2012 New York Consolidated Laws
SOS - Social Services
Article 6 - CHILDREN
Title 1 - (371 - 392) 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.