chapter 8 permanent termination of parental...

Chapter 8

PERMANENT TERMINATION OF PARENTALRIGHTS

Synopsis

PART A: PROCEDURAL CONTEXT

§ 8.01 Procedural Context–Permanent Termination of ParentalRights

PART B: DETERMINING JURISDICTION AND VENUE

§ 8.02 Checklist for Determining Jurisdiction and Venue

§ 8.03 Choosing to Proceed in Family Court or Surrogate’s Court

§ 8.04 Selecting Appropriate Venue for Proceeding to TerminateParental Rights

PART C: COMMENCING TERMINATION OF PARENTAL RIGHTSPROCEEDING

§ 8.05 Checklist for Commencing Termination of Parental RightsProceeding

§ 8.06 Determining Who May Bring Proceeding to TerminateParental Rights

§ 8.07 Meeting Time Requirement to Initiate Proceeding to Termi-nate Parental Rights

[1] Complying With Requirements for Foster Care Agency[2] Understanding Exception to Basic Requirement

§ 8.08 Assessing Compelling Reasons to Excuse Authorized Agencyfor Not Filing Termination of Parental Rights Petition

§ 8.09 Identifying Respondents in Proceeding to Terminate Paren-tal Rights

§ 8.10 Drafting Summons

§ 8.11 Drafting Petition

§ 8.12 Filing and Serving Summons and Petition in Family Court

[1] Filing Summons and Petition[2] Effecting Service of Summons and Petition[3] Effecting Service by Publication

8–1

0001 VERSACOMP (4.2 ) – COMPOSE2 (4.43) 11/07/05 (13:36) LexisNexis Answer Guide Generic Stylefile

J:\VRS\DAT\01364\8.GML --- AG_NY.sty --CTP READY-- v2.8 10/30 --- POST 1

[4] Employing Diligent Efforts to Locate Parent[5] Drafting Order of Publication

§ 8.13 Filing and Serving Citation and Petition in Surrogate’s Court

[1] Filing With Clerk of Court[2] Effecting Service of Citation

PART D: TERMINATING PARENTAL RIGHTS BASED UPONABANDONMENT

§ 8.14 Checklist for Terminating Parental Rights Based UponAbandonment

§ 8.15 Selecting Court in Which to Bring Abandonment Proceeding

§ 8.16 Navigating Abandonment Proceedings

[1] Strictly Complying With Abandonment ProceedingRequirements

[2] Demonstrating Abandonment[3] Satisfying Burden of Proof on Issue of Abandonment[4] Understanding Role of Law Guardian[5] Representing Birth Parent

§ 8.17 Obtaining Disposition

[1] Attending Dispositional Hearing[2] Drafting Dispositional Order[3] Serving and Filing Dispositional Order

PART E: TERMINATING PARENTAL RIGHTS BASED UPONPERMANENT NEGLECT

§ 8.18 Checklist for Terminating Parental Rights Based UponPermanent Neglect

§ 8.19 Establishing Permanent Neglect

[1] Understanding Elements of Permanent Neglect[2] Drafting Petition Alleging Permanent Neglect[3] Establishing Diligent Efforts by Agency to Foster Mean-

ingful Parent/Child Relationship[4] Establishing Exception to Agency Duty to Employ Dili-

gent Efforts to Reunite Parent and Child[5] Satisfying Burden of Proof

§ 8.20 Navigating Dispositional Hearing

[1] Establishing Best Interest of Child

8–2NEW YORK FAMILY COURT PROCEEDINGS



[2] Understanding Court’s Dispositional Alternatives UponFinding of Permanent Neglect

§ 8.21 Obtaining Suspended Judgment

[1] Outlining Elements of Suspended Judgment[2] Drafting Order of Suspended Judgment[3] Evaluating Consequences of Parent’s Failure to Comply

With Terms and Conditions of Order SuspendingJudgment

PART F: TERMINATING PARENTAL RIGHTS BASED UPONMENTAL RETARDATION

§ 8.22 Checklist for Terminating Parental Rights Based UponMental Retardation

§ 8.23 Navigating Proceeding Based on Mental Retardation

[1] Establishing Mental Retardation Sufficient to SupportTermination of Parental Rights

[2] Drafting Petition Alleging Mental Retardation[3] Presenting Evidence in Mental Retardation Proceeding[4] Understanding Court’s Dispositional Alternatives

PART G: TERMINATING PARENTAL RIGHTS BASED UPONMENTAL ILLNESS

§ 8.24 Checklist for Terminating Parental Rights Based UponMental Illness

§ 8.25 Navigating Proceeding Based on Mental Illness

[1] Establishing Mental Illness Sufficient to SupportTermination

[2] Drafting Petition Alleging Mental Illness[3] Obtaining Psychological Report and Other Records

Regarding Parent[4] Presenting Evidence in Mental Illness Proceeding[5] Understanding Court’s Dispositional Alternatives

PART H: TERMINATING PARENTAL RIGHTS BASED UPON SE-VERE OR REPEATED ABUSE

§ 8.26 Checklist for Terminating Parental Rights Based UponSevere or Repeated Abuse

§ 8.27 Navigating Proceeding Based on Severe or Repeated Abuse

[1] Establishing Severe or Repeated Abuse

PERMANENT TERMINATION OF PARENTAL RIGHTS8–3



[2] Drafting Petition Alleging Severe or Repeated Abuse

[3] Seeking to Excuse Agency from Attempting to ReuniteParent and Child

[4] Presenting Evidence of Severe or Repeated Abuse


[1] Presenting Evidence of Best Interests of Child

[2] Understanding Court’s Dispositional Alternatives

PART I: SECURING VOLUNTARY TERMINATION OF PAREN-TAL RIGHTS BY SURRENDER

§ 8.29 Checklist for Securing Voluntary Termination of ParentalRights by Surrender

§ 8.30 Obtaining Termination of Parental Rights by Surrender

[1] Defining Surrender

[2] Selecting Court in Which to Execute Surrender

[3] Distinguishing Between Judicial and Extra-JudicialSurrenders

§ 8.31 Following Procedure for Obtaining Judicial Surrender

[1] Filing Application for Judicial Surrender

[2] Meeting Requirements for Notification of Birth ParentPrior to Signing Surrender

[3] Understanding and Explaining Surrender Instrument

[4] Executing Conditional Surrender

§ 8.32 Obtaining Extra-Judicial Surrender

[1] Following Procedure for Extra-Judicial Surrender

[2] Applying to Court for Approval of Extra-JudicialSurrender

[3] Drafting Supporting Affidavit to Be Filed With Court

[4] Drafting Affidavit of Employee Responsible for Provid-ing or Arranging Supportive Counseling

[5] Including Additional Language Germane to Extra-Judicial Surrender

[6] Meeting Requirements for Notification to Birth Parent

[7] Understanding Effect of Permissible Orders of Court

[8] Meeting Requirements for Recording Surrender

8–4NEW YORK FAMILY COURT PROCEEDINGS



PART A: PROCEDURAL CONTEXT

§ 8.01 Procedural Context–Permanent Termination ofParental Rights

The family court is a court of limited subject matter jurisdictionand derives all of its powers from the Family Court Act. Primarily,family court judges preside over family matters such as custody,guardianship, and visitation. Family court also has subject matterjurisdiction over juvenile delinquency, persons in need of supervi-sion, child support, and family offenses. Specifically, with respectto this chapter, the family court has jurisdiction over proceedingsto terminate parental rights, based upon:

1. Abandonment (SSL § 384-b(5));

2. Permanent neglect (SSL § 384-b(7)(a));

3. Mental retardation (SSL § 384-b(6));

4. Mental illness (SSL § 384-b(6));

5. Repeated abuse and neglect (SSL § 384-b(8)); and

6. Surrenders (SSL § 383-c).

§ 8.01PERMANENT TERMINATION OF PARENTAL RIGHTS8–5



PART B: DETERMINING JURISDICTION ANDVENUE

§ 8.02 Checklist for Determining Jurisdiction andVenue

M Determine whether to proceed in family court or surrogate’scourt, keeping in mind advantages of family court. See§ 8.03 below.

