Relates to the guardianship and custody of destitute or dependent children who have a parent incarcerated or in a residential substance abuse treatment program

Summary of specific provisions

Section 1 of the bill amends the social services law to allow a foster care agency to delay the filing of a termination petition when the parent or parents are incarcerated or participating in a residential substance abuse treatment program, or when the prior incarceration or participation of a parent or parents in a residential substance abuse treatment program is a significant factor in why the child has been in care for 15 of the last 22 months, provided that the parent maintains a meaningful role in the child's life, and the agency has not documented a reason why it would otherwise be appropriate to file.

Section 2 of the bill amends the social services law to allow the court to consider the special circumstances of an incarcerated parent or a parent in a residential substance abuse treatment program in determining whether a child is a "permanently neglected child" as defined in the social services law.

Section 3 of the bill amends the social services law to allow the court to consider the circumstances of an incarcerated parent or a parent in a residential substance abuse treatment program when determining whether such parent has failed to keep the social service agency apprised of their location.

Section 4 of the bill amends social services law to require social services agencies to provide parents who are incarcerated or in a resi- dential substance abuse treatment program with information about and referrals to rehabilitative services available to such parent to aid in the development of a meaningful relationship between such parent and the child.

Section 5 of the bill amends the social service law to allow meetings to create and review family service plans to be done through the use of technology, including video-conference and teleconference technology, where an in-person meeting is impracticable.

Section 6 is the effective date.

Justification

New York law almost always requires social services agencies to begin proceedings to terminate parental rights when a child

has been in foster care for fifteen of the most recent twenty-two months. This law was established pursuant to the federal Adoption and Safe Families Act (ASFA). ASFA's stated goals are laudable: to prevent children from languishing in foster care and to find permanent homes quickly for children who cannot be reunified with their families. In practice, however, ASFA is often a blunt instrument that causes serious damage. Under ASFA, whenever a child has lived in foster care for 15 of the most recent 22 months, the foster care agency is almost always required to file a petition to terminate parental rights.

Parents in prison are required to fulfill the same responsibilities as non-incarcerated parents. Unlike other mothers, however, mothers in prison have limited family visiting opportunities; can only place collect calls at certain times; are often restricted from participating in foster care planning meetings; and have difficulty speaking with their lawyers and being produced for family court. Notwithstanding these obstacles, if an incarcerated mother fails to maintain consistent contact with or find a non-foster care home for her child, the foster care agency can file a petition to terminate her parental rights.

Considering that the median sentence for women in New York's prisons is 36 months, incarcerated mothers are at serious and disproportionate risk of losing their parental rights. Because more children of incarcerated mothers are placed in foster homes and agencies than children of incar- cerated fathers, ASFA has a disproportionate impact on incarcerated mothers.

Preliminary research suggests that ASFA's rigid requirements have had a negative effect on incarcerated parents and their children. Termination of parental rights proceedings involving incarcerated parents nationwide increased by an estimated 108% from ASFA's enactment in 1997 to 2002. In contrast, in the five years preceding the implementation of ASFA, the number of termination proceedings involving incarcerated parents increased by only 67"/o.

Many children would prefer to remain in foster care with the goal of reunification than to "terminate" their ties to their parents. Further- more, thousands of children in New York State continue to languish in foster care even after being' "freed" for adoption, Of the roughly 21,000 children who were freed for adoption in New York City from 2000 to 2004, about 14,000 were adopted and more than 7,000 were not. ASFA's time-frames allow little space for case-specific determinations, despite the unique circumstances of children with incarcerated parents.

This bill will make New York law more responsive to the unique circum- stances of families separated by incarceration. Other states' ASFA laws lessen ASFA's negative impact incarcerated parents and their children: Nebraska and New Mexico exclude incarcerated parents from ASFA's time frame if the only reason for filing a termination petition is because a parent is incarcerated; Colorado makes an exception if a child has been in foster care for longer than the prescribed 15-month period for

circumstances beyond the parent's control, such as incarceration for a reasonable period of time.

Providing expanded discretion would empower foster care agencies to meet the special challenges of families involved in the criminal justice system. In appropriate circumstances, caseworkers would have more time to work toward reunification or other permanent placements that do not involve serving family bonds forever.

The bill contains protections to ensure appropriate use of this discretion: before delaying, agencies must document that the parent plays a meaningful role in his or her child's life and that the contin- ued involvement of the parent in the child's life is in the child's best interest. In addition, the bill does not limit agency discretion to file termination proceedings either after 15 months if grounds exist or at any point if the court has determined that the parent severely or repeatedly abused the child. Rather, the bill would allow a caseworker to avoid prematurely filing a termination before he or she has had an adequate opportunity to evaluate the parent's efforts, the parent-child bond, and the possibility for reunification or other non-adoptive perma- nent placements.

This bill will amend New York's law to reflect the specific circum- stances of incarcerated parents and their children, aid Family Courts in making more informed decisions about children whose lives are impacted by prison, and assist and guide foster care agencies in their efforts to make child-centered and family-specific permanency decisions in cases involving parental incarceration.

Prior legislative history

A8465 passed Assembly in 2008.

Fiscal implications for state and local governments

Given that termi- nation of parental rights proceedings are the most extensively litigated phase of child protective cases, requiring dozens of hours of time from agency attorneys, law guardians, agency personnel, foster care casework- ers, judges, court personnel, and parents' attorneys, it is very likely that this bill will save the state funds.

Effective date

This legislation would take effect immediately.