Surrender Suggestions for DSS

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

SURRENDER SUGGESTIONS FOR DSS

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.

Have a policy in place that explains duties and workflow. Train all foster care workers.
Have a policy in place regarding conditional surrenders. Review it - keep it up to date -train it frequently. Make it available to law guardians, defense attorneys, foster parents, the court.
Remember that if there is a condition naming the adoptive parent then you must notify the birth parent if that person will not be adopting. Consider seeking language that would waive this or provide an alternative.
Judicial surrender is preferable process due to no ability to revoke and ability for Judge to asses the parent's knowledge, protect against claims of DSS duress or coercion. Caseworker should role play process with parent - especially Judge's questions. Make sure that there is complete agreement on any terms or conditions and that they are properly written in advance.
Extrajudicial not impossible but difficult. Must have a witness who is a certified social worker or an attorney admitted to practice in the state where the surrender is occurring. Witness can not have any employment connection with DSS. There are 45 days to revoke and beyond the 45 days if the child is not placed in an adoptive home. Must be submitted for court review in 15 days.
See if other county DSS will help with a surrender from parent in their county -particularly if parent is incarcerated.
Out of state surrenders can be judicial or extrajudicial. Get help from sister DSS.
Get an ORDER after the surrender that states that the child has been freed for adoption and deals with the father issue. If child born in wedlock and never a judicial determination that husband is not father then husband must surrender or must be grounds to TPR. If child born out of wedlock and father is a consent father, must also surrender or have grounds to TPR. If child born out of wedlock and father is a notice father, get court to make finding that he is just a notice father, give him the notice of mother's surrender or her surrender may not be valid to free child, get Judge to make finding that he need not be noticed for adoption. If child is born out of wedlock and father has no rights - get court to specifically make a finding in order freeing child that he has no rights.
Consider the possibility of an accelerated or semi-accelerated adoption filing in surrenders where there is an identified adoptive parent.

Margaret A. Burt
ATTORNEY AT LAW
63 CALLINGHAM ROAD PITTSFORD, NEW YORK 14534
TEL: (585) 385-4252 FAX: (585) 385-7717

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11/07/2006