Adoption Secrecy
in
Anne Reynolds Copps, Esq.
Law Office of Anne Reynolds Copps
What is an open adoption?
Open adoption: There is no legal definition of open adoption. It is a continuum which begins at a one time meeting between birth and adoptive parents and stretches to ongoing visits between birth and adoptive families.
• Private agencies have been on the front line in developing openness as a benefit to the child for nearly 30 years.
• Legislation
has been 25 years behind actual openness – authorized in 2005 and
effective
Prior to 2005 legislation, such agreements were morally enforceable but not legally enforceable.
• Legislation does not apply to private adoptions but has been extended by some courts to private adoptions.
• The vast majority of adoptions through private agencies contain some element of openness.
• Many
county agency adoptions may have some element of openness as a means of
encouraging surrenders by birth parents in lieu of a Termination of Parental
Rights (
I. Accessing Records.
A. STATUTORY PROVISIONS.
(1) Domestic Relations Law § 114 (2)
2.
No person, including the attorney for the adoptive parents shall disclose the
surname of the child directly or indirectly to the adoptive parents except upon
order of the court. No person shall be allowed access to such sealed records
and order and any index thereof except upon an order of a judge or surrogate of
the court in which the order was made or of a justice of the supreme
court. No order for disclosure or access and inspection shall be granted
except on good cause shown and on due notice to the adoptive parents and to
such additional persons as the court may direct. Nothing contained herein shall
be deemed to require the state commissioner of health or his designee to secure
a court order authorizing disclosure of information contained in adoption or
birth records requested pursuant to the authority of section forty-one hundred
thirty-eight-c or section forty-one hundred thirty-eight-d of the public health
law; upon the receipt of such request for information, the court shall transmit
the information authorized to be released thereunder
to the state commissioner of health or his designee.
Note: This “secrecy” requirement conflicts with the provisions of Domestic Relations Law § 112-b.
(2) Domestic Relations Law § 114 (4)
4. Good
cause for disclosure or access to and inspection of sealed adoption records and
orders and any index thereof, hereinafter the "adoption records",
under this section may be established on medical grounds as provided herein.
Certification from a physician licensed to practice medicine in the state of
Statute provides “good cause shown” but mentions only medical issues.
B. CASE LAW.
1975 – Matter of Maxtone-Graham, 90 Misc.2d 107 (NY Co. Surr)
Application by adult child under Domestic Relations Law §114.
Court directed Children’s Aid Society to locate the birth mother and seek her consent which was given.
“The right of secrecy is not an unqualified right since Domestic Relations Law § 114 permits inspection of these records upon ‘good cause’ being shown.
No discussion of what constituted “good cause”.
1976 – Matter of Anonymous, 89 Misc2d 132 (Surr Ct, Queens Co)
Court discussed reasons for secrecy:
a) Encourages and facilitates investigation into factors relevant to planning adoption by preventing public disclosure of embarrassing personal facts.
b) Ensures birth parents cannot locate child and interfere in his relationship with adoptive parents.
c) Protects illegitimate children from stigma.
d) Assures biological mother that her indiscretion will not be divulged.
1977 – Matter of Chattman, 57 A.D.2d 618 (2nd Dept)
Petitioner was an adult who had been adopted. She was contemplating starting a family but wanted to know if she had inherited diseases which could impact future children. Court found this to be good cause.
1977 – Matter of Anonymous, 92 Misc.2d 224 (
Court discussed “legislature’s sociological plan to provide a child with a substitute family through the adoption process”. Thus Court must satisfy self that there are sufficient facts which warrant compromising the secrecy surrounding an adoption.
Petitioner suffers from a severe psychological disorder caused by not knowing his true identity.
1981 – Matter of
Linda F.M., 52 NY2d 236
The Court discussed policy grounds:
a) Shields child from disturbing facts relating to birth and parentage.
b) Permits adoptive parents to develop a close relationship with child free of interference or distraction, although meeting may be a source of pleasure for some adoptive parents, it may be intrusive or a source of blackmail for others.
c) Provides birth parents with anonymity.
d) State has an interest in an orderly and supervised system of adoptions.
General curiosity is not enough. A concrete and compelling need is required.
