N.Y. Comp. Codes R. & Regs. tit. 18 § 421.6

Current through Register Vol. 46, No. 45, November 2, 2024

Section 421.6 - Surrender

Authorized agencies must comply with the following surrender procedures:

(a)Children in foster care.

When requested by the parent(s) or guardian(s) of a child in the care and custody of an authorized agency, a social services official must determine, after appropriate consultation, if in such social services official's judgment, without regard to the likelihood of placing the child in an adoptive home, the best interests of the child will be served by a surrender. The social services official must make arrangements for either the judicial or extra-judicial surrender of the custody and guardianship of the child to the authorized agency pursuant to section 383-c of the Social Services Law.

(b) When such a surrender is made by the mother of a child born out of wedlock, the authorized agency must ensure that the procedures relating to the rights and interests of the father of the out of wedlock child, as outlined in section 421.5 of this Part, are appropriately followed.

(c) Authorized agencies must advise applicants of the obligation of social services districts to evaluate the obligation of parents of a child born in wedlock, to contribute to the support of the child as long as the child remains a public charge. In determining whether to require financial contribution, the districts must consider the best interests of the child in addition to the ability of the parent to contribute.

(d)Judicial surrenders.

When the social services official determines that a judicial surrender would be in the best interests of the child, the judicial surrender must be executed and acknowledged before a judge of the family court or a surrogate in this state. When a parent who is also in foster care is surrendering the child, the judicial surrender must be executed and acknowledged before a judge of the family court.

(1) A judicial surrender of a child in foster care executed by a parent or guardian before a court in another state must meet the requirements of section 383-c (1)(a) and (b) of the Social Services Law. A certified copy of the transcript of the surrender proceeding, showing compliance with section 383-c (1)(b) of the Social Services Law must be filed as part of the adoption proceeding in this State.

(2) The authorized agency must inform the parent or guardian surrendering a child in foster care to the authorized agency that a judicial surrender becomes final and irrevocable immediately upon its execution and acknowledgement before a judge of the family court or a surrogate.

(e)Extra-judicial surrenders.

The surrender of a child in foster care not executed and acknowledged before a judge of the family court or a surrogate must be executed and acknowledged by the parent or guardian in the presence of at least two witnesses, at least one of whom has been trained in accordance with subparagraph (2)(i) of this subdivision, before a notary public or other officer authorized to take proof of deeds.

(1) Terms.

The terms of an extra-judicial surrender agreed upon by the parent or guardian and the authorized agency, including the name of any person the parent may specifically designate to adopt the child, and the execution of such surrender, must meet the requirements of section 383-c of the Social Services Law.

(2) Required witnesses.

An extra-judicial surrender must be witnessed by two persons. At least one witness must be an employee of the authorized agency trained to accept surrenders. The second witness must be either a certified social worker or an attorney duly admitted to the practice of law before the courts of the state in which the surrender is executed who is not an employee, volunteer, consultant, agent of or attorney for the authorized agency taking the surrender. A required witness may serve as the notary public at the surrender if the witness is licensed as a notary public.

(i) Employee witness. The authorized agency must provide in-service training and instruction on the taking of extra-judicial surrenders to employees who will serve as the witnesses for the authorized agency. At a minimum, such in-service training and instruction must cover the following:

(a) the responsibilities of the employee witness to ensure that the surrender instrument is read in full to the parent(s) or guardian(s) in their principal languages; provide an opportunity for the parent(s) or guardian(s) to ask questions concerning the surrender or its execution and to have these questions answered; ensure that the parent(s) or guardian(s) understand their rights and the consequences of signing the surrender which must be specified in bold print on the first page of the instrument; ensure that the required supportive counseling is offered to the parent(s) or guardian(s); ensure that the required affidavits are completed by the witnesses; ensure that the parent(s) or guardian(s) understand the procedures for revocation of the surrender; and ensure that the parent(s) or guardian(s) sign and receive copies of the surrender instrument; and

(b) the requirements of section 383-c of the Social Services Law for taking an extra- judicial surrender; the contents of the required surrender forms; the form for the required affidavits and their contents; the requirements for revoking the surrender; and the requirements for submitting the signed surrender to the court.

(ii) Responsibilities of nonemployee witness:

(a) The nonemployee witness must be either a certified social worker or an attorney duly admitted to the practice of law before the courts of the state in which the surrender is executed and cannot be an employee, volunteer, consultant, agent of or an attorney for the authorized agency to which the child is being surrendered. Neither the nonemployee witness nor the nonemployee witness's employer may receive payment or any type of compensation for the services provided by the witness other than actual and reasonable transportation expenses incurred in order to witness the surrender.

