CHAPTER 33 RIGHTS OF INCARCERATED PARENTS

CHAPTER 33

RIGHTS OF INCARCERATED PARENTS*

A. Introduction

This chapter discusses the childcare and custody rights of incarcerated parents. According to the U.S.

Department of Justice, an estimated 809,800 state and federal prisoners were parents to children under the

age of eighteen in 2007.

There are approximately 1,706,600 children under the age of eighteen who have a

parent in prison.

As a parent in prison, you may fear that your child will not be cared for, that you will lose your child, or

that your relationship with your child will suffer while you are incarcerated. This Chapter focuses on New

York state law and describes how the law provides parents in prison with various tools to prevent these

things from happening.

First, however, you should be aware that federal laws regulate the rights of incarcerated parents whose

children are in the child welfare system (but not incarcerated parents whose children are under private

custody or guardianship). In 1997, Congress passed the Adoption and Safe Families Act (ASFA),

a series of

laws that make it much harder for incarcerated parents to keep their parental rights. Different states have

passed laws applying ASFA in different ways, so it is important for you to know the ASFA laws that apply in

your state.

Some of the significant changes that were made to New York law following the passage of ASFA include:

(1) In some cases, the state no longer has to try to reunite children in foster care with parents who

are incarcerated;

(2) Unless certain exceptions apply, the State must file to terminate parental rights

for: (1) children

who have been in foster care for fifteen out of the last twenty-two months, (2) children who have

been abandoned, or (2) children with parents who have been convicted of certain violent crimes;

(3) People with certain criminal convictions or who live with an adult who has a criminal record cannot

be foster parents.

* This Chapter was written by Angélica Cházaro based in part on previous versions by Valentina Morales, Kai-lin

Hsu, and Lisa Rios. Special thanks to Prof. Philip M. Genty, Clinical Professor of Law and Director, Prisoners and

Families Clinic, Columbia University School of Law.

. Press Release, U.S. Dept. of Justice, Office of Justice Programs, An Estimated 809,800 Inmates in the Nation’s

Prisons Were Parents to 1,706,600 Minor Children at Midyear 2007 (Aug. 26, 2008),

available at

http://www.ojp.usdoj.gov/newsroom/pressreleases/2008/bjs08101.htm (last visited Feb. 20, 2017). For a detailed report

on these statistics, consult Lauren E. Glaze and Laura M. Maruschak, Bureau of Justice Statistics, Parents in Prison

and Their Minor Children (Aug. 2008),

available at

http://bjs.ojp.usdoj.gov/content/pub/pdf/pptmc.pdf (last visited Feb.

20, 2017).

. Press Release, U.S. Dept. of Justice, Office of Justice Programs, An Estimated 809,800 Inmates in the

Nation’s Prisons Were Parents to 1,706,600 Minor Children at Midyear 2007 (Aug. 26, 2008),

available at

http://www.ojp.usdoj.gov/newsroom/pressreleases/2008/bjs08101.htm (last visited Feb. 20, 2017).

. The full text of ASFA can be found at 42 U.S.C. §§ 670–679b (2012). Several provisions of the Act have been

amended in part or repealed in part since 1997. For further information on the history of AFSA and other federal child

welfare laws, please see Factsheet, Child Welfare Information Gateway, U.S. Dept. of Health and Human Services,

Major Federal Legislation Concerned with Child Protection, Child Welfare, and Adoption (current through April 2012),

available at

http://www.childwelfare.gov/pubs/otherpubs/majorfedlegis.pdf (last visited Feb. 20, 2017).

. N.Y. Soc. Serv. Law § 358-a(3)(b) (McKinney Supp. 2012).

. Termination of parental rights is when the state permanently ends your rights as a parent and either takes on

those rights itself or grants them to another person through adoption.

. N.Y. Soc. Serv. Law § 384-b(3)(l)(i) (McKinney Supp. 2012). The formula used to determine how long your child

has been placed in foster care may depend on where you and your child are located. In New York, the Department will

start counting from sixty days after either the date of placement or the date the child was removed from the home,

whichever comes earlier. N.Y. Soc. Serv. Law § 384-b(3)(l)(iii) (McKinney Supp. 2012). This means that the amount of

time counted for ASFA purposes may be different than the amount of time your child has actually spent under the

custody of the Department. For example, if your child was placed under custody of the Department upon your

incarceration, but it took the Department one month to find placement for your child, you would have sixteen months

from the time your child was placed under custody of the Department before the State had to initiate proceedings to

terminate your parental rights. So starting from the date of your incarceration, you may have up to seventeen months

before the State will begin proceedings. Note that other states may calculate the time period that a child has been in

foster care somewhat differently, so you should always be sure to determine what the law says in your state. For more

information on legal research, see JLM, Chapter 2, “Introduction to Legal Research.”

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1003

All of these provisions will be discussed more fully below. As a parent in prison, you may find yourself in one

of three situations:

(1) Your child is living with friends or family members who receive no state supervision or funding other

than welfare.

o This practice is known as “private placement” and will be discussed in Part B of this

Chapter. ASFA does not apply to these placements.

(2) You chose to place your child in foster care.

o Again, your child may be living with foster parents who are relatives or persons unrelated to

you. The state will supervise and provide funding to these foster parents for the care of your

child. This practice is known as “voluntary placement” and will be discussed in Part C of this

Chapter. If your child is in foster care and you would like to put him or her up for adoption,

your options are discussed in Part F of this Chapter.

(3) Your child was taken from your home by either the Office of Children & Family Services (a New York

State agency) or by the Administration for Children’s Services (a New York City agency)

and placed

in foster care.

o Your child may be living with foster parents who are relatives or persons unrelated to

you. Again, the state will supervise and provide funding to these foster parents for your

child’s care. This practice is known as “involuntary foster care” and will be discussed in

Part C below.

New York law generally supports parents who want to take custody of their children after being in jail.

The law states that it is desirable for a child to “be returned to the birth parent because the child’s need for a

normal family life will usually best be met in the [natural] home, and ... parents are entitled to bring up

their own children unless the best interests of the child would be thereby endangered.”

However, the law

will only prioritize your parental rights if you show interest and involvement in your child’s welfare and a

commitment to parenting upon your release.

Evidence of involvement in your child’s life may include letter

writing, telephone calls, visits with your child, and efforts to communicate and cooperate with your

caseworker.

The beginning of this Chapter discusses how your child will be cared for while you are in prison, both

under private placement (Part B) and under foster care (Part C). Part C further explains placement in both

voluntary and involuntary foster care. It describes the procedures for voluntary and involuntary placement,

including court hearings and reviews. Part C then discusses placement and planning for your child, which

are the same under both foster care plans. Part C also describes your rights and obligations, and the

. N.Y. Soc. Serv. Law § 378-a(2)(e) (McKinney Supp. 2012).

. The Office of Children and Family Services (OCFS) is the state agency responsible for supervising and managing

foster care in New York State. The Administration for Children’s Services (ACS) handles these duties in New York City,

while county departments of social services manage foster care for areas outside of New York City. For simplicity, this

Chapter uses “DSS” (Department of Social Services) to refer to all local child protective agencies that are responsible for

foster care placement. Each county in New York has a social services department. See County Departments of Social

Services, Office of Children and Family Services,

available at

http://www.ocfs.state.ny.us/main/localdss.asp (last visited

Feb. 20, 2017); and About ACS, New York City Administration for Children’s Services,

available at

http://www.nyc.gov/html/acs/html/about/about.shtml (last visited Feb. 20, 2017).

For questions about foster care generally, you can call (800) 345-KIDS, a free phone number for OCFS. Also refer to

the end of this chapter for more contact information for OCFS and county-specific DSS offices.

. N.Y. Soc. Serv. Law § 384-b(1)(a)(ii) (McKinney Supp. 2012); see also

In re

Natasha RR, 42 A.D.3d 762, 762, 839

N.Y.S.2d 623, 624 (3d Dep’t 2007) (stating that this law seeks to return child to natural parent “if at all possible and

responsible”).

. A recent amendment to the law exempts prolonged stays in foster care from mandatory termination of parental

rights if "the parent or parents are incarcerated, or participating in a residential 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." N.Y. Soc. Serv. Law § 384-b(3)(l)(i) (McKinney Supp. 2012).

See

also In re

Lindsey B., 16 A.D.3d 1078, 1078, 791 N.Y.S.2d 261, 262 (4th Dep’t 2005) (finding that a father’s incarceration

was not a defense to an abandonment petition where father made no effort to communicate with daughter or learn of her

whereabouts);

In re

Elizabeth Susanna R., 11 A.D.3d 619, 620, 783 N.Y.S.2d 641, 642 (2d Dep’t 2004) (stating that “a

parent's incarcerated status does not excuse him or her from establishing or maintaining contact with his or her child”).

. N.Y. Soc. Serv. Law § 384-b(3)(l)(v) (McKinney Supp. 2012).

1004 A JAILHOUSE LAWYER’S MANUAL Ch. 33

obligations of the Department of Social Services (DSS)

while your child is in foster care. Finally, Part C

explains how your child will be returned to you after your release.

Part D explains involuntary termination of your parental rights, a process that allows another person to

adopt your child when he is in foster care. It details the ways you can defend yourself against involuntary

termination and lists the steps you should take while your child is in foster care to make sure that your

parental rights are not terminated. The end of Part D discusses the difficulties long-term prisoners face in

preventing involuntary termination.

Part E discusses the procedure for voluntarily terminating your parental rights and putting your child

up for adoption. Part F discusses challenges that are unique to incarcerated fathers, explaining the extra

steps fathers in prison must take in order to protect their rights. Finally, Parts G and H explain your right

to an attorney for different proceedings.

B. Private Placement with a Relative or Friend

Many incarcerated parents try to place their child in the home of a relative or friend without involving

the foster care system. This practice is called “private placement.” Private placement is the best way for

parents in prison to keep their parental rights because the strict ASFA rules only apply to children in foster

care, not those in private placements. The main advantage to private placement is that your child will be

cared for by someone you know and trust. It also allows your child to live in familiar surroundings, which

can lessen the trauma that a child may feel from being separated from his parent.

If you want a relative or friend (sometimes called a “caretaker”) to care for your child, you should, if

possible, write up an agreement that you and your relative or friend sign. The agreement should include

three important points:

(1) You are agreeing to give temporary custody of your child to that person while you are in prison;

(2) Your child will be returned to you when you are released; and

(3) The caretaker (the relative or friend) will bring your child to visit you in prison.

This agreement will allow your child’s caretaker (relative or friend) to register the child for school, get

public assistance, and receive medical care for the child. It will also help make sure you get custody of your

child back when you are released from prison. Note that you may have to fill out paperwork or releases in

order to legally allow the caretaker to register your child for school and other public services.

If you know someone who is willing to care for your child but does not have the money to do so, he may

be eligible to receive public assistance, food stamps, and Medicaid if he assumes custody or guardianship of

your child. Your child can also be placed with a close relative through the Department of Social Services

(DSS), a practice called “kinship foster care.” Under this arrangement, your child will be considered in foster

care even though he is living with a relative. This arrangement, which is different from a private placement,

is discussed in Part C(1)(d) of this Chapter.

Granting custody or guardianship to someone through private placement does not mean that you are

permanently giving up your parental rights. It only means that you are giving permission for someone else

to care and be responsible for your child for a temporary period until you can care for him yourself. It is

worth checking with each agency that provides public benefits to find out what paperwork you must fill out

in order for the caretaker to receive assistance both for himself and for your child.

C. Foster Care

If private placement with your relatives or friends is not possible, you may choose to apply through DSS

to have your child placed in foster care. You must make sure that someone will be caring for your child while

you are in prison. If you do not arrange for the care of your child during your incarceration, permanent

neglect proceedings can be initiated against you, and you might lose the right to have custody, visit your

child, and even to parent your child.

Foster care is a way of providing for children whose parents cannot

care for them. The state has legal custody of children in foster care, which means that the state takes

responsibility for the children. The state may hire a private foster care agency that will work with you and

your child to find a placement in foster care. Foster care is not supposed to be a permanent solution; it is

. According to the State of New York, the 58 Departments of Social Services throughout the state are responsible

for all publicly funded social services and cash assistance programs. Families qualify for DSS assistance based on income

and other criteria. DSS assistance includes subsidies for childcare costs. About ACS, New York City Administration for

Children’s Services,

available at

http://www.nyc.gov/html/acs/html/about/about.shtml (last visited Feb. 20, 2017).

. See Part D(1)(b) of this Chapter for a discussion of permanent neglect.

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1005

meant to help families through difficult times and to make sure that children are living in safe and healthy

environments.

There are several different ways children can be placed in foster care. When the parent or parents

themselves choose to place their children in foster care, it is called “voluntary placement.” When a judge

orders the child to be placed in foster care because the child’s previous caretakers were abusive or neglectful,

it is called “involuntary placement.” Children may be placed with relatives (“kinship foster care”), with an

agency-approved foster family, in a group home, or in a residential facility. All foster care parents receive

funding and supervision either directly from DSS or from any separate foster care agency involved in their

case.

1. Voluntary Placement

If you cannot arrange for your child to be cared for by family or friends or if you are not satisfied with the

care your child is receiving, you may choose to place your child in foster care. Furthermore, under New York

law, your child may have to be placed in foster care if you become “unavailable” due to “arrest, detainment,

or imprisonment.”

You do not permanently give up your parental rights by placing your child in foster care. You are still

legally your child’s parent. It does not mean that you are giving up or abandoning your child, and it does not

show that you are unfit as a parent. It only means that you are temporarily unable to provide your child

with the care you think he needs. If you fulfill your foster care obligations and if you are released within a

relatively short time, you will have a good chance of getting your child back after your release.

However, if you are going to be in prison for more than twelve months, then placing your child in foster

care may create a risk of involuntary termination of your parental rights. You should seriously consider your

decision to place your child in foster care because ASFA generally requires the state to file for termination of

parental rights for children who have been in foster care for fifteen out of the last twenty-two months.

In summary, if you are able to privately place your child with a friend or relative, this may be the best

way for you to protect your parental rights. It is important to consider all of your options carefully before

placing your child in foster care for fifteen months or longer.

(a) Initial Placement Process

To arrange for your child’s placement in foster care, you should first contact the Department of Social

Services (DSS).

Either you or someone you have entrusted with the care of your child can transfer your

child to a foster care arrangement.

However, if possible, you should be the one to contact DSS, because if a

relative or friend places your child in foster care for you, the agency might only communicate with that

person. Remember, a foster care arrangement made by someone else does not affect your rights and

obligations as a parent.

DSS must consult with you regarding your child. If you are not being contacted,

inform DSS and/or the foster care agency that you are the parent and tell them that you wish to make the

decisions about your child’s care.

When you make contact with DSS, a caseworker will arrange to meet with you to explain the process of

placing your child in the custody of DSS and the available foster care options. He will also ask you to sign a

Voluntary Placement Agreement,

which is a contract between you and DSS that places your child in foster

care.

By signing the Agreement, you agree to temporarily transfer the custody and care of your child to the

Commissioner of DSS. Read the form carefully because it will state what DSS must do for your child while

. N.Y. Comp. Codes R. & Regs. tit. 18, § 430.10(c). This section states that children must be removed from their

homes and placed in foster care when removal is essential for securing proper care, nurturance, or treatment. It explains

that one circumstance where foster care placement may be essential to ensuring proper care, nurturance, or treatment is

when the parents of the child are arrested, detained, or imprisoned.

