Surrender Suggestions

  • Have a policy in place that explains duties and workflow.  Train all foster care workers.
  • Have a policy in place regarding conditional surrenders.  Review it – keep it up to date – train it frequently.  Make it available to children’s lawyers, defense attorneys, foster parents, the court.
  • Remember that if there is a condition naming the adoptive parent then you must notify the birth parent if that person will not be adopting.  You are required to return such a matter to court!!!
  • Judicial surrender is preferable process due to no ability to revoke and ability for Judge to assess the parent’s knowledge, protect against claims of DSS duress or coercion. Caseworker should role play process with parent – especially Judge’s questions.  Make sure that there is complete agreement on any terms or conditions and that they are properly written in advance.
  • Extra-judicial not impossible but difficult. Must have a witness who is a certified social worker or an attorney admitted to practice in the state where the surrender is occurring.  Witness cannot have any employment connection with DSS. There are 45 days to revoke and beyond the 45 days if the child is not placed in an adoptive home.  Must be submitted for court review in 15 days.
  • See if other county DSS will help with a surrender from parent in their county – particularly if parent is incarcerated.
  • Out of state surrenders can be judicial or extra-judicial.  Get help from sister DSS.
  • Get an ORDER after the surrender that states that the child has been freed for adoption and deals with the father issue.
    • If child born in wedlock and never a judicial determination that husband is not father then husband must surrender or must be grounds to TPR.
    • If child born out of wedlock and father is a consent father,  must also surrender or have grounds to TPR.
    • If child born out of wedlock and father is a notice father, get court to make finding that he is just a notice father, give him the notice of mother’s surrender or her surrender may not be valid to free child, get Judge to make finding that he need not be noticed for adoption.
    • If child is born out of wedlock and father has no rights – get court to specifically make a finding in order freeing child that he has no rights.
  • Consider the possibility of an accelerated or semi-accelerated adoption filing in surrenders where there is an identified adoptive parent.
Source: NYSCCC conference workshop presentation by Margaret A. Burt, Esq., mburt5@aol.com. Copyright 2010, Reprinted with permission of the author.

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