A Parental Rights Primer for New York
What happens when the state steps in for the well-being or best interest of the childBy Andrew Brandt | Reviewed by Canaan Suitt, J.D. | Last updated on July 12, 2023 Featuring practical insights from contributing attorneys Jacqueline Newman and Joseph Nivin
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Few parents want to involuntarily lose the rights to their child—even if the child is in the foster care system.
“There’s basically a fundamental right for a parent to raise his or her child,” says Jacqueline Newman, a family law attorney at Berkman Bottger Newman & Schein in New York City. “The general presumption is that the best interest is to be raised by your parents. But if that puts you in danger, the state is going to jump in as a last resort.”
Here are a handful of scenarios in which a foster care agency can file a termination-of-rights form under state law:
- Abandonment, meaning the parent hasn’t visited the child for at least six months
- Permanent neglect, where, for 12 consecutive months, the parent has failed to plan for their child to have a permanent living arrangement
- If a parent’s mental illness or mental health interferes with raising a child
- Severe and repeated abuse (domestic violence)
When a termination form has been filed, the parents will appear before a judge with their attorney, the foster care agency’s lawyer, and an attorney appointed to the child.
In all cases, the parent can sign a conditional surrender form, which makes the child eligible for adoption. But parental rights don’t immediately settle in with adoptive parents.
Parental Rights in the Adoption Process
“After the child is free for adoption, that’s not the end of the story,” says Joseph Nivin, who runs his own law firm. “The adoptive parents need to retain counsel, there will be fingerprinting, there will be a social worker that comes and does a home study. It is a lengthy process, and it can be frustrating; as far as they’re concerned, the child is theirs—and yet they’re not the legal parents yet.”
Nivin adds that conditions—though difficult to enforce—can be added to the surrender form.
“If the child lives with relatives, the parents can sign a conditional surrender allowing the children to be adopted—but only by that relative,” he says.
Parents can also try to fight the termination form, but, according to Nivin, chances of success are limited—and they’ll potentially spend tens of thousands of dollars in the process. Likely the only way a parent can get a termination dismissed is if the agency not done due diligence. For example, “if the issue is the parent’s drug use, and it turns out the agency never referred them to a drug program, the petition can be dismissed,” Nivin says.
If your child has been taken by the Administration for Children’s Services (ACS), both attorneys recommend seeking help right away.
Nivin offers a recent example in which a mom brought her young child to a party, drank too much, and got into a disagreement with her husband. “ACS got involved. [Our] argument was it was a one-time thing—she made a mistake,” he says. “I told her, ‘Get into a program right away.’ A lot of people think that’s admitting they have a problem. But the case will always go more smoothly if you get into service right away; it’s not an admission that there’s something wrong with you.”
Adds Newman, “It comes down to making an effort.”
A Common Pitfall in Parental Rights Termination Cases
The biggest mistake Nivin sees parents make in termination cases is arguing that they did nothing wrong to have their child removed in the first place.
“The people who have their rights terminated, for the most part, either took too long to get into services or didn’t get into services at all. If people are telling you that you have a problem, the last thing you want to do is sit there and deny it,” he says.
That said, it’s considered to be in the interest of everyone if the parent is able to continue caring for his or her child.
“The common misconception is that if someone is bad parent, their rights will get terminated,” says Newman. “It’s actually very difficult.
For more information on child support, termination of parental rights, legal custody, court orders and court proceedings, see our overview of family law.
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