. Contact the Department of Social Services (DSS) for the county in which your child is living, or the

Administration for Children’s Services (ACS) if your child lives in New York City. See the end of this Chapter for contact

information for ACS and all other New York counties.

. N.Y. Soc. Serv. Law § 384-a(1) (McKinney 2010).

. You can obtain a New York City Voluntary Placement Agreement Form (Form W-864) by writing to the

Administration for Children’s Services (ACS), 150 Williams Street, 18th Floor, New York, New York 10038, or by calling

ACS at (212) 341-0900. The website for ACS is www.nyc.gov/html/acs/home.html (last visited Feb. 20, 2017).

. N.Y. Soc. Serv. Law §384-a(2) (McKinney 2010).

1006 A JAILHOUSE LAWYER’S MANUAL Ch. 33

he or she is in foster care. The Agreement should list the responsibilities of DSS, as well as your obligations

while your child is in foster care.

The Agreement must say that the agency may be required to file for

termination of parental rights if your child remains in foster care for fifteen out of the most recent twenty-

two months.

The Agreement is a standard form, which means it is the same for everyone. If you want to add

something to the agreement that you feel is important, you have the right to suggest changes.

For instance,

you may wish to add any or all of the following:

(1) The date your child will be released from foster care (perhaps the date of your release from prison);

(2) A request that your children, if you have more than one, be kept together;

(3) A request that your child remain in his current school;

(4) A request that your child be kept near the home neighborhood; and/or

(5) The minimum number of hours per month that you wish to visit with your child.

You should strongly consider adding these items to the Agreement form because DSS is obligated to try

to provide your child with the care established in the form.

You should be aware that DSS might resist

making changes to the standard form. If you want the Agreement changed to fit your child’s needs, you need

to speak with your caseworker about it.

It is very important to ask for a copy of the final Agreement that you sign. You should keep your own

personal file, which should include a copy of the Agreement as well as any other letters between you and

DSS.

During your first visit with your caseworker, you may also be asked to sign a Designation of Religious

Preference for Children.

On this form, you may state whether you want your child to be placed with an

independent foster care agency affiliated with a particular religion. You can state whether you want your

child to receive religious training while in foster care. If you write down a religious preference and say that

you want your child to be cared for by a family of that religion, DSS must either:

(1) place your child with a family practicing that religion;

(2) show that your child’s faith will be protected in the family in which he is placed, or

(3) show why finding a placement with such a family was not “practicable” or “in the best interests of

the child.”

This means that if DSS does not place your child with a family practicing your chosen

religion, DSS must be able to prove that it was practically impossible to find such a family or they

must be able to give a good reason why it would be better for your child not to be in such a family. If

DSS does not place your child in such a family and fails to give a good reason, you can demand that

they place your child with a family that practices your religion.

Your caseworker may ask you to sign a form in which you agree that you will be legally responsible for

some of the costs of maintaining your child.

You must write down on this form whether or not you can

contribute to your child’s expenses while he or she is in foster care. Even though you are in prison, you still

have a duty to financially support your child. However, DSS may take your situation into consideration and

decide not to require you to contribute to your child’s expenses because you are in prison and probably have

little or no income.

You and the caseworker will develop a plan to help keep a close relationship between you and your child.

This plan, which includes the rights and obligations of both you and the agency, is discussed in Part C(4) of

this Chapter.

. These obligations are described in Part C(4) of this Chapter.

. N.Y. Soc. Serv. Law § 384-a(2)(c)(ix) (McKinney 2010).

. N.Y. Soc. Serv. Law § 384-a(2)(a) (McKinney 2010).

. If you believe that the care your child is receiving in foster care does not satisfy the requirements set forth in the

Voluntary Placement Agreement, you should first tell your caseworker. Then you or your lawyer, if you have one, should

petition the family court judge who signed your child’s placement order to review the care the agency is providing for

your child and to order the agency to follow the Agreement.

See

N.Y. Soc. Serv. Law § 384-a(2)(b) (McKinney 2010)

(requiring adherence to the placement order).

. The New York City Designation of Religious Preference for Children (Form CM-309) is similar to forms used

throughout the state. You can get the appropriate form from the agency handling your case.

. N.Y. Comp. Codes R. & Regs. tit. 18, § 430.11(c)(2)(iii).

. N.Y. Soc. Serv. Law § 384-a(2)(c)(viii) (McKinney 2010).

. N.Y. Soc. Serv. Law § 384-a(2)(c)(v)(D) (McKinney 2010).

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1007

Finally, DSS should provide you with a list of lawyers or legal services groups to help you in placing your

child. One source of help may be Prisoners’ Legal Services.

Unfortunately, it is extremely unlikely that you

will be able to find a free lawyer to help you with a voluntary placement before the 358a Hearing stage of

your case (discussed in section (b) below), so do not be afraid to take as much time and ask as many

questions as you need to in order to understand the forms that DSS will make you fill out since you will

probably be the person making the decisions for the voluntary placement of your child.

(b) Court Approval of the Placement—358a Hearing

The next step in voluntary placement is court approval. New York state law requires a family court

judge to review and approve every voluntary placement of a child in foster care lasting longer than thirty

days.

This proceeding is called a “358a hearing” because it is required by Section 358a of the Social

Services Law. DSS is responsible for filing a petition with the court asking for approval of the placement.

The petition will include a notice “in conspicuous print”—which means it must be clear, obvious, and not in

very small print—stating that if a child remains in foster care for fifteen of twenty-two months, the agency

may be required to file for a termination of parental rights.

The judge must give you notice of the hearing.

In order to be present at the hearing, you should write a

letter, similar to the one shown in Appendix A of this Chapter, asking the court to instruct the prison to

bring you to the hearing.

Your caseworker may ask you to sign a waiver of your right to attend.

A waiver means that you

formally agree to give up a particular right.

You do not have to waive your rights.

Sometimes people

choose to waive rights as part of a deal with the state, because they get something from the state in return

for signing the waiver. If you do choose to sign a waiver of your right to attend the hearing, the court does

not have to make sure that you can attend the hearing.

Generally, signing a waiver is not a good idea

because you give up the valuable opportunity to inform the judge of your problems or ask questions during

the voluntary placement process.

You have a right to a lawyer for the hearing. If you cannot afford your own lawyer, the judge will assign

you a free lawyer when you are brought to court for the hearing.

If you are using your own lawyer, make

sure to contact him in advance about the proceeding. A lawyer is meant to be your voice during these

proceedings, so if you have any questions or requests or if you are concerned about something, be sure to ask

your lawyer.

At the hearing, the court is supposed to ensure that your child will be put in foster care only if the “best

interest and welfare of the child will be promoted by the removal of such child from such home.”

This

means that foster care is appropriate only when a child would not otherwise receive proper care, nurturing,

or treatment.

DSS must try to find relatives who can take care of your child.

This arrangement, called

“kinship foster care,” is not the same as the private placement discussed in Part B. Kinship foster care is

explained in Part C(1)(d) of this Chapter. Apart from trying to find relatives who can care for your child,

DSS must try to find and record information about your child’s other parent, any person to whom you had

See

Appendix IV of the JLM for addresses of legal services organizations.

. N.Y. Soc. Serv. Law § 358-a(1)(a) (McKinney Supp. 2013).

. N.Y. Soc. Serv. Law § 358-a(2)(a) (McKinney Supp. 2013).

. N.Y. Soc. Serv. Law § 358-a(4)(a) (McKinney Supp. 2013).

. N.Y. Soc. Serv. Law § 358-a(3)(e)(ii) (McKinney Supp. 2013).

. N.Y. Soc. Serv. Law § 358-a(5) (McKinney Supp. 2013).

. Black's Law Dictionary (9th ed. 2009).

. N.Y. Soc. Serv. Law § 358-a(5) (McKinney Supp. 2013).

. N.Y. Fam. Ct. Act § 262(a)(iv) (McKinney Supp. 2013). Please note that the Family Court Act is contained in the

Judiciary Court Acts volume of McKinney’s. See Part H of this Chapter for more on your right to counsel.

. N.Y. Soc. Serv. Law § 358-a(5) (McKinney Supp. 2013); N.Y. Soc. Serv. Law § 358-a(1)(a) (McKinney

Supp. 2013).

. N.Y. Comp. Codes R. & Regs. tit. 18, § 430.8(a)(2) ; N.Y. Comp. Codes R. & Regs. tit.

18, § 430.10(c).

. N.Y. Soc. Serv. Law § 384-a(1-a) (McKinney 2010).

1008 A JAILHOUSE LAWYER’S MANUAL Ch. 33

been married at the time of the conception or birth of your child, and any other person who would be entitled

to a notice of a proceeding to terminate parental rights if such a hearing were to take place.

The judge must also verify that you knowingly and voluntarily signed the Voluntary Placement

Agreement.

If you have any questions or problems regarding the placement process or the Agreement, you

should make them known at this hearing.

If you have had any problems with the foster care agency, you should talk with the judge about that at

the hearing. Such problems might include the following situations:

(1) the agency refuses to add your requests to the Voluntary Placement Agreement;

(2) there have not been enough (or any) visits between you and your child;

(3) the agency has broken many of its promises; or

(4) it is difficult for you to communicate with the agency (for example, the caseworker does not return

your calls, the prison will not allow you to make calls, etc.).

If you signed a waiver and do not attend a 358a hearing, the judge will review the papers submitted by

DSS, including the Voluntary Placement Agreement, and will generally approve the Agreement as you

signed it.

(i) Automatic Review

Once a placement has been approved in the 358a hearing described above, the agency is required to

check in with the family court from time to time in order to review your child’s situation in foster care. The

agency must report to the family court within eight months of the date your child was removed from his or

her home and then every six months after that.

The court may order a review at any time.

Also, you can

ask the court for a review at any time.

If a court decides for any of the reasons listed in the statute

that

the agency does not have to make “reasonable efforts” to reunite your family, then it will order a review

called a “permanency hearing” within thirty days.

See Part C(4)(a) of this Chapter for a discussion of

“reasonable efforts.”

These reviews are called permanency hearings because they decide a permanent plan for your child.

permanent plan considers

(1) whether your child will be returned to you, placed with a relative, or released for adoption;

(2) the health, well-being, and status of the child;

(3) the status of the parent; and

(4) what services have been provided to reunite the family, where appropriate.

The state is authorized to seek an alternative permanent placement if you are unable to provide a

normal family home for your child, and continued foster care is not appropriate.

The court must notify you at least fourteen days before each of these hearings, and you have a right to

attend.

As with the 358a hearing, you must ask the judge to order the prison to take you to the

permanency hearing. You or your lawyer, if you have one, should write to the judge as soon as you know

when your hearing is scheduled in order to request such an order. Information on getting to court is included

in Part G of this Chapter. Also, see the sample letter included in Appendix A of this Chapter.

. N.Y. Soc. Serv. Law § 384-a(1-b) (McKinney 2010).

. N.Y. Soc. Serv. Law. § 358-a(3)(a) (McKinney Supp. 2013).

. N.Y. Soc. Serv. Law. § 358-a(5) (McKinney Supp. 2013).

. N.Y. Fam. Ct. Act § 1089(a)(2)–(3) (McKinney Supp. 2013). Please note that the Family Court Act is contained in

the Judiciary Court Acts volume of McKinney’s.

See

N.Y. Fam. Ct. Act § 1088 (McKinney Supp. 2013) (providing the family court with the express power to

rehear the case whenever it deems rehearing necessary or desirable).

See

N.Y. Fam. Ct. Act § 1088 (McKinney Supp. 2013) (providing the family court with the power to rehear the

case when any party to the case makes a motion to do so).

. N.Y. Soc. Serv. Law § 358-a(3)(b) (McKinney Supp. 2013).

. N.Y. Fam. Ct. Act § 1012(k) (McKinney 2010).

See

N.Y. Fam. Ct. Act § 1089(c) (McKinney Supp. 2013) for a full description of what needs to be included in the

permanency plan.

. N.Y. Soc. Serv. Law § 384-b(1)(a)(iv) (McKinney Supp. 2013).

. N.Y. Fam. Ct. Act § 1089(b)(1)(i) (McKinney Supp. 2013).

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1009

At the hearing, explain to the judge any problems you have with the foster care your child is receiving.

By law, the judge has to look at what is in the “best interests” of the child, so if there is a problem, you

should try to explain how your child’s “best interests” are not being provided for.

The judge can order DSS

to provide a variety of services for you and your child, including arranging additional visits.

(ii) Requested Review

After the initial permanency hearing, you may request a permanency hearing to address problems that

arise between scheduled hearings and that cannot be resolved with your caseworker.

You do not need to

wait for another scheduled hearing to complain about your child’s foster care.

In order to request a permanency hearing, you must explain, in a motion to the court: (1) why you need a

new hearing, (2) the type of problem you are having, (3) the steps you have taken to resolve the problem, and

(4) what changes you believe are necessary.

You may also file a motion to force the agency to obey court

orders or to live up to agreements it has made with you.

2. Kinship Foster Care

DSS will sometimes approve close relatives to become “kinship foster parents.”

The technical name for

this arrangement is “approved emergency relative foster home.”

If you have a relative who would like to

care for your child, you may be able to arrange for kinship foster care. Under this program, your child will

live with your relative. However, unlike in the private placement described above in Part B, DSS has legal

custody of children in kinship foster care, just as it does in any other foster care arrangement.

ASFA has made it more difficult for people with certain kinds of criminal records to be approved as

foster parents. The ASFA restrictions may affect your decision to place your child in kinship foster care

because they may prevent the relatives you choose from becoming foster parents. In New York, a criminal

history check must be performed on potential foster parents and on anyone over eighteen who is living in the

home before the home can be certified as a foster home.

The criminal history check will also be repeated

every time the foster parents apply for re-certification.

A prospective foster parent can be denied for several reasons, including:

(1) A felony conviction at any time involving child abuse or neglect, spousal abuse, a crime against a

child including child pornography, a violent crime including rape, sexual assault, or homicide;

(2) A felony conviction within the past five years for physical assault, battery, or a drug-related

offense.

A prospective foster parent’s application can be put on hold while the agency waits to receive additional

information for the following reasons:

. Although you may wait until your court appearance to voice your complaints, you should try to write out any

problems you have with your child’s foster care ahead of time. You can discuss your concerns with your lawyer, if you

have one. You may mail the concerns to the judge, DSS, or the child’s attorney. You should also take a copy of the list of

complaints you have made to court. You or your lawyer should mention your complaints in court so that they are not

overlooked.

. The court must determine how to protect the best interests of the children placed in the state’s care by a

voluntary placement agreement.

See, e.g.,

Nicholson v. Scoppetta, 3 N.Y.3d 357, 376–81, 820 N.E.2d 840, 850–54, 787

N.Y.S.2d 196, 206–10 (2004) (determining whether the removal of the child was in the child’s “best interests,” according

to the legislative requirement).

. N.Y. Fam. Ct. Act § 1089(d)(2)(viii)(F) (McKinney Supp. 2013). Please note that the Family Court Act is

contained in the Judiciary Court Acts volume of McKinney’s.

