Family court judges in New York currently can't allow any kind of contact between a parent and their child after parental rights have been terminated—but that's likely to change after the state Legislature approved a bill addressing the issue last week.

The Preserving Family Bonds Act was approved by state lawmakers in the waning days of this year's legislative session after failing to become law in previous years.

It will now be sent to Gov. Andrew Cuomo for a signature. A spokesman for Cuomo said they'll review the bill, which is among hundreds the office will consider in the coming months.

The legislation would allow family court judges to review an application from a parent whose rights have been terminated to maintain contact with their child, as long as it would be in the child's best interest. The level of visitation would be decided by the judge, and could range anywhere from physical contact to snail mail.

It's partly in response to a decision from the New York Court of Appeals, the state's highest court, from seven years ago on the issue.

The case, called Matter of Hailey ZZ, involved a child whose father's parental rights had been terminated after being sent to prison. The trial court then denied a request from the father to have continued visitation with the child, saying that a section of the state's social services law did not allow the judge to grant the request. The Court of Appeals affirmed that decision.

“Absent legislative warrant, Family Court is not authorized to include any such condition in a dispositional order made pursuant to Social Services Law Section 384-b,” the court's decision said.

State lawmakers have now acted to provide that legislative warrant, according to the bill. It's sponsored by state Sen. Diane Savino, D-Staten Island, and Assemblywoman Latoya Joyner, D-Bronx.

“It doesn't make sense when you have the ability to maintain that relationship,” Savino said. “Yes, maybe they can't parent, they can't be the person who has custody of you and takes care of you on a daily basis—but that doesn't mean they should be eradicated from your life.”

It was the brainchild of a coalition of defense attorneys organized by Joyce McMillan, a parent and advocate for the bill who started the Parent Legislative Action Network. The group is composed of various defender organizations in New York City, as well as the Center for Family Representation in Queens.

“After I experienced child welfare, I saw how horrible it was and I saw it was not designed to allow families to persevere,” McMillan said. “It wasn't a system that preserved families and every step of the way there were barriers that put you at risk of never seeing your child again.”

McMillan spoke about the issue to several attorneys, who helped write the legislation and organize the coalition. Savino and Joyner signed on to sponsor the bill in 2017, but it didn't move until this year.

The issue is personal for both Savino and Joyner. Joyner's sister was placed in foster care at a young age and wasn't reunited with her biological parents until decades later. Savino started her career as a caseworker and has worked on family law issues in the Legislature.

Savino said federal regulations promulgated more than a decade ago have created an additional barrier for parents who want to maintain contact with their children. When a child remains in foster care for 15 out of the last 24 months, Savino said, the regulation requires caseworkers to shift from trying to reunite the family to terminating the parent's rights.

“It was an arbitrary decision. It might have seemed well intended by the federal government, but it really has created all sorts of problems because people don't get better in 15 months,” Savino said. “Sometimes it takes longer.”

That, coupled with the Court of Appeals decision barring family court judges from ordering contact between children and parents whose rights have been terminated, has made it more difficult for families to stay in touch.

The bill wouldn't mandate judges to order visitation between children and parents. That would be at the discretion of the judge, who would be required to consider whether contact would be in the best interest of the child. Sometimes, it's not, Savino said.

“Some children shouldn't be required to continue visitation. Some parents should not be allowed to maintain a presence in their kid's life,” Savino said. “But the only way you can have that discussion is by changing the statute.”

McMillan said that, while the experience can be traumatic for children who want to maintain contact, it's also hard on parents who don't have a choice in the matter under state law.

“It's a very high energy time,” McMillan said. “You're on edge every day because you don't know if you're going to be able to maintain a relationship with their child and no parent should have to face that.”

It's the same for the child, Savino said, which she hopes will convince Cuomo to approve the legislation. She said he'll likely confer with the state Office of Children and Family Services on the bill, but that the benefit to the children involved should merit his signature.

“We hope they see the wisdom of this. Probably the most traumatic experience for children in this system is when they're first removed from their parents. Even in the worst circumstances they go kicking and screaming, because that's still your mother,” Savino said. “It doesn't matter.”

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