Last June, New York lawmakers voted to allow parents who have been stripped of their legal rights due to findings of child maltreatment a chance to remain part of their kids’ lives. A majority of the Legislature approved a bill granting biological parents the right to petition the courts for contact with their children being raised in other families — even when adoptive parents object.
But for the second time in three years, the bill was vetoed when it reached the governor’s desk. That followed opposition from foster and adoptive parents who say allowing a judge to order such visitation would undermine adoptive parents’ ability to make decisions about their child’s care.
Supporters and opponents of the Preserving Family Bonds Act, vetoed by Democratic Gov. Kathy Hochul on the final day of the year, remain deeply divided over the emotional and often speculative questions it raised: Do children benefit from ongoing contact with biological parents, even if a court has deemed them unfit caregivers? And who should have the last word on whether maintaining a relationship with a birth parent is in a child’s “best interest” — their adoptive parents, or a judge?
The Preserving Family Bonds Act was first vetoed by Gov. Andrew Cuomo (D) in 2019. The 2021 version of the legislation, sponsored by Assemblymember Latoya Joyner (D) of the Bronx, aimed to assuage Cuomo’s concerns by requiring that biological parents convince the family court that any opposition to contact with their biological children was “unreasonable.”
Hochul also vetoed the legislation, this time with a pointed rebuke. In one of her first actions on child welfare policy as the state’s chief executive, she acknowledged the “challenging circumstances and emotionally grueling process” faced by birth parents who lose rights to their children. But Hochul opposed the idea of allowing courts to override adoptive parents’ wishes.
“Children deserve to have parents with full rights and the law should offer finality to these parents after the lengthy and carefully contemplated adoptive process,” the governor wrote in her Dec. 31 veto message. “As written, this bill does not provide adoptive parents with this critical parens patriae authority to decide what is in the best interests of their child.”
Giving judges the power to order continued contact, Hochul added, “would allow the court to substitute its judgment for that of the adoptive parents.”
The governor’s words echoed a 1989 ruling by the state Court of Appeals in the Gregory B. case, which concluded that compelling contact between an adopted child and their birth parent “arguably may be seen as threatening the integrity of the adoptive family unit.”
While Hochul’s veto drew praise from adoptive parents, it sparked immediate outcry from advocates for parents involved in the child welfare system. Under current New York law, the termination of parental rights by a judge — a ruling so consquential it is often called the “civil death penalty” — leaves parents with no legal recourse to request visitation or contact with a child.
“It’s in the best interest of a child to be in contact with all who love them — that should be the normal thing we do, not the exception,” said Joyce McMillan, executive director of the advocacy group JMacforFamilies and founder of the New York City-based Parent Legislative Action Network. “Just because a parent can’t properly care for a child, doesn’t mean they shouldn’t have contact with them.”
In addition to findings of severe physical abuse or abandonment, a parent’s rights can be terminated if they have a mental illness or intellectual disability that puts the child at risk. Parents can also lose custody due to findings of “permanent neglect,” defined as the failure to provide an “adequate, stable home and parental care for the child.”
Under the federal Adoption and Safe Families Act of 1997, designed to reduce the amount of time before a child finds a permanent home, in most cases family courts must move to sever parental rights once a child has been in foster care for 15 of the past 22 months.
State data from 2019 shows that nearly 1,500 New York children had parents who ultimately did not meet the court’s requirements for reunification — including securing adequate housing and completing substance abuse treatment, mental health treatment or parenting classes. Kids in those cases were “freed for adoption.” That number dropped by more than half the following year, as the pandemic disrupted visitation and court proceedings.
Parents entering the termination stage of a child welfare case face a wrenching choice. They can go to trial, at the risk of losing both their parental rights and any guarantee of seeing their child again. Or, they can agree to give up their parental rights through a “conditional surrender,” which can include a plan for limited future contact with the child — an exchange one Court of Appeals justice described in court documents as representing “no real alternative at all.”
