Proposals to Protect Parents’ Rights At Foster Care’s ‘Front Door’ Deferred to Next Session
The New York Legislature has moved a bill to Gov. Andrew Cuomo’s desk that would allow parents who the courts have found neglected, abandoned or abused their children to continue to visit with them, even after a court has terminated their parental rights.
The move was celebrated by advocates for parents’ rights, who have long argued that separating families in the foster care system often causes more harm than good and has a disproportionate impact on communities of color.
“No matter who your child’s parents are, they need to know their parents, they need to know their heritage and culture and the language of their origins,” said Joyce McMillan, a prominent New York City activist for parents’ rights. McMillan said she was “ecstatic” to see the bill pass the Legislature after years of advocacy.
Gov. Cuomo vetoed a similar bill two years ago. He now has until the end of the year to sign or veto this bill, sponsored by Assembly member LaToya Joyner (D).
Most child welfare cases involve neglect, not physical or sexual abuse, and the parents facing such allegations are typically impoverished. Many also struggle with addiction, domestic violence or mental health issues, lawyers who represent parents said. In New York, family court judges can terminate a parent’s rights if they believe the parent has not kept in contact or planned for the child’s future — often described as permanent neglect. In other instances, the court finds a parent has “abandoned or abused the child, or they are mentally ill or disabled in a way that can harm the child.”
Currently, biological parents whose legal rights have been severed in family court may remain in contact with the child, but the child’s caregivers or adoptive parents cannot be legally obligated to facilitate the ongoing connection.
Under Joyner’s proposed legislation, those who have had their parental rights terminated in family court would be able to petition a judge to order that sustained contact.
That would not be a simple prospect. To do so, they would have to convince a judge — in the same court system that found them unfit — that a continued relationship is in the child’s best interest.
Gov. Cuomo vetoed a 2019 version of the bill after vocal opposition from the Adoptive and Foster Family Coalition of New York. The group argued the change would unfairly compromise the autonomy and legal rights of parents who adopt from foster care who — compared to those adopting privately — are more likely to be working-class and people of color. New York City’s Administration for Children’s Services, county social service leaders and some foster agencies also opposed the original bill.
The updated bill passed this week made an effort to mitigate critics’ concerns by requiring that biological parents convince judges that not only is contact in the child’s best interest, but that any opposition to that contact is unreasonable.
Similar laws have been enacted in Florida and Louisiana, and state court rulings have authorized the practice in three other states.
Passage of the New York bill this week was heralded by lawyers who represent children in foster care and their parents, including Nila Natarajan, an attorney in the Family Defense Practice at the nonprofit Brooklyn Defender Services.
“New York has taken bold action to recognize the importance of openness in adoption and continuing family ties for children adopted from foster care,” Natarajan said. “Even if a biological parent is unable to care for their child, post-termination contact allows a child to retain a vital relationship with their parent and allows that biological parent to play a positive role in the child’s life.”
Chris Gottlieb, an attorney in the Family Defense Clinic at the New York University School of Law, said the recently passed bill formally recognizes the value of children’s early bond with their birth parents. Most terminations in the state allege that parents have demonstrated permanent neglect, she added, noting that such determinations can be subjective, and often fall on parents struggling with addiction or domestic violence.
“The parent-child relationship is protected in the Constitution, and it’s not just about the parents’ rights; it’s about the child’s right to be attached to their parents,” she said. “In all other aspects of our culture, the primacy of the parent-child relationship is assumed and deeply respected, and it’s only within the child welfare system that we start to question it.”
In the final days of the legislative session, lawmakers also sent bills to the governor’s desk that some hope could help prevent children from ever entering foster care. Proposed legislation would increase housing assistance for families at risk of losing their children to the child welfare system, and young adults aging out of foster care. Other bills would increase access to affordable child care and expand juvenile justice reforms.
Three bills backed by McMillan’s Parent Legislative Action Network, a coalition of parents and legal advocacy organizations, did not meet final approval in the Legislature this week.
Those bills focused on what’s known as the “front door” of the child welfare system, the early calls and investigations into abuse and neglect claims that can lead to a child’s removal from home. Bills that did not pass the Legislature this year but lawmakers have vowed to re-introduce include:
- A bill that would have required child protection workers to inform parents and caregivers of their legal rights as soon as they arrive to investigate a claim of maltreatment
- A bill that would require callers to the child protection hotline to provide their name and contact information
- A bill that would bar hospitals from testing new moms and newborns for drugs without first obtaining consent
In interviews this week, the leaders of the children and families committees in both houses — Assembly member Andrew Hevesi (D) and state Sen. Jabari Brisport (D) — declared their support for an expansion of parents’ rights in the child welfare system and vowed to move revised versions of the bills during the next session, after lawmakers discuss the matters further.
All told, McMillan said she was encouraged by the passage of the bill allowing biological parents continued contact with their children after their legal rights have been terminated.
“Of course you want to see it all happen today, but just because it didn't happen today it doesn't make me lose hope,” she said. “We've been fighting for that one for some time.”