M Choose appropriate venue. SSL § 384-b(3)(c). See § 8.04below.

M Search Advisor: Family Law > Parental Duties & Rights> Termination of Parental Rights

M Investigate Parties on lexis.com®. See § Intro.09 above.

§ 8.03 Choosing to Proceed in Family Court orSurrogate’s Court

By statute, both the family court and the surrogate’s court havesubject matter jurisdiction over adoptions and also have subjectmatter jurisdiction over abandonment proceedings which lead totermination of parental rights and, thereafter, adoption. SSL§ 384-b(3)(a).

z Strategic Point: Although the family court and surro-gate’s court have concurrent jurisdiction over a proceedingbrought to terminate parental rights based upon abandon-ment, the better practice is to bring the proceeding in thefamily court, because family court will already haveentertained proceedings concerning the infant and familymembers. Unlike the surrogate’s court, the family courthas continuing jurisdiction over children’s proceedings.Pursuant to FCA § 1055-a, only the family court hasjurisdiction to review the status of a child who has beenfreed for adoption.

8–6NEW YORK FAMILY COURT PROCEEDINGS§ 8.02



PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings § 38A.04[2][e].

● Bender’s Forms for the Civil Practice Form No. FCA 614:1et seq.

● SSL §§ 384-b, 383-c.

● FCA § 614.

§ 8.04 Selecting Appropriate Venue for Proceeding toTerminate Parental Rights

Every New York family court has jurisdiction over proceedingsto terminate parental rights of birth parents, thereby freeing thechildren for adoption. The practitioner must select the appropriatevenue in which to initiate the proceeding.

Proper venue for the proceeding to terminate parental rights isbased on the following rules:

1. If a child was placed in foster care pursuant to FCA Art.10, a proceeding to terminate parental rights must beoriginated in the family court in the county in which theproceeding pursuant to FCA Art. 10 (FCA § 1011 et seq.)was last heard;

2. A proceeding may be originated in the county where eitherof the parents of the child reside at the time of the filingof the petition;

3. If it is not known where the parents of the child reside atthe time the petition is originated, the petition must bebrought in the county in which the authorized agency hasan office for the regular conduct of business; and

4. A proceeding may be brought in the county where the childresides at the time of the initiation of the proceeding.

SSL § 384-b(3)(c).

PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings § 38A.04[2][d].





● SSL § 384-b(3)(c).

● FCA § 1055.




PART C: COMMENCING TERMINATION OFPARENTAL RIGHTS PROCEEDING

§ 8.05 Checklist for Commencing Termination ofParental Rights Proceeding

M Determine whether individual or agency is proper party tobring proceeding. SSL §§ 384, 384-b(3)(b). See § 8.06below.

M Determine whether circumstances preclude initiation ofproceeding to terminate parental rights. SSL § 384-b(3)(l).See § 8.08 below.

M Initiate proceeding in timely fashion. SSL § 384-b(3)(l).See § 8.07 below.

M Identify those parties to be served as respondents. SSL§ 384-b(4). See § 8.09 below.

M Prepare summons. FCA § 617; SCPA § 307. See § 8.10below.

M Prepare petition. SSL § 384-b(3)(e). See § 8.11 below.

M File summons and petition. FCA § 617. See § 8.12[1]below.

M Serve summons and petition. FCA § 617. See § 8.12[2]below.

M If personal service cannot be made, seek order permittingsubstituted service. FCA § 617. See § 8.12[2] below.

M If respondent cannot be located, prepare affidavit outliningdiligent efforts and submit proposed order for service bypublication. FCA § 617; CPLR 316. See § 8.12[3], [4], [5]below.

M If proceeding is brought in surrogate’s court, file petitionand citation with clerk of court, and serve conformed copyupon respondents and upon commissioner of social services.SCPA § 307. See § 8.13 below.






§ 8.06 Determining Who May Bring Proceeding toTerminate Parental Rights

Under appropriate circumstances, a proceeding to terminateparental rights may be initiated by one the following parties:

1. Authorized foster care agency;

2. Foster parent;

3. Relative having the care and custody of the child;

4. Law guardian where the authorized agency ordered by thecourt to originate a proceeding fails to do so within the timefixed by the court; or

5. Guardian ad litem of the child upon the court’s direction.

SSL § 384-b(3)(b).

In the first instance, the authorized foster care agency usuallybrings the proceeding to terminate parental rights of the respondentparents. However, where there is a court order directing the agencyto initiate proceedings to terminate parental rights and the autho-rized agency fails to do so, the foster parents may initiate aproceeding to terminate parental rights pursuant to SSL § 384.Likewise, either a law guardian or a guardian ad litem of the childmay initiate a proceeding to terminate parental rights of therespondent parents where the authorized agency fails to do so aftera court order.

PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings § 38A.04[2][b].


● SSL §§ 384, 384-b(3)(b).




§ 8.07 Meeting Time Requirement to InitiateProceeding to Terminate Parental Rights

[1] Complying With Requirements for Foster CareAgency

One of the long-standing criticisms of foster care was that afoster child would languish in foster care for four, five or six yearsbefore being freed for adoption. Under new guidelines, an agencyis penalized monetarily if the agency does not initiate a proceedingexpeditiously. Basically, unless there are extenuating circum-stances, an agency must bring a proceeding to terminate parentalrights of the respondent parents under the following circumstances:

1. When the child shall have been in foster care for 15 monthsof the most recent 22 months;

2. When a court of competent jurisdiction has determined thechild to be an abandoned child; or

3. When the parent has been convicted of a crime as set forthin SSL § 384-b(3)(l)(v).

SSL § 384-b(3)(l).

t Warning: An agency cannot bring a proceeding toterminate parental rights of a birth parent based uponpermanent neglect unless the child has been in care for 12months. With respect to abandonment and severe or re-peated abuse, the agency may bring a proceeding wherethe child is in care for six months. SSL § 384-b(4).

[2] Understanding Exception to Basic Requirement

The law provides exceptions to the requirement that an agencyterminate parental rights if the child is in care 15 months of themost recent 22 months. The proceeding need not be initiated duringthat timeframe in the following cases:

1. When the child is being cared for by a relative or relatives;

2. When the agency has documented in the most recent caseplan, a copy of which has been made available to the court,

§ 8.07[2]PERMANENT TERMINATION OF PARENTAL RIGHTS8–11



that the filing of the petition would not be in the best interestof the child; or

3. When the agency has not provided to parents such servicesas it deems necessary for the safe return of the child to theparents, unless such services are not legally required.

SSL § 384-b(3)(l).

t Warning: As noted, the exceptions include the faultof the agency in not providing services to the birth parentsdeemed necessary for the safe return of the child to theparent. Unfortunately, while this is an exception to therequired commencement of a proceeding to terminateparental rights, it does not excuse the agency from usingreasonable efforts, and the court can penalize the agencyfor its failure.

PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings §§ 38.10, 38A.04[2][e].

● SSL § 384-b(3)(l), (4).

§ 8.08 Assessing Compelling Reasons to ExcuseAuthorized Agency for Not Filing Terminationof Parental Rights Petition

Not every child in foster care is freed for adoption. For example,children come into foster care based upon PINS and juveniledelinquency proceedings. These children are rarely adopted and,therefore, there is little reason to attempt to free the child foradoption. The following are statutory exceptions to the filingrequirement:

1. The child was placed into foster care pursuant to FCA Arts.3 or 7 (FCA § 301 et seq. or FCA § 711 et seq.);

2. The child has a permanency goal other than adoption;

3. The child is 14 years of age or older and will not consentto his or her adoption; and




4. There are insufficient grounds for filing a petition to termi-nate parental rights.

SSL § 384-b(3)(l)(ii).

PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings §§ 38.02, 38.04.

● SSL § 384-b(3)(i).

