States, help families stay together by correcting a consequence of the Adoption and Safe Families Act

While the goal of the Adoption and Safe Families Act is noble, the law has the unintended consequence of depriving incarcerated parents of their legal rights to their children.

by Alison Walsh, May 24, 2016

Five million children experience the incarceration of a parent at some point in their lives. As a result, many of these children will live with relatives such as grandparents or be placed in foster care. Some of these families will never be legally reunited.

With the passage of the federal Adoption and Safe Families Act (ASFA) in 1997, states were required to automatically file a petition to terminate parental rights once a child has been in foster care for 15 of the most recent 22 months. The goal of ASFA is to prevent children from staying in foster care indefinitely by making them eligible for adoption after a set period of time has passed.

But these noble intentions conflict with the realities of mass incarceration, and the law stacks the odds against incarcerated parents seeking to maintain their legal rights to their children.

In New York, for example, the median minimum sentence for women is 36 months — more than twice as long as the ASFA deadline. In 2008, almost 73% of women incarcerated in New York reported having one or more children. ASFA sets these mothers up to lose their children as soon as their sentences exceed 15 months. Loss of parental rights is almost always permanent and strips the parent of any right to know whether her child has been adopted, let alone to see her child.

ASFA does have three built-in exceptions. Parents can be exempted from the 15 out of 22 months timeline when:

1. The child is under a relative’s care
2. A state agency finds a “compelling reason” that terminating parental rights is not in the child’s best interest
3. The state has failed to make “reasonable efforts” to reunite the child with his or her parents

Women in state prison most commonly have their mothers care for their children while they are locked up, and because incarceration disproportionately impacts certain families and communities, some grandmothers must care for multiple grandchildren. This can be financially burdensome and make staying in touch even more difficult. A majority of people are incarcerated over 100 miles from their families and even a single phone call can be prohibitively expensive.

When regular communication is such a challenge, the “compelling reason” exception is of little practical value for any family impacted by ASFA. Caseworkers are more likely to exercise the “compelling reason” exception if they have direct knowledge of the parent/child relationship or have observed the two interacting. This often leaves parents dependent upon caseworkers to arrange and be present for prison visits.

Despite the obvious challenges of navigating visits and court proceedings from behind bars, close to half of the states use time-driven standards — not case-by-case considerations — to automatically file for termination of an incarcerated person’s parental rights.

Fortunately, movements for reform led by activists — including currently and formerly incarcerated parents — have succeeded in liberalizing the ASFA guidelines in New York and Washington. These states allow for increased flexibility in cases of parental incarceration; parents can be judged individually by the roles they play in their children’s lives, rather than the lengths of their sentences.

New York passed the ASFA Expanded Discretion Bill in 2010. This act gives foster care agencies the authority to postpone filing for termination of parental rights when the petition is based solely on a parent’s incarceration or participation in a residential drug treatment program. Washington followed suit in 2013 with the Children of Incarcerated Parents Bill, which awards similar discretion to courts in cases involving parental incarceration. In addition, the New York and Washington laws require the states to inform parents of their rights and responsibilities and take into account the challenges of meeting those responsibilities from behind prison walls.

These efforts to ease ASFA’s strict guidelines do not prohibit states from terminating parental rights when a judge determines it is in a child’s best interest to do so. But by giving incarcerated parents a chance to advocate for reunion with their children, these states acknowledge that incarceration alone does not automatically make someone an unfit parent for life. New York and Washington recognize that arbitrarily severing parent-child relationships can do more harm than good.

For more information on ASFA and various state reforms, see:

• Philip M. Genty, Moving Beyond Generalizations and Stereotypes to Develop Individualized Approaches for Working with Families Affected by Parental Incarceration. Family Court Review, Vol. 50 No. 1, January 2012 36-47
• Washington State’s 2013 Children of Incarcerated Parents Bill