Senate Bill S1278

2009-2010 Legislative Session

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

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Archive: Last Bill Status - Stricken

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 19, 2010	recommit, enacting clause stricken
Jan 06, 2010	referred to children and families
Jan 28, 2009	referred to children and families

co-Sponsors

2009-S1278 (ACTIVE) - Details

Law Section:: Social Services Law
Laws Affected:: Amd §§384-b & 409-e, Soc Serv L

2009-S1278 (ACTIVE) - Summary

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

2009-S1278 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S1278

 TITLE OF BILL :
An act to amend the social services law, in relation to the
guardianship and custody of destitute or dependent children who have a
parent or parents incarcerated or in a court ordered residential
substance abuse treatment program


 PURPOSE OR GENERAL IDEA OF BILL :
This legislation would allow a foster care agency to delay the filing
of a petition to terminate the parental rights of a parent who is
incarcerated or participating in a court required residential
substance abuse treatment program when such agency believes that
filing a termination petition is not in the best interests of the
child.

 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 for a child
who has been in foster care for fifteen of the last twenty-two months
when the parent is incarcerated or in a residential substance abuse
treatment program and the social services agency believes that the
filing of a termination petition would not be appropriate.

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.

2009-S1278 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1278

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 28, 2009
                               ___________

Introduced  by Sens. MONTGOMERY, DIAZ, ONORATO -- read twice and ordered
  printed, and when printed to be committed to the Committee on Children
  and Families

AN ACT to amend the social services law, in relation to the guardianship
  and custody of destitute or dependent children who have  a  parent  or
  parents incarcerated or in a court ordered residential substance abuse
  treatment program

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subparagraph (i) of  paragraph  (l)  of  subdivision  3  of
section  384-b  of the social services law, as amended by chapter 460 of
the laws of 2006, is amended to read as follows:
  (i) Notwithstanding any other law to the contrary, whenever: the child
shall have been in foster care for fifteen months  of  the  most  recent
twenty-two  months;  or a court of competent jurisdiction has determined
the child to be an abandoned child; or the parent has been convicted  of
a  crime  as set forth in subdivision eight of this section, the author-
ized agency having care of the child shall file a petition  pursuant  to
this  section  unless  based  on  a case by case determination:  (A) the
child is being cared for by a relative or relatives; or (B)  the  agency
has  documented  in  the most recent case plan, a copy of which has been
made available to the court, a compelling reason  for  determining  that
the filing of a petition would not be in the best interest of the child;
or (C) the agency has not provided to the parent or parents of the child
such  services as it deems necessary for the safe return of the child to
the parent or parents, unless such services are not legally required; OR
(D) THE INCARCERATION OF THE PARENT OR PARENTS,  OR  THE  COURT  ORDERED
PARTICIPATION  OF THE PARENT OR PARENTS IN A RESIDENTIAL SUBSTANCE ABUSE
TREATMENT PROGRAM CONSTITUTES A SIGNIFICANT FACTOR IN THE CHILD'S PLACE-
MENT IN FOSTER  CARE  FOR  A  PERIOD  OF  FIFTEEN  OF  THE  MOST  RECENT
TWENTY-TWO  MONTHS, PROVIDED THAT THE AGENCY HAS NOT DOCUMENTED A REASON

