NY Soc Serv L § 384 (2021)
2021 New York Laws SOS - Social Services Article 6 - Children Title 1 - Care and Protection of Children 384 - Guardianship and Custody of Children Not in Foster Care.

§  384.  Guardianship  and  custody of children not in foster care. 1. Method. The guardianship of the person and the custody of a child who is not in foster care under the age of eighteen years may be  committed  to an  authorized  agency by a written instrument which shall be known as a surrender, and signed:  (a) if both parents shall then be  living,  by  the  parents  of  such child,  or  by  the  surviving parent, if either parent of such child be dead;  (b) if either one of such parents shall  have  for  a  period  of  six months  then  next  preceding abandoned such child, by the other of such parents;  (c) if such child is born out of wedlock, by the mother of such child, and by the father of such child,  if  such  father's  consent  would  be required  for  the  child's  adoption,  pursuant  to section one hundred eleven of the domestic relations law;  (d) if both parents of such child are dead, or if such child  is  born out  of  wedlock and the mother of such child is dead by the guardian of the person of such child lawfully appointed, with the  approval  of  the court or officer which appointed such guardian to be entered of record.   2.  Terms.  (a)  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. The instrument shall  recite  that  the  authorized  agency  is thereby  authorized  and  empowered  to  consent to the adoption of such child in the place and stead of the person signing the  instrument,  and may  recite  that the person signing the instrument waives any notice of such adoption; provided, however, that an authorized  agency  shall  not accept  a surrender instrument conditioned upon adoption by a particular person, unless the  agency  has  fully  investigated  and  certified  or approved  such  person  as  a  qualified  adoptive parent. Any surrender instrument subject to the provisions of this section  shall  include  an adoption  information  registry  birth parent registration consent form, stating whether or not such biological parent or parents  whose  consent is subject to the provisions of this section, consents to the receipt of identifying  information  by  the child to be adopted, upon registration with the adoption information registry established by section  forty-one hundred  thirty-eight-c  of  the  public health law and upon the adoptee reaching the age of eighteen. If such  consent  is  made,  it  shall  be revocable  by  either  of  the  biological  parents  at  any  time.  The revocation of the consent by one of the parents shall revoke the consent of both parents.  The failure of a biological  parent  to  complete  the consent  form  shall  have  no  effect on the finality of the consent to adoption. A copy of the form required  by  this  subdivision,  shall  be forwarded  to  the  state adoption information registry for inclusion in the records maintained by such  registry.  Any  fees  authorized  to  be charged  by  the  state  adoption registry for filing documentation with such registry shall be waived for the form required by this subdivision. No such agency shall draw or receive money from  public  funds  for  the support of any such child except upon the written order or permit of the local  social  services  official  of  the  county  or city sought to be charged with the support of such child.  (b) If a  surrender  instrument  designates  a  particular  person  or persons  who  will  adopt  a  child, such person or persons, the child's birth parent or parents, the authorized agency having care  and  custody of  the  child  and  the  child's  attorney,  may  enter  into a written agreement providing for communication or contact between the  child  and the  child's  parent  or  parents on such terms and conditions as may be agreed to by the parties.    If a surrender instrument does not designate a  particular  person  or persons  who  will  adopt  the  child,  then the child's birth parent or parents, the authorized agency having care and custody of the child  and the  child's  attorney  may enter into a written agreement providing for communication  or contact, on such terms and conditions as may be agreed to by the parties. Such agreement also may provide terms and  conditions for  communication  with  or  contact  between the child and the child's biological sibling or half-sibling, if  any.  If  any  such  sibling  or half-sibling  is  fourteen  years  of  age  or  older,  such  terms  and conditions shall not be enforceable unless such sibling or  half-sibling consents  to  the  agreement  in  writing. If the court before which the surrender instrument is  presented  for  approval  determines  that  the agreement  concerning  communication  and contact is in the child's best interests, the court shall approve the agreement. If the court does  not approve  the agreement, the court may nonetheless approve the surrender; provided, however, that  the  birth  parent  or  parents  executing  the surrender  instrument  shall  be  given  the opportunity at that time to withdraw such instrument. Enforcement of  any  agreement  prior  to  the adoption  of  the  child  shall be in accordance with subdivision (b) of section one thousand fifty-five-a of the family court act. Subsequent to the adoption of the child, enforcement of  any  agreement  shall  be  in accordance  with  section one hundred twelve-b of the domestic relations law.   3. Instrument. The instrument herein provided shall  be  executed  and acknowledged  (a)  before  any  judge  or surrogate in this state having jurisdiction over adoption proceedings, except  that  if  the  child  is being  surrendered  as  a result of, or in connection with, a proceeding before the family court pursuant to article ten or ten-A of  the  family court  act,  the  instrument  shall  be executed and acknowledged in the family court that exercised jurisdiction over such proceeding and  shall be  assigned,  wherever practicable, to the judge who last presided over such proceeding; or (b) in the presence of one  or  more  witnesses  and acknowledged  by  such witness or witnesses, in the latter case before a notary public or other officer authorized to take proof  of  deeds,  and shall  be recorded in the office of the county clerk in the county where such instrument is executed, or  where  the  principal  office  of  such authorized  agency  is  located, in a book which such county clerk shall provide and shall keep under seal.  