§ 8.09 Identifying Respondents in Proceeding toTerminate Parental Rights

When the practitioner representing the authorized agency draftsthe petition to terminate parental rights, counsel must determinewho is to be a respondent. Potential respondents include thefollowing:

1. Automatically, the birth mother must be named as arespondent;

2. If the father is married to the mother or supports the childand has formed a relationship with the child, then he mustalso be named as a respondent;

3. The unwed father who has not supported and formed asubstantial relationship with the child need not be namedas a respondent, but he should be given notice of thedispositional hearing and he may participate in the bestinterest hearing.

SSL § 384-b(4).

PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings §§ 38.08, 38A.04[2][c], 38A.04[2][b].

● Bender’s Forms for the Civil Practice Form No. FCA 614:2.

● SSL §§ 384-b(4), 384(c).




§ 8.10 Drafting Summons

A summons must be drafted and served upon the respondentsas prescribed by FCA § 617 and when the proceeding is initiatedin surrogate’s court, service shall be made in accordance with theprovisions of SCPA § 307.

The summons must contain the following:

1. Language informing the parent that the proceeding mayresult in an order freeing the child for adoption without theconsent of or notice to the parent;

2. Language informing the parent of his or her right to theassistance of counsel, including any right the parent mayhave to have counsel assigned by the court in any casewhere the parent is financially unable to obtain counsel;

3. The name and address of the court where the summons isreturnable, including the part number and name of the judge;and

4. The date and time of the court hearing.

PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings § 38A.04[2][b].


● FCA § 617.

● SCPA § 307.

§ 8.11 Drafting Petition

The petition must be set out in paragraphs that include thefollowing information:

1. The petitioner is an agency authorized, approved, andinspected and supervised by the Office of Children andFamily Services;

2. The name of the child, and when and where the child wasborn;

3. The name of the mother as listed on the birth certificate;




4. The name of the father as listed on the birth certificate orcontained in case records;

5. How the child came into foster care;

6. The relationship between the birth mother and birth father;

7. The names and addresses of the persons entitled to serviceof process in the proceeding;

8. The nature of the cause of action against the respondentparents, such as abandonment, permanent neglect, mentalillness, mental retardation, or severe and repeated abuse;

9. Detailed allegations of the cause(s) of action;

10. The guardianship of the infant may be committed to theauthorized agency;

11. The best interest of the infant requires the infant to be freedfor adoption and guardianship committed to the agency withthe power to place the child for adoption without furthernotice to the parent; and

12. A request that the court adjudicate the child an abandonedchild or a permanently neglected child or a child who isseverely and repeatedly abused or a child of a mentallyretarded or mentally ill parent, and that the rights of theparent be transferred to the agency to consent to the adop-tion of the child without further notice to or consent of theparents.

SSL § 384-b(3)(e).

The petition must be signed twice by the director of the agency,once at the end of the petition, and once verifying the petition andsworn to before a notary public.

PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings § 38A.04[1].

● Bender’s Forms for the Civil Practice Form No. FCA 614:1– Form No. FCA 614:12.

● SSL § 384-b(3)(e).

● FCA § 614.




§ 8.12 Filing and Serving Summons and Petition inFamily Court

[1] Filing Summons and Petition

If the termination proceeding is brought in the family court, thesummons and petition is filed with the clerk of the court, thesummons is signed by the chief clerk, and a conformed copy ofthe summons is returned to the attorney, to be served upon theparent of the child and upon the commissioner of social services.

[2] Effecting Service of Summons and Petition

The summons and petition must be served personally upon thebirth parent at least 20 days prior to the return date. FCA § 617.

If, after reasonable efforts, personal service cannot be made uponthe parent(s), the court may order, on good cause shown, substitutedservice of the summons by either nail-and-mail or publication inan approved newspaper. FCA § 617.

[3] Effecting Service by Publication

If the parent cannot be served personally with the summons andpetition, it is incumbent upon the attorney for the petitioner to retaina private investigator to locate the birth parent. If the privateinvestigator locates the parent, then the parent can be servedpersonally. If the private investigator cannot locate the birth parentto be served personally, then the attorney must prepare an affidavitoutlining the diligent efforts and prepare and submit the proposedorder for service by publication. FCA § 617; CPLR 316.

[4] Employing Diligent Efforts to Locate Parent

Before the judge of the family court will permit service bypublication, the judge must be convinced that an exhaustive searchwas made to locate the parent. Diligent efforts that the court mayrequire to be made by the private investigator should include, butnot be limited to, inquiry with the following agencies:

1. New York State Office of Mental Health 44 Holland Avenue Albany, New York 12229

8–16NEW YORK FAMILY COURT PROCEEDINGS§ 8.12[1]



2. New York State Department of Motor Vehicles Governor George Pataki Empire State Plaza Albany, New York 12228

3. New York Department of Correctional Services State Office Building Campus Building No. 2 Albany, New York 12226

4. New York State Department of Corrections Inmate Information System 60 Hudson Street 7th Floor New York, New York 10013

5. New York City Board of Elections–General Office 32 Broadway 7th Floor New York, New York 10004

6. New York City Morgue 462 First Avenue New York, New York 10016

7. New York City Housing Authority Five Park Place New York, New York 10007

8. New York City Department of Probation 115 Leonard Street New York, New York 10013

9. New York City Parole Board Records Department 314 West 40th Street New York, New York 10018

10. HRA Shelter Inquire 60 Hudson Street New York, New York 10003

11. Con Edison Company Four Irving Place New York, New York 10003 PCRE-RF




12. Commander, US Army Enlisted Records and Evaluation Center Fort Benjamin Harrison, Indiana 46249-5301 Attn: Worldwide Locator Service

13. Naval Military Personnel Command NMPC-0216; Room 2048 Quantico, Virginia 22134

14. USAF Military Personnel Center Northeast Office Place 9504 IH 35 North San Antonio, Texas 78233-6636

15. Commandant US Coast Guard PIM-2 2100 Second Street, S.W. Washington, D.C. 20593-001

16. Bellevue Hospital Center 27th Street and First Avenue New York, New York 10016

17. Bronx Municipal Hospital Center Pelham Parkway and Eastchester Road Bronx, New York 10461

18. City Hospital Center at Elmhurst 79-01 Broadway Elmhurst, New York 11373

19. Coler Memorial Hospital Roosevelt Island New York, New York 10044

20. Coney Island Hospital 2601 Ocean Parkway Brooklyn, New York 11235

21. Golwater Memorial Hospital Roosevelt Island New York, New York 10044

22. Gouverneur Hospital 227 Madison Street New York, New York 10002




23. Harlem Hospital Center 506 Lenox Avenue New York, New York 10037

24. Kings County Hospital 451 Clarkson Avenue Brooklyn, New York 11203

25. Lincoln Medical Center 234 East 149th Street Bronx, New York 10451

26. Metropolitan Hospital Center 1901 First Avenue New York, New York 10029

27. North Central Bronx Hospital 3424 Kossuth Avenue Bronx, New York 10467

28. Queens Hospital Center 82-68 164th Street Jamaica, New York 11432

29. Woodhull Hospital Center 760 Broadway Brooklyn, New York 11206

30. Columbia Presbyterian Hospital 622 West 168th Street New York, New York 10032

31. Mt. Sinai Medical Center One Gustave L. Levy Place New York, New York 10029

32. Putative Father Registry Clearance (required Form) 40 North Pearl Street Albany, New York 12243

33. Public Assistance Scanner

34. Relative(s) of person being sought

35. Person’s last known address

36. Person’s last known place of business




37. Person’s friends

38. Local telephone directories

39. Foster parents

40. Children at issue (if old enough)

41. Siblings of children at issue (if old enough)

42. Veteran’s Administration

43. U.S. Department of Corrections

44. U.S. Department of Parole

45. U.S. Postal Service

[5] Drafting Order of Publication

After a diligent search has been conducted by the privateinvestigator, the attorney for the agency will draft an order ofservice by publication and an accompanying affirmation that hasthe diligent search annexed thereto. The agency attorney will thenfile with the clerk of the court an original and copy of the orderand the original affirmation which forms the basis of the serviceby publication. The judge or the court attorney will then reviewthe affirmation and the order of service by publication and, if inproper order, the order of publication will be signed designatinga newspaper where the summons will be published one time at least28 days before the return date of the summons.

