Relates to the guardianship and custody of destitute or dependent children who have a parent or parents incarcerated or in a residential substance abuse treatment program.
Ayes (5): Montgomery, Schneiderman, Huntley, Duane, McDonald
Ayes W/R (1): Marcellino
Ayes (19): Kruger, Krueger, Stachowski, Oppenheimer, Montgomery, Duane, Parker, Stavisky, Dilan, Sampson, Stewart-Cousins, Thompson, Adams, Breslin, Espada, Klein, Perkins, Valesky, Maziarz
Ayes W/R (7): Diaz, Volker, Padavan, Saland, Farley, Hannon, Larkin
Nays (7): DeFrancisco, Johnson O, LaValle, Seward, Nozzolio, Leibell, Marcellino
BILL NUMBER: S2233A REVISED 06/01/09
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 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 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 when the parent or parents are incarcerated or participating in a residential substance abuse treatment program, or when the prior incarceration or participation of a parent or parents in a residential substance abuse treatment program is a significant factor in why the child has been in care for 15 of the last 22 months, provided that the parent maintains a meaningful role in the child's life, and the agency has not documented a reason why it would otherwise be appropriate to file.
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 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 5 of the bill amends the social service law to allow meetings to create and review family service plans to be done through the use of technology, including video-conference and teleconference technology, where an in-person meeting is impracticable.
Section 6 is the effective date.
New York law almost always requires social services agencies to begin proceedings to terminate parental right, 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 Family 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 increases 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.
This bill will make New York law more responsive to the unique circumstances of families separated by incarceration. Other states' ASFA laws lessen ASFA's negative impact incarcerated parents and their children: 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 15-month period for circumstances beyond the parent's control, such as incarceration for a reasonable time.
Providing expanded discretion 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 work toward reunification or other permanent placements that do not involve serving family bonds forever.
The bill contains protections to ensure appropriate use of this discretion: before delaying, agencies must document that the parent plays a meaningful role in his or her child's life and that the continued involvement of the parent in the child's life is in the child's best interest. In addition, the bill does not limit agency discretion to file termination proceedings either after 15 months if grounds exist or at any point if the court has determined that the parent severely or repeatedly abused the child. Rather, the bill would allow a caseworker to avoid prematurely filing a termination before he or she has had an adequate opportunity to evaluate the parent's efforts, the parent-child bond, and the possibility for reunification or other non-adoptive permanent placements.
This bill will amend New York's law to reflect the specific circumstances of incarcerated parents and their children, aid Family Courts in making more informed decisions about children whose lives are impacted by prison, and assist and guide foster care agencies in their efforts to make child-centered and family-specific permanency decisions in cases invoking parental incarceration.
PRIOR LEGISLATIVE HISTORY : A.8465 passed Assembly in 2008.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS : Given that termination of parental rights proceedings are the most extensively litigated phase of child protective cases, requiring dozens of hours of time from agency attorneys, law guardians, agency personnel, foster care caseworkers, judges, court personnel, and parents' attorneys, it is very likely that this bill Will save the state funds.
EFFECTIVE DATE : This legislation would take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ S. 2233--A A. 5462--A 2009-2010 Regular Sessions S E N A T E - A S S E M B L Y February 13, 2009 ___________IN SENATE -- Introduced by Sens. MONTGOMERY, HASSELL-THOMPSON, KRUEGER, MONSERRATE -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families -- reported favor- ably from said committee and committed to the Committee on Finance -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee IN ASSEMBLY -- Introduced by M. of A. AUBRY, PERRY, CAMARA, ROSENTHAL -- read once and referred to the Committee on Social Services -- commit- tee discharged, bill amended, ordered reprinted as amended and recom- mitted to said committee 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 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 and a new subparagraph (v) is added 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 thatEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04430-06-9 S. 2233--A 2 A. 5462--A
