New York State lawmakers approved legislation this week that would allow judges to order contact between parents and children, after the court severs the parent’s rights due to child abuse or neglect.
State Sen. Diane Savino (D) and Assemblymember LaToya Joyner (D) were the lead sponsors on the measure, known as the Preserving Family Bonds Act. The bill passed in both Democratic-controlled houses with a handful of Republican votes, and now heads to the desk of Gov. Andrew Cuomo (D), who has not commented publicly on the issue.
“Currently, family court judges are not allowed to protect the rights of children to contact or visit with their parents and siblings after parental rights have been terminated, even when the court deems it in the best interest of the children,” said Assemblymember Joyner, in a statement emailed to The Chronicle of Social Change by a spokesperson. “The Preserving Family Bonds Act provides that, if it is truly in the best interest of the children to stay connected with their families, then judges may allow them to do so, in a manner that is safe and appropriate.”
This issue has been a priority for the parents’ rights movement in New York City, including legal aid groups for low-income parents, like Brooklyn Defender Services, and Rise Magazine, which is published by parents who have been investigated by the child welfare system. Some advocacy groups and service providers for children also support the bill, including the Legal Aid Society of New York City and Covenant House, which runs youth shelters.
“I work with a mother whose rights were terminated over a decade ago and to this day, her heart breaks for the loss of her child. Now, hopefully, the law can match the experience of parents whose biological connection to their children never fades,” said Joyce McMillan, a parent organizer at the Parent Legislative Action Network and family coordinator at Sinergia, Inc., in the lead statement of a joint press release from the bill’s supporters. “When parents and their children want to maintain a relationship, and that relationship is in the child’s best interests, courts should allow that to happen.”
A judge’s decision to terminate a parent’s rights to their child is informally known as a “civil death penalty.” It’s the rare, dramatic end result of some of the allegations of child abuse and neglect received by authorities each year.
There were over 42,000 court petitions filed last year by county governments accusing parents of mistreating their children, according to state data. The law requires reunification of parents and children to be the first priority in these cases, and most children will either never enter foster care, or will return home within months. But if caseworkers decide a child will not be able to return home safely within years, they are required to file a petition in court to terminate the parents’ rights, so a child can be adopted.
According to federal data, there were 2,319 terminations approved by judges in New York in 2017, the lowest number in the last decade.
Termination hearings can be the most contentious to occur in any courtroom, say observers. Parents — many of them from distressed minority communities — are put on the witness stand for detailed questioning about their children’s most traumatic experiences. After termination, it is up to New York’s adoptive parents to allow contact between their children and birth parents. Some advocates maintain this can result in denied contact, even when it’s in the child’s best interests.
“Maintaining family connections can help young people develop their identities, understand their medical history, and establish support systems to aid them throughout life,” said Karen J. Freedman, executive director of Lawyers For Children, in a press release. “Unfortunately, many children adopted out of foster care suffer when contact with their biological families is completely severed. Adoptive families can also become destabilized and courts should have the option to allow young people to maintain ties with their families if it is in their best interest.”
Five other states grant judges discretion to mandate contact.
The proposal faced vigorous public opposition from foster and adoptive families, mounting a letter-writing campaign to lawmakers. The Adoptive and Foster Family Coalition of New York (AFFCNY) issued a two-page memo arguing that the bill infringed on the rights of adoptive parents, “contradict[ing] the legal construct that adoptive parents are the legal parents under the law, imbued with 100 percent of the rights afforded to all parents.”
Further, the memo argued, the bill threatens to undermine foster and adoptive parent recruitment, which has lagged in New York and nationwide in recent years.
“Conceptually, there is no disagreement whatsoever about the value, whenever possible, of children maintaining connections to their biological family,” said Richard Heyl de Ortiz, executive director of the Coalition. “[But] to mandate a certain level of court-ordered contact between parties that are very entrenched, without any support, is really troubling. It’s also odd to say to an adoptive parent ‘you are now legally the parent of this child, but in this one way you have no control over what happens to the child.’”
One prominent parents’ rights advocate questioned the bill’s focus on the very end of a process that badly needs reform in its earlier stage.
“Rather than doing this, why not just be more scrutinizing of terminating parental rights?” said Vivek Sankaran, a law professor at the University of Michigan. “In other ways, if visits are good for a child, we should never even consider terminating parental rights.”
The Council of Family and Child Caring Agencies (COFCCA), which represents nonprofit foster care agencies statewide, and the New York Public Welfare Association (NYPWA), which represents county government child welfare directors, both opposed the bill on similar grounds as AFFCNY.
Assemblymember Mary Beth Walsh (R), on the assembly floor, read from a statement by the NYPWA before voting against the Act:
“The most serious negative consequences of this bill would be the persistent involvement of the court in the child’s life even after the adoption, lasting the entire childhood, potentially … this bill will subject foster children to the clear possibility that their entire childhood will be spent in endless loops of ongoing visitation litigation.”
In response to these objections, proponents have emphasized that “the best interest of the child” standard, not the “wishes of the biological parent,” will be the basis for any judge’s evaluation. They’ve also pointed to the shorter times to permanency for children in states with rules like the Preserving Family Bonds Act in place.
AFFCNY has plans to now focus its opposition efforts on Governor Cuomo. In an email to The Chronicle, a spokesperson for Cuomo said that their office will be reviewing the bill.