Provisions contained in the order of service by publicationinclude the following:

1. That a verified petition had been filed with the court;

2. That an affidavit had been filed with the court outlining thedue diligence to locate the whereabouts of the birth parents;

3. That personal service of the summons cannot with duediligence be made upon the parent;

4. Annexed to the affirmation or affidavit, the diligent effortsas outlined by the private investigator;

5. That the summons be published one time in an authorizednewspaper;

6. That the court dispense with the mailing of said summonsupon the parents.




FCA § 617(d).

PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings § 38.04[2][e].

● Weinstein, Korn & Miller, New York Civil Practice: CPLRCh. 316.

● Bender’s Forms for the Civil Practice Form No. FCA 614:1– Form No. FCA 614:12.

● SSL § 384-b.

● CPLR 316.

● FCA §§ 616, 617.

§ 8.13 Filing and Serving Citation and Petition inSurrogate’s Court

[1] Filing with Clerk of Court

If the abandonment proceeding is brought in the surrogate’scourt, the petition and citation are filed with the clerk of the court,the citation is signed by the chief clerk, and a conformed copy ofthe citation is returned to the attorney, to be served upon the parentof the child and upon the commissioner of social services.

[2] Effecting Service of Citation

The citation must be served personally upon the parents of thechild at least 10 days prior to the return date specified in the citationand an affidavit of personal service is annexed to the copy of thecitation and filed with the clerk of the surrogate’s court at leasttwo days before the return date. As in the family court, if thecitation and petition cannot be personally served upon the birthparents, the court may permit substituted service by nail-and-mailor may permit service by publication in an approved newspaper.

PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings § 38A.04[2][e].




● LexisNexis® AnswerGuidey New York Surrogate’s Court§ 2.06.

● SSL § 384-b.

● FCA § 617.

● SCPA § 307.




PART D: TERMINATING PARENTAL RIGHTSBASED UPON ABANDONMENT

§ 8.14 Checklist for Terminating Parental RightsBased Upon Abandonment

M Select court in which to bring abandonment proceeding. See§ 8.15 below.

M Demonstrate to court that elements of abandonment arepresent. See § 8.16 below.

M Fulfill required duties, as law guardian for child. See§ 8.16[4] below.

M When representing birth parent, fulfill required duties. See§ 8.16[5] below.

M Attend dispositional hearing and serve and file dispositionalorder. See § 8.17 below.

M Search Advisor:

Family Law > Parental Duties & Rights > Terminationof Parental Rights

Family Law > Family Protection & Welfare > Children


§ 8.15 Selecting Court in Which to BringAbandonment Proceeding

A proceeding based upon abandonment of a child may bebrought either in the family court or in the surrogate’s court, asboth have concurrent jurisdiction. If the proceeding is brought inthe surrogate’s court, the surrogate may, on its own motion, transferthe proceeding to the family court. In re V.S., 90 Misc.2d 139, 394N.Y.S.2d. 128 (Sur. Ct. New York County 1977). Further, aproceeding begun in the family court may be transferred on thecourt’s own motion to another county, where the proceeding mayhave originated. Brooklyn Home for Children v. Miller, 122Misc.2d 925, 472 N.Y.S.2d. 282 (Sup. Ct. Queens County 1984).




PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings § 38A.05[2].

● SSL § 384-b.

● Brooklyn Home for Children v. Miller, 122 Misc.2d 925,472 N.Y.S.2d. 282 (Sup. Ct. Queens County 1984).

● In re V.S., 90 Misc.2d 139, 394 N.Y.S.2d. 128 (Sur. Ct.New York County 1977).

§ 8.16 Navigating Abandonment Proceedings

[1] Strictly Complying With Abandonment ProceedingRequirements

Because abandonment proceedings were unknown at commonlaw, abandonment proceedings pursuant to SSL § 384-b must bestrictly construed. In re Madeline R., 117 Misc.2d 457, 457N.Y.S.2d 714 (Fam. Ct. New York County 1982).

[2] Demonstrating Abandonment

Abandonment is comprised of the following elements:

1. That the parent evinces an intent to forego his or her parentalrights and obligation as manifested by his or her failure tovisit the child and communicate with the child or agencyalthough able to do so and not prevented or discouragedfrom doing so by the agency;

2. In the absence of evidence to the contrary, such ability tovisit and communicate shall be presumed;

3. The subjective intent of the parent shall not preclude adetermination that such parent has abandoned his or herchild;

4. The court shall not require showing of diligent efforts bythe authorized agency to encourage a return of the child tothe parent. See In re Crystal C., 219 A.D.2d 601, 631N.Y.S.2d 376, (2d Dep’t 1995).

See SSL § 384-b(5).




[3] Satisfying Burden of Proof on Issue of Abandonment

The agency has the burden of proof of showing that the parentabandoned the child for six months prior to filing the petition toterminate parental rights and must prove its case by clear andconvincing evidence. SSL § 384-b(3)(g). See In re Nahiem G., 241A.D.2d 632, 659 N.Y.S.2d (3d Dep’t 1997).

Questions to be asked of the agency caseworker by the attorneyfor the presenting agency in an abandonment proceeding mayinclude the following:

1. By whom are you employed?

2. In what capacity are you employed by the agency?

3. How long have you been employed by the agency?

4. Did there come a time when you were assigned to this case?

5. How long have you been the caseworker?

6. How long have you been the worker from the date ofassignment to the present?

7. Have you fully reviewed the case notes and are you familiarwith the case notes?

8. If the case notes are to be put into evidence, the followingquestions will have to be asked to lay the appropriatefoundation:

a. Is it in the ordinary course of business to keep casenotes at the agency?

b. Were these case notes kept in the ordinary courseof business?

c. Are you as a caseworker, and were the workersbefore you, under a duty to keep such records?

d. Were the entries that were made in the case recordsmade at or about the same time as the events whichthey describe occurred?

e. Are the case records then kept under the control ofthe agency’s supervision and control?

f. Are you familiar with the agency’s record keepingpractices? In re Dana Saffert, 57 A.D.2d 758, 394N.Y.S.2d 419 (1st Dep’t 1977);




9. When was the subject child placed in care?

10. What were the circumstances surrounding the placement?

11. Has the child remained in care from the date of placementuntil the present?

12. Who are the parents of the child?

13. What is the date of birth of the child (the caseworker shouldbring with him or her a certified copy of the child’s birthcertificate along with several additional photostatic copies)?

14. Directing your attention to the time period prior to the filingdate of the petition, when was the last time that the parentvisited with the child?

15. Prior to the filing date, when was the last time that the parentcontacted the agency?

16. Has the parent in any way supported the child?

17. Has anyone come forward on the parent’s behalf to maintaincontact with either the agency or the child?

18. Has the parent forwarded any cards, letters, or gifts to thechild prior to the filing date of the petition?

19. Was anything done by the agency to prevent or discouragethe parent from coming forward?

20. To your knowledge were there any other obstacles thatprevented the parent from coming forward?

21. If the child is in a kinship home, were the foster parentsmade aware of a duty to notify the agency if the parent hadany contact at the foster home?

22. Did the agency receive any such information?

[4] Understanding Role of Law Guardian

In every proceeding involving the termination of parental rights,the court will appoint a law guardian to represent the child. SeeIn re Wesley L., 72 A.D.2d 137, 423 N.Y.S.2d 482 (1st Dep’t 1980).