1987 – Golan v. Louise Wise Services, 69 N.Y.2d 343
Court (over strong dissent) denied access to records of adoption agency.
1988 – Coleman v. Weiner, 139 Misc.2d 269 (Sup Ct, Bronx Co)
Medical malpractice suit. Records were directed to be produced with biological mother’s identifying information redacted.
1989 – Matter of
Mere curiosity or desire to learn more of ancestry does not constitute “good cause”.
Here “2 health professional experts” claimed opening the records was necessary for appellant’s well being because he had concrete psychological problems related to his lack of knowledge of ancestry.
Court required a hearing to balance appellant’s needs against needs of birth parents and society.
1989 - Axelrod v. Laurino, 145 Misc2d 818 (Sup Ct, Kings Co)
Article 78 mandamus to compel the Department of Health to reveal information. Denied as time barred.
1990 – Matter of Robert R.B., 147 Misc.2d 569 (
Petitioners are biological parents seeking copy of order of adoption. They were unmarried when they placed the child. They since have married and had another child. The adoptive child would have been 22 years old.
Petitioners wanted to locate the child so that he could learn of the existence of his brother and so they could include him in t heir wills.
The Court denied the petition as not having demonstrated good cause but did refer the family to the adoption information registry.
1995 – Juman v. Louise Wise Services, 211 A.D.2d 446 (1st Dept)
Plaintiffs were adoptive parents of a child with severe psychiatric conditions. The plaintiffs sued the adoption agency for failure to disclose information, which if known would have led to them to not adopt the child.
The Court granted disclosure stating: “Plaintiffs herein demonstrated both their adopted son's and their vital need for disclosure of the information requested in plaintiffs' interrogatories and motion to compel disclosure, since the affirmation of a family physician submitted in support of the motion, indicated that their adopted son, who had a long history of psychological disorders, had been diagnosed, treated and hospitalized at numerous facilities for mental illnesses, including schizophrenia.”
1996 – Matter of Donald, 225 A.D.2d 701 (2nd Dept)
Wanting information for his files was “patently insufficient”. Petitioner presented medical and psychological grounds on appeal but failed to credibly substantiate with affidavits from health professional experts.
2001 – Matter of Baby Boy S.S., 276 A.D.2d 226
Biological mother sought to open records to provide child with medical history including alcoholism, arthritis, stroke, cancer, heart disease which are treatable and potentially preventable with monitoring and early detection.
Court remitted to family court to unseal records and for further proceedings.
Biological mother definitely had standing to open records for good cause.
2002 – Matter of Martino, 291A.D.2d 840 (4th Dept)
64 year old petitioner seeking medical information and names of birth parents to locate medical history.
Court found Supreme Court erred in granting petition as “petition failed to establish that he had an immediate medical need”.
Court determined that notice to both biological parents and a hearing would be required before the Court could determine the degree of the adopted person’s need for disclosure.
2003 – Matter of Craig J.S.J., 309 A.D.2d 1284 (4th Dept)
Request denied because “affidavit fails to identify with sufficient particularity ‘the information required to address such illness’”.
2005 – Matter of Raymond E.E.T., 2005 Slip Op. 50 936 (u) (Surr Ct, Nassau Co)
Court discusses the need for confidentiality and for birth parents not to have the past intrude, for adoptive parents to be without fear of biological parents intruding and for the child not to learn “possibly disturbing facts regarding his birth or background”.
Petitioner failed to submit required medical affidavits.
“Mere curiosity or desire to learn the identity of one’s biological parents does not alone constitute good cause.”
2006 – In the Matter of the Application of Jonna R.D., 2006 Slip Opinion 50626 (u) (Surr Ct, Nassau Co)
Adult adopted child sought information about her medical history because her 3 year old son is suspected of Huntington’s disease.
Applicant
submitted affidavits from 2
2006 – In Matter of Peter B, 2006 NY Slip Op. 51404 (u) (Surr Ct, Nassau Co)
Case reviews Juman legislative history.
“[A]
Rule which automatically gave full disclosure to any adopted person confronted
with a medical problem with some genetic implications would swallow
Court denied access because petitioner failed to explain how medical information would help in treating her condition.
