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

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 make conforming changes to include parents in a court required residential substance abuse treatment program.

Section 5 of the bill amends social services law to require social services agencies to provide parents who are incarcerated or in a residential 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 6 and 7 of the bill amends the social service law to allow family service plan consultations with an incarcerated parent 011 a parent in a residential substance abuse treatment program to be done by video-conferencing.

Justification

New York law requires that social services agencies 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 incarcerated 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%.

Many children would prefer to remain in foster care with the goal of reunification than to "terminate" their ties to their parents. Furthermore, 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.

Therefore, this bill will make New York law more responsive to the particular circumstances of incarcerated parents. Other states' ASFA laws lessen ASFA's negative impact: 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 IS-month period for circumstances beyond the parent's control, such as incarceration for a reasonable period of time.

Providing an exception to ASFA's time frame for incarcerated parents 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 arrange for consistent visiting at correctional facilities and help maintain regular contact between children and their incarcerated parents. Such an exception would not preclude a caseworker from filing a termination petition after 15 months if the caseworker deemed it appropriate. Rather, the exception would allow a caseworker to avoid prematurely filing a termination before he or she has had an adequate opportunity to evaluate the parent's expected release date and compliance with the service plan, to assess the parent-child bond, and to facilitate family reunification.

This modification would assist caseworkers in their effort to make sound, meaningful permanency decisions in cases involving incarcerated parents and their children, and would lessen the risk incarcerated parents face of losing rights to their children forever,

Prior legislative history

2008: S.7216 - Died in Committee

Fiscal implications for state and local governments

None.

Effective date

This legislation would take effect immediately.