Grounds for Involuntary Termination of Parental Rights - New York

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Soc. Serv. Law §§ 384-b(4); 358-a(3)(b), (12)

An order terminating parental rights shall be granted only upon a finding that one or more of the following grounds are based upon clear and convincing proof:

• The parent has abandoned the child for 6 months immediately prior to the date on which the petition is filed in the court.
• The parent is presently and for the foreseeable future unable, by reason of mental illness or intellectual disability, to provide proper and adequate care for the child who has been in the care of an authorized agency for the period of 1 year immediately prior to the date on which the petition is filed in the court.
• The child is a permanently neglected child.
• The parent severely or repeatedly abused such child.

When a court determines that reasonable efforts to reunite the child with his or her parent are not required, a petition to terminate parental rights may be filed immediately. Reasonable efforts shall not be required when any of the following apply:

• The parent has subjected the child to aggravated circumstances, as defined below.
• The parent of such child has been convicted of any of the following:
  • Murder or voluntary manslaughter and the victim was another child of the parent
  • The attempt to commit any of the above crimes, and the victim or intended victim was the child or another child of the parent
  • Assault or aggravated assault upon a person younger than age 11 that resulted in serious physical injury to the child or another child of the parent
• The parent has failed for 6 months to keep the agency apprised of his or her location.
• An incarcerated parent has failed on more than one occasion to cooperate with efforts to assist the parent to plan for the future of the child or to plan and arrange visits with the child.
• The parental rights of the parent to a sibling of the child have been involuntarily terminated unless the court determines that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future.

'Aggravated circumstances' means the following:

• A child has been either severely or repeatedly abused.
• A child has subsequently been found to be an abused child within 5 years after returning home following placement in foster care as a result of being found to be a neglected child.
• The parent of a child in foster care has refused and has failed completely, over a period of at least 6 months from the date of removal, to engage in services necessary to eliminate the risk of abuse or neglect.
• A court has determined a child 5 days old or younger was abandoned by a parent with an intent to wholly abandon such child and with the intent that the child be safe from physical injury and cared for in an appropriate manner.

Circumstances That Are Exceptions to Termination of Parental Rights

Citation: Soc. Serv. Law § 384-b(3)(l)

When the child has been in foster care for 15 of the most recent 22 months, has been determined to be an abandoned child, or the parent has been convicted of one of the crimes listed above, a petition to terminate the parent's rights shall be filed unless any of the following apply:

• The child is being cared for by a relative.
• The agency has documented a compelling reason for determining that the filing of a petition would not be in the best interests of the child.
• The agency has not provided to the parent the services necessary for the safe return of the child to the parent unless such services are not legally required.
• The parent is incarcerated, in immigration detention or immigration removal proceedings, or participating in a residential substance abuse treatment program, or the prior incarceration or participation of a parent in a residential substance abuse treatment program is a significant factor in why the child has been in foster care for 15 of the last 22 months, provided that the parent maintains a meaningful role in the child's life, and the agency has not documented a reason why it would otherwise be appropriate to file a petition.

For the purposes of this section, a compelling reason why a petition for termination of parental rights is not required may include, but is not limited to, the following:

• The child was placed into foster care, and a review of the specific facts and circumstances of the child's placement shows that the appropriate permanency goal for the child is either a return to his or her parent or discharge to independent living.
• The child has a permanency goal other than adoption.
• The child is age 14 or older and will not consent to his or her adoption.
• There are insufficient grounds for filing a petition to terminate parental rights.
• The child is the subject of a pending disposition.

Circumstances Allowing Reinstatement of Parental Rights

Citation: Fam. Court Act §§ 635; 636; 637

A petition to restore parental rights may be filed when the following conditions are met:

• The order terminating parental rights was issued 2 or more years prior to the date of filing of the petition.
• The termination was based upon grounds enumerated in § 384-b(4)(b), (c) or (d) of the social services law.
• The petitioners consent to the relief requested in the petition or that they withheld consent without good cause.
• The child is age 14 or older, remains under the jurisdiction of the family court, has not been adopted, does not have a permanency goal of adoption, and consents to the relief requested in the petition.

The petitioner shall have the burden of proof by clear and convincing evidence that restoration of parental rights is in the child's best interests. The court may make the following orders of disposition:

• The court may grant the petition and transfer guardianship and custody of the child to the birth parent or parents.
• The court may dismiss the petition, in which case custody of the child with the authorized agency or individual would continue and a permanency hearing would be required to be held as scheduled.
• The court may grant the petition conditionally for a designated period of up to 6 months, during which time guardianship and custody of the child shall remain with the local social services district or authorized agency while the child may visit with, or be placed on a trial discharge with, the birth parent or parents. The court shall direct the district or agency to supervise the child's birth parent or parents, develop a reunification plan, and provide appropriate transitional services to the child and birth parent or parents.