2009 – In Matter of Application of Victor MII, 2009 NY Slip Opinion 50557 (u) (Surr Ct, Nassau Co)
Petitioner sought his preadoption birth certificate to obtain proof of Hungarian heritage. This would allow him to obtain Hungarian citizenship and benefits.
Court finds it is unusual to unseal record for n on-medical reasons. Court found no competing interest – adoptive parents are deceased and biological mother consented.
Similar cases relative to Native America children:
Matter of Rebecca, 158 Misc.2d 644 (Surr Ct, Rensselaer Co 1993)
Matter of Linda J, 179 Misc.2d 96 (Fam Ct, Genesse Co 1998)
2009 – In Re:
Petitioner
did not submit a certification from a licensed
2010
– Matter of Timothy AA, 72 A.D.3d 1390 (3d
Petitioner had 3 medical conditions which would be treated differently if a genetic component was involved. Physician could not say “required” because he could treat but not as effectively. The physician could only state in his affidavit, “Very helpful, should assist in better diagnosing”. Court denied access to records.
C. ADOPTION INFORMATION REGISTRY.
1. Public Health Law § 4138-c.
1. There shall be established in the department an
adoption information registry operated by employees of the department
specifically designated by the commissioner. Access to all records and
information in the registry shall be limited to such designated employees and
such records and information shall be kept strictly confidential except as
specifically authorized by law. The commissioner shall establish rules and
procedures designed to keep such records and information separate and apart
from other records of the department and kept in a manner where access to such
records and information is strictly limited to such designated employees and
shall promulgate regulations designed to effectuate the purposes of this
section. Notwithstanding any inconsistent provision of the domestic relations
law or any other law to the contrary, the commissioner shall have access to the
information authorized to be released pursuant to this section contained in
birth and adoption records of any agency, court or department having
appropriate records which will enable the commissioner to effectuate the
purposes of this section and may require the cooperation of such agency, court or
department in providing the information authorized to be released pursuant to
this section, provided, however, that the commissioner shall not have access to
the actual adoption records of any agency, court or department maintaining such
records.
2.[fn*] The registry shall
accept and maintain the verified registration transmitted by an agency pursuant
to section forty-one hundred thirty-eight-d of this article, or of an adoptee,
or of a biological sibling of an adoptee, or of the birth parents of an adoptee
if such adoptee was born in this state but no sooner than eighteen years after
the adoptee's birth, or in the case of registration
by a biological sibling of an adoptee, no sooner than the longer of eighteen
years after the biological sibling's birth or eighteen years after the adoptee's birth; provided, however, that any person whose
registration was accepted may withdraw such registration prior to the release
of any identifying information. The adoptee registrant, and the biological
sibling registrant, shall include as part of the registration the
identification, including the name and address, of known biological siblings of
the adoptee. The adoptee may upon registration or any time thereafter elect not
to have release of information by the authorized agency involved in such
adoption. The department shall establish an authorized agency fee schedule for
search costs and registry costs and services provided by such agency in
gathering and forwarding information pursuant to this section. The fee schedule
may also include costs for disseminating information about the registry and the
adoption medical information sub-registry to the public. Such publications or
brochures may include information as to identifying and non-identifying
information, how to register and fees charged to the registrants, and any other
information deemed appropriate.
[fn*] NB Effective until
2.[fn*] The registry shall
accept, at any time, and maintain the verified registration transmitted by an
agency pursuant to section forty-one hundred thirty-eight-d of this article, or
of the birth parents of an adoptee if such adoptee was born in this state. The
registry shall not accept nor maintain the registration of an adoptee sooner
than eighteen years after the adoptee's birth, or in
the case of registration by a biological sibling of an adoptee, no sooner than
the longer of eighteen years after the biological sibling's birth or eighteen
years after the adoptee's birth; provided, however,
that any person whose registration was accepted may withdraw such registration
prior to the release of any identifying information. The adoptee registrant,
and the biological sibling registrant, shall include as part of the
registration the identification, including the name and address, of known
biological siblings of the adoptee. The adoptee may upon registration or any
time thereafter elect not to have release of information by the authorized
agency involved in such adoption. The department shall establish an authorized
agency fee schedule for search costs and registry costs and services provided
by such agency in gathering and forwarding information pursuant to this
section. The fee schedule may also include costs for disseminating information
about the registry and the adoption medical information sub-registry to the
public. Such publications or brochures may include information as to
identifying and non-identifying information, how to register and fees charged
to the registrants, and any other information deemed appropriate.