For years, it was not always clear whether family court judges had the power to order contact between birth parents and children who had been adopted. Appellate courts overseeing the suburbs of New York City and western New York had occasionally required post-adoption contact when the main reason for the termination was mental illness or intellectual disability. But in other regions, the courts concluded that once judges severed parents’ rights, they no longer had the authority to order contact.
In 2012, New York’s highest court ruled that current state law does not give family courts the power to order visitation with a biological parent after their rights have been terminated in a trial. The justices ruled in Hailey Z. that the state Legislature was “the entity best suited” to determine the court’s role in the “delicate issues of family relations.”
The Legislature has since voted twice to give judges that power only to have the bills vetoed by two different governors, frustrating parent rights advocates.
“This bill passed both houses because the representatives understand this is what their constituents want and need,” McMillan said. “The governor is basically saying she doesn’t care what communities are asking for.”
For the bill’s sponsor, the pain of being cut off from biological family is personal. Assemblymember Joyner was adopted as a child and did not reconnect with her birth mother until she became an adult, a few years before her birth mother’s death. Being deprived of contact with biological family is “very traumatic” for a child, she told the New York Times in 2019.
“Many New York families have been looking forward to the enactment of the Preserving Family Bonds Act for years and I know they were deeply disappointed by the recent veto of this legislation,” Joyner said in a statement sent to The Imprint. “I remain committed to working with those families and advocates as we seek to make progress on this issue and enhance the quality of life for families throughout our state.”
Opponents of Joyner’s bill said they are open to adopted children having contact with a birth parent when it is in the child’s best interest. But they oppose taking the decision out of adoptive parents’ hands.
“Most adoptive parents I’ve worked with wanted their children to know their biological family and to have contact when it was safe — they understand that their children come with history and connections,” said Richard Heyl de Ortiz, an adoptive father who led the statewide Adoptive and Foster Family Coalition of New York in 2019. “We trust the adoptive parent to keep the child safe, to nurture them and act in their best interest, but this would take away control in a very key way.”
With so much at stake, the end stage of termination cases can be among the most acrimonious proceedings in family court, intensifying strain between the child’s biological parents and those seeking adoption. Opponents of the Preserving Family Bonds Act argue that, emerging from such an adversarial context, ordering adoptive parents to facilitate contact with a birth parent could put the child in the middle of a painful conflict. The situation is made worse, Heyl de Ortiz said, when there is no mediation, no counseling and “no foundation of relationship or cooperation.”
Since last November, more than 500 people have signed the statewide coalition’s petition calling on the governor to veto Joyner’s bill. In a blog post, coalition members argued that judges do not terminate rights if the child is benefiting from visits and a relationship with birth parents, but rather, only “after a parent is given years to reunify with their children and continues to fail in parenting plans.”
Jeanette Vega, who co-directs the Rise parent advocacy group in New York City, disputed that blanket assessment. She relayed the story of a mother whose son was removed at birth. In order to get him back, the mother was told she would need to give up her rights to her older daughter, who was in foster care. After being advised that she would still be able to maintain contact with the girl, the mother signed the surrender agreement.
But the girl’s adoptive family refused to allow contact, and the court ruled it was not in the child’s best interest to have a relationship with her mother or her younger brother.
“It was cruel to have her sign thinking she would be in her life,” wrote Vega, who had helped the mother try to push for contact in court. “The child’s name was changed and they never allowed any contact as they said they would.”
One area where supporters and detractors of post-adoption contact agree is that government and community agencies should do everything possible to help parents succeed in caring for their children, and avoid having their rights permanently severed.
Heyl de Ortiz said he sees promise in the current efforts to offer families assistance so they can stabilize before child removals are necessary — a bedrock of the state’s new plan to take advantage of funds available under the federal Family First Prevention Services Act.
“We should be able to solve problems in more families and support more families before we get to that very difficult, acrimonious place,” Heyl de Ortiz said.