. N.Y. Fam. Ct. Act § 1088 (McKinney Supp. 2013).

. N.Y. Fam. Ct. Act § 1089(c) (McKinney Supp. 2013).

. N.Y. Fam. Ct. Act § 1089(d)(2)(viii)(F) (McKinney Supp. 2013); N.Y. Fam. Ct. Act § 255 (McKinney Supp.

2010).

. A relative may be approved as a foster parent if DSS believes that living with him is the best way to maintain

continuity in the child’s environment. N.Y. Fam. Ct. Act § 1089-a(a)(i) (McKinney Supp. 2013).

. This arrangement is approved by N.Y. Soc. Serv. Law § 375 (McKinney 2010). “Approved emergency relative

foster home” is defined in N.Y. Comp. Codes R. & Regs. tit. 18, § 443.1(g).

. N.Y. Soc. Serv. Law § 378-a(2)(a) (McKinney 2010 & Supp. 2013).

. N.Y. Soc. Serv. Law § 378-a(2)(e)(1)(A) (McKinney 2010 & Supp. 2013).

. N.Y. Soc. Serv. Law § 378-a(2)(e)(1)(B) (McKinney 2010 & Supp. 2013).

1010 A JAILHOUSE LAWYER’S MANUAL Ch. 33

(1) The foster parent has a charge for an above-listed crime that has not been resolved yet;

(2) The foster parent has a felony conviction that may be for an above-listed crime, but it is unclear

whether such a crime was involved.

If a prospective foster parent has been convicted of one or more of the crimes listed above, the foster care

agency will remove any foster child living with the foster parent.

Requests to become a foster parent can

also be denied if:

(1) the prospective foster parent has a criminal history consisting of crimes other than those specified

above;

(2) any other person over eighteen living in the proposed foster home has a criminal history (including a

criminal charge or conviction).

If either of these factors are found, the agency will check the safety of the home, including whether the

person who committed the crime lives there, the amount of contact that person has with the child, and the

nature of the charge.

Removing the child may be required to protect the child’s health and safety.

A disadvantage of kinship foster care in comparison with private placement is that DSS will be involved

in your relationship with your child. For instance, DSS could decide to have your child removed from your

relative’s home to another foster home. It also means that you will not be able to simply ask your relative to

return your child when you are released from prison, but must instead petition DSS to get custody of your

child again.

Also, DSS may attempt to terminate your parental rights so that your relative or another

person can adopt the child.

One advantage of kinship foster care is that your child’s caretaker is eligible for the same foster care

payments available to unrelated foster care parents.

You and the potential kinship foster parent should

consult DSS together about the funds available to him. Another advantage is that the court can order DSS to

support you with services, including providing regular visitation, parenting training, counseling for you or

your child, and other services.

If you are an incarcerated parent, DSS’s duty to you is generally limited to

services offered by your facility, although your child is entitled to any services offered by the agency.

DSS should support your wishes for your child to be in kinship foster care because it is obligated to

search for a relative to take care of your child.

If you disapprove of a particular relative that DSS is

considering, you can tell the judge your concerns and ask that your child be placed with a different family

member. At the hearing, you will have to convince the judge that the placement DSS wishes to make is not

in the best interests of your child or that the individual being considered is unfit to care for your child. If you

can arrange for the relative of your choice to attend the court hearing, the judge may have an opportunity to

meet him.

3. Involuntary Placement

In some circumstances, your child may be placed in foster care without your consent. This is known as

“involuntary placement.” Involuntary placement can occur before you are incarcerated or as a result of your

incarceration. If you do not consent in writing to the removal of your child and a preliminary hearing has not

. N.Y. Soc. Serv. Law § 378-a(2)(e)(2)(A) (McKinney 2010 & Supp. 2013).

. N.Y. Soc. Serv. Law § 378-a(2)(e)(2)(B) (McKinney 2010 & Supp. 2013).

. N.Y. Soc. Serv. Law § 378-a(2)(h) (McKinney 2010 & Supp. 2013).

. N.Y. Soc. Serv. Law § 378-a(2)(e)(3)(A) (McKinney 2010 & Supp. 2013).

. N.Y. Soc. Serv. Law § 378-a(2)(e)(3)(B) (McKinney 2010 & Supp. 2013).

. N.Y. Soc. Serv. Law § 378-a(2)(h) (McKinney 2010 & Supp. 2013).

. Petitioning for return of your child is discussed in Part C(5) of this Chapter.

. Involuntary termination of parental rights is discussed in Part D of this Chapter.

. Before relatives can get such payments, the DSS Commissioner must complete a foster care certification study

of the relative’s home. But, in an emergency, a relative can receive funds immediately. The caretaker can also receive

Medicaid for the child but cannot get other forms of public assistance because foster care payments would replace them.

N.Y. Soc. Serv. Law §§ 458-b, 458-c, 458-d (McKinney Supp. 2013).

. N.Y. Fam. Ct. Act § 1089(d)(2)(viii)(F) (McKinney Supp. 2013).

. N.Y. Soc. Serv. Law § 384-b (McKinney 2010 & Supp. 2012).

. New York state law requires that the state attempt to locate adequate living arrangements with a relative or

friend of yours before it places your child with strangers. N.Y. Soc. Serv. Law § 384-a(1-a) (McKinney 2010) (in the

context of voluntary placement); N.Y. Fam. Ct. Act § 1017 (McKinney 2010) (in the context of involuntary placement);

N.Y. Comp. Codes R. & Regs. tit. 18, § 430.10(b)(2).

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1011

yet been held, your child can be removed only if there is an

immediate

danger to his health or life. In such an

emergency, the court may order removal without a hearing, or DSS may remove your child before receiving a

court order.

Involuntary placement does not mean that your child has been permanently taken from you. However,

in order to avoid termination of your parental rights, you must fulfill certain obligations and demonstrate

that you have taken some responsibility for your child. The state also has a duty to make “diligent efforts”

to foster a close relationship between you and your child and to help you fulfill your duties as a parent so

that you can get custody of your child back. ASFA has created some exceptions to the state’s duty to show

“diligent efforts.” These obligations, rights, and exceptions are discussed below in Part C(4)(a) of this

Chapter.

(a) Preliminary Hearing

DSS must petition the family court to hold a “preliminary hearing” where the judge will decide whether

your child must be temporarily removed from your home. The judge will look to see if there is an immediate

risk to your child’s health or life.

This hearing must be held the day after the petition is filed.

If your child

has already been removed, the judge will determine whether the child should remain in care outside of the

home by looking to see if there is an immediate risk to your child’s health or life.

As in voluntary foster

care placements, the state must search for a suitable relative to take your child into his or her care.

The

court can order DSS to locate your child’s other parent and any relatives and to inform them of the

procedure for seeking custody or becoming foster parents of your child.

DSS must try to notify you of the petition and proceedings, and you are allowed to attend them.

However, the judge may proceed with the hearing even if you are not present.

If your child is removed, a

date will be set for a permanency hearing.

It is important for you to note this date, which will be included

in the court’s order removing your child.

(b) Fact-Finding Hearing

After the preliminary hearing, the court will hold a full hearing to decide whether or not your child was

neglected or abused, or is at risk of being neglected or abused.

This part of the case is called the “fact-

finding hearing.”

Since you will not be in the home while you are in prison, the state can easily show that

your child is at risk of neglect, unless you have arranged for a relative or a friend to take care of your child in

your absence.

The judge must make sure that you are present at the hearing or that every reasonable effort has been

made to notify you of it.

If you choose not to appear, the court will proceed without you.

If you do not have

. N.Y. Fam. Ct. Act §§ 1022(a)(i)(B), 1024(a) (McKinney 2010). Please note that the Family Court Act is

contained in the Judiciary Court Acts volume of McKinney’s.

. See Section 4(a) of this Part for examples of what DSS must do in order to meet the “diligent efforts” standard.

. N.Y. Fam. Ct. Act § 1027(b)(i) (McKinney 2010 & Supp. 2013). Please note that the Family Court Act is

contained in the Judiciary Court Acts volume of McKinney’s.

. N.Y. Fam. Ct. Act § 1027(a)(i) (McKinney 2010 & Supp. 2013). Please note that the Family Court Act is

contained in the Judiciary Court Acts volume of McKinney’s.

. N.Y. Fam. Ct. Act § 1027(b)(i) (McKinney 2010 & Supp. 2013).

. N.Y. Fam. Ct. Act § 1017 (McKinney 2010 & Supp. 2013).

. N.Y. Fam. Ct. Act § 1017 (McKinney 2010 & Supp. 2011).

. N.Y. Fam. Ct. Act §§ 1023, 1027(a)(iv) (McKinney 2010)

. N.Y. Fam. Ct. Act § 1027(b) (McKinney 2010 & Supp. 2013).

. N.Y. Fam. Ct. Act § 1027(h) (McKinney 2010 & Supp. 2013); see also Subsection (d) of this Section,

“Permanency Hearings.”

. A child is “neglected” if he has suffered or is in danger of suffering physical, mental, or emotional harm because

the parent cannot or will not provide the proper care. N.Y. Fam. Ct. Act § 1012(f)(i) (McKinney 2010). A child is “abused”

when the parent causes, allows, or creates a risk of serious emotional or physical injury that is likely to cause death or

serious physical harm, and the parent does not do so accidentally. A child is also considered abused when a parent

commits or allows to be committed a sex offense against the child. N.Y. Fam. Ct. Act § 1012(e) (McKinney 2010).

. N.Y. Fam. Ct. Act § 1044, § 1047(a) (McKinney 2010).

. N.Y. Fam. Ct. Act § 1041 (McKinney 2010).

. N.Y. Fam. Ct. Act § 1042 (McKinney 2010 & Supp. 2013). If you did not willfully refuse to appear at the

hearing, you may, within one year, petition the court for a rehearing, which the court should grant.

1012 A JAILHOUSE LAWYER’S MANUAL Ch. 33

money to retain a lawyer, the judge must appoint a free lawyer to represent you at this hearing (and the

later dispositional and permanency hearings)

and must also appoint a lawyer to represent your child.

To ensure you will be at the hearing, you or your lawyer should ask the judge to order the prison, using

an Order to Produce, to bring you to court that day. Appendix A has a sample letter requesting that the

judge submit an Order to Produce to your prison. If, because of your incarceration, you cannot be at the

hearing on the day it is scheduled, you or your lawyer should explain that to the judge. The judge should

change the date to make sure you can be there.

If the court makes a finding of abuse or neglect, it will hold another hearing, called the “dispositional

hearing.” This hearing may take place directly after the fact-finding hearing,

but it usually happens after

an adjournment (when the court postpones the hearing until a later date). You and your lawyer have the

right to participate in the dispositional hearing, and the judge cannot proceed without proof that the agency

actually notified you of the hearing. After hearing the case, the judge can one of make several rulings: return

your child to you, adjourn the case for several months with the intention of dismissing the case later, or

order placement of your child in foster care.

The judge should inform you that if you fail either to maintain contact with your child or plan for your

child’s future, your parental rights may be terminated. Your duties as the natural parent are discussed in

Part (C)(4)(b), and termination of parental rights is discussed in Part D of this Chapter.

Also, at the dispositional hearing or at the permanency hearing, (discussed in Subsection (d) of this

Section), the court can order the foster care agency to make “diligent efforts” to “encourage and strengthen

the parental relationship.”

For example, the judge can order the agency to arrange visits between you and

your child by bringing your child to visit you. You or your lawyer should ask the judge to order this visitation

because visiting with your child will strengthen your relationship and will help your case when you ask that

your child be returned to you. The judge can also order the agency to assist you with housing, employment,

counseling, medical care, psychiatric treatment, and any other appropriate services that your prison facility

can provide.

The judge will make a dispositional order, which must include:

(1) a description of the visitation plan;

(2) a statement that you have the right to attend planning conferences (with a lawyer) about your child’s

foster care and that you should be told when those meetings will occur;

100

and

(3) a notice that if your child remains in foster care for fifteen of the most recent twenty-two months, the

agency may be required to file a termination of your parental rights.

101

You have a right to a copy of this order, so remember to ask for a copy if one is not provided to you.

102

(d) Permanency Hearings

The agency that has custody of your child must conduct a permanency hearing within eight months of

your child’s removal.

103

The purpose of a permanency hearing is to determine the long-term plans for your child.

104

The court

will also examine whether you and the agency have been going along with the plan for your child and

. Dispositional hearings are discussed in Subsection (c) of this Section. Permanency hearings are discussed in

Subsection (d) of this Section.

. N.Y. Fam. Ct. Act §§ 249, 262 (McKinney 2010 & Supp. 2013).

. N.Y. Fam. Ct. Act § 1047(a) (McKinney 2010).

. N.Y. Fam. Ct. Act § 1052(a) (McKinney 2010). Please note that the Family Court Act is contained in the

Judiciary Court Acts volume of McKinney’s.

. N.Y. Fam. Ct. Act § 1089(d)(2)(viii)(F) (McKinney 2010 & Supp. 2013).

. N.Y. Fam. Ct. Act § 1089(d)(2)(vii)(A) (McKinney 2010 & Supp. 2013).

100

. N.Y. Fam. Ct. Act § 1089(d)(2)(vii)(B) (McKinney 2010 & Supp. 2013).

101

. N.Y. Fam. Ct. Act § 1089(d)(2)(vii)(D) (McKinney 2010 & Supp. 2013).

102

. N.Y. Fam. Ct. Act § 1089(e) (McKinney 2010 & Supp. 2013).

103

. N.Y. Fam. Ct. Act § 1089(a)(2) (McKinney 2010 & Supp. 2013). The statute states that the permanency

hearing must take place “no later than six months from the date which is sixty days after the child was removed from his

or her home . . . [and] shall be completed within thirty days of the scheduled date certain.” Adding the six months and 60

days means that the hearing must happen within eight months from the day your child was removed from

your home.

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1013

whether the plan should be adjusted because of changed circumstances.

105

In considering whether extension

of placement is in the best interest of your child, the court will look at the permanency goal.

106

As a result of

the ASFA, the statute was changed to allow alternative permanent plans to be made for the child, like

discharge to a “fit and willing relative.”

107

As the natural parent, you are a necessary party to the hearing, and you have a right to be present and

to have the court appoint a lawyer to represent you.

108

It is very important to attend the permanency

hearing. The permanency hearing should be scheduled during the original hearing when your child was

ordered removed,

109

but you must be re-notified of the date of the permanency hearing at least fourteen days

in advance.

110

You should also receive a copy of the agency’s permanency hearing report,

111

a document that

includes an update on your child’s well-being and on the agency’s recommendation for your child’s future

placement.

112

If you are released from prison and want your child back immediately, or before the next permanency

hearing, you should request that the agency return your child. If the agency does not fulfill your request

within thirty days, you can ask the court to terminate your child’s placement.

113

However, this motion does

not mean that the court will return your child immediately. The court may first have a hearing to determine

whether your child should be returned.

114

4. Working with Foster Care Agencies

(a) Placement with an Agency

Soon after your child enters the foster care system, DSS may transfer the responsibility for the case to

an authorized private foster care agency. This transfer is often done in New York City cases, but is not

usually done in the rest of New York state. The transfer does not mean your child will be physically moved

but only that an agency other than DSS will supervise the placement.

