For a child born out of wedlock, the father must also be served with the summons and petition if (1) for a child who came into foster care over six months of age, the father consistently maintained contact with the child and paid child support on behalf of the child before and after the child came into foster care, or (2) if the child was less than six months old when placed into foster care, the father was ready, willing, and able to take custody of the child when the child entered foster care.
Even if the parents were not married and the father does not meet the above requirements, the father must also be notified (by delivering the summons to the father in person or by mail) of the proceedings if one of the following conditions is met:
. 1) The court has entered an order of filiation (a paternity order declaring the biological father to be the child’s legal parent),
. 2) The father is named as the father of the child on the child’s birth certificate,
. 3) The father is listed on the New York State Putative Father Registry (a Department of Social Services list of any person adjudicated by a court to be the father, any person who has filed with the registry a notice of intent to claim paternity, and any person who has filed an Acknowledgment of Paternity with the registry),
. 4) The mother identified the father in a sworn (notarized) written statement,
. 5) The father was living with the child and the child’s mother and was alleging to be the father when the child came into foster care, or
. 6) The father married the mother within six months after the child was born. 36
If none of these circumstances exists, the court may still order that the father be notified of the case.
DO THE PARENTS NEED A LAWYER TO REPRESENT THEM?
Although respondents have the right to represent themselves, a respondent should obtain a lawyer. Respondents may hire lawyers to represent them in court or ask the court to assign lawyers at no cost if they cannot afford to hire their own. Each respondent must have a separate lawyer.
WHO ELSE WILL HAVE A LAWYER?
The Court will assign a lawyer to represent the child. The same lawyer who has been representing the child in the child protective case is usually assigned to the child in the termination proceeding. The foster care agency will also be represented by a private attorney, not the ACS attorney in the child protective case.
WHAT HAPPENS AT THE FACT FINDING HEARING?
The foster care agency must prove that each parent abandoned, permanently neglected, or severely abused the child, or that the parent is mentally unable to care for the child now and in the foreseeable future due to mental illness or mental retardation. The foster care agency must do this by calling witnesses to testify and/or presenting written evidence. The agency may also have to show that it used diligent efforts to help the parent complete his/her service programs and provided any other assistance to prepare the parent for the return of the child to his/her care. The petitioner must prove the allegations by clear and convincing evidence. The agency may not be required to prove these allegations against a father who was only entitled to be notified of the proceedings.
Each parent has the right to be present at the hearing, to see the evidence, and to hear the witnesses. Each parent has the right to testify and present his/her own witnesses and evidence. The child’s lawyer may also cross-examine witnesses and present additional evidence.
If the court finds that the petitioner has not proven the case, the petition will be dismissed and the child may remain in foster care or, if appropriate, be returned to the parent. If the agency has proven that the parent has severely or repeatedly abused the child, has abandoned the child, or is mentally unable to care for the child for now and in the foreseeable future, the court may terminate that parent’s rights. If the agency has proven that the parent permanently neglected the child, the court must hold a dispositional hearing.
WHAT IF THE PARENTS DO NOT COME TO COURT FOR THE HEARING?
If a parent does not come to court even though he/she was served properly with the court papers and had the opportunity to appear, the court can hold the hearing without that parent. The judge will then hear only evidence from the foster care agency and the child’s lawyer, and will make decisions without the parent being present. This hearing is called an inquest.
WHAT IF ONLY ONE PARENT COMES TO COURT?
Each parent’s case is independent of the other parent. If one parent does not appear, an inquest will be held against him/her. But the parent who does appear is still entitled to a full fact finding hearing on the case against him/her, including testifying and calling witnesses. By not coming to court, the parent does not delay his/her case or the other parent’s case.
WHAT HAPPENS AT THE DISPOSITIONAL HEARING?
At the dispositional hearing, the child protective agency, child’s attorney, and parents may submit evidence regarding what is best for the child. After everyone has had the opportunity to present evidence and/or testify, the court determines what will be in the child’s best interests: (1) terminating the parents’ rights and preparing the child for adoption, or (2) continuing efforts to work with one or both parents to return the child to a parent.
If a parent’s rights are terminated, the child can be adopted without the parent’s consent. After the child is adopted, the biological parents’ names are removed from the child’s birth certificate and a new birth certificate is issued with the adoptive parents’ names.
If the court finds that it is best to continue to try to return the child to one or both parents, the court may dismiss the petition (even though there was sufficient proof at the fact finding hearing) or suspend judgment (delay the case for up to one year). This might happen if the parent has taken significant steps to comply with the agency’s service plan after the petition was filed and the court finds that the parent and child would benefit from allowing the parent more time to correct his/her problems and have the child returned to the home. If the court suspends judgment, the court will issue written conditions that the parent must cooperate with during the following six or twelve months. If the parent cooperates, the petition will be dismissed at the end of the suspended judgment period. If the parent does not complete the goals of the suspended judgment, the court may terminate the parent’s rights and free the child for adoption.
Parents may choose to give up the right to a trial and surrender their parental rights. The judge must determine that the parent giving up his/her parental rights understands what he/she is doing and is surrendering freely and without pressure from someone else. The foster care agency and child’s attorney must agree to the surrender. If the parties agree to the surrender, then the foster care agency will withdraw the termination case and there will not be a finding of abandonment, permanent neglect, severe abuse, or mental unfitness. Surrenders may be conditional or unconditional:
1) Unconditional Surrender – If a parent chooses to surrender unconditionally, the parent gives up all his/her parental rights, including the right to have custody, visit with, speak with, write to or learn about the child.
2) Conditional Surrender – If the parties agree, a parent may keep some of his/her parental rights while allowing the child to be adopted. A parent may have a say in who adopts his/her child by signing a conditional surrender that specifies who will adopt the child. Before the parent can sign such a surrender, the proposed adoptive parent must be investigated by the foster care agency, including submitting to criminal and child abuse/neglect clearances and home visits, and be approved as an adoptive parent. A conditional surrender may also allow a parent to keep the right to contact and visit with the child after the adoption (called “open adoption”). If the parent wants an open adoption, the judge must determine that the visits or contact will be beneficial for the child. The contact portion of the surrender may be made enforceable (the parent can go to court if the adoptive parent does not permit the agreed to visitation) and the provision for contact may be incorporated into the order of adoption.
CAN A TERMINATION BE BROUGHT IN A CUSTODY CASE?
No, a petition to terminate parental rights can only be brought when the child is in foster care, during a child protective case (when the child is with a relative and not technically in foster care), or in a private adoption case (such as step-parent adoptions). A parent cannot bring a termination proceeding against the other parent in a custody case.
RESTORATION OF PARENTAL RIGHTS
A petition to restore parental rights can be filed when the following conditions are met:
. 1) The order terminating parental rights was issued more than two years ago;
. 2) The termination of parental rights was based on abandonment, mental illness, mental retardation, or permanent neglect;
. 3) The child is 14 years old or older, is still in foster care, and the permanency goal is no longer adoption.
The parent seeking to restore his/her parental rights must prove to the court that restoration of parental rights and return of the child to the parent’s custody is in the child’s best interests. The parent, child, attorney for the child, and the court must agree to the restoration of parental rights. If the foster care agency objects to restoration, the parent must prove that the agency does not have good cause to object.