(b) The following conditions must be met to ensure the impartial selection and independence of nonemployee witnesses:

(1) any certified social worker or attorney duly admitted to the practice of law before the courts of the state in which the surrender is executed may serve as a witness to an extra-judicial surrender;

(2) the same person may not serve exclusively as the only nonemployee witness for an authorized agency;

(3) any person serving as a nonemployee witness for a surrender cannot be an employee of an agency or organization contractually or financially responsible for or involved with the delivery of services to the child or his or her family; and

(4) any person serving as a nonemployee witness may not be related within the second degree to an employee witness to the same surrender.

(f)Contents of affidavits.

Both the employee witness and the nonemployee witness before whom a surrender is executed and acknowledged must complete affidavits attesting to the facts and circumstances surrounding the execution of the surrender.

(1) The affidavits of the employee and nonemployee witness must recite:

(i) the date, time and place where the surrender was executed;

(ii) that a copy of the executed surrender was provided to the parent(s) or guardian(s);

(iii) that the surrender was read in full to the parent(s) or guardian(s) in their principal languages and the parent(s) or guardian(s) were given an opportunity to ask questions and obtain answers regarding the nature and consequences of the surrender; and

(iv) that the parent(s) or guardian(s) executed and acknowledged the surrender.

(2) The employee-witness affidavit must also recite:

(i) when supportive counseling was offered to the parent(s) or guardian(s) and whether the parent(s) or guardian(s) accepted the counseling; and

(ii) if accepted, when the supportive counseling was provided and the nature of such counseling.

(3) If supportive counseling is provided, an affidavit from the individual who provided the supportive counseling must be attached to the surrender attesting to when supportive counseling was offered, when it was provided, and the nature of such counseling. A person other than an employee-witness must provide the counseling.

(g) Voluntary agencies may accept a surrender of a child at their discretion. Acceptance of such surrender without the explicit advance approval of the social services district, in and of itself will not obligate the social services district to provide support, care or services.

(h) Before accepting a surrender, the authorized agency must ascertain that the biological parent or guardian has a full understanding of the meaning thereof and of the religious faith requirements of section 373 of the Social Services Law.

(i) Obtain from the surrendering person, including an out-of-wedlock father whose consent is required pursuant to section 421.5 of this Part, a separate signed statement of the religious wishes of the surrendering person as to the placement of the child, on the State prescribed form.

(1) This statement must advise the parent or guardian of the right to express the wish that the child be placed in a family of the same religion as the parent, or of a different religion from the parent, or without regard to religion or with religion as a subordinate consideration.

(2) In addition, the statement must make explicit to the surrendering person that if he or she wishes to do so, he or she may express the wish that if no home has been found for the child within the number of months to be specified by that person, then the placement of the child will be made without reference to these expressed religious wishes which may be impeding placement.

(3) The statement must advise the parents that their religious wishes will be complied with so far as they are consistent with the best interests of the child and where practicable.

(4) When the father and mother of a child born in or out of wedlock have signed statements of religious wishes as to the placement of the child and these wishes conflict, they must be advised that the social services official or authorized agency may place the child according to either religious preference, based on the best interests of the child and where practicable.

(j)Children who are not in foster care.

When requested by the parent(s) or guardian(s), a social services official must determine, after appropriate consultation, if in such official's judgment, without regard to the likelihood of placing the child in an adoptive home, whether the best interests of the child will be served by a surrender. The care, custody and guardianship of a child not in foster care may be committed to an authorized agency by a surrender executed either before a judge of the family court or a surrogate, or in the presence of one or more witnesses before a notary public or other officer authorized to take proof of deeds, pursuant to section 384 of the Social Services Law.

(k) Where an agency has occasion to believe that, because of a language problem, the person surrendering the child may not fully understand the surrender instrument or the right to express a religious preference as specified in subdivision (f) of this section or the provision relating to prohibition against proceeding for custody of the child or to revoke or annul the surrender when 30 days have elapsed after the execution of the surrender and the child has been placed in the home of adoptive parents, then the agency shall obtain a separate signed statement (to be included as part of the permanent records of the agency), in a language understood by the person, which shall establish that the agency has fully explained these matters to the surrendering person.

(l)Conditional surrender.

A surrender executed pursuant to either section 383-c or 384 of the Social Services Law may be conditioned upon the adoption of the child by a particular designated person or persons and/or provide for post surrender and post adoption communication or contact between the child and the child's biological parents and/or biological siblings or half siblings. Where the surrender is conditioned upon the adoption of the child by a particular person or persons, such person or persons must be either a certified or approved foster parent in accordance with Part 443 of this Title or an approved adoptive parent in accordance with this Part and the permanency plan for the child must be for such child to be adopted by the person or persons. The authorized agency must comply with the requirements set forth in sections 383-c and 384 of the Social Services Law, section 1055-a of the Family Court Act and section 112-b of the Domestic Relations Law regarding conditional surrenders.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 421.6

Amended New York State Register December 23, 2015/Volume XXXVII, Issue 51, eff. 12/23/2015