If your child is placed with a private agency, you should be told the name of the agency as well as the

agency caseworker assigned to your child. Until you receive this notice, you should maintain contact with

the caseworker from DSS so you can take care of the responsibilities you have.

115

If you do not hear from the

new caseworker, write to DSS and the new agency to let them know. You should show them that you are

concerned about your child’s well-being and that you want to be kept informed about your child’s

whereabouts. The more interest and concern you show for your child, the less likely it is that DSS will seek,

or that the court will approve, termination of your parental rights. It may also make the foster care agency

more open to using one of the ASFA exceptions to the requirements for terminating parental rights.

Termination of parental rights is discussed fully in Part D of this Chapter.

104

. N.Y. Fam. Ct. Act § 1089(a) (McKinney 2010 & Supp. 2013).

105

. N.Y. Fam. Ct. Act § 1089(c)(5)(i) (McKinney 2010 & Supp. 2013).

106

. N.Y. Fam. Ct. Act § 1089(c)(1) (McKinney 2010 & Supp. 2013).

107

. N.Y. Fam. Ct. Act § 1089(c)(1)(iv) (McKinney 2010 & Supp. 2013).

108

. N.Y. Fam. Ct. Act § 1090(b) (McKinney 2010 & Supp. 2013).

109

. N.Y. Fam. Ct. Act § 1089(a)(2) (McKinney 2010 & Supp. 2013).

110

. N.Y. Fam. Ct. Act § 1089(b)(1)(i) (McKinney 2010 & Supp. 2013.

See In re

Frederick W., 120 Misc. 2d 335,

342, 465 N.Y.S.2d 828, 833 (Fam. Ct. Queens County 1983) (requiring dismissal of agency’s petition to extend the

placement of the child where the agency failed to give notice to parent).

111

. N.Y. Fam. Ct. Act § 1089(b)(1)(i) (McKinney 2010 & Supp. 2013); see also

In re

Three Children Free for

Adoption, 138 Misc. 2d 584, 586, 525 N.Y.S.2d 135, 137 (Fam. Ct. Delaware County 1988) (dismissing petition for a

permanency hearing as it would require the notice of parents even for children freed from adoption);

In re

Frederick W.,

120 Misc. 2d 335, 341–42, 465 N.Y.S.2d 828, 833 (Fam. Ct. Queens County 1983) (dismissing petition to extend

placement of child for failure to serve parent with petition).

112

. N.Y. Fam. Ct. Act § 1087(e) (McKinney 2010 & Supp. 2013);

see also Matter of Three Children Free for

Adoption

, 138 Misc. 2d 584, 585, 525 N.Y.S.2d 135, 136 (Fam. Ct. Delaware County 1988) (stating that an argument that

parents are not entitled to notice “flies directly in the face of case law and of the plain and unambiguous language of the

statute.”).

113

. N.Y. Fam. Ct. Act § 1062 (McKinney 2010). Please note that the Family Court Act is contained in the

Judiciary Court Acts volume of McKinney’s. You or your lawyer should go to the Petition Room at the family court.

Someone there will help you put your case on the court calendar, which will schedule a hearing to determine whether

your child will be returned to you.

114

. N.Y. Fam. Ct. Act § 1064 (McKinney 2010 & Supp. 2013).

115

. See

N.Y. Soc. Serv. Law § 384-a(2)(c)(v) (McKinney 2010) (describing parents’ obligations when they have a

child in foster care).

1014 A JAILHOUSE LAWYER’S MANUAL Ch. 33

(b) Development of a Service Plan

When you are assigned a caseworker from DSS or a private agency, the caseworker should contact you to

arrange a meeting to discuss your child’s service plan. However, this is not usually done while you are

incarcerated, so you should request a meeting in writing. It may be possible to arrange a conference by

telephone. You should also try to keep the agency caseworker informed about programs you are participating

in while you are incarcerated, such as drug treatment or parenting skills classes.

If you and the caseworker are able to meet, you will develop a plan for your child’s time in foster care.

116

It is more likely, though, that the agency will develop the plan in your absence. If you voluntarily placed

your child in foster care, the Voluntary Agreement Form might be the basis for this plan. The plan:

(1) will include guidelines for the treatment your child will receive;

(2) will state that a termination of parental rights proceeding may be filed against you by the agency if

your child remains in foster care for fifteen out of the last twenty-two months;

117

(3) will outline the agency’s program for helping to reunite you and your child;

(4) should describe the care and services your child will receive while in foster care;

(5) should state how often you will receive visits from your child;

118

(6) will state what you need to do to get your child back; and

(7) will list your obligations for working to achieve a permanent home for your child.

119

It is not always easy to get a copy of the plan. You should request it in writing. If the agency still does

not provide you with the service plan for your family, you should inform the DSS case manager immediately

in writing, as well as the judge at the next permanency hearing. When you get a copy of the plan, be sure to

keep it for your records.

5. Rights and Obligations under Voluntary or Involuntary Foster Care

Both you and the agency have obligations towards each other and towards your child. If you do not fulfill

your obligations, the agency may go to court to try to terminate your parental rights, which means that

someone else could adopt your child without your consent. In a termination of parental rights proceeding

where the agency accuses you of permanent neglect, the agency will first have to prove that it fulfilled its

own obligations before the judge will consider ending your parental rights.

(a) The Department of Social Services’ (“DSS”) Obligations

DSS has certain responsibilities when it takes custody of your child. As previously discussed, its first

obligation is to try to find a home for your child with a relative.

120

Again, if you know someone who can take

good care of your child that your child likes, you can suggest this person or family member to DSS.

If DSS cannot find family members with whom your child might be able to live, it must do the following:

(1) Place your child in a setting that allows for the least disruption of the child’s life as possible.

121

(2) Keep a record of your child’s progress;

122

(3) Provide a caseworker who will regularly meet with you, your child, and your child’s foster parents

and who, with your help, will write a plan for the care of your child;

123

(4) Demonstrate compliance with the plan;

124

and

116

. N.Y. Comp. Codes R. & Regs. tit. 18, § 428.6(a)(1).

117

. N.Y. Soc. Serv. Law § 384-a(2)(c)(ix) (McKinney 2010).

118

. N.Y. Soc. Serv. Law § 384-a(2)(c)(iv) (McKinney 2010).

119

. N.Y. Soc. Serv. Law § 384-a(2)(c)(v) (McKinney 2010).

120

. N.Y. Soc. Serv. Law § 384-a(1-a)(a) (McKinney 2010); N.Y. Comp. Codes R. & Regs. tit. 18, § 430.10(b)(2)

(describing standards for necessary activities prior to placement including search for a relative or family friend); N.Y.

Fam. Ct. Act § 1017(1) (McKinney 2010) (describing DSS obligations for placing children and locating relatives). Please

note that the Family Court Act is contained in the Judiciary Court Acts volume of McKinney’s.

121

. N.Y. Comp. Codes R. & Regs. tit. 18, § 430.11(c)(1)(i) (suggesting that the child be able to stay in touch with

the “persons, groups and institutions” with which the child was involved before, where possible). Similarly, the child’s

setting should be the “least restrictive and most homelike” as possible. N.Y. Comp. Codes R. & Regs. tit. 18, § 430.11

(d)(1).

122

. N.Y. Comp. Codes R. & Regs. tit. 18, § 428.3(b)(1)(vi).

123

. N.Y. Comp. Codes R. & Regs. tit. 18, § 428.6.

124

. N.Y. Comp. Codes R. & Regs. tit. 18, §§ 428.1 (2010), 430.12(c)(1)(ii)(c).

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1015

(5) Provide reasonable care for and supervision of the child during the course of the placement.

125

More importantly, in most cases, DSS has a general legal obligation to make what the law calls “diligent

efforts” to encourage a relationship between you and your child,

126

although there are some exceptions

created by ASFA. “Diligent efforts” include:

(1) Keeping you informed of your child’s progress;

127

(2) Making arrangements with your correctional facility for your child to visit you regularly in the

facility;

128

and

(3) Providing or suggesting counseling or other services to resolve problems that may prevent your

child’s eventual return to you.

129

The exact meaning of “diligent efforts” will depend on the individual case. The agency may be required to

maintain regular contact with you and inform you that failure to contact and plan for your child may result

in a termination of your parental rights.

130

In one case, the court found that an agency did not make diligent

efforts when it did not help parents satisfy agency requirements for the return of their child. Although the

parents did not fulfill the agency’s plan, which included finding a suitable home, having the means to

support the child, and going to family counseling, the court held the agency should have made efforts to

address problems, such as poverty, that kept the parents from fulfilling the agency requirements.

131

another case, an agency did not satisfy its statutory requirement when it failed to offer counseling to a

child’s incarcerated father, made no effort to help the father get visitation rights, and made no attempt to

involve the father in his child’s life.

132

In defining “diligent efforts” the highest court of New York has said that the foster care agency must

make “meaningful efforts” to:

(1) provide you with counseling for any problem, such as drug or alcohol abuse, that might be an

obstacle to your child’s eventual return to you;

(2) help you find housing or employment;

(3) help you plan for your child’s future; and

125

. See

Andrews v. Cnty. of Otsego, 112 Misc. 2d 37, 39, 446 N.Y.S.2d 169, 171 (Sup. Ct. Otsego County 1982)

(holding that a county with custody of a foster care child has a continuing obligation to protect the child’s health, safety,

and welfare and can be held liable for negligent placement or supervision of a child).

126

. N.Y. Soc. Serv. Law § 384-b(7)(f) (McKinney 2010 & Supp. 2013).

See also In re

Sheila G., 61 N.Y.2d 368, 385,

389, 462 N.E.2d 1139, 1148, 1150, 474 N.Y.S.2d 421, 430, 432 (N.Y. 1984) (explaining that the agency must make

“affirmative, repeated, and meaningful efforts to assist” a parent before initiating a parental rights termination

proceeding and approving dismissal of permanent neglect petition filed by foster care agency where father had made

visits regularly, established paternity, and developed a plan to take custody of the child, but the agency did not fulfill its

“diligent efforts” requirement);

In re

Erika M., 285 A.D.2d 986, 986–87, 727 N.Y.S.2d 234, 235 (4th Dep’t 2001)

(dismissing petition for termination of parental rights because agency did not show, by clear and convincing evidence,

that it made “diligent efforts” to strengthen the parent-child bond);

In re

Jamie M., 96 A.D.2d 737, 737, 465 N.Y.S.2d

339, 340 (4th Dep’t 1983) (finding that the agency failed to make “diligent efforts” to help parents solve the very

problems requiring removal of the children and causing the termination proceedings),

aff’d

, 63 N.Y.2d 388, 472 N.E.2d

311, 482 N.Y.S.2d 461 (N.Y. 1984).

127

. N.Y. Soc. Serv. Law § 384-b(7)(f)(4) (McKinney 2010 & Supp. 2013).

See also In re

Gerald BB., 51 A.D.3d

1081, 1084, 857 N.Y.S.2d 314, 318 (3d Dep’t 2008) (holding that DSS satisfied the requirement to keep parents informed

as to child’s progress as “written reports” were “routinely sent to the mother charting her children's progress while they

were in foster care,” and finding “that efforts were repeatedly made by members of DSS to involve the mother in

discussions regarding plans for the children's future”).

128

. N.Y. Soc. Serv. Law § 384-b(7)(f)(5) (McKinney 2010 & Supp. 2013). The agency is also responsible for making

arrangements to transport your child to and from the facility to visit with you. N.Y. Soc. Serv. Law § 384-b(7)(f)(5)

(McKinney 2010 & Supp. 2013);

see also In re

Gerald BB., 51 A.D.3d 1081, 1084, 857 N.Y.S.2d 314, 318 (3d Dep’t 2008)

(finding that DSS met its burden as they “arranged with [the mother], while incarcerated, to have visits with the

children”).

129

. N.Y. Soc. Serv. Law § 384-b(7)(f)(5) (McKinney 2010 & Supp. 2013) (requiring the agency to coordinate with

the prison to provide “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”).

130

. See In re

Shannon U., 210 A.D.2d 752, 753–54, 620 N.Y.S.2d 851, 852 (3d Dep’t 1994) (holding that agency

was found to satisfy its duty because it had maintained regular contact with parents by phone, mail, home visits, and

meetings and had arranged visits, counseling, and parenting classes).

131

. See In re

Jamie M., 63 N.Y.2d 388, 394–95, 472 N.E.2d 311, 314, 482 N.Y.S.2d 461, 464 (N.Y. 1984)

(dismissing petition for termination of parental rights because the agency failed to show diligent efforts in addressing

the unemployment and financial instability of parents).

132

. See In re

Jennifer Ann W., 198 A.D.2d 881, 882, 605 N.Y.S.2d 698, 699 (4th Dep’t 1993).

1016 A JAILHOUSE LAWYER’S MANUAL Ch. 33

(4) provide opportunities for you and your child to have regular, meaningful visits.

133

Until the agency has demonstrated “some attempt” to assist you in these ways, a termination of parental

rights should not be granted.

134

However, ASFA has changed the Department of Social Services’ obligation to make reasonable attempts

to preserve the family in some circumstances. In New York, the law states that if an incarcerated parent has

failed more than once while incarcerated to cooperate with the agency’s efforts to assist the parent to plan

for the future of the child or with the agency’s efforts to plan and arrange visits, then the agency will not

have to present evidence that it made “diligent efforts.”

135

Additionally, the law states that in making determinations involving reasonable or diligent efforts, “the

health and safety of children” is the most important concern.

136

Efforts should be made to prevent removal of

the child or to make it possible for the child to return home safely.

137

Reasonable efforts to prevent the removal of a child or to reunite a child with the birth family are not

required in the following situations:

138

(1) when a court has determined that the parent has subjected the child to aggravated circumstances,

defined in New York as severe or repeated abuse;

139

(2) when a court has determined that a parent has committed a serious act of violence, including murder

or voluntary manslaughter, against one of the parent’s children;

140

attempted, conspired, or solicited

to commit such murder or voluntary manslaughter;

141

or committed assault or aggravated assault on

a child under eleven years old, resulting in serious bodily harm to the child or another child of the

parent;

142

(3) when the parent’s rights to one of the child’s siblings (including half-siblings) have been terminated

involuntarily.

143

If the agency decides not to make reasonable efforts to reunite your family, it must file a motion in court

and the judge will decide if the agency can avoid making such efforts.

144

You should be notified of and given

a copy of the motion.

(b) Your Obligations as a Parent

133

. In re

Sheila G., 61 N.Y.2d 368, 384–85, 462 N.E.2d 1139, 1147–48, 474 N.Y.S.2d 421, 429–30 (N.Y. 1984).

134

In re

Jamie M., 63 N.Y.2d 388, 394–95, 472 N.E.2d 311, 314, 482 N.Y.S.2d 461, 464 (N.Y. 1984).

135

. N.Y. Soc. Serv. Law § 384-b(7)(e)(ii) (McKinney 2010 & Supp. 2013);

see also In re

Heart Share Human Servs.

of N.Y., 28 Misc. 3d 1107, 1124, 906 N.Y.S.2d 472, 486 (Fam. Ct. Queens County 2010) (recognizing three statutory

exceptions to the diligent efforts requirements).