Such  record  shall  be  subject  to inspection  and  examination  only as provided in subdivisions three and four of section three hundred seventy-two of this title. Notwithstanding any other provision of law, if the parent  surrendering  the  child  for adoption  is  in  foster  care the instrument shall be executed before a judge of the family court.   Whenever the term surrender or surrender instrument is used in any law relating to the adoption of children who are  not  in  foster  care,  it shall mean and refer exclusively to the instrument hereinabove described for  the commitment of the guardianship of the person and the custody of a child to an authorized agency by his parents, parent or guardian;  and in  no  case shall it be deemed to apply to any instrument purporting to commit the guardianship of the person and the custody of a child to  any person  other  than  an  authorized  agency,  nor shall such term or the provisions of  this  section  be  deemed  to  apply  to  any  instrument transferring  the  care  and  custody of a child to an authorized agency pursuant to section three hundred eighty-four-a of this chapter.   Any person or persons having custody of a child  for  the  purpose  of adoption  through an authorized agency shall be permitted as a matter of right, as an interested party, to intervene in any proceeding  commenced to  set  aside  a  surrender  purporting to commit a guardianship of the  person or custody of a child  executed  under  the  provisions  of  this section.  Such  intervention may be made anonymously or in the true name of said person.   Any  person  or  persons  having  custody  for more than twelve months through an authorized agency for the purpose of  foster  care  shall  be permitted  as a matter of right, as an interested party, to intervene in any proceeding commenced to set aside a surrender purporting  to  commit the guardianship of the person and custody of a child executed under the provisions of this section. Such intervention may be made anonymously or in  the  true name of said person or persons having custody of the child for the purpose of foster care.   A copy of such surrender shall be given to  such  surrendering  parent upon  the  execution  thereof. The surrender shall include the following statement:  "I,  (name  of  surrendering  parent),  this  ___   day   of __________, _____, have received a copy of this surrender. (Signature of surrendering parent)". Such surrendering parent shall so acknowledge the delivery and the date of the delivery in writing on the surrender.   Where  the  parties have agreed that the surrender shall be subject to conditions pursuant to subdivision two of this section,  the  instrument shall further state in plain language that:  (i)  the authorized agency shall notify the parent, unless such notice is expressly waived by a statement written by the parent and appended to or included in such instrument, the attorney for the child and the court that approved the  surrender  within  twenty  days  of  any  substantial failure   of  a  material  condition  of  the  surrender  prior  to  the finalization of the adoption of the child; and  (ii) except for good cause shown, the authorized agency shall  file  a petition  on notice to the parent unless notice is expressly waived by a statement written by the parent and appended  to  or  included  in  such instrument  and  the  child's  attorney  in  accordance with section one thousand fifty-five-a of the family court act within thirty days of such failure, in order for the  court  to  review  such  failure  and,  where necessary, to hold a hearing; provided, however, that, in the absence of such  filing,  the  parent and/or attorney for the child may file such a petition at any time  up  to  sixty  days  after  notification  of  such failure.  Such petition filed by a parent or attorney for the child must be filed prior to the child's adoption; and  (iii) the parent is obligated to provide the authorized agency with  a designated  mailing  address,  as well as any subsequent changes in such address,  at  which  the  parent  may  receive  notices  regarding   any substantial failure of a material condition, unless such notification is expressly waived by a statement written by the parent and appended to or included in such instrument.   Nothing  in  this  paragraph  shall limit the notice on the instrument with respect to a failure to comply  with  a  material  condition  of  a surrender subsequent to the finalization of the adoption of the child.   4. Upon petition by an authorized agency, a judge of the family court, or  a  surrogate,  may  approve  such  surrender, on such notice to such persons as  the  surrogate  or  judge  may  in  his  or  her  discretion prescribe.  