Responsibilities of the law guardian include the following:

1. Obtaining a copy of the petition to terminate parental rightsand reviewing it carefully;




2. Obtaining copies of the case records prepared and kept bythe agency and reviewing the same to determine whetherthe agency has fulfilled its obligation to utilize diligentefforts to reunite the child with the birth parents;

3. Interviewing the child (if old enough);

4. Visiting the homes of the birth parent and foster parent,where applicable;

5. Participating vigorously in the proceeding representing theinterests of the child.

[5] Representing Birth Parent

If the birth parent is indigent and cannot afford an attorney, thecourt must assign counsel to represent the birth parent free ofcharge. FCA § 262. See In re Orlando, 40 N.Y.2d 103, 386N.Y.S.2d 64, 351 N.E.2d 711 (1976).

Responsibilities of counsel representing the birth parents includethe following:

1. Serving notice of disclosure and inspection upon counselfor the presenting authorized agency and review all caserecords, progress notes, uniform case records, court reports,psychiatric, or psychological evaluations of the parents orchild;

2. Considering other alternate methods of disclosure, includingwritten interrogatories and examinations before trial, etc.;

3. After review of progress notes and case records, makingapplicable motions to exclude hearsay and other inadmissi-ble evidence contained in the case records;

4. Meeting with and preparing birth parents thoroughly, espe-cially to refute the allegation of diligent efforts on the partof the authorized agency and lack of planning by the birthparents;

5. Moving at the end of the petitioner’s case to dismiss on theground that the petition has failed to prove each and everyelement of abandonment by clear and convincing evidence;

6. Determining whether the birth parents will testify on theirown behalf and, if so, testimony should show that the birth




parents did make contact or visit with the child within sixmonths prior to the filing of the petition, that would breakthe abandonment or the parents were discouraged fromvisiting or contacting the child or were unable to so do toeither by hospitalization or incarceration;

7. If the petition is sustained and an order is signed to terminateparental rights, filing in a timely fashion notice of appealand, where applicable, making a motion to the AppellateDivision to have counsel assigned to represent the indigentbirth parents.

PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings §§ 38.10[1], 38A.03[2], 38A.04[2][b], [h],38A.05.

● New York Practice Guide: Domestic Relations § 38.11[4][f].


● SSL § 384-b(3)(g), (5).

● FCA § 262.

● In re Crystal C., 219 A.D.2d 601, 631 N.Y.S.2d 376, (2dDep’t 1995).

● In re Dana Saffert, 57 A.D.2d 758, 394 N.Y.S.2d 419 (1stDep’t 1977).

● In re Madeline R., 117 Misc.2d 457, 457 N.Y.S.2d 714(Fam. Ct. New York County 1982).

● In re Nahiem G., 241 A.D.2d 632, 659 N.Y.S.2d (3d Dep’t1997).

● In re Orlando, 40 N.Y.2d 103, 386 N.Y.S.2d 64, 351 N.E.2d711 (1976).

● In re Wesley L., 72 A.D.2d 137, 423 N.Y.S.2d 482 (1stDep’t 1980).




§ 8.17 Obtaining Disposition

[1] Attending Dispositional Hearing

There are two parts to a termination proceeding, the fact findinghearing and the disposition. The fact finding hearing determineswhether the parent was at fault in either abandoning or permanentlyneglecting the child or is so mentally ill or so mentally retardedas to be unable to take care of the child. The subsequent dispositionby the court could lead to termination of parental rights freeingthe child for adoption.

When a dispositional hearing is to be held, it will routinely bescheduled approximately six weeks after the fact finding hearing.At the dispositional hearing, the judge will hear evidence concern-ing the best interests of the child. In abandonment cases, a fulldispositional hearing will not normally be required, and the disposi-tion may be based on the evidence established at the fact findinghearing. By contrast, in permanent neglect cases, a full dispositionalhearing is held. See § 8.20 below.

[2] Drafting Dispositional Order

At the dispositional stage of the process, whether or not a hearinghas been held, if the judge terminates parental rights freeing thechild for adoption, the judge will order the attorney for theauthorized agency to draft, serve and file an order of disposition.This order of disposition is the order of the court terminatingparental rights freeing the child for adoption. The attorney for theauthorized agency must serve the proposed order upon all theattorneys who have appeared, giving five days notice plus anadditional five days if the notice of settlement and the order isserved by mail.

A dispositional order that will terminate parental rights and freethe child for adoption should contain the following information:

1. That a petition had been filed alleging abandonment;

2. A short recitation of the fact finding hearing;

3. The name, date, and place of birth of the child;

4. The name of the mother;




5. The name of the father;

6. The manner in which the child was placed into foster care;

7. That the parent abandoned the child, outlining the lack ofcontact and period of time of no contact;

8. An ordering paragraph terminating parental rights;

9. An ordering paragraph freeing the child for adoption;

10. A paragraph transferring guardianship and custody from thebirth parents to the authorized agency with the power toconsent to an adoption; and

11. An ordering paragraph that a certified copy of the order ofdisposition be recorded in the office of the county clerk inthe county where the order of disposition was signed.

[3] Serving and Filing Dispositional Order

Once the court signs the order, the order will be sent back tothe attorney by the clerk of the court who then must serve and filea notice of entry which starts the appeal time running. After serviceof the notice of appeal, the attorney for the respondent parent has35 days to serve and file the notice of appeal.

The following procedures are followed with regard to the orderof disposition:

1. The proposed order of disposition is drafted by the attorneyrepresenting the authorized agency;

2. The attorney must also draft a notice of settlement;

3. Both the order of disposition and notice of settlement areserved upon all the attorneys who appeared five days beforethe return date with five extra days, if the order with noticeof settlement is served by mail;

4. After the order is signed by the judge of the family courtor judge of the surrogate’s court, the attorney for the agencywill draft a notice of entry and serve the signed orders withnotice of entry upon all the attorneys who have appearedwhich will set off the time to appeal; and

5. The order of disposition must be recorded with the countyclerk in the county where the order was signed.




PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings § 38.10[5][c].

● New York Practice Guide: Domestic Relations § 38.11[4][g].


● SSL § 384-b.




PART E: TERMINATING PARENTAL RIGHTSBASED UPON PERMANENT NEGLECT

§ 8.18 Checklist for Terminating Parental RightsBased Upon Permanent Neglect

M Draft petition alleging elements of permanent neglect. See§ 8.19[1], [2] below.

M Establish diligent efforts to foster meaningful parent-childrelationship or exception to diligent effort requirement. See§ 8.19[3], [4] below.

M Present proof at fact finding hearing establishing permanentneglect by clear and convincing evidence. See § 8.19[5]below.

M Establish best interest of child at dispositional hearing. See§ 8.20[1] below.

M Seek suspended judgment where appropriate. See § 8.21below.

M Where appropriate, petition for revocation of order forparent’s failure to comply with terms and conditions oforder of suspended judgment. See § 8.21[3] below.

M Search Advisor:

Family Law > Parental Duties & Rights > Terminationof Parental Rights

Family Law > Family Protection & Welfare > Children


§ 8.19 Establishing Permanent Neglect

[1] Understanding Elements of Permanent Neglect

An abandonment proceeding is relatively easy to prosecute ordefend, as the proof will indicate that the parent either did or didnot visit or contact the child for six months prior to filing thepetition. By contrast, the permanent neglect proceeding involvestwo parts, diligent efforts on the part of the authorized agency andlack of planning on the part of the respondent parent. The court




can dismiss the petition to terminate parental rights based uponpermanent neglect even where the parent fails to plan, where itis shown that the agency did not offer appropriate services, anddid not use diligent efforts.

The following elements must be established to justify a findingof permanent neglect:

1. Subject child is in the care and custody of an authorizedagency;

2. Parent of the child has failed for a period of more than oneyear following the date such child came into the care ofan authorized agency substantially and continuously orrepeatedly to maintain contact with or plan for the futureof the child;

3. Parent was physically and financially able to maintaincontact and plan for the child; and

4. Foster care agency used diligent efforts to encourage andstrengthen the parental relationship (when such effortswould not be detrimental to the best interests of the child).

[2] Drafting Petition Alleging Permanent Neglect

Unlike an abandonment petition, which must allege that the childis in foster care for six months, the petition alleging permanentneglect must allege that the foster child has been in foster care forat least one year.

t Warning: The attorney, representing the authorizedagency drafting the petition, must be very careful to allegeall of the diligent efforts made, as the agency has theburden of alleging and proving diligent efforts, before thecourt will even determine whether the parent failed to planfor the child’s future.