136

. N.Y. Soc. Serv. Law § 384-b(1) (McKinney 2010 & Supp. 2013).

137

. N.Y. Soc. Serv. Law § 358-a(2) (McKinney 2003 & Supp. 2013).

138

. N.Y. Soc. Serv. Law § 358-a(3)(b) (McKinney 2010 & Supp. 2013).

139

. N.Y. Soc. Serv. Law § 358-a(12) (McKinney 2010 & Supp. 2013). Severe abuse is defined to include conviction

for (1) committing or soliciting murder or manslaughter of another child of the parent or another child for whom the

parent is legally responsible; (2) assault against a child less than eleven years old; and (3) conviction for an above crime

in any other jurisdiction. N.Y. Soc. Serv. Law § 384-b(8)(a) (McKinney 2010 & Supp. 2013). Repeated abuse is defined to

include (1) a finding of abuse of the child; (2) a finding of abuse, within the past five years, of that child or any other

child for whom the parent is or was legally responsible; and (3) a finding that diligent efforts by the agency to encourage

the parental relationship and to rehabilitate the parent have been unsuccessful and are “unlikely to be successful in the

foreseeable future.” N.Y. Soc. Serv. Law § 384-b(8)(b) (McKinney 2010 & Supp. 2013).

140

. N.Y. Soc. Serv. Law § 358-a(3)(b)(2) (McKinney 2010 & Supp. 2013). Convictions for these offenses can occur in

jurisdictions other than New York as long as (1) the offense includes all the essential elements of the New York crime,

and (2) the victim of such offense was the child or another child of the parent. N.Y. Soc. Serv. Law § 358-a(3)(b)(5)

(McKinney 2010).

141

. N.Y. Soc. Serv. Law § 358-a(3)(b)(3) (McKinney 2010 & Supp. 2013). Convictions for these offenses can occur in

jurisdictions other than New York as long as (1) the offense includes all the essential elements of the New York crime,

and (2) the victim of such offense was the child or another child of the parent. N.Y. Soc. Serv. Law § 358-a(3)(b)(5)

(McKinney 2010 & Supp. 2013).

142

. N.Y. Soc. Serv. Law § 358-a(3)(b)(4) (McKinney 2010 & Supp. 2013). Convictions for these offenses can occur

in jurisdictions other than New York as long as (1) the offense includes all the essential elements of the New York crime,

and (2) the victim of such offense was the child or another child of the parent. N.Y. Soc. Serv. Law § 358-a(3)(b)(5)

(McKinney 2010 & Supp. 2013).

143

. N.Y. Soc. Serv. Law § 358-a(3)(b)(6) (McKinney 2010 & Supp. 2013); N.Y. Soc. Serv. Law § 358-a(3)(d)

(McKinney 2010 & Supp. 2013).

144

. N.Y. Soc. Serv. Law § 358-a(1) (McKinney 2010).

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1017

Like DSS, you must meet certain obligations while your child is in foster care. If you fail to satisfy these

requirements, DSS may claim that you have abandoned or permanently neglected your child and may ask a

court to terminate your parental rights.

145

New York law states that a parent who wishes to be reunited with

a child in foster care has the following obligations:

(1) To visit with the child;

146

(2) To plan for the future of the child;

147

(3) To consult with the foster agency about the child’s foster care plan;

148

(4) To contribute financially to the support of the child, if the parent is able;

149

(5) To inform the agency of the parent’s address every six months, even if it remains the same, and to

inform the agency immediately of any change of name or address;

150

and

(6) To cooperate with the agency.

151

The courts interpret these requirements look at both “the particular facts and [the] totality of

circumstances.”

152

This means the court will look at the facts of your particular case as a whole when

deciding whether to terminate your parental rights. Because the judge is supposed to look at the “totality of

the circumstances” of your situation, he might decide not to terminate your parental rights even if you have

not met all the obligations listed above. Also, the law says that, at the very least, an incarcerated parent has

to “cooperate with [the agency] in its efforts to ... plan for the future of the child.”

153

If an incarcerated parent

on more than one occasion fails to cooperate or has failed to inform the agency of his address for six months,

the agency does not have to continue making diligent efforts to preserve the family, including providing

for visitation.

154

If you want to retain your parental rights, you should make every effort to fulfill your obligations. In a

termination proceeding, DSS has the burden of proof to show, by clear and convincing evidence, that you

failed to fulfill your obligations.

(i) Visiting with Your Child

The law recognizes that incarcerated parents may have a difficult time arranging to visit with their

children and planning for their children’s futures. It will not be held against you if you cannot visit with your

child as often as you would like or if the agency does not provide you with visits.

155

Remember, though, that

visiting regularly is one of the most effective ways to maintain a healthy relationship with your child and to

avoid termination of your parental rights. It is generally accepted that visitation and other parental

contacts, such as letters and phone calls, are in the best interests of the child.

Not visiting with your child can be proof of abandonment or permanent neglect and can lead to

termination of your parental rights.

156

For example, one court held that a parent who failed to substantially

maintain contact with her children during a period of over one year had not lived up to her foster care

obligations.

157

You should try very hard to maintain contact with your child. Whether your child is in the

custody of a relative, a friend, your ex-spouse, or in foster care, that person should bring your child to visit

you.

158

Your parental rights are at stake, so make sure that you continuously try to visit with your child even

145

. N.Y. Soc. Serv. Law §§ 384-a(2)(c)(vi), 384-b(4)(b), 384-b(4)(d) (McKinney 2010).

146

. N.Y. Soc. Serv. Law §§ 384-a(2)(c)(v)(A), 384-b(5), 384-b(7)(a), 384-b(7)(b) (McKinney 2010).

147

. N.Y. Soc. Serv. Law § 384-a(2)(c)(v)(B), 384-b(7)(a) (McKinney 2010). For a definition of planning for the

future of the child, see N.Y. Soc. Serv. Law § 384-b(7)(c) (McKinney 2010) and the discussion in Part C(4)(b)(ii) below.

148

. N.Y. Soc. Serv. Law § 384-a(2)(c)(v)(C) (McKinney 2010).

149

. N.Y. Soc. Serv. Law § 384-a(2)(c)(v)(D) (McKinney 2010).

150

. N.Y. Soc. Serv. Law §§ 384-a(2)(c)(v)(E), 384-b(7)(e)(i) (McKinney 2010).

151

. N.Y. Soc. Serv. Law §§ 384-a(2)(c)(v), 384-b(5), 384-b(7) (McKinney 2010).

152

. In re

Orlando F., 40 N.Y.2d 103, 111, 351 N.E.2d 711, 716, 386 N.Y.S.2d 64, 68 (N.Y. 1976) (holding that

finding of permanent neglect and termination of parental rights was appropriate where mother maintained contact with

son but failed to plan for his future by not getting stable housing for three years).

153

. N.Y. Soc. Serv. Law § 384-b(7)(e)(ii) (McKinney 2010).

154

. N.Y. Soc. Serv. Law § 384-b(7)(e) (McKinney 2010).

155

. N.Y. Soc. Serv. Law §§ 384-b(7)(e)(i), 384-b(7)(f)(5) (McKinney 2010).

156

. N.Y. Soc. Serv. Law §§ 384-b(5), 384-b(7)(a), 384-b(7)(b) (McKinney 2010).

157

. See In re

Comm’r. of Soc. Serv., 84 Misc. 2d 253, 258–59, 376 N.Y.S.2d 387, 393 (N.Y. Fam. Ct. 1975)

(explaining that a parent’s failure to maintain continuous contact with the child can result in the termination of parental

rights).

See also In re

I.R., 153 A.D.2d 559, 561, 544 N.Y.S.2d 216, 217–18 (N.Y. App. Div. 1989) (explaining that

incarceration alone does not excuse a parent from maintaining contact with his child).

158

. See

Wise v. Del Toro, 122 A.D.2d 714, 714–15, 505 N.Y.S.2d 880, 881 (N.Y. App. Div. 1986) (reversing denial

1018 A JAILHOUSE LAWYER’S MANUAL Ch. 33

if the foster parents or agency are making it difficult for you to see your child. If the judge sees that you did

all that you could to try and maintain contact with your child, it will help you to regain custody of your child

when you are released. Some prisons have programs to help prisoners keep in contact with their children.

159

You should look into any such programs available at your facility and tell your caseworker that you and your

child wish to participate in the programs.

The foster care agency has a legal duty to make “diligent efforts” to encourage frequent and regular

visits between you and your child.

160

The agency is typically under an obligation to provide visits every other

week if the permanency plan for the child is returning the child to you (or “reunification”).

161

The agency

must provide financial assistance, arrange transportation, or do anything else in its power to ensure you and

your child meet.

162

A court may even order that you be allowed to visit with your child in a different facility if

that will make it easier for your child to visit you, but this will generally be a day trip with a guard and not a

permanent arrangement.

163

Because prisons generally restrict visitation hours, it may be difficult for a caseworker to arrange for

your child to meet with you in prison. If you are having difficulty arranging visits, remember that the law

requires both the caseworker to set up visits and corrections officials to cooperate with the caseworker in

making suitable visitation arrangements.

164

Prison officials do not have to set up visits between you and

your child outside of your correctional facility unless it is “reasonably feasible” (not very difficult or

inconvenient) and is in the best interests of your child.

165

A court can also determine that visitation is harmful to the child’s welfare and order that no visits occur.

In New York, “[t]he denial of visitation to a natural parent is a drastic remedy and should be done only

where there are compelling reasons and substantial evidence that such visitation is detrimental to the

children’s welfare.”

166

This means there has to be an extremely important reason why visits would be

harmful to your child, and the agency must be able to prove that such a reason actually exists and that it is

truly harmful. Also, if visitation is not permitted, then the fact that you have not visited with your child

cannot be the basis for a permanent neglect or abandonment proceeding.

167

(ii) Planning for Your Child

Courts recognize that your ability to participate in your child’s upbringing is limited because you are

incarcerated. Nevertheless, they still require that you think ahead and have a plan to care for your child.

This may include finding a home for your child among friends or relatives or preparing yourself for

reunification.

According to one parental rights specialist, plans should include the following:

(1) How you will support yourself and your child after your release (for example, by getting public

assistance or finding a job);

(2) Where you and your child will live;

(3) Where your child will go to school;

of visitation to an incarcerated father because he did not have the opportunity to present evidence and because

incarceration alone does not make visitation inappropriate); R.J. v. D.J., 133 Misc. 2d 883, 887, 508 N.Y.S.2d 838, 841

(N.Y. Fam. Ct. 1986) (holding that while incarceration alone does not prevent visitation with parent’s child, frequent

visits were unnecessary because of the stress to the mother who had to take the child to visits).

159

. You may, for example, be eligible to apply for the Family Reunion Program (“FRP”) if it is offered by your

correctional facility.

See

N.Y. Comp. Codes R. & Regs. tit. 7, § 220.2.

160

. N.Y. Soc. Serv. Law § 384-b(7)(f)(5) (McKinney 2003 & Supp. 2010).

161

. N.Y. Comp. Codes R. & Regs. tit. 18, § 430.12(d)(1)(i).

162

. N.Y. Comp. Codes R. & Regs. tit. 18, § 430.12(d)(1).

163

. See In re

Gadson, 124 Misc. 2d 1024, 1026–27, 478 N.Y.S.2d 498, 500 (N.Y. Fam. Ct. 1984) (permitting

visitation at a facility different from the one where parent was incarcerated because it was in the best interests of the

children, the alternate facility allowed for meaningful visitation, and transportation was feasible).

164

. N.Y. Soc. Serv. Law § 384-b(7)(f)(5) (McKinney 2010); N.Y. Correct. Law § 619 (McKinney 2003).

165

. N.Y. Soc. Serv. Law § 384-b(7)(f)(2) (McKinney 2010).

166

. Parker v. Ford, 89 A.D.2d 806, 807, 453 N.Y.S.2d 465, 466 (N.Y. App. Div. 1982) (holding that petitioner

father, despite alcohol abuse, was improperly denied supervised visitation, where there was no evidence that supervised

visitation would be detrimental to the child’s welfare).

But see

Sullivan Cnty. Dep’t. of Soc. Serv. v. Richard C., 260

A.D.2d 680, 682–83, 687 N.Y.S.2d 470, 472 (N.Y. App. Div. 1999) (denying visitation between father and child where

psychologist and child’s therapist recommended that visits be suspended until child developed the strength to deal with

family problems, since child consistently showed regression after contact with father).

167

. N.Y. Soc. Serv. Law § 384-b(7)(f)(5) (McKinney 2010).

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1019

(4) How you will provide for your child’s medical needs (for example, with Medicaid);

(5) What kind of religious upbringing, if any, you want for your child;

(6) Who will watch your child if you are out of the house; and

(7) How you will provide for any special needs your child may have.

168

It is important that you plan ahead for how you will care for your child after you are released from

prison. Planning ahead will demonstrate that you care about your child and have an interest in being a

parent.

To prepare yourself as a parent, you should take part in any parenting courses available at your

institution, attend vocational training classes that will improve your chances of getting a job, and join drug

or alcohol rehabilitation classes if necessary or ordered by a court. You should make every effort to

participate in programs that your caseworker suggests.

It is also important to understand that if you are incarcerated for an extended period of time, arranging

long-term foster care (as opposed to adoption) may

not

be considered an acceptable plan for your child’s

future. Courts have even terminated parental rights when prisoners have made long-term foster care

arrangements for their children on the reasoning that the parent will not get out of prison until the children

are over 18.

169

In such a situation, the state has the authority to terminate your parental rights. See Section

D below for a longer discussion of what happens when the government tries to permanently terminate your

parental rights.

(iii) Contact with Your Child and the Foster Care Agency

In addition to visiting with your child whenever you can, you should maintain contact by sending letters,

birthday and holiday cards, and gifts to your child. If your child is too young to read, draw a picture or send

a note that someone else can read aloud. These actions will show the court that you are interested in and

planning for your child’s future and that you have made an effort to fulfill your parental obligations.

You should also contact your caseworker regularly, both to inform him of your progress in prison and to

ask about your child. If you fail to keep the agency informed of your address for six months or more, the

agency is not required to make diligent efforts to encourage and strengthen the relationship between you

and your child.

170

Keep a record of all your communication with your child and with your caseworker,

including making copies of letters and cards and keeping a list of phone calls you make. Keeping accurate

records is very important because if the agency ever petitions to terminate your parental rights, you will

have proof that you were, in fact, fulfilling your obligations.

4. Assuming Care of Your Child after Release

If you voluntarily place your child in foster care, your Voluntary Placement Form may include a specific

release date for your child. In that case, the agency must return the child to you on that date.

171

If you will

still be incarcerated on the release date specified in the Voluntary Placement Form, you should inform your

caseworker. A new release date can be established, and your child can remain in foster care until then.

172

If you wish to have your child returned earlier than the date listed on the Voluntary Placement Form,

you must send a written request to the agency stating the new requested date of return and your reasons for

wanting to change the date.

173

The agency may either return the child or, within ten days, deny your

request.

174

If your request is denied, you can challenge the decision in court.

