Prison Shouldn't be a Bar to Motherhood

By Rachel Roth

WeNews commentator

Sunday, July 25, 2010

Rigid foster care rules threaten to dissolve family ties when mothers are in prison or residential drug treatment. A new law in New York State takes steps to help these families weather the separation.

A formerly incarcerated mother and her son (WOMENSENEWS)--A 29-year-old woman whose mother went to prison when she was a baby says she is just like any other child.

"I need my mother. I've always needed her and in this way I am no different than any other child. Living away from her--having to live away from her because of something she did--has not changed how much I want her mothering," she said.

However, a well-meaning federal law passed in 1997 all too often overrides this sentiment, arbitrarily and permanently severing family bonds.

The Adoption and Safe Families Act, called ASFA, was intended to prevent children from bouncing indefinitely between foster homes and to increase their chances of being placed with permanent adoptive families. It set rigid time frames by which an absent parent loses legal rights to his or her child. Once a child spends 15 of 22 months in foster care, the foster care agency moves to terminate the parent's rights. Some states adopted even shorter timelines in their versions of the law, moving to terminate parental rights after as little as six months when a child was placed in foster care as a newborn.

Courts can terminate a parent's rights because she is unavailable by virtue of incarceration or residence in a treatment center to take care of her child, even when there is no evidence of child abuse and when the child wishes to be reunited with the parent.

One-third of children who were so "freed" from their biological parents in New York City between 2000 and 2004 were not adopted, according to a report published in 2006 by the Women in Prison Project of the Correctional Association of New York. They stayed in foster care. These children are "legal orphans," children who have a parent but whose relationship to their parent is no longer recognized by the state.

'People Need More Time'

"I think people need more time," said Sharmaine, whose rights were terminated while she was in treatment. "Just because you're incarcerated or 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."

In June, Gov. David Paterson of New York signed into law the "ASFA Expanded Discretion" bill to ensure that parents like Sharmaine do not lose rights to their children solely for bureaucratic reasons.

The new law allows for foster care agencies and courts to take into account the special circumstances of parents in prison or residential treatment when determining a child's fate. These circumstances include parents' difficulty seeing children in person, difficulty meeting with lawyers or social workers and difficulty making court appearances, especially for women from New York City who are sent to serve their time in distant upstate prisons. The median prison sentence for women in New York is 36 months, longer than the 15-month deadline in effect until the time the law was changed.

The new law also allows for parents to participate in meetings about their children by video conference or other means if meeting in person is impracticable.

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I've read research and news articles about incarcerated men that have 50-50 custody, of incarcerated men that KILLED their wives and the men's parents gets custody (because they did such a great job raising their son?!) and of rapists having paternity rights - yeah, rapists - most states recognize their rights. Women do NOT get treated the same. They often lose their children and they're often in jail for non-violent crimes.