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 PARENT OR PARENTS ARE INCARCERATED, OR PARTICIPATING IN A RESI- DENTIAL SUBSTANCE ABUSE TREATMENT PROGRAM, OR THE PRIOR INCARCERATION OR PARTICIPATION OF A PARENT OR PARENTS IN A RESIDENTIAL SUBSTANCE ABUSE TREATMENT PROGRAM IS A SIGNIFICANT FACTOR IN WHY THE CHILD HAS BEEN IN FOSTER CARE FOR FIFTEEN OF THE LAST TWENTY-TWO MONTHS, PROVIDED THAT THE PARENT MAINTAINS A MEANINGFUL ROLE IN THE CHILD'S LIFE BASED ON THE CRITERIA SET FORTH IN SUBPARAGRAPH (V) OF THIS PARAGRAPH AND THE AGENCY HAS NOT DOCUMENTED A REASON WHY IT WOULD OTHERWISE BE APPROPRIATE TO FILE A PETITION PURSUANT TO THIS SECTION. (V) FOR THE PURPOSES OF CLAUSE (D) OF SUBPARAGRAPH (I) OF THIS PARA- GRAPH, AN ASSESSMENT OF WHETHER A PARENT MAINTAINS A MEANINGFUL ROLE IN HIS OR HER CHILD'S LIFE SHALL BE BASED ON EVIDENCE, WHICH MAY INCLUDE THE FOLLOWING: A PARENT'S EXPRESSIONS OR ACTS MANIFESTING CONCERN FOR THE CHILD, SUCH AS LETTERS, TELEPHONE CALLS, VISITS, AND OTHER FORMS OF COMMUNICATION WITH THE CHILD; EFFORTS BY THE PARENT TO COMMUNICATE AND WORK WITH THE AUTHORIZED AGENCY, LAW GUARDIAN, FOSTER PARENT, THE COURT, AND THE PARENT'S ATTORNEY OR OTHER INDIVIDUALS PROVIDING SERVICES TO THE PARENT, INCLUDING CORRECTIONAL, MENTAL HEALTH AND SUBSTANCE ABUSE TREAT- MENT PROGRAM PERSONNEL FOR THE PURPOSE OF COMPLYING WITH THE SERVICE PLAN AND REPAIRING, MAINTAINING OR BUILDING THE PARENT-CHILD RELATION- SHIP; A POSITIVE RESPONSE BY THE PARENT TO THE AUTHORIZED AGENCY'S DILI- GENT EFFORTS AS DEFINED IN PARAGRAPH (F) OF SUBDIVISION SEVEN OF THIS SECTION; AND WHETHER THE CONTINUED INVOLVEMENT OF THE PARENT IN THE CHILD'S LIFE IS IN THE CHILD'S BEST INTEREST. IN ASSESSING WHETHER A PARENT MAINTAINS A MEANINGFUL ROLE IN HIS OR HER CHILD'S LIFE, THE AUTHORIZED AGENCY SHALL GATHER INPUT FROM INDIVIDUALS AND AGENCIES IN A REASONABLE POSITION TO HELP MAKE THIS ASSESSMENT, INCLUDING BUT NOT LIMITED TO, THE AUTHORIZED AGENCY, LAW GUARDIAN, PARENT, CHILD, FOSTER PARENT OR OTHER INDIVIDUALS OF IMPORTANCE IN THE CHILD'S LIFE, AND PARENT'S ATTORNEY OR OTHER INDIVIDUALS PROVIDING SERVICES TO THE PARENT, INCLUDING CORRECTIONAL, MENTAL HEALTH AND SUBSTANCE ABUSE TREATMENT PROGRAM PERSONNEL. THE COURT MAY MAKE AN ORDER DIRECTING THE AUTHORIZED AGENCY TO UNDERTAKE FURTHER STEPS TO AID IN COMPLETING ITS ASSESSMENT. 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. THE COURT SHALL CONSIDER THE SPECIAL CIRCUMSTANCES OF AN INCARCERATED PARENT OR PARENTS, OR OF A PARENT OR PARENTS PARTICIPATING IN A RESIDENTIAL SUBSTANCE ABUSE TREAT- MENT PROGRAM, WHEN DETERMINING WHETHER A CHILD IS A "PERMANENTLY NEGLECTED CHILD" AS DEFINED IN THIS PARAGRAPH. IN SUCH CASES, THE COURT ALSO SHALL CONSIDER THE PARTICULAR CONSTRAINTS, INCLUDING BUT NOT LIMIT- ED TO, LIMITATIONS PLACED ON FAMILY CONTACT AND THE UNAVAILABILITY OFS. 2233--A 3 A. 5462--A
SOCIAL OR REHABILITATIVE SERVICES TO AID IN THE DEVELOPMENT OF A MEAN- INGFUL RELATIONSHIP BETWEEN THE PARENT AND HIS OR HER CHILD, THAT MAY IMPACT THE PARENT'S ABILITY TO SUBSTANTIALLY AND CONTINUOUSLY OR REPEAT- EDLY MAINTAIN CONTACT WITH HIS OR HER CHILD AND TO PLAN FOR THE FUTURE OF HIS OR HER 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 para- graph (i) of subdivision (b) of section one thousand fifty-two, para- graph (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 PARTICIPATING IN 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 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 WHICH THE AUTHORIZED AGENCY SHALL OBTAIN FROM THE OFFICE OF CHILDREN AND FAMILY SERVICES, OUTLINING THE LEGAL RIGHTS AND OBLIGATIONS OF A PARENT WHO IS INCARCERATED OR IN A RESIDEN- TIAL SUBSTANCE ABUSE TREATMENT PROGRAM WHOSE CHILD IS IN CUSTODY OF AN AUTHORIZED AGENCY, AND ON SOCIAL OR REHABILITATIVE SERVICES AVAILABLE IN THE COMMUNITY, INCLUDING FAMILY VISITING SERVICES, TO AID IN THE DEVEL-S. 2233--A 4 A. 5462--A
OPMENT OF A MEANINGFUL RELATIONSHIP BETWEEN THE PARENT AND CHILD. WHER- EVER POSSIBLE, SUCH INFORMATION SHALL INCLUDE TRANSITIONAL AND FAMILY SUPPORT SERVICES LOCATED IN THE COMMUNITY TO WHICH AN INCARCERATED PARENT OR PARENT PARTICIPATING IN A RESIDENTIAL SUBSTANCE ABUSE TREAT- MENT PROGRAM SHALL RETURN. 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, unless such a meeting is impracticable or would be harmful to the child. IF IT IS IMPRACTICABLE TO HOLD SUCH CONSULTATION IN PERSON, SUCH CONSULTATION MAY BE DONE THROUGH THE USE OF TECHNOLOGY, INCLUDING BUT NOT LIMITED TO, VIDEOCONFERENCING AND TELECON- FERENCE TECHNOLOGY. IF THE PARENT IS INCARCERATED OR RESIDING IN A 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 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, unless such a meeting is impracticable or would be harmful to the child. IF IT IS IMPRACTICABLE TO HOLD SUCH CONSULTA- TION IN PERSON, SUCH CONSULTATION MAY BE DONE THROUGH THE USE OF TECH- NOLOGY, INCLUDING BUT NOT LIMITED TO, VIDEOCONFERENCING AND TELECONFER- ENCE TECHNOLOGY. S 6. This act shall take effect immediately.