1. Method. For the purposes of this section, a child in foster care shall mean a child in the care and custody of an authorized agency pursuant to section three hundred eighty-four-a of this title or article three, seven or ten of the family court act. The guardianship of the person and the custody of a child in foster care under the age of eighteen years may be committed to an authorized agency by a written instrument which shall be known as a surrender, and signed:

1. (a) if both parents shall then be living, by the parents of such child, or by the surviving parent, if either parent of such child be dead;
2. (b) if either one of such parents shall have for a period of six months then next preceding abandoned such child as set forth in section three hundred eighty-four-b of this title, by the other of such parents;
3. (c) if such child is born out of wedlock, by the mother of such child, and by the father of such child, if such father's consent would be required for the child's adoption, pursuant to section one hundred eleven of the domestic relations law;
4. (d) if both parents of such child are dead, or if such child is born out of wedlock and the mother of such child is dead, by the guardian of the person of such child lawfully appointed, with the approval of the court or officer which appointed such guardian to be entered of record.

(b) The authorized agency to which the child was surrendered shall file an application for approval of the extra-judicial surrender with the court in which the adoption proceeding is expected to be filed or, if not known, the family or surrogate's court in the county in which the agency has its principal office. If the child being surrendered is in foster care as a result of a proceeding before the family court pursuant to article ten or ten-A of the family court act or section three hundred fifty-eight-a of this chapter, the application shall be filed in the family court that exercised jurisdiction over such proceeding and, shall be assigned, wherever practicable, to the judge who last presided over such proceeding. The application shall be filed no later than fifteen days after execution of such surrender. The application shall be accompanied by affidavits from all the witnesses before whom the surrender was executed and acknowledged as provided for in paragraph (a) of this subdivision, stating:

1. (i) the date, time and place where the surrender was executed and acknowledged;
2. (ii) that the parent was provided with a copy of the surrender;
3. (iii) that the surrender was read in full to the parent in his or her principal language and the parent was given an opportunity to ask questions and obtain answers regarding the nature and consequences of the surrender, including the consequences of, and procedures to be followed in, cases of a substantial failure of a material condition, if any, contained in the surrender instrument and the obligation to provide the authorized agency with a designated mailing address, as well as any subsequent changes in such address, at which the parent may receive notices regarding any substantial failure of a material condition, unless such notification is expressly waived by a statement written by the parent and appended to or included in such instrument; and
4. (iv) that the parent executed and acknowledged the surrender.

(c) The authorized agency to which a child is surrendered pursuant to this subdivision must affix an affidavit to the application, by an employee responsible for providing or arranging supportive counseling, which specifies:

1. (i) when supportive counseling was offered to the parent by the authorized agency;
2. (ii) whether the parent accepted the offer of supportive counseling; and
3. (iii) if accepted, when supportive counseling was provided and the nature of such supportive counseling.

(b) The instrument for a judicial surrender and the instrument for an extra-judicial surrender shall be in a form prescribed by the commissioner after consultation with the chief administrator of the courts and shall state in plain language in conspicuous bold print on the first page:

1. (i) that the parent has the right, before signing the surrender, to speak to a lawyer of her or his own choosing and any other person she or he wishes; to have that lawyer and any other person present with her or him at the time of the signing of the surrender; and has the right to ask the court to appoint a lawyer free of charge if the parent cannot afford to hire one; and has the right to have supportive counseling;
2. (ii) that the parent is giving up all rights to have custody, visit with, speak with, write to or learn about the child, forever, unless the parties have agreed to different terms pursuant to subdivision two of this section, and unless such terms are written in the surrender, or, if the parent registers with the adoption information register, as specified in section forty-one hundred thirty-eight-d of the public health law, that the parent may be contacted at anytime after the child reaches the age of eighteen years, but only if both the parent and the adult child so choose;
3. (iii) that the child will be adopted without the parent's consent and without further notice to the parent, and will be adopted by any person that the agency chooses, unless the surrender paper contains the name of the person or persons who will be adopting the child; and
4. (iv) that the parent cannot be forced to sign the surrender paper, and cannot be punished if he or she does not sign the paper; and would not be subject to any penalty for refusing to sign the surrender.