175

168

. Philip M. Genty, Memorandum for Incarcerated Parents with Children in Foster Care 3 (1988) (on file with

the

Columbia Human Rights Law Review

169

In re

Gregory B., 74 N.Y.2d 77, 90, 542 N.E.2d 1052, 1058, 544 N.Y.S.2d 535, 541 (N.Y. 1989) (upholding

termination of parental rights for incarcerated parents who made arrangements for long-term foster care until children

were no longer minors);

In re

“Female” V., 21 A.D.3d 1118, 1119, 803 N.Y.S.2d 636, 637–38 (N.Y. App. Div. 2005)

(upholding termination of parental rights for an incarcerated father who, among other things, “was unable to provide

any ‘realistic and feasible’ alternative” to having his children remain in foster care until they became adults or he was

released from prison (quoting N.Y. Soc. Serv. Law § 384-b(7)(c) (McKinney 2010))).

170

. N.Y. Soc. Serv. Law § 384-b(7)(e)(i) (McKinney 2010).

171

. N.Y. Soc. Serv. Law § 384-a(2)(a) (McKinney 2010).

172

. See

N.Y. Soc. Serv. Law § 384-a(3) (McKinney 2010) (describing how to amend a Voluntary Placement Form).

173

. N.Y. Soc. Serv. Law § 384-a(2)(a) (McKinney 2010). Reasons for changing the date of your child’s release from

foster care might include, for example, a shorter prison sentence than originally anticipated or your decision to place

your child with a relative or friend.

174

. N.Y. Soc. Serv. Law § 384-a(2)(a) (McKinney 2010).

1020 A JAILHOUSE LAWYER’S MANUAL Ch. 33

If the Placement Form does not mention a specific release date, you can request the return of your child

at any time by writing a letter to the agency. The agency must return your child to you within twenty days

or get a court order extending the care, in which case the agency probably will bring neglect proceedings.

176

Generally, the agency will have to prove that you would not be able to provide for your child—meaning that

your child would be at risk of neglect or abuse—before it can get an order extending your child’s care.

If you did not voluntarily place your child in foster care, but were forced to do so by the state

involuntarily, you may file a motion with the court to terminate the involuntary placement.

177

However, you

may file the motion with the court only after you have first applied to the agency for a termination of the

placement and were denied.

Whether your child has been placed in foster care voluntarily or involuntarily, you may be eligible for

assistance from DSS once you are released from prison and have regained custody of your child. After your

release, DSS must provide supportive and rehabilitative services, called “preventive services,” to you and

your family if there is a serious risk that you cannot care for your child and that he will be put in foster care

again.

178

You should discuss getting additional assistance with your DSS caseworker

before

your release

from prison. If you fail to do this and realize that you need additional assistance after returning home, you

will still have an opportunity to discuss this with your caseworker because your caseworker must meet with

you at least three times after your child is released from foster care.

179

If you require housing after your release from prison, you may be eligible for a housing subsidy of up to

$300 every month for up to three years. This subsidy is provided by DSS when the primary reason that a

child is kept in foster care is that parents cannot find adequate housing.

180

If you are in need of such

assistance, ask your caseworker about the subsidy and explain that you want to apply for it.

D. Involuntary Termination of Parental Rights

DSS, foster parents, a relative with care or custody of your child, or your child’s legal guardian may

begin proceedings to convince a court that terminating your parental rights and placing your child up for

adoption is the best solution for your child.

181

New York state law specifically says that the state cannot

terminate your parental rights just because you are in prison.

182

The law also recognizes that incarcerated

parents have special circumstances that judges should consider when looking at a parent’s efforts to

maintain contact with and plan for their children.

183

However, ASFA has made it easier for the state to

terminate your rights as a parent.

If you do not consent to giving your child up for adoption, a court can terminate your parental rights

only

if it finds that at least one of the following things is true:

175

. N.Y. Soc. Serv. Law § 384-a(2)(a) (McKinney 2010);

see also

N.Y. Soc. Serv. Law § 358-a(8) (McKinney 2010)

(pointing out that any order by a family court can be appealed pursuant to Article 11 of the Family Court Act).

176

. N.Y. Soc. Serv. Law § 384-a(2)(a) (McKinney 2010).

177

. See

N.Y. Fam. Ct. Act § 1062 (McKinney 2009). Please note that the Family Court Act is contained in the

Judiciary Court Acts volume of McKinney’s.

178

. You may be eligible for any of the services described in N.Y. Comp. Codes R. & Regs. tit. 18, § 423.2, which

include daycare, housekeeper/chore services, psychiatric counseling, and parent training services.

see also In re

Custody & Guardianship

of Sasha R., 246 A.D.2d 1, 7, 675 N.Y.S.2d 605, 609 (N.Y. App. Div. 1998) (discussing how the New York legislature

acknowledged that incarcerated parents have “special circumstances” that should be taken into account when evaluating

the parent's efforts to meet the statutory contact and planning requirements (citing

In re

Gregory B., 74 N.Y.2d 77, 89,

542 N.E.2d 1052, 1057, 544 N.Y.S.2d 535, 540–41 (N.Y. 1989))).

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1021

(1) You have abandoned your child for a period of at least six months immediately prior to the date on

which the termination petition was filed,

184

(2) You permanently neglected your child,

185

(3) You cannot and will not be able to provide proper care because of mental illness or intellectual

disability (which used to be called mental retardation),

186

(4) You have severely or repeatedly abused your child.

187

Under ASFA in New York, if any of the following are true, the foster care agency

must

file for

termination of parental rights:

(1) The child has been in foster care for fifteen of the most recent twenty-two months;

188

(2) The child has been determined by a court to be abandoned;

189

(3) The parent has been convicted of certain crimes, such as conspiring, soliciting, attempting, or

committing murder or manslaughter of another of his or her children for whom the parent is legally

responsible,

190

or attempting or committing assault on a child under eleven years of age who is a

child of the parent or a child for whom the parent is legally responsible;

191

(4) The parent has been convicted of any of the above crimes in another jurisdiction.

192

The State is still required to prove its case in order to actually terminate your rights. But even if any of

the four above grounds are present (where the agency is required to file under ASFA), the agency does not

need to file for termination proceedings if any of the following are also present:

(1) The child is being cared for by a relative,

193

(2) The agency has documented in the plan a compelling reason that filing a petition to terminate

parental rights would not be in the best interest of the child,

194

(3) The agency has not provided the parent(s) with adequate reunification services in cases where those

services are part of the reasonable efforts requirement.

195

When the foster care agency alleges in a petition that your case falls into one of the four categories listed

above and files for termination of parental rights, the court will first hold a fact-finding hearing to see if the

agency’s allegation is correct. Then, in all cases involving permanent neglect or severe or repeated abuse, it

will hold a “dispositional hearing.”

196

In the dispositional hearing, the judge will decide whether terminating

your parental rights is in your child’s best interest. In cases of abandonment or mental illness, dispositional

hearings are not required, and your parental rights may be terminated automatically if the court finds there

is abandonment or mental illness in the fact-finding hearing. However, the court may still choose to hold a

dispositional hearing in those instances.

One possible compromise in a proceeding to terminate parental rights is a “suspended judgment” for one

year.

197

A suspended judgment means that the court will monitor the situation for a year and determine

184

. N.Y. Soc. Serv. Law § 384-b(4)(b) (McKinney 2010 & Supp. 2012). Under New York state law, a parent

abandons a child when he shows “an intent to forego his or her parental rights and obligations ... by his or her failure to

visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from

doing so by the agency.” N.Y. Soc. Serv. Law § 384-b(5)(a) (McKinney 2010 & Supp. 2012).

185

. N.Y. Soc. Serv. Law § 384-b(4)(d) (McKinney 2010 & Supp. 2012). A parent permanently neglects a child

when he “continuously or repeatedly” fails for a period of either one year, or fifteen out of the most recent twenty-two

months, “to maintain contact with or plan for the future of the child, although physically and financially able to do

so . . ..” N.Y. Soc. Serv. Law § 384-b(7)(a) (McKinney 2010 & Supp. 2012).

186

. N.Y. Soc. Serv. Law § 384-b(4)(c) (McKinney 2010 & Supp. 2012).

187

. N.Y. Soc. Serv. Law § 384-b(4)(e) (McKinney 2010 & Supp. 2012). See Part C(4)(a) of this Chapter for a

definition of severe and repeated abuse. Under N.Y. Soc. Serv. Law § 384-b(8)(b)(ii)(A) (McKinney 2010 & Supp. 2012),

repeated abuse that will lead to the termination of parental rights also includes a parent committing or “knowingly”

allowing a felony sex offense to be committed against his child.

188

. N.Y. Soc. Serv. Law § 384-b(3)(l)(i) (McKinney 2010 & Supp. 2012).

189

. N.Y. Soc. Serv. Law § 384-b(3)(l)(i) (McKinney 2010 & Supp. 2012).

190

. N.Y. Soc. Serv. Law § 384-b(8)(a)(iii)(A)–(B) (McKinney 2010 & Supp. 2012).

191

. N.Y. Soc. Serv. Law § 384-b(8)(a)(iii)(C) (McKinney 2010 & Supp. 2012).

192

. N.Y. Soc. Serv. Law § 384-b(8)(a)(iii)(D) (McKinney 2010 & Supp. 2012).

193

. N.Y. Soc. Serv. Law § 384-b(3)(l)(i)(A) (McKinney 2010 & Supp. 2012).

194

. N.Y. Soc. Serv. Law § 384-b(3)(l)(i)(B) (McKinney 2010 & Supp. 2012). Compelling reasons are defined in N.Y.

Soc. Serv. Law § 384-b(3)(l)(ii) (McKinney 2010 & Supp. 2012).

195

. N.Y. Soc. Serv. Law § 384-b(3)(l)(i)(C) (McKinney 2010 & Supp. 2012).

196

. N.Y. Soc. Serv. Law § 384-b(3)(e) (McKinney 2010 & Supp. 2012); N.Y. Fam. Ct. Act § 623 (McKinney 2009).

See Part C(2)(c) of this Chapter for information on dispositional hearings.

197

. N.Y. Fam. Ct. Act § 633 (McKinney 2009 & Supp. 2012);

see also

Comm’r. of Soc. Serv. v. Rufelle C., 156 Misc.

1022 A JAILHOUSE LAWYER’S MANUAL Ch. 33

what to do before entering the actual judgment. During that year, it is like you are on probation, and the

court will require you to satisfy certain conditions. For example, the court may require you to communicate

and visit with your child regularly, enroll in counseling programs, and cooperate with the agency in planning

for your child’s future. If you do not comply with the conditions of the order, the court may withdraw the

suspended order and terminate your parental rights.

1. DSS-Initiated Termination Proceedings

Most termination proceedings against incarcerated parents charge the parent with abandonment or

permanent neglect. These terms are defined below.

(a) Abandonment

In a proceeding based on abandonment, DSS only has to prove that for a period of six months before the

termination petition was filed, you failed to communicate and visit with your child

198

“although able to do so

and not prevented or discouraged from doing so by the agency.”

199

In order to prove abandonment, the

agency does not have to show that it attempted to help the parent.

200

Thus, it is good to keep records of your

attempts to communicate with the child and with the agency.

(b) Permanent Neglect

Under New York law, a parent “permanently neglects” his child when, even though he is physically and

financially able to do so, he fails to maintain contact with or plan for the future of the child for a period of

either one year, or fifteen out of the most recent twenty-two months, even though he while the child is in the

care of an authorized agency.

201

During that period of time, the agency must make diligent efforts to

strengthen the parental relationship.

202

The agency does not have to make diligent efforts where a court has

previously decided that those efforts are not necessary.

203

In cases charging permanent neglect, the court must first look at the actions that DSS took in your case

before they look at your behavior. DSS must prove that, where required, it or the foster care agency involved

made diligent efforts (as discussed in Part C(4)(a)) to strengthen the relationship between you and your

child, and to reunite your family.

204

If you believe that the agency has not made diligent efforts, you or your

lawyer need to explain this to the judge and show that the agency did not make proper efforts. For example,

if the agency never brought your child to prison for a visit, even though you repeatedly requested that they

do so, or if the agency did not help you with a problem related to your parenting, you could bring that up to

show the agency did not make diligent efforts to strengthen your relationship. Use telephone logs and copies

of bills to establish that you made these efforts. Ask your lawyer to subpoena people from the prison to

testify on your behalf.

Once a court has found permanent neglect, it will hold a dispositional hearing to consider the best

interests of the child. A child’s best interests (legally speaking) involve his physical and emotional well-

being, including a permanent home and a normal, stable family atmosphere.

205

2d 410, 416, 593 N.Y.S.2d 401, 405 (N.Y. Fam. Ct. 1992) (granting respondent parent a rehearing to determine whether

parent had fulfilled the conditions of the suspended judgment).

198

. N.Y. Soc. Serv. Law § 384-b(4)(b) (McKinney 2010 & Supp. 2012).

199

. N.Y. Soc. Serv. Law § 384-b(5)(a) (McKinney 2010 & Supp. 2012).

200

. N.Y. Soc. Serv. Law § 384-b(5)(b) (McKinney 2010 & Supp. 2012).

201

. N.Y. Soc. Serv. Law § 384-b(7)(a) (McKinney 2010 & Supp. 2012).

202

. N.Y. Soc. Serv. Law § 384-b(7)(a) (McKinney 2010 & Supp. 2012).

Compare In re

Sheila G., 61 N.Y.2d 368,

380, 462 N.E.2d 1139, 1145, 474 N.Y.S.2d 421, 427 (1984) (finding that the foster care agency did not exercise diligent

efforts in fostering the relationship between a biological father and his child),

with

In re

Demetrius F., 176 A.D.2d 940,

941, 575 N.Y.S.2d 552, 552 (2d Dept. 1991) (finding that it is unnecessary for the agency to show that it exercised

diligent efforts to foster the relationship between a parent and child where the ground for termination of parental rights

is mental illness).

203

. N.Y. Soc. Serv. Law § 384-b(7)(a) (McKinney 2010 & Supp. 2012).

204

. N.Y. Soc. Serv. Law § 384-b(7)(f) (McKinney 2010 & Supp. 2012) (defining diligent efforts).

205

. In re

Michael B., 80 N.Y.2d 299, 311–12, 314–15, 604 N.E.2d 122, 129–31, 590 N.Y.S.2d 60, 67, 69 (1992)

(concluding that the Appellate Division had used an incorrect test to decide what was in the child’s best interests; the

Appellate Division relied on the child’s length of stay and his bonding with foster parents instead of considering the

fitness of the biological parent, the agency’s plan for the child, and the child’s emotional well-being);

In re

Suzanne N.Y.,

77 A.D.2d 433, 434, 433 N.Y.S.2d 580, 581–82 (1st Dept. 1980) (granting termination of parental rights where an

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1023

2. Defending Yourself Against Termination of Parental Rights

It is very important for you to be present at the termination hearing. The agency must serve you with

notice (meaning they must tell you the time and location) of the hearing,

206

and inform you that you have a

right to attend.

207

At the hearing, DSS will challenge your capabilities as a parent, and you should be there

to respond to any issues raised. If you are not at the hearing, you will not be able to defend yourself, and it

might look like you are not interested in protecting your parental rights.

Although you have a right to attend the hearing, if you are in a facility outside of the state where the

hearing will be held, the officials at your correctional facility probably will not bring you to the hearing. In

one such case, a court held that a hearing could proceed without the presence of the incarcerated parent

because the interests of the state and the child outweighed the parent’s interest in being at the hearing.

