A Fair Chance for Families Separated by Prison

Co-authored by Sam Streed  

On June 15, incarcerated parents and their children received long sought-after and critical support in their efforts to maintain ties to each other and 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 is 36 months, far exceeding ASFA's timeline.  Moreover, incarcerated parents face barriers in meeting legal responsibilities required to preserve their parental rights, like maintaining contact and finding children a non-foster care home.  The result?  ASFA inadvertently tips the scales in favor of terminating parental rights of incarcerated parents, even when 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 delay filing for termination if a parent is in prison or residential drug treatment.  For the first time, agencies will also be required to inform incarcerated parents 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 Assemblymember Jeffrion Aubry, the Women in Prison Project and Coalition for Women Prisoners drafted the bill and secured its passage in the Assembly every year since 2007.  With the Senate majority change in 2009 and strong sponsorship by Senator Velmanette Montgomery, the groups mounted an intensified campaign for the bill, 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; and stepping up efforts to facilitate the leadership of women directly affected by ASFA.  Mothers shared their experiences in written documents, public forums, and press conferences.

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I'm here so that what happened to me doesn't happen to other people. My parental rights were terminated while I was in substance abuse treatment. Just because I was an addict, doesn't mean I didn't want to be a good mother. At the time I just couldn't be. I think people need to be given more time. Just because you're incarcerated or you're in substance abuse treatment doesn't mean that you don't want to be a mother to your child... I am his mother biologically, but the law says I'm not his mother. The decisions that I made I of yesterday are not my decisions of today. Today I want to be a better person and constructive member of society and I also want to be my son's mother.

--Sharmaine, graduate of WIPP's ReConnect Program, speaking out at a February Coalition press conference sponsored by Senator Montgomery in support of the ASFA Bill

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One-by-one, the Women in Prison Project and Coalition for Women Prisoners secured the commitment of Democratic senators.  By April, all but four had pledged their support.  With Rapid Response funding from the North Star Fund, eight advocates--including six formerly incarcerated women, five of whom were mothers--travelled to Albany on April 27 to meet with the remaining Democratic hold-outs.

The action was a success.  Two of the four legislators pledged their support that day and the 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 laws that recognize the special circumstances of families separated by the criminal justice system.  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 that it succeeds in changing practice and preventing the devastation of permanent separation for families that can, if given the chance, rebuild safe, loving and life-long relationships.