Committee Reports

Support for the Preserving Family Bonds Act

SUMMARY

The Council on Children, the Children and the Law Committee, and the Family Law and Family Court Committee, reissued a report in support of the Preserving Family Bonds Act.  If signed into law by the Governor, the Act will give Family Court judges the discretion to order continued contact between children and their families of origin after a parent’s rights are terminated. This bill is grounded in research and the growing understanding that openness in adoption plays an important role in the well-being of many adopted children and their families.  For instance, biological parents can reinforce that the termination was not the fault of the child and that the parent still loves and cares for the child, even if they are unable to parent him or her. Post-termination contact also allows children access to their racial, ethnic, religious and cultural histories, which can be critical in developing a sense of self.  Further, the Act is consistent with the federal government’s latest guidance regarding state efforts to obtain permanency for children in foster care, issued in January 2021, which placed significant emphasis on the importance of maintaining children’s ties to their families and communities of origin.  The report states, “The Preserving Family Bonds Act will allow New York law to better address the realities and needs of families involved in the child welfare system.  The Act will allow family courts to tailor dispositional orders in termination of parental rights proceedings to meet the needs and best interests of children.  Where the foster parents do not consent to the post-termination contact, and the judge determines that they have a reasonable basis for withholding consent, the contact will not be ordered. We urge the Governor to sign this important bill, which will improve outcomes for foster and adoptive youth across our State.”

Originally issued June 2021; Reissued July 2023

BILL INFORMATION

A.5394 (AM Joyner) / S.6720 (Sen. Brisport) – Establishes procedures regarding orders of post-termination visitation and/or contact between a child and such child’s parent (NYS 2023); A.6700 / S.6357 (NYS 2021).

OUTCOME

Vetoed by the Governor, Veto Memo 107 – December 8, 2023

Vetoed by the Governor, Veto Memo 84 – December 31, 2021

REPORT

REPORT ON LEGISLATION BY THE CHILDREN AND THE LAW COMMITTEE, COUNCIL ON CHILDREN, AND FAMILY COURT AND FAMILY LAW COMMITTEE

A.5394 (M. of A. Joyner)
S.6720 (Sen. Brisport)

The Preserving Family Bonds Act

AN ACT to establish procedures regarding orders of post-termination visitation and/or contact between a child and such child’s parent and for modification of such orders.

THIS BILL IS APPROVED

On behalf of the New York City Bar Association, we are writing to express our support for the Preserving Family Bonds Act, which would give Family Court judges the discretion to order continued contact between children and their families of origin after a parent’s rights are terminated. This bill is grounded in research and the growing understanding that openness in adoption plays an important role in the well-being of many adopted children and their families.

I. New York Law Currently Allows Post-Adoption Contact for Some Children

The current law in New York allows open adoption and post-termination contact when parents voluntarily surrender their parental rights but deprives courts of the authority to allow for contact between children and their biological parents after a parent’s rights have been involuntarily terminated. This procedural distinction should not determine whether and how children have ongoing contact with their families of origin.  Moreover, while this procedural framework presents something of a Hobson’s choice to parents who place the highest premium on being able to maintain contact with their children, it fails to take the child’s position into account at all.

Most children placed in foster care have significant ties to their biological families. Even children who enter foster care at birth and are ultimately adopted will likely have had regular contact with their biological families for a lengthy time period, even years, and developed strong bonds with them prior to termination of parental rights (TPR). Children who enter foster care and are eventually adopted can experience long-term emotional consequences stemming from the break-up of the biological family, the disruption in the children’s most basic source of security, and feelings of displacement that may follow.

II. Post-Termination Contact is Not a New Concept in New York

For many years, New York State judges in the Second and Fourth Appellate Division Departments were authorized to order post-TPR contact pursuant to case law. In June 2012, that practice changed after the Court of Appeals held in Matter of Hailey ZZ that judges did not have the explicit authority to grant post-TPR contact.