[fn*] NB Effective
3. For the purposes of this
section, the term "non-identifying information" shall only include
the following information, if known, concerning the adoptee, parents and
biological siblings of an adoptee:
(a) Age of the parents in
years, at birth of such adoptee.
(b) Heritage of the parents,
which shall include nationality, ethnic background and race.
(c) Education, which shall be
the number of years of school completed by the parents at the time of birth of
such adoptee.
(d) General physical
appearance of the parents at the time of the birth of such adoptee, which shall
include height, weight, color of hair, eyes, skin and other information of
similar nature.
(e) Religion of parents.
(f) Occupation of parents.
(g) Health history of parents.
(h) Talents, hobbies and
special interests of parents.
(i)
Facts and circumstances relating to the nature and cause of the adoption.
(j) Name of the authorized
agency involved in such adoption.
(k) The existence of any known
biological siblings.
(l) The number, sex and age,
at the time of the adoptee's adoption, of any known
biological siblings.
4. Upon acceptance of a
registration by an adoptee or by the biological sibling of an adoptee pursuant
to this section, the department shall search the records of the department to
determine whether the adoptee's adoption occurred
within the state.
(a) If the department
determines that the adoption occurred within the state, it shall notify the court
wherein the adoption occurred to submit to the department non-identifying
information as may be contained in the records of the court and the names of
the birth parents of the adoptee. Notwithstanding any other provision of law to
the contrary, the court shall thereupon transmit to the department
non-identifying information as may be contained in the records of the court,
and the names of the birth parents of the adoptee, provided that, if the court
determines from its records that the adoption was from an authorized agency,
the court shall submit to the department only the name and address of such
authorized agency and the names of the birth parents of the adoptee. In such
cases, unless the adoptee registrant or the biological sibling registrant shall
have elected otherwise, the department shall notify the authorized agency whose
name was provided by the court to release promptly to the adoptee or biological
sibling registrant all non-identifying information as may be contained in the
agency records. Such agency shall thereafter promptly release the
non-identifying information to the adoptee registrant. If the adoptee
registrant shall have elected not to have the information released to him or
her by the authorized agency, the agency shall submit promptly to the
department all non-identifying information as may be contained in the agency
records. In any case where the agency records are incomplete, no longer exist
or are otherwise unavailable, the department shall so notify the court. The
court shall thereupon promptly submit such non-identifying information as may
be contained in their records. If no authorized agency was involved or if the
adoptee registrant shall have elected not to have release of information by the
authorized agency involved in such adoption, the department shall release the
non-identifying information to the adoptee registrant. The department and/or an
authorized agency may restrict the nature of the non-identifying information
released pursuant to this section upon a reasonable determination that
disclosure of such non-identifying information would not be in the adoptee's, biological sibling's, or parent's best interest.
(b) If the department
determines that the adoption did not occur within the state, it shall notify
the adoptee registrant that no record exists of the adoption occurring within
the state.
5. Upon acceptance of a
registration pursuant to this section, the department shall search the registry
to determine whether the adoptee, any biological sibling of the adoptee, or
birth parents of the adoptee is also registered.
(a) If the department
determines the adoptee is not in contact with a biological sibling under the
age of eighteen and that there is a corresponding registration for the adoptee,
for each of the birth parents, and/or for the biological sibling registrant, it
shall notify the court wherein the adoption occurred and the department shall
notify all such persons that a corresponding match has been made and request
such persons' final consent to the release of identifying information.
(b) If the department
determines that there is no corresponding registration for the adoptee, for
each of the birth parents, and/or for a biological sibling of the adoptee, it
shall notify the registering person that no corresponding match has been made.
The department shall not solicit or request the consent of the non-registered
person or persons.
