Conditional Surrenders
Presented by Margaret Burt
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
The New Permanency bill clarifies once and for all that a birth parent can legally surrender a child to an agency for the purposes of adoption with conditions naming the adoptive parents and/or for contact in some form after the surrender and adoption. Although the new law has specified procedures for enforcement of the terms of the agreement both before and after the adoption finalization, there are issues that will remain unclear until we see some case law. Specifically of concern is the question of the ability of the parent to revoke the surrender prior to a finalization if there are problems with the terms as well as the ability of the court to order modifications to the terms before or after the adoption. A review of some of the caselaw PRIOR to the new bill may shed some light but it will remain with the courts to rule as to the viability of these older decisions given the new statute.
The limited number of published cases in this area suggests that the vast majority of conditional surrenders have gone quite smoothly regarding enforcement. This may also be the case if birth parents are not attempting the contact that had been agreed upon at the time of the surrender.
• In 1993, Queens County Family Court reviewed the issue of conditional surrenders in In Re Custody of Alexandra C., 157 Misc2d 423, 596 NYS 2d 958 (Queens County Family Court 1993) Although predating the perm law by more than a dozen years, the court allowed a birth father to surrender his daughter, who was then in foster care, adding agreed upon terms of ongoing, albeit limited visitation. While indicating that it would be helpful for more statutory guidance, the court found that a biological parent could condition his surrender on some specified contact with the child that would survive the adoption. Further the court stated that if the biological parent were denied the specified visitation, the biological parent would retain standing to return to court and seek enforcement of the visitation conditions. The court stated that the biological parent who sought such enforcement after the adoption would not have an automatic right to the visitation, nor would the biological parent be able to void the surrender or the adoption. The biological parent who claimed that the terms of the visitation were not being honored would simply be able to file in court and the court would review the situation at that time based on the current best interests of the child. This case simply seems to foreshadow what is now statute.
• The First Department decided a very important case in 1995 that seems to be the model for the new statute. In Matter of Gerald 211 AD2d 17, 625 NYS2d 509 (1st Dept. 1995) the court reviewed a conditional surrender situation involving a child in the Bronx. Here the lower court had refused to allow a biological mother to surrender her foster child with conditions for minimal visitation, finding that the law did not allow for such conditions. The Appellate Court reversed the trial court and sent the matter back to Family Court to review the specifics of the conditions that the parties wanted. The Appellate Court found that the lower court should not refuse a proposed surrender of a foster child out of hand simply because the parent wished to condition the surrender with some visitation. The court ruled that if the lower court found that conditions of visitation to the surrender were in the child’s best interest, the court should allow the conditional surrender. Most importantly, the court specifically stated that if a foster child were surrendered with visitation conditions, the biological parent wouldn’t have an automatic right to visitation. If the biological parent brought a post adoption petition seeking visitation that she claimed was denied by the adoptive parents, that the court would then hear the issue and decide on the visitation based on the then current best interests of the child. Again this case law is basically moot given that its decision seems incorporated in the new statute.
• In 1997 two more Appellate Division cases discussed conditional surrenders, each one again ruling that biological parents could sign surrenders of foster children with conditions for visitation. Each case also ruled that if the parent sought enforcement of the visitation rights after the adoption, that the court would give the biological parent standing. However, the actual decision would need to be based on the child’s current best interests. Matter of Patricia YY., 238 AD2d 672, 656 NYS2d 414 (3rd Dept. 1997), Matter of Sabrina H., 245 AD2d 1134, 666 NYS2d 531 (4th Dept. 1997) Prior to the new law being passed, then three out of four of the Appellate Courts had ruled that if there are problems after the adoption, the adoption would not be void nor the surrender vacatable. The birth parents would simply have standing if they chose to bring a post adoption action and current best interests would be the measure. This all seems to be clearly picked up in the new statute.
