Current through Register Vol. 46, No. 39, September 25, 2024
(a) An
adoption study shall explore the following characteristics of applicants:
(1) capacity to give and receive
affection;
(2) ability to provide
for a child's physical and emotional needs;
(3) ability to accept the intrinsic worth of
a child, to respect and share his past, to understand the meaning of separation
he has experienced, and to have realistic expectations and goals;
(4) flexibility and ability to
change;
(5) ability to cope with
problems, stress and frustration;
(6) feelings about parenting an adopted child
and the ability to make a commitment to a child placed in the home;
and
(7) ability to use community
resources to strengthen and enrich family functioning.
(b) Age.
Applicants accepted for adoption study shall be at least
18 years old. The agency shall not establish any other minimum or maximum age
for study or acceptance.
(c) Health.
(1) An approved applicant shall be in such
physical condition that it is reasonable to expect him/her to live to the
child's majority and to have the energy and other abilities needed to fulfill
the parental responsibilities.
(2)
A report of a physical examination conducted not more than one year preceding
the date of the adoption application by a physician, physician assistant, nurse
practitioner or other licensed and qualified health care practitioner, as
appropriate, regarding the members of the household's general health, that
indicates the absence of communicable disease, infection, or illness or any
physical or mental condition(s) which might affect the proper care of an
adopted child, or that presence of any identified affliction does not pose a
risk to the health and safety of an adopted child, must be filed with the
agency. If the adoptive applicant is or has been a foster parent, and the
agency which certified, licensed or approved the foster parent has a completed
medical report on the foster family in its records, the foster family medical
report will satisfy this requirement, if the medical report was completed
within the past year.
(3) Upon a
finding of physical condition(s) which are likely to have negative effects upon
an applicant's ability to carry out the parental role, an adoption study may be
discontinued with the agreement of the applicant. If the applicant does not
agree about the likelihood of such negative effects, he shall be given the
opportunity to seek another medical opinion, and file another medical report,
before a final decision is made.
(4) The record of a study discontinued or
resulting in rejection because of present or expected effects of a medical
condition, must identify the condition found and effects found or
expected.
(d) Marital
status.
Agencies must not consider marital status in their
acceptance or rejection of applicants. However, one married partner may not
adopt without the other unless one partner is living separate and apart from
his or her spouse pursuant to a legally recognizable separation agreement or
decree of separation, or one partner has been or will be living separate and
apart from his or her spouse for a period of three years or more prior to the
commencement of the adoption proceeding. Agencies must not establish policies
which place single or divorced applicants, applicants who are separated from
their spouses pursuant to a legally recognizable separation agreement or decree
of separation, applicants who have been or will be living separate and apart
from their spouses for a period of three of more years, or widowed applicants,
at a disadvantage.
(e)
Fertility.
An adoptive applicant may not be rejected for adoption
because of his, her or their fertility (capacity to have biological children).
The significance of fertility and/or infertility as it relates to the desire to
adopt shall always be explored in the adoption process, but applicants shall
not be required to provide proof of infertility.
(f) Family composition.
(1) The agency may study family size as it
relates to the ability of a family to care for another child and the quality of
life which will be offered to an adoptive child. Policies shall not be
established which require rejection of an applicant based on family composition
without determining its effect on the ability to care for a child and the
quality of life which will be offered.
(2) Presence or absence of children in
applicant's home regardless of their age and sex shall not be a basis for
rejecting applicants.
(3) Adoptive
placement which will result in there being more than two infants under the age
of two in the home at the same time shall be made only after a study
specifically focusing on the family's ability to care successfully for such a
number of infants.
(4) If any
children in an approved home are there as foster children, placement of an
adoptive child shall be delayed if it would result in a family composition
which violates section 378.4 of the Social Services Law.
(5) An adoptive placement shall not be made
where a child previously placed for adoption has not yet been adopted, except:
(i) where the child to be placed is a sibling
of one already in the home;
(ii)
where the delay in adoption is due primarily to court delays; or
(iii) where the child to be placed is
unusually hard to place and other placement resources are not
available.
(6) Any
exceptions pursuant to paragraph (5) of this subdivision shall be fully
documented in the records.
(g) Sex preference and matching.
(1) Single applicants shall not be rejected
because they seek children of only the same sex (or only the opposite
sex).
(2) Exploration of a
preference to adopt a child of a particular gender, where found necessary and
appropriate, shall be carried out openly with a clear explanation to the
applicant of the basis for, and relevance of, the inquiry.
(h) Employment and education of parents.
Employment, education, or volunteer activities of
applicants may not be a basis for rejection.
(i) Religion and race.
Race, ethnic group, and religion shall not be a basis for
rejecting an adoption applicant.
(j) Income.
No applicant shall be rejected on the basis of low
income, or because of receipt of income maintenance payments. The adoption
study process shall evaluate an applicant's ability to budget his resources in
such a way that a child placed with him can be reasonably assured of minimum
standards of nutrition, health, shelter, clothing and other essentials. An
applicant whose budgeting and money management skills appear deficient to
assure such minimum standards shall be referred to any available resources
which might help improve these skills.
(k) Employment and geographical stability.
Changes in employment and residences may be examined to
determine the significance of such changes for the functioning and well-being
of the family and any child to be placed in the home. Frequent changes in
employment and residences shall not be a basis for rejection unless it is
determined that such changes reflect an inability to provide for the well-being
of any child to be placed in the home.
(l) Child care experience.
An adoption study shall inquire into an applicant's
experience with children and offer him and/or her, if feasible, the opportunity
to increase his/her experience, knowledge and skills in this area. However, no
applicant should be rejected solely on the basis of a lack of such
experience.