As a result of the Hailey ZZ decision, parents risk losing all contact with their children if they choose to defend their rights in a termination of parental rights proceeding and lose. Parents are often coerced into surrendering their rights in order to maintain some level of contact and an open relationship with their children, even if they have a strong case to make that their rights should not be terminated.

The Court of Appeals made clear that the legislature must act for judges to have the authority to order post-TPR contact where continued visitation is in the child’s best interest.

III. The Preserving Family Bonds Act Gives Judges Authority to Determine Whether Post-Termination Contact is in a Child’s Best Interest

The Preserving Family Bonds Act has been narrowly tailored to give Family Court judges the authority to order post-termination contact between children and a biological parent, “as may be agreed upon by the parent, the child, and the foster parent or authorized agency prior to the entry of an order committing the guardianship and custody of the child; or . . . if any party does not consent, the court may order  post-termination visitation and/or contact between the child and the  child’s parent  after  a  hearing at which the court has determined that (A) the party’s consent is being unreasonably withheld; and (B) post-termination visitation and/or contact would be in the best interest of the child.”

Procedurally, the bill amends the Social Services Law to allow a Family Court judge to hear a one-time application for post-termination contact at the dispositional stage of a termination proceeding. Where there is not consent among the parties, the court will hold a hearing to determine if consent is being unreasonably withheld, with the burden of proving unreasonableness on the party seeking post-termination contact.  If the court agrees that consent is being unreasonably withheld, then it will determine whether post-termination contact is in the best interests of the child.

The subject child’s foster parents must be given notice of such an application and have standing to participate in the hearing. Where the subject child is over the age of 14, their consent is required. The bill also permits any party to the hearing and any subsequent guardians or adoptive parents to seek to enforce or modify the order of post-termination contact; modification may be granted where the moving party has established: (1) a substantial change in circumstances; (2) that the modification would be in the best interests of the child; and (3) that any party objecting to the modification does not have a reasonable basis for doing so.

IV. This Bill Will Bring NYS in Line with Prevailing Research on Adoption

A growing body of research shows that retaining contact with biological family members may be in the child’s best interest. Even when a biological parent is unable to care for their child, post-termination contact allows the child to retain a relationship with his or her family and allows a biological parent to play a positive role in the child’s life. It can help a child develop a more secure sense of self by offering them the ability to better understand their biological family and what led to the termination of their legal relationship. Biological parents can reinforce that the termination was not the fault of the child and that the parent still loves and cares for the child, even if they are unable to parent him or her. Post-termination contact allows children access to their racial, ethnic, religious and cultural histories, which can be critical in developing a sense of self.

The Act is consistent with the federal government’s latest guidance regarding state efforts to obtain permanency for children in foster care, issued in January 2021, which placed significant emphasis on the importance of maintaining children’s ties to their families and communities of origin.[1] The guidance made clear that, in the vast majority of families, “adoption should be viewed as an opportunity to expand a child’s experience of family rather than replace their previous family,” and that children’s relationships with their biological parents, siblings, and extended family members should continue even after termination of parental rights and adoption. “Children do not need to have previous attachments severed in order to form new ones. In fact, they will be better positioned to develop new relationships if we work to preserve their original connections, sparing them from additional grief and loss.”

The Preserving Family Bonds Act will allow New York law to better address the realities and needs of families involved in the child welfare system.  The Act will allow family courts to tailor dispositional orders in termination of parental rights proceedings to meet the needs and best interests of children.  Where the foster parents do not consent to the post-termination contact, and the judge determines that they have a reasonable basis for withholding consent, the contact will not be ordered. We urge the Governor to sign this important bill, which will improve outcomes for foster and adoptive youth across our State.

Thank you for considering our position on these important proposals impacting children and families involved in the child welfare system.

Children and the Law Committee
Christina Rich and Rachel Stanton, Co-Chairs
Amy Hozer-Weber, Incoming Chair

Council on Children
Dawne Mitchell, Chair

Family Law and Family Court Committee
Michael A. Weinstein and Tuozhi Zhen, Co-Chairs


Footnotes