(c) A surrender instrument for a judicial surrender also shall state in plain language in conspicuous bold print at the beginning thereof that the surrender becomes final and irrevocable immediately upon execution and acknowledgement, and that the parent cannot bring a case in court to revoke the surrender or to regain custody of the child. Where the parties have agreed that the surrender shall be subject to conditions pursuant to subdivision two of this section, the instrument shall further state in plain language that:

1. (i) the authorized agency shall notify the parent, unless such notice is expressly waived by a statement written by the parent and appended to or included in such instrument, the attorney for the child and the court that approved the surrender within twenty days of any substantial failure of a material condition of the surrender prior to the finalization of the adoption of the child; and
2. (ii) except for good cause shown, the authorized agency shall file a petition on notice to the parent unless notice is expressly waived by a statement written by the parent and appended to or included in such instrument and the child's attorney in accordance with section one thousand fifty-five-a of the family court act within thirty days of such failure, in order for the court to review such failure and, where necessary, to hold a hearing; provided, however, that, in the absence of such filing, the parent and/or attorney for the child may file such a petition at any time up to sixty days after notification of the failure. Such petition filed by a parent or attorney for the child must be filed prior to the child's adoption; and
3. (iii) the parent is obligated to provide the authorized agency with a designated mailing address, as well as any subsequent changes in such address, at which the parent may receive notices regarding any substantial failure of a material condition, unless such notification is expressly waived by a statement written by the parent and appended to or included in such instrument. Nothing in this paragraph shall limit the notice on the instrument with respect to a failure to comply with a material condition of a surrender subsequent to the finalization of the adoption of the child.

(d) An extra-judicial surrender instrument also shall state in plain language in conspicuous bold print at the beginning thereof that:

1. (i) the name and address of the court in which the application for approval of the extra-judicial surrender will be filed;
2. (ii) that a revocation of the surrender will be effective if it is in writing and postmarked or received by the court named in the surrender within forty-five days of the signing of the surrender; and

3. (iii) that a revocation of the surrender more than forty-five days after its signing will not be effective if the child has been placed in an adoptive home, and the surrender shall be final and irrevocable and the parent cannot revoke the surrender or bring a case in court to revoke the surrender or regain custody of the child, and that the agency will not notify the parent when the child is placed in an adoptive home, and the parent may lose all rights at the end of the forty-five day period without further notice. Where the parties have agreed that the surrender shall be subject to conditions pursuant to subdivision two of this section, the instrument shall further state in plain language that:

   1. (A) the authorized agency shall notify the parent, unless such notice is expressly waived by a statement written by the parent and appended to or included in such instrument, the law guardian for the child and the court that approved the surrender within twenty days of any substantial failure of a material condition of the surrender prior to the finalization of the adoption of the child; and
   2. (B) except for good cause shown, the authorized agency shall file a petition on notice to the parent unless notice is expressly waived by a statement written by the parent and appended to or included in such instrument and law guardian in accordance with section one thousand fifty-five-a of the family court act within thirty days of such failure in order for the court to review such failure and, where necessary, to hold a hearing; provided, however, that, in the absence of such filing, the parent and/or law guardian for the child may file such a petition at any time up to sixty days after notification of the failure. Such petition filed by a parent or law guardian must be filed prior to the adoption of the child; and
   3. (C) the parent is obligated to provide the authorized agency with a designated mailing address, as well as any subsequent changes in such address, at which the parent may receive notices regarding any substantial failure of a material condition, unless such notice is expressly waived by a statement written by the parent and appended to or included in such instrument. Nothing in this subparagraph shall limit the notice on the instrument with respect to a failure to comply with a material condition of a surrender subsequent to the finalization of the adoption of the child.