Since 1992, adoptive parents have been permitted to file an adoption petition for a child who is the subject of a termination action even though the termination action has not yet been concluded. DRL 112(8) The adoptive parents can file all the court paperwork necessary for the adoption and the agency is free to begin home studies and procedures for subsidies, even though the child is not yet freed. While the termination matter is pending, the Judge is not to be informed that an adoption petition has been filed – apparently so that this fact would not affect his or her judicial decision on the termination.
If and when the child is freed by the Judge, the adoption filing is then “revealed” to the Judge and the adoption can proceed in a more expeditious or accelerated fashion. The local agency is not actually allowed to “consent” to the adoption until the child has been freed and the time period has passed for any notice of appeal. If the termination is appealed, the agency is not supposed to consent to the adoption until the appeal is resolved NYCRRR 421.19 (5)( i).
If a child is surrendered, the adoptive parents can also proceed immediately to file an adoption petition. If they had filed the adoption petition during the termination proceeding and the termination is resolved with a surrender, the adoption could immediately proceed. After a Judge accepts the surrender of a foster child, he or she is then supposed to inquire if anyone is seeking to adopt the child. The Judge could then be informed that in fact there has been an adoption petition filed and the court can set a schedule to complete whatever maybe necessary to finalize the adoption. SSL 383-c.
Filing the adoption petition while the termination is still pending is sometimes referred to as an “expedited” or an “accelerated” adoption. It might make sense to do a “semi-accelerated” adoption in some instances where the adoption petition is prepared in advance and filed immediately upon the freeing of the child by the surrender or upon the passing of 30 days after the termination order if no notice of appeal has been filed.
The advantage to considering an accelerated adoption is that it creates faster permanency for the child and allows the adoptive family to end the governmental involvement of the agency in their family lives. There is a savings of foster care money and a savings in caseworker time. Less court time is spent on freed child reviews. The adoption would stay with the Judge who had handled the termination or surrender allowing for continuity of the case – including as to such issues as the court’s rulings regarding the legal status of the father.
In some cases, there may be disadvantages to doing accelerated adoptions. A birth parent may be more likely to file an appeal of a termination, if they become aware of the quick processing of the adoption. If the agency feels the adoptive family could benefit from some supervision and services before the actual finalization, there is less time for that. If the child would not be eligible for an adoption subsidy but for 12 months in care with the same family and that deadline has not yet been reached, it may be to the advantage of the adoptive family to wait.
There are very few expedited adoptions being done in New York State despite the fact that this law has existed for over a dozen years. In many cases, it may be simply be that people are not aware of this possibility. A significant concern has been the issue of the appeal. If the agency is not supposed to “consent” to the adoption until the time for all appeals is finished and if the court can not finalize an adoption in which the agency has not “consented” – what benefit would there be to filing an accelerated adoption if there was any chance of an appeal?
However, many cases are resolved with surrenders in this state and default orders on terminations are not appealable – so matters of this sort may well benefit from consideration of a “semi-accelerated” adoption. Some adoption attorneys are unwilling to do “accelerated adoptions” of foster children until the child has clearly been freed and there is no possibility of appeal since the state will not reimburse an attorney for the filing an adoption that does not result in a finalization! Some counties have benefited from a discussion among the relevant parties – including the local adoption bar – about the possibility of handling some cases in this accelerated fashion.
Source: Coalition conference workshop presentation by Margaret A. Burt, Esq., firstname.lastname@example.org. © 2008, Reprinted with permission of the author.