Support Senator Montgomery's "Incarcerated Parents" Bill

Velmanette Montgomery

September 30, 2009

Legislation that Expands the Adoption and Safe Families Act (ASFA) -- S.3438/A.5462

What Does This Bill Do?

~ It amends New York’s child welfare law to reflect the special circumstances of criminal justice involved

~ It grants foster care agencies discretion to delay filing termination of parental rights papers when a parent’s incarceration or participation in a residential drug treatment program is a significant factor in why the child has been in foster care for 15 of the last 22 months.

Why Support This Bill?

ASFA almost always requires a foster care agency to file a termination of parental rights petition if a child has been in foster care for 15 of the last 22 months. ASFA does have limited exceptions. These exceptions, however,do not provide foster care agencies with the discretion and guidance they need to handle cases involving parental incarceration. The result is devastating to children in foster care and their incarcerated parents. The AFSA Expanded Discretion Bill gives incarcerated parents and their children a more fair opportunity to work toward reunification and safe permanency options that do not involve severing family bonds forever.

Help New York achieve more effective permanency outcomes for children whose lives have been affected by parental incarceration.

• Almost 73% of women in New York’s prisons are mothers. An estimated seven to 14% of children in foster care (1,900 to 3,700 children) have a parent in a state prison or local jail in New York.

• Because more children of incarcerated mothers are in foster homes than children of incarcerated fathers, ASFA likely has a disproportionate impact on mothers in prison.

• Termination means that parents and children lose all legal ties to each other forever. After termination, parents have no right to find out about their children’s well-being, where they live, or even if they have been adopted.

• Termination does not necessarily equal permanency for a child: many children continue to stay in foster care even after being “freed” for adoption. One-third of the 21,000 children eligible for adoption in New York City from 2000 to 2004 were not adopted immediately after being “freed.”

• The incarceration of a primary caretaker is traumatic and painful for children. Permanently severing the parent-child relationship can add to the trauma children experience. Some children would rather reunify with the mother they know and love when she is released, even if that means remaining in foster care for a longer time.

• In situations involving parental incarceration, ASFA’s timeline can trump permanency decisions that are in children’s best interests by being interpreted in practice as a formula that automatically leads to termination.