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Burden Is On Parent to Demonstrate Exception to Statutory Relief from Making Reasonable Efforts to Reunite

The Second Department explained how the exception to Family Ct Act 1039-b[b], relating to making reasonable efforts to reunite parent and child, works. Once an enumerated condition which eliminates the need to make reasonable efforts to reunite is demonstrated, the burden switches to the parent to show that the exception should be applied:

Here …ACS [Administration for Children’s Services] established that the mother’s parental rights with respect to a sibling of the subject child had been terminated “involuntarily” …. In support of its motion, ACS submitted the judgments terminating the mother’s parental rights with respect to the child’s two elder siblings …. In opposition to ACS’s motion, the mother failed to prove that “reasonable efforts” [to reunite] should nonetheless still be required under the exception provided for in Family Court Act § 1039-b(b). We reject the mother’s contention that the statute places the burden on the social services official to establish the inapplicability of the exception, rather than on the parent to establish its applicability. …Given the text of the statute, as well as its structure, which make the exception applicable to all six enumerated circumstances, some of which involve egregious conduct by the parent, the only reasonable interpretation is that once the social services official establishes the existence of an enumerated circumstance, the burden shifts to the parent to establish the applicability of the exception. Matter of Skyler, 2013 NY Slip Op 03325, 2nd Dept, 5-8-13

 

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