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04430-01-9

S. 1278                             2

WHY IT WOULD OTHERWISE BE APPROPRIATE TO FILE  A  PETITION  PURSUANT  TO
THIS SECTION.
  S  2.  Paragraph  (a)  of subdivision 7 of section 384-b of the social
services law, as amended by section 57 of part A of  chapter  3  of  the
laws of 2005, is amended to read as follows:
  (a)  For  the  purposes of this section, "permanently neglected child"
shall mean a child who is in the care of an authorized agency and  whose
parent  or custodian has failed for a period of either at least one year
or fifteen out of the most recent twenty-two months following  the  date
such  child came into the care of an authorized agency substantially and
continuously or repeatedly to maintain contact  with  or  plan  for  the
future  of the child, although physically and financially able to do so,
notwithstanding the agency's diligent efforts to encourage and strength-
en the parental relationship when such efforts will not  be  detrimental
to the best interests of the child.  IN DETERMINING WHETHER A CHILD IS A
"PERMANENTLY  NEGLECTED  CHILD"  AS DEFINED IN THIS PARAGRAPH, THE COURT
MAY CONSIDER THE SPECIAL CIRCUMSTANCES  OF  AN  INCARCERATED  PARENT  OR
PARENTS,  OR  PARENT OR PARENTS COURT-ORDERED TO A RESIDENTIAL SUBSTANCE
ABUSE TREATMENT PROGRAM, INCLUDING, BUT NOT LIMITED TO,  THE  PARTICULAR
CONSTRAINTS  SURROUNDING  THE  PARENT'S  ABILITY  TO  SUBSTANTIALLY  AND
CONTINUOUSLY OR REPEATEDLY MAINTAIN CONTACT WITH HIS OR HER CHILD AND TO
PLAN FOR THE FUTURE OF THE CHILD AS DEFINED IN  PARAGRAPH  (C)  OF  THIS
SUBDIVISION.  Where a court has previously determined in accordance with
paragraph  (b)  of  subdivision   three   of   section   three   hundred
fifty-eight-a  of  this  chapter  or section one thousand thirty-nine-b,
subparagraph (A) of paragraph (i) of  subdivision  (b)  of  section  one
thousand  fifty-two,  paragraph  (b) of subdivision two of section seven
hundred fifty-four or paragraph (c) of subdivision two of section  352.2
of  the family court act that reasonable efforts to make it possible for
the child to return safely to his or her  home  are  not  required,  the
agency  shall not be required to demonstrate diligent efforts as defined
in this section. In the event that the parent defaults after due  notice
of  a  proceeding to determine such neglect, such physical and financial
ability of such parent may be presumed by the court.
  S 3. Subparagraph (i) of paragraph (e) of  subdivision  7  of  section
384-b  of the social services law, as amended by chapter 911 of the laws
of 1983, is amended to read as follows:
  (i) The parent has failed for a period of six months to keep the agen-
cy apprised of his or her location, PROVIDED THAT THE COURT MAY CONSIDER
THE PARTICULAR DELAYS OR BARRIERS AN INCARCERATED PARENT OR PARENTS,  OR
A  PARENT  OR  PARENTS  COURT-ORDERED  TO  A RESIDENTIAL SUBSTANCE ABUSE
TREATMENT PROGRAM MAY EXPERIENCE IN KEEPING THE AGENCY APPRISED  OF  HIS
OR HER LOCATION; or
  S  4.  Subparagraphs  4  and  5  of  paragraph (f) of subdivision 7 of
section 384-b of the social services law, as amended by chapter  911  of
the laws of 1983,  are amended and a new subparagraph 6 is added to read
as follows:
  (4)  informing  the  parents  at  appropriate intervals of the child's
progress, development and health; [and]
  (5) making suitable arrangements  with  a  correctional  facility  and
other  appropriate persons for an incarcerated parent to visit the child
within the correctional facility, if such visiting is in the best inter-
ests of the child. When no visitation  between  child  and  incarcerated
parent  has  been  arranged  for  or  permitted by the authorized agency
because such visitation is determined not to be in the best interest  of
the  child,  then no permanent neglect proceeding under this subdivision