The petition must allege the following:

1. Child is under 18 years of age;

2. Child is in the care and custody of an authorized agency;




3. Agency has made diligent efforts to encourage andstrengthen the parental relationship (specifying the effortsmade or that such efforts would be detrimental to the bestinterests of the child);

4. Parent, notwithstanding the agency’s effort, has failed fora period of more than one year following the date such childcame into the care of the agency, substantially and continu-ously or repeatedly to maintain contact with or plan for thefuture of the child although physically and financially ableto do so; and

5. Best interests of the child require that the custody of thechild be committed to an authorized agency with the powerto consent to the adoption of the child.

[3] Establishing Diligent Efforts by Agency to FosterMeaningful Parent/Child Relationship

Unlike an abandonment proceeding where it is not necessary toplead and prove diligent efforts, in a permanent neglect proceedingthe agency must not only plead diligent efforts but must also provediligent efforts before the court will even determine whether theparent failed to plan for the return of the child.

Diligent efforts by the authorized agency in developing a planto assist, develop, and encourage a meaningful relationship betweenparent and child should include the following:

1. Consulting and cooperating with the parents in developinga plan for appropriate services to the child and its family;

2. Making suitable arrangements for the parents to visit thechild, except that with respect to an incarcerated parent,arrangements for the incarcerated parent to visit the childoutside the correctional facility are not required unlessreasonably feasible and in the best interest of the child;

3. Providing services and other assistance to the parents,except incarcerated parents, so that problems preventing thedischarge of the child from care may be resolved orameliorated;

4. Informing the parents at appropriate intervals of the child’sprogress, development, and health; and




5. Making suitable arrangements with a correctional facilityand other appropriate persons for an incarcerated parent tovisit the child within the correctional facility, if such visitingis in the best interest of the child.

SSL § 84-b(7)(f).

z Strategic Point: The burden is on the agency to showthat it made diligent efforts to help the parents have thechildren returned to them. See Matter of Jamie M., 63N.Y.2d 388, 483, N.Y.S.2d 461, 472 N.E.2d 311 (1984).

[4] Establishing Exception to Agency Duty to EmployDiligent Efforts to Reunite Parent and Child

The agency is excused from using diligent efforts where it candocument that it would not be in the child’s best interest to tryto reunite parent and child. For example, if the parent has physicallyor sexually assaulted a child, the agency may take the position thatit would not be in the best interest of the child to try to reunitethe child with the parent, and therefore diligent efforts would notbe needed in that case. Although the agency may offer services,the services would not be the basis for reuniting the child with theparent, but simply designed to aid the parent.

Examples of parental problems which would exclude diligentefforts include the following:

1. Alcohol addiction;

2. Drug usage; and

3. Mental illness. In re Denlow, 87 Misc.2d 410, 384 N.Y.S.2d621 (Fam. Ct. Kings County 1976).

z Strategic Point: If a parent fails for a period of sixmonths to keep the agency apprised of his or her location,the agency is excused from using diligent efforts. SSL§ 384-b(e).




[5] Satisfying Burden of Proof

To terminate parental rights and free the child for adoption ina permanent neglect proceeding, the agency must prove its caseby clear and convincing evidence. By contrast, in most civilproceedings, the petitioner or plaintiff has the burden of proof bya preponderance of the evidence. However, the courts have heldthat because of the seriousness of severing parental rights, theagency must prove its case by the higher standard of clear andconvincing evidence. The clear and convincing standard appliesonly to the fact-finding hearing; at the dispositional hearing, theagency has the burden of proving its case by a preponderance ofthe evidence.

Questions to be asked by the attorney for the presenting agencyat a permanent neglect fact-finding hearing may include thefollowing:


2. In what capacity are you employed by the agency?

3. How long have you been employed by the agency?

4. Did there come a time when you were assigned to the case?

5. How long have you been the caseworker?

6. Have you been the worker from the date of assignment tothe present?

7. Have you fully reviewed the case notes and are you familiarwith the case notes?

8. When was the subject child placed into care?

9. What were the circumstances surrounding the placement?

10. Has the child remained in care from that date until thepresent?

11. Who is the parent of the child?

12. What is the date of birth of the child?

13. Was a plan identified by the agency that the parent neededto follow in order to have the child returned?

14. With respect to parent-child visitation, how often was theparent to visit with the child?




15. How is it that these visits were scheduled?

16. Did the parent have a consistent mailing address during thetime period of the placement?

17. During each year of placement, how many visits werescheduled for the parent?

18. During each year of placement, how may visits did theparent in fact attend?

19. How long was each visit to last in duration?

20. Of the visits that were attended, how long did the parentremain?

21. Was the caseworker able to observe the interaction of theparent with the child during these visits?

22. Can you describe the interaction?

23. Of the visits that the respondent failed to attend, did he orshe provide any reason for his or her failure to do so?

24. Was the parent made aware of the importance of attendingvisits? If so, how?

25. When was the last visit that the parent attended with thechild prior to the filing date of the petition?

26. With respect to contact with the caseworker, how often wasthe parent expected to meet with the caseworker?

27. Were contacts scheduled both at the office and at theparent’s home?

28. How are these contacts scheduled?

29. How may office visits were scheduled during the timeperiod of placement?

30. How many office visits did the parent attend?

31. How many home visits were scheduled during the timeperiod of placement?

32. How many home visits was the parent actually home for?

33. Did the parent provide a reason for the failure to attend theremaining appointments with the caseworker?

34. Was the parent made aware of the importance of attendingthese meetings? If so, how?




35. In addition to regular case work conference, were casereviews ever scheduled?

36. What is a case review?

37. Was the parent invited to the case reviews?

38. If the parent was invited to the case reviews, in what mannerwas the parent invited (that is, telephone, letter, etc.)?

39. How many of the case reviews did the parent attend?

40. If the parent did not attend the case reviews, were follow-upletters sent to the parent outlining what was discussed atthe case reviews?

41. In addition to the case reviews and the scheduled contactswith the caseworker, did the caseworker ever meet with theparent to specifically review the plan? If so, when?

42. Was the plan ever reduced to writing? If so, when?

43. What were the elements of the plan as indicated in thewriting?

44. Did the parent sign the writing?

45. Was this writing reviewed with the parent prior to the timethat the parent signed it?

46. With respect to parenting training, what had formed theagency’s opinion that the parent needed help in this area?

47. What referrals, if any, were made for the parent to attendparenting training?

48. Where was the parenting training to take place?

49. Did the parent follow through?

50. If the parent did not follow through at the parenting trainingprogram offered by the agency, did the parent provideverification of attending any other parenting trainingprogram?

51. Was the parent made aware of the importance of followingthrough with such a program?

52. With respect to substance abuse treatment, what had formedthe agency’s opinion that the parent needed help in this area.(The caseworker should be aware of whether the parent ever




admitted to the use of drugs and when such admissions tookplace. The caseworker should also be aware of what drugsthe parent admitted to using. Additionally, the caseworkershould know if the child was born with a positive toxicologyfor any substance and whether the caseworker ever observedthe parent to be under the influence of any drug.)

53. What referrals, if any, were made for the parent to attenddrug treatment?

54. What were the dates of said referrals?

55. How often was the parent to attend the programs?

56. Did the caseworker ever offer to accompany the parent toan intake appointment?

57. Did the agency offer the parent carfare or in any other wayfacilitate the parent’s transport to the program?

58. With respect to each program, did the parent follow throughto completion?

59. How is the caseworker aware of whether the parent followedthrough to completion?

60. Was the parent made aware of the importance of followingthrough with substance abuse treatment?

61. Aside from drug referrals to specific programs, was theparent offered any drug testing?

62. Where was the testing to take place and how was itscheduled?

63. Did the parent follow through?

64. Did the parent ever provide verification of drug free status?If so, when?

65. Did the parent provide any verification of attending aprogram outside of the ones to which the agency referredthe parent?