208

other words, the court found that it was less important to wait for the incarcerated parent than for the state

and the child to have the hearing.

If you are unable to attend the hearing, other ways to participate include testifying by deposition (a

deposition is a special legal document where you answer questions or make statements in another place and

it is brought before the court in writing instead of you being there in person), aggressive representation by

your attorney (have your lawyer argue strongly for you), and a telephone conference call during the hearing.

To find that you have not “abandoned” or “permanently neglected” your child, the court must find that

you: (1) made an effort to keep in contact with your child (which includes contact that you have with the

agency), and (2) planned for your child’s future during your incarceration. These two conditions were

discussed above.

In New York, you have a right to a lawyer for the termination hearing.

209

The lawyer will help you argue

your case for keeping your parental rights. You can either hire a lawyer yourself or ask the judge to assign

one to you. Unfortunately, the family court is unlikely to appoint an attorney if you do not appear at the

hearing. You may try to write to the court and respond to the allegations in the petition or ask to have an

attorney appointed.

eight-year-old child had lived with her foster parents since the age of four months and her mother was a schizophrenic

who required medication to remain minimally functional),

rev’d on other grounds

, 54 N.Y.2d 824, 427 N.E.2d 1187, 443

N.Y.S.2d 722 (1981).

206

. N.Y. Soc. Serv. Law § 384-b(3)(e) (McKinney 2010 & Supp. 2012).

207

. New York courts have recognized the right to attend termination proceedings.

See In re

Daniel Aaron D., 49

N.Y.2d 788, 791, 403 N.E.2d 451, 452, 426 N.Y.S.2d 729, 730 (1980) (ruling that the mother should have been present at

the hearing during the testimony of the court-appointed psychiatrist since mother had not waived her right to be

present);

see also In re

Tyrell M., 283 A.D.2d 500, 501, 724 N.Y.S.2d 874, 875 (2d Dept. 2001) (finding that the family

court erred in not allowing the mother to testify on her own behalf at the next court date prior to finding that she had

neglected her children);

In re

Cleveland W., 256 A.D.2d 1151, 1151–52, 684 N.Y.S.2d 121, 121 (4th Dept. 1998) (finding

family court abused its discretion by proceeding with termination hearing even though respondent mother had called the

court to inform them that she was too ill to attend; her attorney appeared and also told the court about the mother's

illness, and the mother supplied a doctor's note documenting her illness);

In re

Kendra M., 175 A.D.2d 657, 658, 572

N.Y.S.2d 583, 585 (4th Dept. 1991) (finding that the family court erred in conducting the fact-finding hearing on a date

when the incarcerated parent could not attend; also finding that the court should have made arrangements to have the

parent brought from jail to be present at the hearing);

In re

Victory (New York Foundling Hosp.), 78 A.D.2d 843, 844,

433 N.Y.S.2d 445, 446 (1st Dept. 1980),

aff’d

, 52 N.Y.2d 1071 (N.Y. 1981) (affirming the right that a father of a child born

out of wedlock has to participate and be heard at all stages of the proceeding regarding the child’s foster care status).

The only other states that have found such a right are Arizona, California, and Florida. Texas has held specifically that a

prisoner has no right to be at the termination hearing.

See

Philip M. Genty, Procedural Due Process Rights of

Incarcerated Parents in Termination of Parental Rights Proceedings: A Fifty State Analysis, 30 J. Fam. L. 757, 774–75

(1991/92).

208

. See In re

A.O., 157 Misc. 2d 177, 179, 596 N.Y.S.2d 971, 973 (Fam. Ct. Bronx County 1993) (finding that a

hearing could proceed because the incarcerated father’s correctional facility in Connecticut refused to produce him and

the father refused alternate methods for out-of-court participation, such as telephone conference and written sworn

testimony);

see also In re

James Carton K.,, 245 A.D.2d 374, 376–77, 665 N.Y.S.2d 426, 428–29 (2d Dept. 1997)

(affirming termination of parental rights despite parent’s absence, and holding that a parent’s right to be present for

fact-finding and dispositional hearings in termination cases must be balanced with the child’s right to a prompt and

permanent adjudication),

appeal denied

, 91 N.Y.2d 809, 693 N.E.2d 750, 670 N.Y.S.2d 403 (1998). All the states that

have decided this issue have ruled that a prisoner incarcerated out of state does not have a right to be produced for the

termination hearing.

See

Philip M. Genty, Procedural Due Process Rights of Incarcerated Parents in Termination of

Parental Rights Proceedings: A Fifty State Analysis, 30 J. Fam. L. 757, 775–76 (1991/92).

209

. N.Y. Fam. Ct. Act § 262(a)(iv) (McKinney 2008). See Part H of Chapter 33 for more information on your right

to counsel.

1024 A JAILHOUSE LAWYER’S MANUAL Ch. 33

(a) Maintaining Contact with Your Child

The best way to show that you have maintained contact with your child is to give the judge copies of all

letters and proof of other communications that you have had with DSS, the caseworker, your child, the

family court, the foster parent, and anyone else involved in your child’s foster care. You should keep a file

with photocopies or carbon copies of all of these documents to help with this task. If you cannot photocopy

the letters, keep a written record of each letter and a brief summary of what you wrote in the letter. You

should also keep a telephone log of all of the calls you make. If you get charged for and pay for phone calls

that you make, make sure to get receipts to show the judge.

Being in jail or prison is not an excuse for not staying in contact with your child. An incarcerated parent

who does not make an effort to keep in touch with the child may be charged with permanent neglect or

abandonment.

210

A parent must personally make contact and cannot rely on a relative to make contact.

211

Also, visitation and contact may not be enough if the court finds the quality of the visits or contacts poor or

too infrequent.

212

The court may decide not to terminate your parental rights if you can show that you had a good reason

for not communicating with your child and the agency. Typically, this means you must show that it was

impossible

for you to communicate with either the child or the agency.

213

However, in one case, an

incarcerated father who had not communicated with his child or the agency for six months succeeded in an

abandonment proceeding by arguing that his child would be upset by visiting him in a prison setting, and

explained that he could not communicate through letters or telephone calls because the child was an

infant.

214

He also explained that he was scared to contact the agency because he was incarcerated, although

he had attempted unsuccessfully to contact them once. In addition, this father had made plans for the child’s

future and he had asked his girlfriend to seek visitation with the child. The court concluded that the father’s

conduct demonstrated that he did not intend to give up his parental rights and responsibilities.

215

(b) Planning for Your Child

The second requirement you must satisfy to maintain your parental rights involves planning for your

child. Planning for your child is discussed above in Part C(4)(b)(ii). Your plan must be reasonable

and achievable.

216

To show that you are planning for your child’s future, you can participate in whatever programs your

facility offers for parents, such as parenting courses and drug and alcohol abuse counseling. It is very

210

. See In re

Antia Siami D., 192 A.D.2d 389, 389, 596 N.Y.S.2d 64, 64 (1st Dept. 1993) (terminating

incarcerated the parent’s rights because the parent had failed to contact the child for more than six months, even though

the parent could have sent a letter or communicated through another person);

see also In re

Ravon Paul H., 161 A.D.2d

257, 257, 555 N.Y.S.2d 49, 49 (1st Dept. 1990) (finding termination of parental rights to be in the best interests of the

child where the incarcerated parent did not write, send gifts, telephone, or otherwise try to keep a relationship with the

child or the agency; also stating that “sporadic and minimal attempts to maintain a parental relationship are insufficient

to prevent a finding of abandonment”);

see also In re

Shannon Q., 262 A.D.2d 679, 680, 690 N.Y.S.2d 788, 789 (3d Dept.

1999) (stating that “incarceration alone does not excuse respondent's failure to contact his child” where the parent did

not try to contact Social Services to find out the location of his daughter).

211

. See In re

Thomas G., 165 A.D.2d 729, 729, 564 N.Y.S.2d 32, 33 (1st Dept. 1990) (holding that communication

between a paternal grandmother and an agency did not satisfy the incarcerated father’s obligation to make contact with

his child);

see also In re

Christopher MM., 210 A.D.2d 767, 767, 620 N.Y.S.2d 853, 854 (3d Dept. 1994) (finding father’s

contacts to be “minimal and insubstantial” for the purposes of an abandonment proceeding when the only attempts to

contact the child were three phone calls placed to child’s grandparents),

appeal denied

, 85 N.Y.2d 807, 651 N.E.2d 918,

628 N.Y.S.2d 50 (1995).

212

. See In re

Cecelia A, 199 A.D.2d 582, 583, 604 N.Y.S.2d 327, 329 (3d Dept. 1993) (finding “sporadic and

unsubstantial contacts” insufficient to defeat an abandonment petition supported by “clear and convincing evidence”);

Tasha Monica B., 156 A.D.2d 247, 247, 548 N.Y.S.2d 508, 509 (1st Dept. 1989) (finding that visitation alone was

insufficient to show parent was fulfilling obligations where the quality of visitation was poor).

213

. See In re

Trudell J.W., 119 A.D.2d 828, 829, 501 N.Y.S.2d 453, 453 (2d Dept. 1986) (finding that the

termination of parental rights was appropriate where the mother did not produce evidence that her failure to contact the

child or agency was a result of circumstances that made it impossible for her to do so).

214

. See In re

Baby Girl I., 210 A.D.2d 601, 602–603, 619 N.Y.S.2d 832, 833 (3d Dept. 1994).

215

. See In re

Baby Girl I., 210 A.D.2d 601, 602–03, 619 N.Y.S.2d 832, 833 (3d Dept. 1994).

216

. See In re

Leon RR, 48 N.Y.2d 117, 125–26, 397 N.E.2d 374, 379, 421 N.Y.S.2d 863, 868–69 (1979) (finding that

the parents’ plans for child’s future were adequate where the parent solved personal problems that had led to the child’s

initial removal, found employment, found suitable housing, and sought psychological counseling).

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1025

important that you have evidence of participating in those programs, so you should try to get a certificate

that shows that you participated in or completed the program. Otherwise, you can ask your lawyer to

subpoena

a supervisor or counselor who can testify at the hearing about your progress and participation in

a program. A subpoena is an official court document that requires a person to appear in court at a specific

time and place.

3. Termination Proceedings Against Prisoners with Long-Term Sentences

Prisoners with long-term sentences are at a greater disadvantage when it comes to keeping their

parental rights. A plan for long-term foster care, even with adequate visitations and contacts, is not enough

to fulfill the obligation of planning for an alternative living arrangement for your child.

217

ASFA’s time limits

make the protection of parental rights especially difficult in this situation.

New York’s highest court has held that parents who will be in prison for ten to twenty years or twenty-

five years to life, and who have no plan for their children other than to have the children remain in long-

term foster care, should lose their parental rights.

218

The court found that the legislature did not mean “to

approve a plan of indefinite foster care for the child of an incarcerated parent who is serving a lengthy prison

term and who cannot provide the child with an alternative living arrangement.”

219

In other words, foster

care cannot be used to preserve your parental rights if it is clear that you will never be able to care for

your children, and that you have not arranged for another person to care for them while you are

in prison. The court noted that even though there is a legislative concern for the rights of incarcerated

parents, the law states that a child deserves a “normal family life in a

permanent

home” with a nurturing

family relationship.

220

Another case terminating the parental rights of a long-term prisoner involved a father who would be

eligible for parole in seven years. The court reached a similar conclusion, holding that long-term foster care

was not an appropriate plan.

221

Likewise, a father’s intention for his child to remain in foster care for six

years or more while he was incarcerated was found to be inappropriate without the father having further

plans or efforts to stay in his child’s life. In that case, the court terminated the father’s parental rights based

on a finding of permanent neglect.

222

A plan for long-term foster care is not adequate for a parent to keep his parental rights even when that

parent has maintained contact and a close relationship with the child. If you are serving a long sentence and

your child is in foster care, it is very important that you attempt to remove your child from foster care by

privately placing him with a relative or another person. If the court identifies relatives who will care for the

child, it may not order termination of your parental rights.

223

Otherwise, you risk losing your parental

rights.

217

. See In re

Gregory B., 74 N.Y.2d 77, 90, 542 N.E.2d 1052, 1058, 544 N.Y.S.2d 535, 541 (1989) (finding that

leaving a child to foster care until he is no longer a child is not an acceptable plan for the purposes of planning an

alternate living arrangement for a child).

218

. See In re

Gregory B., 74 N.Y.2d 77, 90, 542 N.E.2d 1052, 1058, 544 N.Y.S.2d 535, 541 (1989) (finding that

leaving a child to foster care until he is no longer a child is not an acceptable plan for the purposes of planning an

alternate living arrangement for a child).

219

. In re

Gregory B., 74 N.Y.2d 77, 89, 542 N.E.2d 1052, 1058, 544 N.Y.S.2d 535, 541 (N.Y. 1989) (finding that

leaving a child to foster care until he is no longer a child is not an acceptable plan for the purposes of planning an

alternate living arrangement for a child).

220

. In re

Gregory B., 74 N.Y.2d 77, 89, 542 N.E.2d 1052, 1058, 544 N.Y.S.2d 535, 541 (N.Y. 1989) (quoting

In re

Joyce T., 65 N.Y.2d 39, 47, 478 N.E.2d 1306, 1311–12, 489 N.Y.S.2d 705, 711 (N.Y. 1985) (emphasis added));

see also

N.Y. Soc. Serv. Law § 384-b(1)(a) (McKinney 2010) (describing legislative intent behind guardianship and custody

statutes).

221

. See In re Omar Garry G.

, 198 A.D.2d 149, 149, 603 N.Y.S.2d 860, 861 (1st Dept. 1993) (finding that the

termination of parental rights was appropriate where the incarcerated parent’s only plan for his child was to have the

child remain in foster care until his release; the court said that the termination of parental rights was especially

appropriate since there were relatives who appeared to be “ready, willing, and able” to care for the child during the

parent's incarceration),

appeal denied

, 83 N.Y.2d 753, 634 N.E.2d 603, 612 N.Y.S.2d 107 (1994).

222

. See In re

Latasha C., 196 A.D.2d 756, 756, 602 N.Y.S.2d 11, 12 (1st Dept. 1993).

223

. See In re Omar Garry G.

, 198 A.D.2d 149, 149, 603 N.Y.S.2d 860, 861 (1st Dept. 1993).

See also In re

Gregory

B., 74 N.Y.2d 77, 88, 542 N.E.2d 1052, 1057, 544 N.Y.S.2d 535, 540 (1989).

1026 A JAILHOUSE LAWYER’S MANUAL Ch. 33

4. Practical Tips for Preventing Termination of Parental Rights

(1)

Know the Legal Status of Your Child’s Placement.

Is your child in foster care or private custody? If

your child is in foster care, what type is it? Was your child voluntarily or involuntarily placed?

Gather all documents relating to your child’s placement in one place, and keep safe and precise

records.

(2)

Maintain Contact with Your Child.

Write letters and cards. If possible, call your child. Try to arrange

for visitation as often as possible. Keep copies of everything you send and a log of your phone calls.

(3)

Maintain Contact with Your Caseworker or Your Child’s Guardian.