6. Upon receipt of a final
consent by the adoptee, by each of the birth parents, and/or by a biological
sibling of the adoptee, the department shall, unless the adoptee or biological
sibling registrant shall elect otherwise, if an authorized agency was involved
in such adoption, release identifying information to such agency; such agency
shall thereafter promptly release identifying information to all the
registrants. If no authorized agency was involved, or if any registrant shall
have elected not to have release of the information by the authorized agency
involved in such adoption the department shall release identifying information
to all the registrants. Such identifying information shall be limited to the
names and addresses of the registrants and shall not include any other
information contained in the adoption or birth records. However, nothing in
this section shall be construed to prevent the release of adoption records as
otherwise permitted by law.
6-a. (a) There
shall be established in the registry an adoption medical information
sub-registry. Access to all identifying records and information in the
sub-registry shall be subject to the same restrictions as the adoption
information registry.
(b) The department shall
establish procedures by which a birth parent may provide medical information to
the sub-registry, and by which an adoptee aged eighteen years or older or the
adoptive parents of an adoptee who has not attained the age of eighteen years
may access such medical information.
(c) A birth parent may provide
the adoption medical information sub-registry with certified medical
information. Such certified medical information must include other information
sufficient to locate the adoptee's birth record.
(d) Upon receipt from the
birth parent of certified medical information and other information needed to
identify the adopted person, the department shall determine if the adoptee was
born and adopted in
(e) Upon receipt from an
adoptee aged eighteen years or older or the parent of an adoptee of a
registration, the department shall determine if the adoptee was born and
adopted in
(f) The department shall not
solicit or request the provision of medical information from a birth parent or
the registration by an adoptee or parent of an adoptee.
(g) A fee shall not be
required from a birth parent for providing health information.
7. (a)
Any employee of the department or any employee of an authorized agency who
solicits or causes another to solicit a registration for the purposes of this
section, except as otherwise permitted by law, shall be guilty of a
misdemeanor, provided, however, that solicitation shall not include disclosure
of the adoption information registry.
(b) Any person who unlawfully
discloses any information in the adoption information registry shall be guilty
of a class A misdemeanor.
(c) Notwithstanding any other
provision, any employee of the department who unlawfully discloses any
information in the adoption information registry shall be subject to dismissal
for such violation.
8. For purposes of this section:
"authorized agency" or "agency" means an authorized agency
as defined in paragraphs (a) and (b) of subdivision ten of section three
hundred seventy-one of the social services law.
9. For the purposes of this
section, the term "birth parents " shall
mean a surviving birth parent when the other birth parent who would otherwise
be required to register is deceased. The registry shall consider the
registration of such a surviving birth parent who can demonstrate that the
other birth parent is deceased to fulfill all requirements for the registration
of the birth parents of an adoptee. Upon the request of a birth parent at or
following registration the department shall conduct a search of its records to
determine whether the other birth parent is deceased.
10.[fn*] The commissioner is
directed to develop an adoption information registry birth parent registration
consent form to be completed at the time of surrender or consent to adoption.
Such form shall include checkoff boxes to be
appropriately marked by the biological parent or parents whose consent is
necessary for the relinquishment of such child indicating whether or not such
parent consents to the receipt of identifying information by the child to be
adopted. A copy of such form shall be sent to the department with copies of the
original and amended birth certificates. Such form shall state that it is the
responsibility of the birth parent to update the registry with any changes in
contact information. The form shall additionally advise the biological parents
of the adoption medical information sub-registry and the procedures by which a
birth parent may provide medical information to the sub-registry.
Notwithstanding any inconsistent provision of law to the contrary, the
commissioner is directed to develop any rules and regulations necessary to
expedite the transfer of information from any agency, court or department
necessary to implement this subdivision.
[fn*] NB Effective
11.[fn*]
Upon receipt of the adoption information registry birth parent registration
consent form required by section two hundred fifty-four of the judiciary law,
the commissioner of health of the city of New York shall forward a copy of such
consent form, copies of the original birth certificate, the amended birth
certificate and a copy of the notification of adoption to the adoption
information registry maintained in accordance with this section.
[fn*] NB Effective
(As amended by Laws 1999, ch.
504, Sec. 1, eff. Apr. 1, 2000; Laws 1999, ch. 588, Sec. 1, eff. Nov. 1,
1999; Laws 2000, ch. 521, Sec. 1, eff.
