The Devil’s in the Details

What parents need to know about post-adoption contract

Almost three years ago, I signed a “conditional surrender,” giving up parental rights of my oldest child, who was eventually adopted. The agreement stated that I would continue to be able to visit my daughter. The adoptive parent broke the agreement and I have not seen my daughter in almost three years. Now I regret not fighting to keep my two children together.
Here, Margaret Burt, an attorney with 37 years of experience in child welfare law, explores what rights parents have to keep contact with
their children after adoption.

Q: Can a parent have visits after the termination of parental rights?

A: Once a termination has happened, the court has no authority to order visitation. A parent can ask for visitation, and foster parents and the agency can talk about it, but there’s no ability for the judge to order it.

Q: If parents decide to sign a conditional surrender, what can they do to make sure that the visitation agreement is as strong as possible?

A: Be careful about the details. If the agreement says the birth mother is going to get three visits a year, what does that mean? Does that mean the adoptive parent gets to say your three visits are January 1, January 2, January 3? I bet the birth mother thought that meant one visit every four months. The order should say that. Birth parents also need to make sure that they have a way to contact the lawyer that helped them after the case closes. So if it’s two years later and it’s not working, they can call and say, “You represented me on this agreement and I’m having a problem.” The lawyer may or may not represent that parent. The court ultimately decides if the parent is entitled to counsel. But at least the lawyer should listen and help get that parent back into court.

Q: What rights do parents have if they do go back to court?

A: The birth parent can tell the judge in what way the agreement has been broken. The judge will also hear arguments from the adoptive parent.
The judge doesn’t have to say, “Well, this was the agreement and you absolutely have to do it.” Some courts have said that the circumstances have changed and it’s no longer in the child’s best interest to have contact. Other courts have ruled that the adoptive parent doesn’t have a good reason to not be abiding by the terms, and have ordered that the adoptive
parent must obey the terms. The judge also has the power to enforce visitation orders. This can include fines and incarceration for contempt if the adoptive parent refuses to obey the judge’s order.

Q: Connection between siblings has proven to be in the best interest of children. Are there laws that ensure that this connection is maintained after adoption?

A: In New York State, when parental rights are terminated, sibling rights are not terminated. The sibling can sue for ongoing contact. Whether the judge orders that ongoing contact is going to have to do with whether it’s in the best interest of the children.

What You Need to Know if You Are Facing Termination?

If you’ve been off track in bringing your children home, you may feel that you’ve already lost. But it’s important to talk to your lawyer about exceptions to the Adoption and Safe Families Act that may allow you to continue working toward reunification. Each state has different rules. Below are some New York state exceptions you should talk to your lawyer about.

Agencies can decide not to change the goal to adoption, even though a child has been in care for 12 months in a row or 15 out of 22 months.
In New York, agencies aren’t required to file a termination of parental rights when a child is in care with a relative; is 14 or older and doesn’t want to be adopted; when a parent is very close to bringing a child safely home; or is incarcerated or in in-patent drug treatment and is doing everything
to maintain a positive relationship with the child.

This doesn’t mean that an agency won’t file to terminate parental rights, explains lawyer Margaret Burt. It just means that if they believe there are “compelling reasons” not to, they don’t have to.

Even when the goal has been changed to adoption, a judge can grant a “suspended judgment”— meaning they can give a parent more time.
Judges can grant a suspended judgment when they think it’s in the best interest of the child. But it’s important to know that that time is limited, typically to one year.
If parents agree to a suspended judgment after a TPR is filed, they will have to sign a statement admitting that they permanently neglected their child. After that, they’ll have a second chance to bring their child home. If they don’t succeed in the time given, though, their parental rights can be terminated without a trial.

If the agency has filed to terminate parental rights, you can sign a “conditional surrender” instead or go to trial and fight. When you’re deciding whether to fight “the most important thing,” says Burt, “is to make sure that you’re having quality discussions with your attorney about the
strength of your case.”
In New York, if you lose, you also have a right to an appeal. Some parents win. But, notes Burt, it’s important to know that the success rate of appeals is low.

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