A Fair Chance for Families Separated by Prison

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On June 15, 2010 incarcerated parents and their children received long sought-after and critical support in their efforts to maintain ties to each other and to protect parental rights.

On that day, after years of advocacy by the Correctional Association of New York’s Women in Prison Project, the Coalition for Women Prisoners, and allies statewide, Governor David Paterson signed into law the Adoption and Safe Families Act (ASFA) Expanded Discretion Bill.

This bill amends New York’s ASFA law, which almost always requires foster care agencies to file termination of parental rights papers if a child has been in care for 15 of the last 22 months. The median sentence for women in New York’s prisons is 36 months, far exceeding ASFA’s timeline. Incarcerated parents often face barriers in meeting legal responsibilities required to preserve their parental rights, like maintaining contact and finding children a non-foster care home while they are away. The result? ASFA inadvertently tips the scales in favor of terminating parental rights of incarcerated parents, even when such an action is not necessarily in the long-term best interests of the child and family.

The new law–which applies to both mothers and fathers–allows foster care agencies to refrain from filing for termination if a parent is in prison or a residential drug treatment program or if a parent’s prior incarceration or program participation is a significant factor in why the child has been in foster care for 15 of the last 22 months.

For the first time, foster care agencies will be required to inform parents in prison and residential drug treatment of their rights and responsibilities and to provide referrals to social services and family visiting programs. Because mothers in prison are much more likely to report having children in foster care than fathers, the new law has particular importance for incarcerated women.

Working with bill sponsor Assemblymember Jeffrion Aubry and expert advisors, the Project drafted the bill and, with the determined advocacy of members of the Coalition for Women Prisoners and its Incarcerated Mothers Committee, secured its passage in the Assembly every year since 2007. With strong sponsorship by Senator Velmanette Montgomery, the Coalition and community partners mounted an intensified campaign for the bill in the State Senate, including: organizing a series of advocacy days in Albany; creating a user-friendly one-pager and photo slideshow; securing support from key organizations and the State Office of Children and Family Services; stepping up efforts to facilitate the leadership of women directly affected by ASFA; and providing opportunities for mothers to share their experiences in written documents, public forums, and press conferences.

One-by-one, the Project garnered the commitment of senators. By April, all but four of the majority needed to secure passage of the bill had pledged their support. Coalition members, including many formerly incarcerated mothers, traveled to Albany to meet with the remaining hold-outs. The action was a success. Two legislators pledged their support that day and two others agreed shortly after. After a vigorous floor debate, the Senate passed the bill three weeks later.

The new law places New York among the most progressive states in the country for child welfare policies that recognize the special circumstances of families separated by incarceration. In the months to come, the Women in Prison Project and the Coalition for Women Prisoners will work to ensure that the new law is implemented effectively and helps to prevent the devastating, permanent separation of families–families who can, if given a fair chance, rebuild safe, loving and life-long relationships.