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Formerly Incarcerated Mothers vs. Foster Care


Janet Taverez was in prison at the Taconic Correctional Facility in Westchester when she found out that her parental rights of daughter, Genesis, then 3 years old, had been terminated.

“I punched a glass window,” she says, showing a scar on her left hand. “I remember feeling frustrated; there was an emptiness that my child was being taken from me.”

Taverez, 44, has been clean since March 2008. She struggled with drug abuse since the age of 19 and has been in and out of prison for 6 years. Her parental rights were terminated under a federal law that forbids a child from being in foster care for more than 24 months. Today Taverez faces a similar custody struggle with the courts over her 7-year-old son, Julian.

From 1988 to 1993, Tavarez was in and out of state correctional facilities on charges of grand larceny and robbery stemming from her drug addiction.  While Taverez was incarcerated, her mother cared for Genesis under what is known as kinship foster care—when a child is placed in the care of a relative through the foster care system.

Under the federal Adoption Assistance and Child Welfare Act of 1980 (AASWA), a child cannot be in foster care for more than 24 months before termination of parental rights proceedings can begin. This includes children in kinship foster care. And for women who are incarcerated for longer than 2 years this law can almost guarantee the loss of custody of their children. In most cases, after parental rights are terminated, they cannot be regained.

In 1977 there were 500,000 children in foster care nationally. After AASWA was enacted that number plummeted to less than 300,000 by 1982. Then with the rise of the use of crack cocaine and the AIDS epidemic in the mid-80s the numbers steadily rose until in 1996 it had climbed to almost 600,000 children in foster care.

In response to the ballooning numbers of children in foster care, in 1997 President Clinton signed into law the Adoption and Safe Families Act (ASFA) which New York adopted in 1999. The law put an even stricter time frame on how long a child can remain in foster care, setting the limit to 15 months of any given 22 month stretch. After that time proceedings to terminate parental rights must begin.

“It was enacted because it was found that long term foster care is detrimental to their (children’s) wellbeing,” says Michael Neff, legal adoption specialist at the New York State Office of Children and Family Services.

The idea behind the legislation was to keep children from languishing in foster care and get them into permanent homes. And because of it Neff said he sees reunification more often than not. But while reunifications are on the rise, that doesn’t mean terminations haven’t gone down. “The emphasis is on speed,” he adds.

Critics of the law, often dubbed a “death sentence to families,” argue that it is too strict.

“The 15 to 22 months is draconian in many instances, and I think it’s important to change that,” says Florence Roberts, a lawyer who volunteers with the Incarcerated Mothers Project through the Volunteers of Legal Service, an organization that provides free legal services to the elderly, children, lower income families, and incarcerated mothers.

Roberts argues that while the law is harsh for any parent it is most harsh for mothers who are incarcerated because most of them are facing sentences that are longer than the time frame that ASFA allows.

Even though the total number of children in foster care in New York City today is down to 16,000, according to Neff, it is still more than before crack use and AIDS became widespread. And 7 to 14 percent of those children have a parent who is incarcerated.

With these numbers there is now a move to amend the ASFA laws in New York.

The ASFA Expanded Discretion Bill, which passed unanimously in the New York State Assembly, will allow foster care agencies to make decisions on a case-by-case basis when it comes to parents who are in prison or drug rehabilitation programs.

Brooklyn Senator Velmanette Montgomery is sponsoring the bill in the State Senate. She did not return repeated calls for comment, but a statement on her website says, “The ASFA Expanded Discretion Bill gives incarcerated parents and their children a more fair opportunity to work toward reunification and safe permanency options that do not involve severing family bonds forever.”

However, child welfare experts like Neff wonder if the new bill is necessary since such safeguards are already in place.

“ASFA is a bill that you can drive a truck through,” says Neff. “There are already exceptions upon exceptions.”

After a relapse with cocaine in 2007 forced Taverez’s youngest son, Julian, then 5, into kinship foster care with his father and paternal grandmother, the judge’s first reaction was not to reunify mother and son.

“There was talk of terminating her rights,” says Taverez’s sister, Sandra Rodriguez, a family caseworker with a foster care agency in New York City. “But the judge decided to give her another chance.”

With the judge’s discretion, Taverez was placed in a drug rehab program and received visitations with Julian throughout the 18 months that she resided there. Now she gets him three days a week with hopes of receiving back full custody in the spring.

Although Taverez still has not been fully reunited her son, according to advocates for incarcerated mothers, because of the progress she has made gaining custody of him she is one of the lucky ones. Most mothers do not fare as well.

“Judges are not happy about anyone who has a record like that,” says Roberts, of Incarcerated Mothers Project. “I think the standard is much stricter with women who were incarcerated.”

Many advocates, including Roberts, agree that there is a harsher stigma attached to a woman who has been to prison than on a man in a similar situation.

More than 72 percent of women incarcerated in New York are parents, compared to the more than 58 percent of men.

“When a woman goes to jail, it’s a lot harder,” says Taverez. “When a man goes to jail a woman will travel all over the state to see him, to take the kids.”

Taveras said that it is rare that a man, even the father of the child, brings the child to visit an incarcerated mother. She says that throughout her years in the system it was her mother and sister who would visit.

Roberts said this limited connection to the child adds to the difficulty for an incarcerated mother to meet the requirements of the Administration of Child Services.

Parents in prison are held to the same standard of communication with the foster care agency as any one else. They must cooperate in the planning for the future of the child which means placing the child with a relative if possible. If not, the child is placed in the care of a foster care agency, and 60 days after, the ASFA time clock begins.

Planning for the future also involves the parent going through training or rehabilitation pertinent to the reasons that they are incarcerated, whether that is education, parenting classes or drug rehabilitation, says Neff.

In return the foster care agency is obligated to orchestrate visitation either on the phone or at the correctional facility if possible. If these standards are not met, the agency has the right to deny visitation.

If visitation is denied and communication with the child halted, the foster care agency is obligated to begin termination proceedings once ASFA’s timeline of 15 months expires.

Whether the child is reunited or found an adoptive family, child advocates, advocates for the parents, and even family members agree that it boils down to what is best for the child involved.

“She knows that even though she’s my sister, it doesn’t matter,” said Rodriguez. “If I feel she is a danger to her child, I’m going to be for the child every time.”

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