But if there is an enforcement procedure brought after the adoption has occurred – how will the court look at the best interests question? A couple pre- perm bill cases may be illustrative:
• In Matter of Ronald D., Sr. v Jane Doe, as Adoptive Parent of Crystal, 176 Misc2d 567, 673 NYS2d 559 (Family Court, Jefferson County 1998) a biological father sought enforcement of the terms of his conditional surrender of his foster child. The conditions did not involve visitation. Instead, it had been agreed in the surrender that the father would receive every year a photo of the child, and progress reports and report cards. After the child was adopted, the biological father returned to court, claiming that he was not receiving these materials. Apparently the adoptive parent had not been made aware of the agreement. The court ordered that the materials be made available to the birth father. He had specifically conditioned his surrender on this agreement and there was no indication that furnishing the materials now would be violative of the child’s best interests. Since the agency had accepted the surrender with these conditions, it became their obligation to inform any adopting parent of the conditions. The adoptive parent must obey the conditions given the agreement and the fact that providing the materials would not affect the child’s interests.
• In Matter of Daijuanna Priscilla M., 290 AD2d 298, 735 NYS2d 544 (1st Dept. 2002) the birth mother had surrendered a foster child for adoption with the condition that she have visitation. Some years after the adoption, the adoptive parent refused to provide the visitation when the biological mother sought it. The adoptive parent was concerned that the biological mother was using drugs and that she had gone several years without actually visiting. The biological mother returned the matter to court arguing that the surrender should be voided as fraudulent or alternatively that the visitation should be enforced. The Appellate Court noted that the birth mother had an attorney when she surrendered. She had been specifically told by the Judge at that time that the visitation after the adoption was not enforceable per se but would depend on the child’s continuing best interests. The court found that the surrender was not fraudulent in that at the time all the parties understood and intended to abide by the conditions. The court went on to find that although the mother had standing to seek enforcement of the visitation, current best interests of the child governed the enforcement. Based on expert testimony provided by the child’s therapists, it wasn’t in the child’s best interests to enforce the visitation.
This case is an excellent illustration of why a clause should be negotiated that ends the contact provisions if the birth parent does not seek the contact for a specified time period. But what about before the finalization? Will the court allow the birth parent to revoke the surrender if there are problems with the terms?
• In Matter of Jesse F., 193 AD2d 839, 597 NYS2d 511 (3rd Dept. 1993), the biological father of a teenager in foster care had signed a surrender, conditioned on some limited visitation with the boy. Before an adoptive home was located for the child, the visitation with the father became problematic from the agency’s point of view. The agency, anticipating the father’s complaint, did not themselves end the visits but brought an action in court seeking a modification of the terms of the surrender by specifically ending the visitation and arguing that in was not in the child’s best interests for the visits to continue. The Appellate Court ruled that in signing the surrender, the father had given up his parental rights to contact and that the conditions to the surrender simply allowed the court to review the situation later under a current best interest’s test. The father was not allowed to void the surrender but was permitted to argue as to the visitation being in the child’s best interests. Given proof presented by experts of the child’s difficulties with the visitation, the court limited the visits to only when the agency felt it was appropriate for the child. Note that this type of situation may or may not be seen as a “failure of a material condition” situation. It may not still be valid case law given that the new statue says that in this situation the court “shall enforce” the terms but says nothing about being able to modify the terms.
• Also in a couple other reported cases of this situation, the courts did allow the parent to revoke the surrender when prior to the finalization the terms became problematic. Matter of Shannon F. and Kelly P., 175 Misc. 2d 565, 669 NYS2d 476 (Family Court, Richmond County 1998) Matter of Christopher F., 260 AD2d 97, 701 NYS2d (3rd Dept. 1999), and Matter of William W., 188 Misc2d 630, 729 NYS2d 259 (Wayne County Family Court 2001) The Christopher F., case specifically held that a surrender can be revoked by the birth parent, pre-adoption, if the birth parent no longer wishes to surrender the child when there is a failure of an identified person to be able to adopt.
AND now the first case has been reported since the effective date of the new law:
• Matter of TR and NS decided by Chemung County Family Court on 12/28/05 –here the surrenders of two children had been conditioned on specified persons adopting and now those persons were not willing to adopt. The Family Court allowed the birth parents to revoke the surrender finding that the agreement conditions could not be honored and the surrenders were not valid. The court found that the new legislation did not require the court to use “best interests” as the test where there was a substantial failure of a material condition.
UNTIL WE SEE MORE CASELAW IT MAY BE WISE TO ASSUME THE COURT MAY ALLOW A BIRTH PARENT TO REVOKE A SURRENDER IF TERMS CANNOT BE HONORED PRIOR TO FINALIZATION
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06/21/06