Conditional Surrenders:
the Pros and Cons
Presented by Margaret A. Burt
NYS Citizens' Coalition for Children, Inc.
13th Annual Statewide Adoption Training Conference
Adoption 2002: Linking Promises to Possibilities
May 10, 2002 • Albany New York  

CONDITIONAL SURRENDERS OF FOSTER CHILDREN

Please Note: There have been several changes in NYS permanency statutes since 2002.
See LINK Family Legal Framework Resources for a list of articles by Atty. Burt reflecting current law and regulation and
the NYS OCFS website for information on recent permanency legislation.

It is my opinion that surrenders of foster children with specific conditions for ongoing contact by the birth parent are legal in New York State and are widely done -particularly in the last ten years. Although the statutes have been criticized for being less than clear, the case law and the practice in this area has clarified how these matters can be handled. It is my opinion that most foster care agencies across this state will agree to parental "conditional surrenders" when they feel that it is the best interests of the child.

THE STATUES

New York State Social Services Law (SSL) 383-c contains the statutory procedures for a birth parent to surrender a child who is in foster care to the social services agency for purposes of adoption. SSL 383-c (2) speaks of the procedures to be used in having the parent sign an instrument giving the agency guardianship of the child for purposes of arranging for the child's adoption. The statute describes the guardianship given to the agency in pertinent part as:

"2. Terms. Such guardianship shall be in accordance with the provisions of this article and the instrument shall be upon such terms and subject to such conditions as may be agreed upon by the parties thereto ..." (bolding added)

And further SSL 383-c (3)(b) describes what the Judge is to say to the parent at the time of the surrender. In pertinent part, it states:

"...The Judge or Surrogate also shall inform the parent of the consequences of suchsurrender, including informing such parent that the parent is giving up all rights to have custody, visit with, speak with, write to or learn about the child, forever, unless the parties have agreed to different terms pursuant to subdivision two of this section... " (bolding added) The subdivision two referenced is the one quoted above.

The state forms provided for birth parents to sign in surrenders of foster children are designed with lines in them for the parties to specify the conditions that have been agreed upon. As a practical matter, it is common practice to use the lines to refer to an attached document signed by all the parties, including the prospective adoptive parents, and all the lawyers in which the details of the terms and conditions agrees upon are specifically spelled out. These documents may be several pages long if there are detailed agreements.

These particular sections of law were added to the statute in 1990 and since then have been interpreted by the majority of practitioners in the foster care area as allowing the parties to attach conditions -including those of post adoption visitation - to surrenders signed by birth parents.

There continue to be a minority of Judges in this state who are uncomfortable about the lack of specificity in the statute about the nature of these agreements and under what circumstances they are enforceable. However it is my opinion that the current case law has developed fairly clearly. The majority of practitioners are comfortable with the case law and hundreds of these conditional surrenders of foster children are done each year in this state. It does continue to be strongly promoted among child welfare advocates that the statute be modified to specifically describe the process that is currently in practice. and that sections of adoption law - specifically Domestic Relations Law Section 117(1)(a) also clarify the use of "conditional surrenders" of foster children.

THE CASE LAW

Since the 1990 language described above, several courts have had opinions published regarding the practice of conditional surrenders of foster children. Although the following opinions are essentially the only ones that have been published, hundreds of foster children have been surrendered under these practices in the last 10 years or so. The vast majority have gone quite smoothly.

In 1993, Queens County Family Court reviewed the situation in In Re Custody of Alexandra C., 157 Misc2d 423, 596 NYS 2d 958 (Queens County Family Court 1993) The Court acknowledged in this early opinion that some Judges would not accept parental surrenders of foster children if the surrenders contained terms of visitation. But the court here indicated that it, along with many other family courts, interpreted the above described sections of Social Services Law as permitting conditional surrenders. The court allowed a birth father to surrender his daughter, who was then in foster care, for adoption adding terms of ongoing, albeit limited, visitation. While indicating that it would be helpful for more statutory guidance, the court ruled that SSL allows a biological parent to 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.

Also in 1993, the Appellate Division reviewed a conditional surrender of a foster child. Although in this case the child had not yet been adopted, it is significant that the Appellate Court did not rule that such procedures were illegal or even unadvisable. Instead the Appellate Court treated this conditional surrender as appropriate procedure and ruled that after a conditional surrender, if there were problems with the visitation as had been agreed upon, the court would use a best interests test to review the visitation - not automatic enforcement. In Matter of Jesse F.. 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 - specifically ending the visitation - 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 interests 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.

A very important case in this area was decided in 1995 by the First Department. It is directly on point. In Matter of Gerald 211 AD2d 17, 625 NYS2d 509 (lst 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.

Also in 1995, the New York Court of Appeals was dealing with a very significant case involving the adoption rights of non-marital couples and same sex couples. In exploring the issues in this matter, the court discussed how case law has shaped statutory adoption law and used the example that conditional surrenders of foster children had become acceptable under SSL 383-c. Matter of Jacob D.. 86 NY2d 651, 666(1995)

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) At this time, then, three of four Appellate Divisions have specifically approved of the legality of conditional surrenders of foster children and our highest court has made positive comments on the practice.

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 but it was agreed in the surrender that the father would thereafter receive yearly - a photo of the child, and progress reports and report cards regarding the child. After the child was adopted, the biological father returned to court, claiming that he was not receiving these materials. The court ordered that the materials be made available to him. He had specifically conditioned his surrender on this agreement and there was no indication that furnishing the materials 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.

Recently an excellent case was reported. In Matter of Daijuanna Priscilla M., _AD2d_ (lSt Dept. 1/15/02) 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 asked. 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 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, the enforcement was governed by current best interests of the child. Based on expert testimony provided by the child's therapists, it wasn't in the child's best interests to enforce the visitation.

Where the surrender of a foster child is conditioned on a specific person or couple adopting the child, then a specific procedure is to be followed if it turns out that the children not be adopted by specified person(s). Social Services Law 383-c 6 (c) requires that where an agency becomes aware that the specified person-can not or will not be adopting, then the agency must notify the birth parent. Recent case law has interpreted this provision to mean that the birth parent would then have the right to revoke the surrender, if they so chose. This of course only becomes a problem in the unlikely event that the named persons couldn't or didn't adopt. Matter of Shannon F. and Kelly P.. 175 Misc. 2d 565, 669 NYS2d 476 (Family Court, Richmond County 1998) Matter of Christopher "F"., 710 NYS2d (3r~ Dept. 1999), Matter of William W., 188 Misc2d 630, 729 NYS2d 259 (Wayne County Family Court 2001)

It is my opinion that:

5/21/02