litigation surrounding such applications might delay
permanency for some children. Specifically, the bill clarifies that a
hearing regarding a party's application for an order of post-termination
visitation and/or contact must occur simultaneously with the disposi-
tional hearing in the proceedings to terminate the parent's rights or,
if there is no dispositional hearing, at the point in the proceedings
when the dispositional hearing would have been held, i.e., subsequent to
the close of fact-finding in the termination proceeding and prior to the
entry of an order committing custody and guardianship of the child to
the petitioning foster care agency for the purposes of adoption. The
bill also specifies that an appeal from any order regarding the applica-
tion for post-termination visitation and/or contact shall not provide a
basis for delaying finalization of a child's adoption.
FISCAL IMPLICATIONS:
To be determined
EFFECTIVE DATE:
180 days after being signed into law.
STATE OF NEW YORK
________________________________________________________________________
9000
IN ASSEMBLY
February 1, 2024
___________
Introduced by M. of A. TAPIA -- 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 establishing procedures regarding orders of post-termina-
tion visitation and/or contact between a child and such child's parent
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 of this
5 part committing the guardianship and custody of the child to the peti-
6 tioner on such conditions, if any, as it deems proper, including but not
7 limited to, an order of post-termination visitation and/or contact
8 pursuant to section three hundred eighty-four-b of the social services
9 law.
10 § 2. Section 384-b of the social services law is amended by adding
11 five new subdivisions 14, 15, 16, 17 and 18 to read as follows:
12 14. (a) Upon application by any party to a proceeding under this
13 section, (i) the court shall order post-termination visitation and/or
14 contact between the child and such child's parent who is a party to such
15 proceeding on such terms and conditions as may be agreed upon by the
16 parent, the child, and the foster parent or authorized agency prior to
17 the entry of an order committing the guardianship and custody of the
18 child; or (ii) if any party does not consent, the court may order post-
19 termination visitation and/or contact between the child and the child's
20 parent after a hearing at which the court has determined that (A) the
21 party's consent is being unreasonably withheld; and (B) post-termination
22 visitation and/or contact would be in the best interest of the child.
23 (b) The hearing to determine whether the court should enter an order
24 of post-termination visitation and/or contact shall be held either (i)
25 concurrently with a dispositional hearing held in the proceedings to
26 terminate the parent's rights pursuant to this section; or (ii) if no
27 dispositional hearing is held, subsequent to the close of the fact-find-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04475-01-3
A. 9000 2
1 ing hearing on the underlying petition to terminate the parent's rights
2 and prior to the court's entry of an order committing the guardianship
3 and custody of the child. The court shall not hold such a hearing at
4 any other time.
5 (c) Parents and children who are parties to a termination proceeding
6 under article six of the family court act or this section, as well as
7 such child's foster parents, or, in the case of a child who is not in
8 the care of a foster parent, the authorized agency, shall have notice of
9 and standing to participate in the best interest post-termination visi-
10 tation and/or contact hearing.
11 (d) The applicant shall have the burden of proof that (i) the opposing
12 party's consent has been unreasonably withheld; and (ii) post-termina-
13 tion visitation and/or contact is in the child's best interest.
14 (e) If the application for post-termination contact is denied after
15 this hearing, the applicant shall not have standing to bring the same
16 application in any other proceeding regarding the same child. However,
17 if the court grants any visitation and/or contact, an application to
18 modify the order, upon a showing of substantial change in circumstances,
19 may still be brought, pursuant to subdivision fifteen of this section.
20 (f) The court shall have discretion, depending on the best interests
21 of the child, to determine the nature of any post-termination visitation
22 and/or contact.
23 (g) Notwithstanding the provisions of paragraph (a) of this subdivi-
24 sion, in no event shall an order of post-termination visitation and/or
25 contact be entered where a court has entered a finding pursuant to para-
26 graph (a) or (b) of subdivision eight of this section that a parent
27 severely or repeatedly abused the child, except where a court has deter-
28 mined that the parent seeking post-termination visitation and/or contact
29 was not the perpetrator of such severe or repeated abuse of such child.
30 (h) If the child is over fourteen years of age, the consent of such
31 child to post-termination visitation and/or contact is required.
32 (i) The court in its order shall indicate such person or persons who
33 were given notice of the proceeding and whether such person or persons
34 appeared.
35 15. All parties to a post-termination visitation and/or contact order
36 entered pursuant to subdivision fourteen of this section, as well as any
37 person who subsequently becomes the child's legal guardian, custodian or
38 adoptive parent, may move the court to enforce or modify such order.
39 Upon motion for modification by any such party, (i) the court shall
40 enter an order modifying such post-termination visitation and/or contact
41 order on such terms and conditions as may be agreed upon by the parties,
42 or, (ii) if any party does not consent, the court may enter an order
43 modifying such post-termination visitation and/or contact order, after a
44 hearing at which the court has determined that (A) the party's consent
45 is being unreasonably withheld; and (B) the modification would be based
46 on a showing of a substantial change in circumstances and the best
47 interests of the child.
48 16. Nothing in subdivision fourteen or fifteen of this section shall
49 be construed to limit the rights of half-siblings or siblings to seek
50 contact pursuant to subdivision nine of this section or section seven-
51 ty-one of the domestic relations law following a termination of parental
52 rights or adoption.
53 17. The failure of an authorized agency or a child's foster parent or
54 any other person who subsequently becomes the child's legal guardian,
55 custodian or adoptive parent to comply with the terms of the order of
56 post-termination visitation and/or contact shall not constitute a basis
A. 9000 3
1 for invalidating either the order committing the guardianship and custo-
2 dy of the child to the petitioner or any subsequent order of adoption
3 regarding such child.
4 18. Unless a stay of adoption proceedings is granted by a judge of the
5 family court or appellate court, an appeal from any order regarding the
6 application for post-termination visitation and/or contact shall not
7 provide a basis for delaying the finalization of a child's adoption.
8 § 3. This act shall take effect on the one hundred eightieth day after
9 it shall have become a law.
