Untitled Document

Conditional Surrenders
Presented by Margaret Burt

NYS Citizens' Coalition for Children, Inc.
17th Annual Statewide Adoption Training Conference
Adoption 2006: There's No Place like Home
May 12-13, 2006 • Albany New York

NEW LAW ON CONDITIONAL SURRENDERS
Chapter 3 of the Laws of 2005 – effective 12/21/05
By Margaret A. Burt, Esq.

New Procedures to do the conditional surrender

Clarifies that surrenders of children to agency for adoption can contain conditions; without any doubt now that this is a “legal” procedure
Must be in writing and on state mandated forms - OCFS forms now out and consist of both the surrender and a terms addendum for both judicial and extra judicial
If someone is designated to adopt, must be person who is “certified or approved foster parent” or “agency has fully investigated and approved such person as an adoptive parent”
Must have everyone agree and sign to the terms – includes anyone designated to adopt, birth parent(s) who is surrendering, someone from agency, law guardian(s), and child over 14 if any terms re sibling visits – and attorneys?
Can be terms of contact with children who are siblings and half siblings – enforced only if children over 14 willing
What about attorneys for foster/adopt parents?
Judge must make a ruling that the terms are in child’s best interests – hearing? Judge can refuse to allow the conditions, parent does not have to surrender if Judge will not allow conditions
Everyone gets a copy

New Procedures at the adoption if surrender was conditional

Adoption petition must have copy of the terms attached – from attorney or agency?
Court must be aware of terms – could adoptive Judge refuse to sign adoption if did not agree to the terms?
Adoption order and second order that incorporates terms and incorporation order (OCA forms 13-A and 14-A)

New Procedures if there are problems BEFORE the adoption is finalized

If there is a “substantial failure of a material condition” then the agency must notify the birth parent (unless they waived such notification at the surrender) the law guardian and the court within 20 days
Within 30 days, agency must file a petition under FCA 1055-a and serve everyone (again except parent if they waived at surrender) to review the failure and hold a hearing “if necessary”- OCA form SURR-7
If agency fails to file petition, parent or law guardian can file within 60 days
Nothing in new law describes what court is to do if there is a “substantial failure” – very likely that the courts will continue to permit birth parent to withdraw the surrender in these instances – perhaps not if agreement says otherwise
If a party thinks that the conditions are not being honored and the child is not yet adopted, can bring an action to enforce the terms
The court ‘shall enter an order enforcing communication or contact pursuant to the terms and conditions of the agreement unless the court finds that enforcement would not be in the best interests of the child.” - Can court modify the terms? Could the parties agree to new terms? Would the court allow the parent to withdraw the surrender?

New Procedures if there are problems AFTER the adoption is finalized

Any party can file for enforcement after the child has been adopted under DRL 112-b and the court shall enforce the contact or communication if the terms were incorporated in the adoption and were found to have been in the child best interests at the time of the surrender. OCA form 17
Enforcement is only in Family Court
The court “shall enforce” unless it finds that enforcement is now not in the child’s best interests – Can court modify the terms? What can court actually do to “enforce”?
The failure of any party to obey the terms and conditions will not be grounds to set aside an adoption or allow the birth parent to withdraw a consent. There still could be allegations of fraud, duress or coercion.

New Considerations:

Getting legal assistance for prospective adoptive parents
Clear policy and clear procedure for negotiation
Use of mediation
Terms drafted to avoid return to court

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