If  the  child  is  being  surrendered as a result of, or in connection with, a  proceeding  before  the  family  court  pursuant  to article  ten  or  ten-A  of  the family court act, the petition shall be filed  in  the  family  court  that  exercised  jurisdiction  over  such proceeding and shall be assigned, wherever practicable, to the judge who last  presided  over  such  proceeding. The petition shall set forth the names and last known addresses of  all  persons  required  to  be  given notice   of   the   proceeding,   pursuant   to  section  three  hundred eighty-four-c of this title, and there shall be shown by the petition or  by affidavit or other proof satisfactory to the court that there are  no persons  other  than those set forth in the petition who are entitled to notice pursuant to such section. No person who has received such  notice and  been afforded an opportunity to be heard may challenge the validity of a surrender approved  pursuant  to  this  subdivision  in  any  other proceeding.  However,  this  subdivision  shall not be deemed to require approval of a surrender by a surrogate or judge for such surrender to be valid.   5. If a duly executed and acknowledged  adoption  surrender  shall  so recite,  no  action  or proceeding may be maintained by the surrendering parent or guardian for the custody of the surrendered child or to revoke or annul such surrender where the child has been placed in the  home  of adoptive  parents  and  more  than  thirty  days  have elapsed since the execution of the surrender or  where  the  purpose  of  such  action  or proceeding  is to return the child to or vest the child's custody in any person other than the parent or guardian who  originally  executed  such surrender. This subdivision shall not bar actions or proceedings brought on  the  ground  of  fraud,  duress  or  coercion  in  the  execution or inducement of a surrender.   For the purposes of this subdivision, no child shall be deemed to have been placed in the home of adoptive parents  unless  the  fact  of  such placement,  the  date  thereof,  the  date  of  the agreement pertaining thereto and the names and addresses of the adoptive parents  shall  have been recorded in a bound volume maintained by the agency for the purpose of recording such information in chronological order.   Where  the  parties have agreed that the surrender shall be subject to conditions pursuant to subdivision two of this section and  where  there has  been  a  substantial  failure  of a material condition prior to the finalization of the adoption of the child, the agency shall  notify  the parent  thereof,  unless  such notice is expressly waived by a statement written by the parent and appended to or included  in  such  instrument, and  shall  notify  the  court and the law guardian for the child within twenty days of such failure. In any such  case,  the  authorized  agency shall file a petition on notice to the parent unless notice is expressly waived  by a statement written by the parent and appended to or included in such instrument and law  guardian  in  accordance  with  section  one thousand fifty-five-a of the family court act within thirty days of such failure,  except  for good cause shown, in order for the court to review such failure and, where necessary, to hold a hearing; provided, however, that, in the absence of such a filing, the parent  and/or  law  guardian for  the  child  may  file  such a petition at any time up to sixty days after notification of the failure. Such a petition filed by a parent  or law  guardian  must  be  filed  prior  to  the adoption. Nothing in this paragraph shall limit the rights and remedies available to  the  parties and  the  law  guardian  pursuant to section one hundred twelve-b of the domestic relations law with respect  to  a  failure  to  comply  with  a material  condition of a surrender subsequent to the finalization of the adoption of a child.   6. In an action or proceeding to determine the custody of a child  not in  foster  care surrendered for adoption and placed in an adoptive home or to revoke or annul a surrender instrument in the case of  such  child placed  in  an adoptive home, the parent or parents who surrendered such child shall have no right to the custody of such child superior to  that of  the adoptive parents, notwithstanding that the parent or parents who surrendered the child are fit, competent  and  able  to  duly  maintain, support  and  educate  the  child.  The  custody  of such child shall be awarded solely on the basis of the best  interests  of  the  child,  and  there  shall  be  no presumption that such interests will be promoted by any particular custodial disposition.   7.  Upon  acceptance  of  a  judicial  surrender  or  approval  of  an extra-judicial surrender pursuant  to  this  section,  the  court  shall schedule  an  initial freed child permanency hearing pursuant to section one thousand eighty-nine of the family court act.   8. Upon execution of a surrender instrument, the parent executing  the surrender  shall  provide  information to the extent known regarding the other parent, any person  to  whom  the  surrendering  parent  had  been married  at  the  time  of  the conception or birth of the child and any other person who  would  be  entitled  to  notice  of  a  proceeding  to terminate   parental   rights   pursuant   to   section   three  hundred eighty-four-c of this title. Such information shall include, but not  be limited  to,  such parent's or person's name, last-known address, social security  number,  employer's  address   and   any   other   identifying information. Any information provided pursuant to this subdivision shall be  recorded  in  the uniform case record maintained pursuant to section four hundred nine-f of this article; provided, however, that the failure to provide such information shall not invalidate the surrender.   9. Acceptance of a judicial surrender or approval of an extra-judicial surrender pursuant to this section shall not be construed  to  terminate any  rights of the child to contact his or her siblings. For purposes of this section, "siblings" shall include half-siblings and those who would be deemed siblings or half siblings but for the  surrender,  termination of parental rights or death of a parent.