Oct. 4, 2000; Laws 2007, ch. 469, Sec. 5, eff. Nov. 29, 2007; Laws 2008, ch.
435, Secs. 6, 7, eff. Nov.
3, 2008.)
Amendment Notes:
Laws 2008, ch. 435, Sec. 7, eff.
Laws 2008, ch. 435, Sec. 6, eff.
Laws 2007, ch. 469, Sec. 5, eff.
2. Domestic Relations Law § 115-b sub 9
9. Any consent to adoption
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.
3. Domestic Relations Law § sub 7-a
7-a. Any order 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.
II. Recent Trends –
Post Adoption Contact Agreements (“PACA”)
A. Statutory provisions – Domestic Relations Law § 112-b
(Agency adoptions only – post finalization)
§ 112-b Dom. Rel. Post-adoption contact agreements; judicial approval; enforcement.
1. Nothing in this section
shall be construed to prohibit the parties to a proceeding under this chapter
from entering into an agreement regarding communication with or contact between
an adoptive child, adoptive parent or parents and a birth parent or parents
and/or the adoptive child's biological siblings or half-siblings.
2. Agreements regarding
communication or contact between an adoptive child, adoptive parent or parents,
and a birth parent or parents and/or biological siblings or half-siblings of an
adoptive child shall not be legally enforceable unless the terms of the agreement
are incorporated into a written court order entered in accordance with the
provisions of this section. The court shall not incorporate an agreement
regarding communication or contact into an order unless the terms and
conditions of the agreement have been set forth in writing and consented to in
writing by the parties to the agreement, including the attorney representing
the adoptive child. The court shall not enter a proposed order unless the court
that approved the surrender of the child determined and stated in its order
that the communication with or contact between the adoptive child, the
prospective adoptive parent or parents and a birth parent or parents and/or
biological siblings or half-siblings, as agreed upon and as set forth in the
agreement, would be in the adoptive child's best interests. Notwithstanding any
other provision of law, a copy of the order entered pursuant to this section
incorporating the post-adoption contact agreement shall be given to all parties
who have agreed to the terms and conditions of such order.
3. Failure to comply with the
terms and conditions of an approved order regarding communication or contact
that has been entered by the court pursuant to this section shall not be
grounds for setting aside an adoption decree or revocation of written consent
to an adoption after that consent has been approved by the court as provided in
this section.
4. An order incorporating an
agreement regarding communication or contact entered under this section may be
enforced by any party to the agreement or the attorney for the child by filing
a petition in the family court in the county where the adoption was approved.
Such petition shall have annexed to it a copy of the order approving the
agreement regarding communication or contact. The court shall not enforce an
order under this section unless it finds that the enforcement is in the child's
best interests.
5. If a birth parent has
surrendered a child to an authorized agency pursuant to the provisions of
section three hundred eighty-three-c or section three hundred eighty-four of
the social services law, and if the court before whom the surrender instrument
was presented for approval approved an agreement providing for communication or
contact pursuant to paragraph (a) of subdivision two of section three hundred eightythree-c or paragraph (a) of subdivision two of
section three hundred eighty-four of the social services law, a copy of the
surrender instrument and of the approved agreement shall be annexed to the
petition of adoption. The court shall issue an order incorporating the terms
and conditions of the approved agreement into the order of adoption.
Notwithstanding any other provision of law, a copy of any order entered
pursuant to this subdivision shall be given to the parties who approved such
agreement.
6. If a surrender instrument
executed by a birth parent pursuant to section three hundred eighty-three-c or
three hundred eighty-four of the social services law contains terms and
conditions that provide for communication with or contact between a child and a
birth parent or parents, such terms and conditions shall not be legally
enforceable after any adoption approved by a court pursuant to this article
unless the court has entered an order pursuant to this section incorporating
those terms and conditions into a court ordered adoption agreement.
(Added by Laws 2005, ch. 3, Pt. A,
Sec. 63, eff.
Amendment Notes:
Laws 2010, ch.
41, Sec. 4, eff.
Laws 2006, ch.
437, Sec. 17, eff.