66. Was the parent made aware of the importance of followingthrough with substance abuse treatment?

67. Did the parent ever provide a plan for the return of the child?




68. Was the parent made aware of what would happen if theparent failed to follow through with the agency’s plan forthe return of the child?

69. Did any family member ever come forward as a resourcefor the child, or did the parent offer any family membersas a resource?

PRACTICE RESOURCES:

● Carrieri & Lansner, New York Civil Practice: Family CourtProceedings §§ 38.04, 38.05, 38.06, 38.10[2], [6].

● Bender’s Forms for the Civil Practice Form No. FCA 614:1,Form No. FCA 614:2.

● SSL § 384-b.

● FCA §§ 614, 622.

● In re Denlow, 87 Misc.2d 410, 384 N.Y.S.2d 621 (Fam.Ct. Kings County 1976).

● Matter of Jamie M., 63 N.Y.2d 388, 483, N.Y.S.2d 461,472 N.E.2d 311 (1984).


[1] Establishing Best Interest of Child

Unlike an abandonment proceeding, there is a full dispositionalhearing when the cause of action is based upon permanent neglect.The best interest of the child is the issue in the dispositionalhearing. See In re Rasyn W., 254 A.D.2d 827, 678 N.Y.S.2d 176(4th Dep’t 1998).

Questions to be asked by the attorney for the presenting agencyat a permanent neglect dispositional hearing may include thefollowing:


2. Length of time you have been so employed?

3. What is your title?

4. Are you still assigned to the case?

5. Is the subject child in a kinship or non-kinship foster home?




6. Where (not the actual address but rather the borough orcounty)?

7. Is this an apartment or a house?

8. How may rooms are in the home?

9. How may people reside in the home?

10. Have you had a conversation with the child?

11. When was the last discussion?

12. Did the child understand the discussion?

13. Have you discussed adoption with the foster parents?

14. If so, what was said?

15. What was the last discussion?

16. Did the foster parents understand the discussion?

17. Do the foster parents want to adopt?

18. How do the foster parents plan to support the subject child?

19. What is the health of the foster parents?

20. What are the ages of the foster parents?

21. As to the birth parents, is there any relationship betweenthe subject child and the parents?

22. Have the birth parents been visiting?

23. When was the last visit by the birth parents?

24. What was the outcome of the visits?

25. What were the problems or issues that the parents neededto address?

26. Have they corrected any of those problems or issues?

27. What is the agency’s recommendation as to the best interestof the child?

28. What is the basis for this recommendation?

[2] Understanding Court’s Dispositional AlternativesUpon Finding of Permanent Neglect

After hearing testimony at the fact finding hearing, and afterhearing testimony at the dispositional hearing, the court may




dismiss the petition, grant the petition, or suspend judgment forup to one year, which is in effect giving the birth parent a secondchance to be reunited with the child.

The following are permissible dispositional orders upon a findingof permanent neglect:

1. The petition may be dismissed;

2. The petition may be sustained freeing the child for adoption;or

3. The court may suspend judgment of termination outliningthe conditions that must be fulfilled by the birth parent orthe court may, at a later date, find the parent guilty of aviolation and terminate parental rights.

PRACTICE RESOURCES:


● Bender’s Forms for the Civil Practice Form No. FCA 614:3,Form No. FCA 614:4.

● SSL § 384-b(8)(c).

● FCA §§ 623, 631.

● 22 NYCRR § 205.50.

● In re Rasyn W., 254 A.D.2d 827, 678 N.Y.S.2d 176 (4thDep’t 1998).

§ 8.21 Obtaining Suspended Judgment

[1] Outlining Elements of Suspended Judgment

A suspended judgment offers a second chance to the parent toplan for the return of the child. See In re Angela LL., 287 A.D.2d823, 731 N.Y.S.2d 288 (3d Dep’t 2001). It is one of the permissibledispositions pursuant to FCA § 631, and the terms must be inaccordance with 22 NYCRR § 205.50. The suspended judgmentmust contain at least one of the following terms or conditionsrequiring the parent to:

1. Maintain communication of a substantial nature with thechild by letter or telephone at stated intervals;




2. Maintain consistent contact with the child including visits;

3. Participate with the authorized agency in developing andeffectuating a plan for the future of the child;

4. Cooperate with the authorized agency’s court approved planfor encouraging and strengthening the parental relationship;

5. Contribute towards the cost of maintaining the child, ifpossessed of sufficient means or able to earn such means;

6. Seek to obtain and provide proper housing for the child;

7. Cooperate in seeking to obtain and accepting medical orpsychiatric diagnosis or treatment, alcoholism or drug abusetreatment, employment, or family counseling to child guid-ance, and permit information to be obtained by the courtfrom any person or agency from whom the respondent isreceiving or was directed to receive such services; or

8. Satisfy such other reasonable terms and conditions as thecourt shall determine to be necessary or appropriate toameliorate the acts or omissions that gave rise to the filingof the petition.

[2] Drafting Order of Suspended Judgment

The order of suspended judgment must set forth:

1. Duration of the suspended judgment;

2. Terms and conditions of the suspended judgment;

3. Written statement informing the parent that a failure to obeythe order may lead to its revocation and to the issuance ofan order for commitment of the guardianship and custodyof a child to an authorized agency thereby freeing the childfor adoption; and

4. Schedule of visitation plan for the child and parent as wellas for the child and his or her siblings, if any.

z Strategic Point: A copy of the signed order of sus-pended judgment must be furnished to the birth parent. Theorder of suspended judgment must state that a failure toobey the order may lead to its revocation and to the




issuance of an order for the commitment of guardianshipand custody of the child to an authorized agency. Failureto furnish a copy of the suspended judgment to the birthparent, with the above language, could lead to the courtrefusing to violate the parent and refusing to sign the orderfreeing the child for adoption.

[3] Evaluating Consequences of Parent’s Failure toComply With Terms and Conditions of OrderSuspending Judgment

If the parent fails to comply with the terms and conditions ofthe order of suspended judgment, then the parent could lose hisor her parental rights, thereby freeing the child for adoption. Underthe 2005 Permanency Legislation, the court may extend the termsof the suspended judgment up to one year.

Upon the failure to comply:

1. A petition for revocation of the order may be filed;

2. The petition must contain a concise statement of the actsor omissions alleged to constitute noncompliance with theorder of suspended judgment;

3. Service of the summons and copy of the petition must bemade upon the parent as provided for by FCA § 617(personal service and if not possible, substituted service byorder of the court); and

4. After hearing, if the court is satisfied that the allegationsof the petition have been established, the court may revokethe order of suspended judgment, thereby freeing the childfor adoption.

z Strategic Point: If the agency wants to violate theparent for not complying with the terms of the suspendedjudgment, the attorney for the agency will draft either anotice of motion or an order to show cause and petitionseeking to terminate parental rights. The order to showcause should contain a stay to enlarge the time for the




expiration of the terms of the suspended judgment pendingthe hearing and determination. Pursuant to the 2005 Perma-nency Act, the serving of a notice of motion will automati-cally enlarge the time for the expiration of the terms ofthe hearing and determination of the motion.

z Strategic Point: If the parent is doing well but is notyet ready to have the child returned, the attorney for theagency should request an order extending the terms andduration of the suspended judgment up to one year.

PRACTICE RESOURCES:


● DRL § 384-b(8)(c).

● FCA §§ 617, 631.

● 22 NYCRR § 205.50.




PART F: TERMINATING PARENTAL RIGHTSBASED UPON MENTAL RETARDATION

§ 8.22 Checklist for Terminating Parental RightsBased Upon Mental Retardation

M Draft petition alleging elements of mental retardation suffi-cient to justify termination of parental rights. See § 8.23[1],[2] below.

M Establish grounds for termination through questioning ofcaseworker and psychologist. See§ 8.23[3] below.



