It is always the responsibility of caseworkers to attempt to identify, locate and offer services to the fathers of children in foster care. To fail to do this is to fail to avail children of their right to have a relationship with their parent. If a caseworker ignores the issue of an unwed father's potential rights, the child is very likely to remain in foster care longer than he would otherwise.

When foster care is a possibility or occurs, a significant and primary responsibility for the caseworker is to identify the child's father. This includes asking those involved who the father is, asking if the mother has ever been married, asking if anyone visits the child or supports the child or has tried to do either. If the caseworker does not know who the father is, there must be a specific and clear plan for remedying that situation by methodically attempting to identify and seek out the father. This would include using the CSEU services as well as the type of processes used for diligent searches. This would include approaching in person and/or by mail persons who may be the father. The caseworker should be prepared to assist the potential father is establishing paternity.

The caseworker must include the father as part of a service plan for the child and must attempt at all times to remain in contact with the father. Depending on the situation, the service plan for the father might include offering him services that would put him in a position to care for the child himself, asking about any relatives of his that may be resources for the child, offering him visitation, keeping him in the planning and information loop - in short whatever a caseworker would do for a mother! To fail to have such a plan means the caseworker is not engaged in diligent efforts and is therefore ignoring a possible permanency plan for the child as well as making it virtually impossible to timely free the child for adoption.

When a mother wishes to surrender her child or the agency is contemplating a termination of parental rights petition, there must be a specific discussion with the legal unit to agree upon a course of action regarding the father. This discussion must take place before any action is begun regarding the mother. Permanency must be resolved for both parents. The goal should be to provide clear legal resolution of the parental rights of both at approximately the same time.

If the mother of a child is going to surrender the child for adoption or if a petition to terminate her parental rights will be brought and the child was born in wedlock, the man who is or was married to the mother must also have his parental rights surrendered or terminated. If the child was born out of wedlock, then the agency must determine what rights the unwed father has regarding the child in order to determine what action is necessary to free the child legally. The first question that the agency must decide if an unwed mother is going to surrender her rights or the agency is considering filing to terminate her rights is: does the father have rights that also need to be surrendered or terminated? 

Unwed fathers who have maintained a course of substantial and continuous contact or repeated contact with the child have the same rights as mothers and must either surrender the child or have - a termination of parental rights petition brought against them. The father does not have to be a "legal father" to be a consent father with full rights!

If the child was placed more than six months after birth, then the father is a consent father as above if he has:

• paid a reasonable and fair sum, in accordance with his means, for child support AND
• visited the child at least monthly or maintained contact with the custodian of the child when not prevented from doing so OR
• openly lived with the child for six months during the year before the child was placed and held himself out to be the father

If the child was placed less than six months after birth, then the father is a consent father as above if he has:

• evinced a commitment to the child by holding himself out to be the father, has offered to or is paying reasonable sums for birth expenses and or child support, demonstrates an ability and a willingness to assume personal custodial responsibility for the child, takes prompt action within the first six months of the child's placement to attempt to establish a parental relationship with the child

If the man in question does not fit in the categories above, then the agency must consider the next possible category: is he a father entitled to notice of certain legal actions? 

If the father falls into any of the procedures regarding the termination or surrender of the mother's rights or any procedures involving the voluntary placement of the child in care. The legal notice is specifically outlined in the law and must be demonstrated to enable the court to actually free the child. The notice father is offered the opportunity to provide the court with evidence regarding the child's best interests. It is good practice to attempt contact and offer services to any man on this list in any foster care situation. If the man is on this list but has been criminally convicted for forcible rape regarding the conception of the child, then he need not be "noticed".

• any man adjudicated by a NYS court as the father of the child (the "legal father")
• any man who was adjudicated as the father in another state AND registered that adjudication with NYS
• any man who has filed an intent to claim paternity of the child
• any man who is listed on the child's birth certificate as the father
• any man who lived with the child and mother and held himself out to be the child's father at the time that the child went into care or when the legal proceeding is brought
• any man identified as the father in a written and sworn statement by the mother
• any man who married the mother before the child was six months old and before any surrender or termination of mother's rights
• any man who filed with NYS as the possible putative father of the child

Fathers with No Rights

If the man in question was never married to the mother, does not fit in either of the two categories above, then he may be a "NO rights" father. If this is the agency's position, then an attempt should be made to seek a judicial order to that effect as part of mother's surrender or termination proceeding.

11/07/2006