S. 1278                             3

shall be initiated on the basis of the lack  of  such  visitation.  Such
arrangements shall include, but shall not be limited to, the transporta-
tion  of  the  child  to  the  correctional  facility,  and providing or
suggesting  social  or rehabilitative services to resolve or correct the
problems other than incarceration itself which impair  the  incarcerated
parent's  ability to maintain contact with the child. When the parent is
incarcerated in a correctional facility located outside the  state,  the
provisions  of  this  subparagraph shall be construed to require that an
authorized agency make such arrangements with the correctional  facility
only  if reasonably feasible and permissible in accordance with the laws
and regulations applicable to such facility[.]; AND
  (6) PROVIDING INFORMATION TO AN INCARCERATED PARENT ABOUT  AND  REFER-
RALS  TO  SOCIAL OR REHABILITATIVE SERVICES AVAILABLE WITHIN THE CORREC-
TIONAL FACILITY AND WITHIN THE COMMUNITY AFTER RELEASE  TO  AID  IN  THE
DEVELOPMENT OF A MEANINGFUL RELATIONSHIP BETWEEN THE PARENT AND CHILD.
  S  5.  The  opening  paragraph  of  subdivision 2 and subdivision 3 of
section 409-e of the social services law, as amended by chapter  437  of
the laws of 2006, are amended to read as follows:
  Upon  completion  of any assessment provided for in subdivision one of
this section, and not later than thirty days after placement of a  child
in  foster  care  pursuant to article three or seven of the family court
act or not later than thirty days after a child is removed from  his  or
her  home,  the local social services district shall establish or update
and maintain a family service plan based on the assessment  required  by
subdivision one of this section. The plan shall be prepared in consulta-
tion with the child's parent or guardian, unless such person is unavail-
able or unwilling to participate, or such participation would be harmful
to  the  child,  and  with the child if the child is ten years of age or
older, and, where appropriate, with the child's siblings. Such consulta-
tion shall be done in person, OR WHERE THE  PARENT  IS  INCARCERATED  OR
RESIDING  IN  A  COURT-ORDERED  RESIDENTIAL  SUBSTANCE  ABUSE  TREATMENT
PROGRAM, SUCH CONSULTATION MAY ALSO BE DONE THROUGH  VIDEOCONFERENCE  OR
TELECONFERENCE  TECHNOLOGY,  unless  such  a meeting is impracticable or
would be harmful to the child.  IF THE PARENT IS INCARCERATED OR  RESID-
ING  IN  A  COURT-ORDERED  RESIDENTIAL DRUG TREATMENT FACILITY, THE PLAN
SHALL REFLECT THE SPECIAL CIRCUMSTANCES AND NEEDS OF THE CHILD  AND  THE
FAMILY. The plan shall include at least the following:
  3.  The  plan  shall  be  reviewed and revised, in accordance with the
procedures and standards in subdivision two of this  section,  at  least
within  the  first  ninety  days  following the date the child was first
considered for placement in foster care, and,  if  the  child  has  been
placed  in  foster care pursuant to article three or seven of the family
court act or removed from his or her home, within the first ninety  days
following  the  date  of placement or removal. The plan shall be further
reviewed and revised not later than one hundred twenty  days  from  this
initial  review  and  at  least  every  six months thereafter; provided,
however, that if a sibling or half-sibling of the child  has  previously
been  considered  for placement or removed from the home, the plan shall
be further reviewed and revised on  the  schedule  established  for  the
family based on the earliest of those events. Such revisions shall indi-
cate  the  types,  dates and sources of services that have actually been
provided and an evaluation of the efficacy of  such  services,  and  any
necessary  or  desirable  revisions  in  goals  or planned services. The
review and revision of the plan shall be prepared in  consultation  with
the  child's  parent  or  guardian, unless such person is unavailable or
unwilling to participate, or such participation would be harmful to  the

S. 1278                             4

child,  and  with  the  child if the child is ten years of age or older,
and, where appropriate, with the  child's  siblings.  Such  consultation
shall be done in person, OR WHERE THE PARENT IS INCARCERATED OR RESIDING
IN  A  COURT-ORDERED RESIDENTIAL SUBSTANCE ABUSE TREATMENT PROGRAM, SUCH
CONSULTATION MAY ALSO BE DONE THROUGH VIDEOCONFERENCE OR  TELECONFERENCE
TECHNOLOGY,  unless  such a meeting is impracticable or would be harmful
to the child.
  S 6. This act shall take effect immediately.

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Senate Bill S1278

Sponsored By

Archive: Last Bill Status - Stricken

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co-Sponsors

2009-S1278 (ACTIVE) - Details

2009-S1278 (ACTIVE) - Summary

2009-S1278 (ACTIVE) - Sponsor Memo

2009-S1278 (ACTIVE) - Bill Text download pdf

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Sponsored By

Velmanette Montgomery

Archive: Last Bill Status - Stricken

Actions

co-Sponsors

Ruben Diaz

George Onorato

2009-S1278 (ACTIVE) - Details

2009-S1278 (ACTIVE) - Summary

2009-S1278 (ACTIVE) - Sponsor Memo

2009-S1278 (ACTIVE) - Bill Text download pdf

Comments