Adoption Eligibility FAQ

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Frequently Asked Questions Regarding Hearings Purusant to SSL § 372-e Adoption Eligibility

Acronyms and Abbreviations

• ALJ - Administrative Law Judge
• BSH - Bureau of Special Hearings
• OCFS - Office of Children and Family Services
• OTDA - Office of Temporary and Disability Assistance

Questions

What can I request a hearing about?

You have the right to request a hearing to contest the denial of an application by an authorized agency acting on behalf of the New York State Office of Children and Family Services (OCFS) denies an application for adoption or fails to act on it in a timely fashion, the applicant has the right to a hearing to review the denial. You also have the right to request a hearing when the authorized agency has failed to act on your application for adoption.

What notice am I entitled to if my application for adoption is denied?

If the authorized agency denies your application for adoption you are entitled to a written notice that explains the reason your application was denied by the agency. You can request a hearing to challenge that determination.

I haven’t received a decision regarding my application. When can I request a hearing?

If the authorized agency fails to act on your application for adoption within six months of when you submit the application, you can request that the authorized agency provide you with a written statement that explains why your application was not acted on by the agency. If at that time they refuse to provide a written answer, or you disagree with their explanation you can request a hearing.

What are the allowable reasons for denying an application for adoption?

There are several common reasons why an application may be denied:

• The Agency determines that you failed to cooperate with the adoption study.
• The Agency determines that the applicant is emotionally or physically able to care for an adopted child.
• The approval of the applicant would not be in the best interests of the children awaiting adoption [18 NYCRR 421.15(g)(2)].
• An applicant or a household member has a criminal conviction.
• There is an indicated report of maltreatment or abuse for the applicant or a household member.
• Other convictions which do not automatically disqualify an applicant.
• Another household member has a criminal conviction.
• The applicant has an indicated report of abuse or maltreatment.

Am I automatically disqualified from adoption if I have a criminal conviction.

It depends on the conviction.

The authorized agency must deny an adoption application when a criminal history record of the prospective or approved adoptive parent reveals a felony conviction at any time involving:

• Child abuse or neglect
• Spousal abuse
• A crime against a child, including child pornography
• A crime involving violence, including rape, sexual assault, or homicide, other than a crime involving physical assault or battery
• A felony conviction within five years for physical assault, battery, or a drug-related offense

However, the authorized agency may deny an application for adoption if the prospective adoptive parent or another household member has a criminal conviction other than the ones listed above.

What are the criteria for an adoption study?

An adoption study explores the following characteristics of applicants:

• Capacity to give and receive affection;
• Ability to provide for a child’s physical and emotional needs;
• 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;
• Flexibility and ability to change;
• Ability to cope with problems, stress and frustration;
• Feelings about parenting an adopted child and the ability to make a commitment to a child placed in the home; and
• Ability to use community resources to strengthen and enrich family functioning.

How do I request an Adoption Eligibility hearing?

See General FAQ which provides the address to write to a request a hearing as well as some of the information to be included in that written request. Additionally, for Adoption Eligibility hearings, you should also include in the written request for a hearing the following:

• Any representative’s name, address and phone number.
• Date of the adoption application in question and name of authorized agency.
• Date of the notice of denial or written explanation for failing to act on the application.

Who has the burden of proof at the hearing?

The Agency has the burden of proving that the authorized agency’s determination was not “arbitrary and capricious.” If the authorized agency’s determination is deemed reasonable based on the evidence presented, then it must be sustained.

When can I review what will be offered into evidence by the agency?

Pursuant to OCFS regulations regarding your hearing, you are entitled to receive a copy of all documents the Agency intends to introduce as exhibits or evidence at the hearing. These documents are generally provided to you prior to the hearing date but may also be provided to you at the hearing.

May I present witnesses to testify on my behalf?

Yes. Your witness testimony should directly relate to authorized agency’s determination, or failure to act, and the circumstances leading to it. See General FAQ for more information.

What happens if the decision says I won my hearing?

The decision will explain and give directives to the Agency, reversing or remanding the Agency’s determination or action. See General FAQ for more information.