§ 8.23 Navigating Proceeding Based on MentalRetardation

[1] Establishing Mental Retardation Sufficient toSupport Termination of Parental Rights

Mental retardation is defined by SSL § 384-b(6)(b) as:

Sub-average intellectual functioning which originates duringthe developmental period and is associated with the impairmentof adaptive behavior to such an extent that if such child wereplaced or returned to the custody of the parent, the child wouldbe in danger of becoming a neglected child as defined in theFamily Court Act’

It should be remembered that it is not mental retardation alonethat terminates parental rights, but mental retardation that is of sucha nature that the parent cannot care for the child presently or forthe foreseeable future.

The elements of mental retardation sufficient to justify termina-tion of parental rights are as follows:

1. The birth parent must have sub-average intellectualfunctioning;




2. The sub-average intellectual functioning must have origi-nated during the developmental period of the birth parent;

3. The sub-average intellectual functioning must be associatedwith impairment in adaptive behavior; and

4. The impairment must be to such an extent that if the childwere placed or returned to the custody of the parent, thechild would be in danger of becoming a neglected child asdefined in the Family Court Act.

[2] Drafting Petition Alleging Mental Retardation

In drafting the petition alleging mental retardation, it would behelpful if the practitioner would annex to the petition any evaluationthat shows the extent of the mental retardation of the birth parent.For example, if there is an IQ evaluation, that should be annexedto the petition.

Elements of the petition in a mental retardation proceedingshould include:

1. Child is under 18 years of age;

2. Child is in the care and custody of an authorized agency;

3. Birth parent is suffering from sub-average intellectualfunctioning, which originated during the developmentalperiod and is associated with impairment in the adaptivebehavior to such an extent that if the child were returnedto the custody of the parent, the child would be in dangerof becoming a neglected child as defined in the FamilyCourt Act; and

4. Best interests of the child require that the custody of thechild be committed to an authorized agency with the powerto consent to the adoption of the child.

z Strategic Point: Unlike a proceeding based upon per-manent neglect, it is not necessary for the agency to pleador prove any diligent efforts with respect to services offeredto the parent to help reunite the parent and the child. Matterof Everett S., 62 A.D.2d 1069, 403 N.Y.S.2d 802 (3d Dep’t1978).




[3] Presenting Evidence in Mental RetardationProceeding

The judge of the family court must appoint a qualified psychia-trist or psychologist licensed pursuant to Educ. Law Art. 153 (Educ.Law § 7600 et seq.) to examine the birth parent alleged to bementally retarded. SSL § 384-b(6)(c), (e).

The psychiatrist or psychologist must, after examining the birthparent, prepare a written report as to his or her findings and arecommendation as to whether the parent is mentally retarded tosuch an extent that the birth parent could not care for the childand, if the child were returned, the child would be in danger ofbecoming a neglected child as defined in the Family Court Act.SSL § 384-b(6)(e).

If the parent refuses to be examined or is unavailable forexamination, the appointed psychiatrist or psychologist may testifywithout an examination of such birth parent, but may base his orher opinion upon other available information, including, but notlimited to, agency, hospital, or clinical records provided that suchother information affords a reasonable basis for his or her opinion.SSL § 384-b(6)(e).

t Warning: The attorney for the birth parent mustremember that it is not mental retardation per se thatestablishes the statutory ground toward termination ofparental rights, but the condition of mental retardation mustbe accompanied by the inability of the parent to provideadequate care to the child.

The following is a series of questions and answers that mayprovide a guide to the questioning of the agency’s caseworker bythe attorney for the presenting agency in a mental retardationproceeding:

1. Q: How long have you been assigned to the case?

A: For three years.

2. Q: As the caseworker for the child, did you have any otherduties?




A: Yes, I was also the caseworker for the birth mother andthe foster parents.

3. Q: What about the putative father?

A: The father is unknown and the mother was nevermarried.

4. Q: When was the child born?

A: December 2, 2004.

5. Q: How long has the child been in foster care?

A: Since December 2, 2004.

6. Q: How did the child come into foster care?

A: He was court placed by a judge of the Family Court,Kings County.

7. Q: Has the child been in foster care ever since?

A: Yes.

8. Q: Where is the child physically?

A: In a foster home under the supervision and control ofthe agency.

9. Q: Have you ever met the birth mother?

A: Yes.

10. Q: How many times?

A: I have seen the mother at least 20 times.

11. Q: To your knowledge, does the mother have any physicalor emotional problems?

A: The mother has no physical problems, but she has beentested by our psychiatrist as being limited.

12. Q: Was the mother psychologically tested by a psychologistemployed by the agency?

A: Yes.

13. Q: When did that occur?

A: January 10, 2005.

14. Q: Who was the psychologist?

A: Doctor Brown.




15. Q: Did Doctor Brown, after he examined the mother, reducehis findings and diagnosis to a written report andevaluation?

A: Yes.

16. Q: Do you have that?

A: Yes.

17. Q: Was this examination and report made in the regularcourse of business?

A: Yes, I referred the mother to Dr. Brown to be evaluatedin order to be able to formulate a service plan for thechild and the mother.

18. Q: Was this report made contemporaneously with theexamination?

A: Yes, the report was typed one week after theexamination.

19. Q: Did the psychologist have a duty to evaluate the motherand reduce a report to writing?

A: Yes.

20. Q: Where was this report kept?

A: It was kept under my supervision and control.

At this point, the attorney for the agency would offer the reportinto evidence. Assuming that there is no valid objection to thereport, the report would be introduced into evidence and then couldbe used as testimony.

21. Q: What is the diagnosis of the mother of the infant?

A: Dr. Brown diagnosed the mother as having an I.Q. of62 and diagnosed the mother as mentally retarded.

22. Q: Where does the mother presently reside?

A: In the Anthony Smith Home for Adults.

23. Q: Have you visited the mother at the home for adults?

A: Yes.

24. Q: Is the mother able to travel?

A: No, she gets confused, and she can only travel witha caseworker.




25. Q: Does the mother visit the child?

A: Yes, but we have to bring the child to the mother asshe cannot travel.

26. Q: Did you observe the visits?

A: Yes, the mother does not interact with the child. Shestays with him for a couple of minutes and thenwanders around the room or talks to the caseworkeror asks for a cigarette and the child becomes irritatedand the visit must be cut short after only about fifteenminutes.

z Strategic Point: In the above testimony, the case-worker has outlined the picture of a limited person whocannot care for her child. However, the testimony of thecaseworker alone is not sufficient to prove a mentalretardation case. The court will appoint a psychiatrist orpsychologist to make the evaluation and that professionalwill testify at court after examining the mother.

Questions to be asked of psychologist may include the following:

1. Q: Dr. Brown, what is your educational background?

A: (Dr. Brown will testify that he graduated from a collegeand graduate school and earned a degree inpsychology).

2. Q: Do you have any associations with any professionalsocieties?

A: (The psychologist would testify that he is associatedwith several societies and as to any other awards ordegrees).

3. Q: Have you published any articles related to mentalretardation?

A: (The psychologist would testify that he published sev-eral articles on the subject).

4. Q: Have you evaluated any persons related to mentalretardation?




A: (The psychologist would testify that he evaluated hun-dreds of patients related to their mental capacities).

After these preliminary questions, counsel should ask the courtto qualify the psychologist as an expert witness. After the courtqualifies the psychologist, the following types of questions shouldbe asked:

5. Did there come a time that you examined and evaluated themother of the foster child?

6. How long did the evaluation take?

7. Did you have any written prior evaluation of the mother?

8. Did you take a historical background of the mother?

9. Did you administer any tests to evaluate the mother’s mentalcondition?

10. What tests did you administer?

11. Did you come to any conclusions as to whether the motheris mentally retarded?

12. Did you determine the degree of mental retardation?

13. What factors did you consider in your conclusion that themother is mentally retarded?

Remember that it is not mental retardation per se that leads toa termination of parental rights, but the degree of mental retardationwhich makes it improbable that the parent can care for the child.

14. Dr. Brown, did you reduce your evaluation to writing?

chapter 8 permanent termination of parental...

Documents