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: A6700
SPONSOR: Joyner 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-termination
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 judges did not have the explicit
authority to grant post-termination contact. 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 proceed-
ing.(6)
As a result of the Hailey 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 children'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-termination
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 visitation
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 experience insecurity and doubt in future
relationships, based on the termination 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 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 fami-
ly. 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 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 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-esteem, the more internally controlled they were, the better their
family functioning, the fewer their behavioral problems, and the more
cohesive their families.(13) Post-termination contact, where appropri-
ate, 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, including 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:
New Bill
FISCAL IMPLICATIONS:
To be determined
EFFECTIVE DATE:
180 days after being signed into law.
(1) See, e.g., Minnesota/Texas Adoption Research Project available at
https://www.umass.edu/ruddchair/research/ mtarp; Marianne Berry & Debora
J. Cavazos Dylla, The Role of Open Adoption in the Adjustment of Adopted
Children and their Families, 20 CHILDREN & YOUTH SERVICES REV. 151-171
(1998); Kane M. Frasch, Devon Brooks & Richard P. Barth, Openness and
Contact in Foster Care Adoptions: An Eight Year Follow-Up, 49 FAMILY
RELATIONS 435-446 (2000); Thomas M. Crea & Richard P. Barth, Patterns
and Predictors of Adoption Oppenness and Contact: 14 Years Postadoption,
58 FAMILY RELATIONS 607-620 (2009); The Donaldson Adoption Institute,
www.letsadoptreform.org/research; Susan Ayers-Lopez et al, Presentation:
Openness in Adoptions from Foster Care: Implications for Children and
Families, Rudd Annual Adoption Conference, April 2013.
(2) U.S. Dep't of Health & Hum. Servs, Admin. for Children & Families,
Children's Bureau, Achieving Permanency for the Well-Being of Children &
Youth, ACFY-CB-IM-21-01 (Jan. 5, 2021).
(3) Id. at p. 18.
(4) Id. at p. 12.
(5) In December 2006 the Fourth Judicial Department ruled in Matter of
Khalil S. that judges could order post-termination contact with the
biological parent if in the best interests of the child. Matter of Khal-
il S., 35 A.D.3d 1164 (4th Dep't 2006). Judges in the Second Department
had endorsed post-TPR cases where parental rights were terminated on the
ground of intellectual disability or mental illness as far back as 2002.
See, e.g., Matter of Corinthian Marie S., 746 N.Y.S.2d 606 (2d Dep't
2002); Matter of Selena C., 909 N.Y.S.2d 84 (2d Dep't 2010).
(6) Matter of Halley ZZ, 19 N.Y.3d 422, 438 (2012).
(7) See, e.g., Lisa Tucker, From Contract Rights to Contact Rights:
Rethinking the Paradigm for Post-Adoption Contact Agreements, 100 B.U.
L. REV. 2317, 2335-37 (2020) (summarizing studies); Solangel Maldonado,
Permanency v. Biology: Making the Case for Post-Adoption Contact, 37
CAP. U. L. REV. 321, 326-28 (2008) (reviewing recent studies); Kirsten
Widner, Continuing the Evolution: Why California Should Amend Family
Code Section 8616.5 to Allow Visitation in All Postadoption Contact
Agreements, 44 SAN DIEGO L. REV. 355, 367-68 (2007).
(8) See Child Welfare Information Gateway, Foster Care Statistics 2014 8
(2016), available at https://www.child
welfare.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).
(9) U.S. Dep't of Health and Human Services, Administration for Children
and Families, The AFCARS Report, Preliminary FY 2014 Estimates as of
July 2015, available at http://www.acf.hhs.govisites/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).
(10) See, e.g., Sandra Stukes Chipungu & Tricia B. Bent-Goodley, Meeting
the Challenges of Contemporary Foster Care, 14 FUTURE CHILD 74 (2004),
available at https://vvww.princeton.eduifutureof
children/publicationsidocs/ 140104.pdf.
(11) Erika Harrison, Benefits of Post Adoption Contact Agreements, 31
CHILD. LEGAL. RTS. J. 1, 61 (Spring 2011).
(12) See, e.g., Lisa Tucker, From Contract Rights to Contact Rights:
Rethinking the Paradigm for Post-Adoption Contact Agreements, 100 B.U.
L. REV. 2317, 2336 (2020); Gretchen Miller Wrobel, Harold D. Grotevant,
Diana R. Samek & Lynn Von Korff, Adoptees' Curiosity and Information-
Seeking About Birth Parents in Emerging Adulthood: Context, Motivation,
and Behavior, 37 INT'L J. BEHAV. DEV. 441, 441 (2013); 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 Zimmennan, The Revolving
Doors of Family Court: Confronting Broken Adoptions, 40 CAP. U. L. REV.
437, 477 (2012) (finding that biological family remained involved in the
lives of children in 75% of surveyed cases). (13) Marshal P. Duke et
al., Knowledge of Family History As A Clinically Useful Index of Psycho-
logical Well-Being And Prognosis: A Brief Report, 45 PSYCHOTHERAPY THEO-
RY, RESEARCH, PRACTICE, TRAINING 268 (2008).
(14) Alexis Williams, Rethinking Social Severance: Post-Termination
Contact Between Birth Parents and Children, 41 CONN. L. REV. 609 (2008).