(m)
Socialization and community support.
The adoption study process shall include inquiry into the
applicant's ability to locate and take advantage of human and organizational
resources to strengthen their own capacity as parents. There shall not be any
requirement for particular levels of educational achievement or kinds of
organizational involvement or community recognition.
(n) Inquiry of State Central Register of
Child Abuse and Maltreatment.
An adoption study must include an inquiry of the
department regarding whether the applicant is the subject of an indicated child
abuse and maltreatment report on file with the State Central Register of Child
Abuse and Maltreatment.
(1) If the
applicant is the subject of such a report, the agency must determine on the
basis of the information it has available and in accordance with guidelines
developed and disseminated by the department whether to approve the
application, except that any agency operated by a local social services
district which had guidelines for the review of persons who are the subjects of
indicated reports of child abuse or maltreatment in use prior to January 1,
1986 may continue to use such agency guidelines in making the required
determination.
(2) If the
application is approved, the agency must indicate in writing in the adoption
study record the specific reason(s) why the person who is the subject of an
indicated report was determined to be appropriate to receive an adoption
placement.
(3) If the agency
rejects the applicant, giving the indicated report as a reason, the applicant
must be informed in writing of the reasons for such decision and that:
(i) he/she has a right to a hearing under
section 424-a of the Social Services Law,
regarding the record maintained in the State Central Register of Child Abuse
and Maltreatment;
(ii) a request
for such a hearing must be made within 90 days of the receipt of the written
notice of rejection which indicates that the rejection is based in whole or in
part on the existence of the indicated report; and
(iii) the sole issue at any such hearing will
be whether the applicant has been shown by a fair preponderance of the evidence
to have committed the act or acts of child abuse or maltreatment giving rise to
the indicated report.
(4) If in a hearing under section 424-a of the Social Services Law the
department fails to show by a preponderance of the evidence that the applicant
committed the act or acts upon which the indicated report is based, the
department will notify the agency which made the inquiry that, pursuant to the
hearing decision, any decision to deny the applicant based on the indicated
report should be reconsidered, upon receiving such notification from the
department, the agency should reopen the adoption study and review its decision
without considering the indicated report.
(5) Notwithstanding any other provision of
this Part, the requirements of this section relating to an inquiry to the
Statewide Central Register of Child Abuse and Maltreatment apply to a person
applying to be an approved adoptive parent to an authorized agency as defined
by section 371 (10)(a) (b) or (c) of
the Social Services Law or an agency approved by the Office of Children and
Family Services to place out children for the purpose of adoption in accordance
with article 13 of the Not-for-Profit Corporation Law.
(o) Inquiry of Out-of-State Child Abuse and
Maltreatment Registry.
(1) This subdivision
applies where an applicant or other person over the age of 18 who resides in
the home of the applicant resided in another state at any time during the five
years preceding the application for approval as an adoptive parent made in
accordance with this Part.
(2) If
the applicant or other person who resides in the home of the applicant has a
history of child abuse or maltreatment in another state, the agency must
determine on the basis of the information provided by the applicable child
welfare agency in the other state and by the applicant and the guidelines
developed by the Office of Children and Family Services, as referenced in
subdivision (o) of this section, whether to approve or deny the
application.
(3) If the application
is approved, the agency must indicate in the adoption study record the specific
reason(s) why the application was approved where an applicant or other person
who resides in the home of the applicant has a history of child abuse or
maltreatment.
(4) The agency must
safeguard the confidentiality of the information received from the applicable
child welfare agency in the other state to prevent unauthorized disclosure and
such agency is prohibited from using such information for any purpose other
than conducting background checks pursuant to this Part.
(p) Additional factors.
(1) Current abuse of alcohol or other drugs
requires the rejection of an application. The record must clearly show how the
finding of such abuse was made.
(2)
An applicant may not be rejected for past drug or alcohol abuse, or past
psychiatric illness or treatment, unless the record shows how these factors
would contribute to the applicant's inability to care for an adopted
child.
(q) Inquiry of
Vulnerable Persons' Central Register.
An adoption study must include inquiry of the Justice
Center for the Protection of People with Special Needs regarding whether the
applicant or other person over the age of 18 who resides in the home of the
applicant is listed on the Vulnerable Person's Central Register.
(1) If the applicant or other person over the
age of 18 who resides in the home of the applicant is listed on the Vulnerable
Persons' Central Register, the agency must determine on the basis of the
information it has available and in accordance with guidelines developed and
disseminated by the Office of Children and Family Services whether to approve
the application.
(2) If the
application is approved, the agency must indicate in writing in the adoption
study record the specific reason(s) why the person who was listed in the above
referenced register was determined to be appropriate to receive an adoption
placement.
(r) Inquiry
of Vulnerable Persons' Central Register.
An adoption study must include inquiry of the Justice
Center for the Protection of People with Special Needs regarding whether the
applicant or other person over the age of 18 who resides in the home of the
applicant is listed on the Vulnerable Persons' Central Register.
(1) If the applicant or other person over the
age of 18 who resides in the home of the applicant is listed on the register of
substantiated category one cases of abuse or neglect maintained by the Justice
Center for the Protection of People with Special Needs, the agency must
determine on the basis of the information it has available and in accordance
with guidelines developed and disseminated by the Office of Children and Family
Services whether to approve the application.
(2) If the application is approved, the
agency must indicate in writing in the adoption study record the specific
reason(s) why the person who was listed in the above referenced register was
determined to be appropriate to receive an adoption placement.