B. Case Law
2007 – In Re Jack, 18 Misc3d 397 (
Court refused to approve surrenders to a voluntary agency where PACA was not to be judicially enforceable where birth parents were unrepresented.
2009 – In Re Heidi, 68 A.D.3d 1174 (3d Dept)
The birth parent surrendered two daughters. The surrender included a PACA with a provision for suspension of annual contact in the event that it was detrimental to the children. A petition for enforcement was filed. The Family Court ordered a psychological evaluation. The parties agreed to a therapeutic visit which never occurred as the children refused to participate. The Family Court dismissed the petition without hearing. The Appellate Division found an evidentiary hearing was required prior to dismissal. Standard: best interest.
2010 – Dawn K. v. Lisa R., 76 A.D.3d 794 (4th Dept)
PACA contained a relocation provision triggered if adoptive parents moved more than 250 miles away. Family Court found relocation was less than 250 miles but modified visitation. Appellate Division found Family Court erred in using extrinsic evidence of distance and modifying the unambiguous terms of agreement. Court denied birth mother’s motion for a modification based on relocation.
2010 – In Re Maya V.P., 79 A.D.3d 1794 (4th Dept)
The PACA contained a provision voiding it in the event the birth mother missed two visits within a year. The birth mother was incarcerated and therefore missed two visits. The Appellate Division held that she was not ready, willing and able to perform. However, the Family Court was still required to make a best interest determination before dismissing the petition.
[Note the use of contract law language in the determination birth mother’s rights.]
2011 - In Re Carrie, 81 A.D.3d 1009 (3d Dept)
Birth mother’s rights were terminated based on a default in answering a petition alleging permanent neglect. She sought visitation. She claimed that there was a denial of equal protection because parents who surrender are offered a PACA. The Court found that she was not penalized because she refused to surrender her children. She lost her children due to her default.
2011 – In Re Kristian, 87 A.D.3d 1337 (4th Dept)
Family Court held an evidentiary hearing and dismissed enforcement petitions. Family Court granted adoptive parent’s request for a stay away order of protection. Appellate Division added “until child reaches age 18” to the order of protection.
C. Practical Implications.
1. Enforcement.
Voluntary agencies usually allow the birth parents to select the adoptive parents either before birth or before placement. A major consideration in making a match is whether the party’s expectations about post adoption contact are consistent or at least can be reasonably reconciled. If they cannot be, it is not a match and other families are offered for consideration.
In
• friction from the outset
• unreasonable PACA provision to induce a surrender
• lack of structure post adoption
• adoptive parent must have direct contact with birth parent without agency assistance
• some birth parents are inappropriate
• some adoptive parents are inappropriate
• difficult to maintain privacy
• expectations – some PACA have termination provisions
• lack of clarity – some counties have caseworkers drafting PACAs
• most important factor is the impact on the children
• consider including an organization to schedule and supervise visits
2. Modification
(a) Change in circumstances
• include provisions for the voice of the child to be heard
• perhaps
continued access to attorney for the child in
• flexibility for teenager in voluntary cases (see Appendix “B”)
(b) Relocation of parties
• include alternative means of fulfilling contact
–
• consider cost issues
(c) Waiver
• provisions for termination
• consistency is important for child
• meeting older child’s expectations
• healing process may result in birth parent moving away from contact
(d) Family dynamics
• many families adopt more than one child
– some birth parents are more open to contact than others
– how to manage the child’s feelings when a sibling has a birth parent who visits regularly and one fails to visit
This must be a child centered process to be successful.
• parents must put away ego and hostility
• trust must be built
• fears must be addressed
• opportunity for the attorney for child to bring this perspective to the negotiations
• bring the adoptive parents into process when negotiating PACAs.
(This will require a policy change at OCFS so that adoptive parents can have their attorneys involved at this stage rather than after the child is free.)
• voluntary agencies train their parents to help manage expectations and behaviors
• voluntary agencies provide counselors to birth parents to manage behaviors and expectations
CONCLUSION:
Openness is valuable to the child.
• medical history
• sense of identity
• satisfaction with adoption
Suggested reading:
• The Family of Adoption
By: Joyce Maguire Pavao
• The Third Choice
By: Leslie Fogge
and Gail Mosconi
Last
updated January 5, 2012
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