Write or call your caseworker or

child’s guardian often. Ask about your child’s, interests, health, progress in school, problems, etc.

Also ask to establish a regular schedule for visitation. Again keep accurate records of your contact

with caseworkers and guardians.

(4)

If Your Child Is in Foster Care, Maintain Contact with the Social Services Agency.

At least once

every six months, notify the agency of your current address in writing. Cooperate with the foster care

agency if it helps you plan for your child’s future by asking you to attend classes or complete

programs at your facility or if the agency attempts to arrange visits.

(5)

Attend Court Hearings.

Make sure that the judge knows you are involved and are concerned about

your child. If you learn that a court hearing has been scheduled, send a letter to the family court

clerk asking that you be produced in court and asking to have legal representation assigned to you.

Once your lawyer is assigned, make sure you know his or her name, address, and telephone number.

(6)

Most Importantly, Keep Records.

Make a record of every phone call you make to your child, your

caseworker, a court, or foster care agency. If possible, make copies of every letter you send. This is

very important and might mean the difference between keeping and losing your child after you are

released.

E. Voluntary Adoption

You might decide that adoption is the best choice for your child. To do this, you must “surrender” your

child, which generally means that you give up all your parental rights to your child. Generally, you give up

the right to visit your child, call your child, and even learn how your child is doing.

224

This is called a “total

surrender.” However, it may be possible to negotiate some conditions to the surrender of your child, such as

naming the person who adopts your child or preserving your right to see your child after adoption.

225

This

option is called a “conditional surrender.” If you negotiate these conditions and the person who adopts your

child prevents you from seeing your child, you may petition a court for visitation. The court would then

conduct a hearing to determine if visitation is in the best interests of the child.

226

Whether you choose a total or conditional surrender, you are making a serious decision and you should

get all the advice and help that you think you need. You have the right to talk with a lawyer before you sign

a “Surrender Instrument,” which is the form you sign to give up your child. If your child is in foster care, you

have the right to supportive counseling before you sign the surrender instrument.

227

Make sure you have

read and you fully understand any and all documents that you are asked to sign. If you do not understand

something in a document, ask your lawyer to explain it. Do not sign anything until you are sure that you

understand what the consequences of signing will be and you are sure that this is what you want to do and

what you think is best for your child.

The adoption process is different depending on whether your child is in foster care or has been placed

privately with friends or relatives.

224

. N.Y. Soc. Serv. Law § 383-c(3)(b) (McKinney 2010). However, a surrender of a child in foster care may include

a provision for visitation with the child after adoption.

225

. N.Y. Soc. Serv. Law § 383-c(2)(b) (McKinney 2010).

226

See

In re

Sabrina H., 245 A.D.2d 1134, 1135, 666 N.Y.S.2d 531, 531 (4th Dep’t 1997) (finding that a biological

mother can petition the court for enforcement of conditions in the surrender agreement). However, an adoptive parent’s

refusal to let a biological parent see the child would not allow the biological parent to automatically revoke the

surrender.

227

. N.Y. Soc. Serv. Law §§ 383-c(3)(b), (5)(b)(i) (McKinney 2010).

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1027

1. If Your Child Is in Private Placement

If your child is living with a friend or relative through a private arrangement, you can surrender your

child either by giving him to a foster care agency or adoption agency or by making a private adoption

agreement.

228

You make the surrender by signing the form in or out of court.

After you have surrendered your child to the agency, you have thirty days to change your mind.

229

If you

change your mind after thirty days, you may regain your parental rights only if your child has not yet been

placed in an adoptive home.

230

If you change your mind about the surrender and your child is already in an

adoptive home, the judge will decide who has legal custody based solely on the “best interests of the child.”

231

2. If Your Child Is in Foster Care

If your child is in foster care, contact your child’s caseworker and explain that you are interested in

giving up your child for adoption. When the child is already in foster care, the surrender can take place in

one of two ways. The first is to “execute and acknowledge” the surrender instrument in court before a

judge.

232

If the surrender takes place in court, your parental rights are irrevocably terminated.

233

This

means you cannot change your mind and regain parental rights to your child.

The second type of surrender takes place outside of court and is called an “extra-judicial surrender.” If

you sign the surrender instrument outside of court, you have forty-five days after signing the surrender to

change your mind.

234

As with foster parents, ASFA requires that the agency check the criminal records of prospective adoptive

parents. The requirements for approval or denial of an adoptive parent are the same as for a foster parent.

235

F. Incarcerated Fathers with Children in Foster Care

Incarcerated fathers with children in foster care face unique challenges. As a father, your biological link

to your child is not enough to protect your rights as a parent.

236

You must take affirmative actions to protect

your rights, such as maintaining contact with your child while he or she is in foster care. Without these

actions, you risk losing your child to adoption without the court seeking your consent or even notifying you of

its actions.

1. Establishing Paternity—Becoming a “Legal Father”

In order to exercise the parental rights described in this Chapter, you must establish paternity by

proving to a court that you are the legal father of your child. Apart from giving you rights, establishing

paternity also gives you responsibilities. One of the major responsibilities that goes along with a court

finding that you are a child’s father is a possible obligation to pay child support.

237

Establishing paternity is only necessary if your child was born out of wedlock. If you were or are married

to the mother of your child, you are automatically considered to be the father of all children conceived or

born to the mother during the marriage, and you do not have to establish paternity. However, if you are

unmarried, you are not the child’s legal father even if you lived with the mother of your children for a

number of years. Additionally, having your name on your child’s birth certificate does not automatically

228

. N.Y. Dom. Rel. Law §§ 115–16 (McKinney 2010). A private adoption involves a contract between the birth

parents and adoptive parents without agency involvement.

229

. N.Y. Soc. Serv. Law § 384(5) (McKinney 2010).

230

. N.Y. Soc. Serv. Law § 384(5) (McKinney 2010).

231

. N.Y. Soc. Serv. Law § 384(6) (McKinney 2010).

232

. N.Y. Soc. Serv. Law § 383-c(3)(a) (McKinney 2010).

233

. N.Y. Soc. Serv. Law § 383-c(3)(b)(McKinney 2010).

234

. N.Y. Soc. Serv. Law § 383-c(5)(d)(ii) (McKinney 2010).

235

See

N.Y. Soc. Serv. Law § 378-a(2)(a) (McKinney 2010); see also Part C(1)(d) of this Chapter.

236

In re

Robert O., 80 N.Y.2d 254, 265, 604 N.E.2d 99, 104, 590 N.Y.S.2d 37, 42 (1992) (holding that the biological

link of the father is insufficient to create a constitutionally protected interest and that the unwed biological father must

demonstrate some action for him to enjoy protection of his parental rights);

see also

Caban v. Mohammad, 441 U.S. 380,

392, 99 S. Ct. 1760, 1768, 60 L. Ed. 2d 297, 307 (1979) (finding that where the father has not taken action to “participate

in the rearing of his child, nothing in the Equal Protection Clause precludes the State from withholding from him the

privilege of vetoing the adoption of that child”).

237

. N.Y. Fam. Ct. Act § 413 (McKinney 2010). Please note that the Family Court Act is contained in the Judiciary

Court Acts volume of McKinney’s.

1028 A JAILHOUSE LAWYER’S MANUAL Ch. 33

make you the child’s legal father.

238

Therefore, if you were not married to the mother of your child when your

child was conceived or born, you will have to prove your paternity. Fathers who married their child’s mother

after the child was born must also prove paternity.

To prove your paternity, you should file a petition for an order of “filiation”

239

(another word for

paternity) in family court in the county where either the child or the child’s mother lives.

Your paternity petition must:

(1) be in writing, either handwritten or typed;

(2) state that you (“petitioner”) are the father of the child. You must say you are the father of the child

and why. This is done by alleging that you had sexual intercourse with the child’s mother during a

time about nine months prior to the child’s birth;

(3) be verified. You must have a notarized statement saying that the reasons you give in the petition and

the claims you make about paternity are true; and

(4) be served on the respondent. This means you must have someone over the age of eighteen deliver a

copy of the petition to your child’s mother. This will inform the mother of the paternity proceedings

in family court so that she can be present during the proceedings.

240

If on the court date the mother agrees that you are the child’s father, the judge may find that paternity

has been proven. If the mother disputes that you are the father, the judge may order DNA testing to prove

paternity, which you may be required to pay for. Once your paternity is established, you have the right to

request visits with your child and to be involved in planning for your child’s future (permanency planning)

while he is in foster care. If paternity is not proven, you do not have a legal right to visits or to a say in

permanency planning.

Even if paternity is proven, you may not necessarily have the right to stop your child’s adoption

proceedings. The following Section outlines the steps you can take to become a “consent” father (one who has

the right to consent to adoption). It also explains the requirements for being considered a “notice” father (one

who has a right to be notified of termination of parental rights and subsequent adoption).

1. Types of Fathers

As explained in Part D, while your child is in foster care, proceedings may begin to convince the court

that terminating parental rights and placing your child for adoption is the best option for your child. Your

permission, or consent, may or may not be required for these proceedings to go forward. Your right to

consent to adoption or even to be notified about the adoption depends on how the law classifies you as

a father.

(a) Married Fathers

Married fathers have all the rights and obligations that a biological mother would have.

241

If you are a

married father, your consent will be needed before any adoption takes place, and you have the right to be

present at all hearings, as well as to initiate hearings, as described generally in Part D of this Chapter.

238

See

In re

Strong’s Estate, 168 Misc. 716, 723, 6 N.Y.S.2d 300, 306 (Sur. Ct. N.Y. County 1938) (“The fact of

birth may be established by a birth certificate, although such certificate is not admissible to establish parentage.”), aff'd,

256 A.D. 971, 11 N.Y.S. 2d 225 (1st Dep’t 1939); see also Stanford v. Union Labor Life Ins. Co., 74 Misc. 2d 781, 786, 345

N.Y.S.2d 928, 934 (Sup. Ct. Monroe County 1973) (“It is the rule in New York that a birth … certificate is admissible as

a public document only to show the fact of birth … , and not as evidence of the additional facts recited therein pursuant

to law.”).

239

. N.Y. Fam. Ct. Act § 542 (McKinney 2009). Please note that the Family Court Act is contained in the Judiciary

Court Acts volume of McKinney’s.

240

. This step may be both difficult and expensive, but it is required. If you do not do this, the court will dismiss

your petition and you will have to start all over again. However, if reasonable and numerous attempts are made to serve

the mother and these are documented with affidavits of attempted service, the court can authorize “service by

alternative means,” which can include sending a letter to her last known address, putting an advertisement in a local

paper, or posting a legal notice in the local post office.

See

New York City, Administration for Children’s Services, Out of

Sight, Not out of Mind: Important Information for Incarcerated Parents Whose Children Are in Foster Care (February 5,

2005). You can obtain a copy of this pamphlet by writing to the Administration for Children’s Services, 150 William

Street, 18th Floor, New York, New York 10038, or by calling ACS at (212) 341-0900.

241

See

N.Y. Fam. Ct. Act § 417 (McKinney 2008) (“A child born of parents who at any time prior or subsequent to

the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents

for all purposes of this article regardless of the validity of such marriage.”); N.Y. Dom. Rel. Law § 111(1)(b) (McKinney

2008) (“[C]onsent to adoption shall be required … of the parents or surviving parent, whether adult or infant, of a child

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1029

(b) Consent Fathers

If your child was born out of wedlock, you will retain your right to withhold consent for your child’s

adoption only if you fulfill the obligations of a “consent father.” As a consent father, you will have the right to

be present at all proceedings concerning your child, and, unless your parental rights have been terminated,

you must give consent for your child to be adopted.

242

To be considered a consent father, you must maintain

“substantial and continuous” contact with your child.

243

Substantial and continuous contact is demonstrated

by paying a reasonable sum to support the child, based on your means.

244

Additionally, you must

demonstrate that you have either:

(1) Visited the child at least monthly when physically and financially able to do so, unless you were

prevented from visiting by the person or agency with custody of your child;

245

(2) Had regular communication with your child (or the person or agency with custody) when you are

unable to visit.

246

Even if you are a consent father, if the court rules that you have abandoned your child (see Part D(1)(a)

of this Chapter), the court will say that you have lost your right to consent to the adoption and will not

require your consent for the adoption to proceed.

247

Being a “notice father” means that the court must inform you if proceedings to terminate parental rights

of your child and/or free him for adoption are initiated. As a notice father, your consent will not be required

before your child is adopted, but you will be able to present evidence to the court about what you believe is in

the best interest of your child. If you do not satisfy the requirements to be considered a consent father, but

you meet one of the following requirements, you may be considered a notice father:

(1) If a court has officially declared that you are the child’s father;

248

(2) If you have timely filed an unrevoked notice to claim paternity of your child;

249

(3) If you are on the child’s birth certificate;

250

(4) If you were openly living with your child and your child’s mother when the proceedings started, and

you presented yourself as your child’s father;

251

(5) If the mother has identified you as the child’s father in a written sworn statement;

252

(6) If you were married to the child’s mother within six months after the birth;

253

(7) If you have filed an Acknowledgement of Paternity (a sworn statement on a prescribed form) with

the Putative Father Registry.

254

conceived or born in wedlock.”). Please note that the Family Court Act is contained in the Judiciary Court Acts volume

of McKinney’s.

242

. Note that until your child is six months old, if you are not married to the mother of your child, she can place

the child for adoption without your consent. If this happens, you can attempt to block the adoption only by seeking full

custody of the child.

In re

Raquel Marie X, 76 N.Y.2d 387, 408, 559 N.E.2d 418, 428, 559 N.Y.S.2d 855, 865 (N.Y. 1990).

243

. N.Y. Dom. Rel. Law § 111(1)(d) (McKinney 2010).

244

. N.Y. Dom. Rel. Law § 111(1)(d)(i) (McKinney 2010).

245

. N.Y. Dom. Rel. Law § 111(1)(d)(ii) (McKinney 2010).

246

. N.Y. Dom. Rel. Law § 111(d) (McKinney 2010).

247

. N.Y. Dom. Rel. Law § 111(2)(a) (McKinney 2010) (failing to visit or communicate with your child for over six

months is considered an abandonment of your parental rights); see

In re

Eugene MM, 132 A.D.2d 780, 781, 517 N.Y.S.

2d 326, 328 (3d Dep’t 1987) (holding that father who had minimal contact with mother and child, had failed to pay any

child support, and had never requested visitation while incarcerated, failed to meet the threshold criteria needed to

require his consent to the adoption);

In re

Joshua II, 296 A.D.2d 646, 647–48, 745 N.Y.S.2d 112, 113 (3d Dep’t 2002)

(holding that incarcerated father’s consent to adoption was not required because father abandoned child).

248

. N.Y. Dom. Rel. Law § 111-a(2)(a) (McKinney 2010).

249

. N.Y. Dom. Rel. Law § 111-a(2)(c) (McKinney 2010).

250

. N.Y. Dom. Rel. Law § 111-a (2)(d) (McKinney 2010).

251

. N.Y. Dom. Rel. Law § 111-a(2)(e) (McKinney 2010).

252

. N.Y. Dom. Rel. Law § 111-a(2)(f) (McKinney 2010).

253

. N.Y. Dom. Rel. Law § 111-a(2)(g) (McKinney 2010). Note that marriage within six months of the child’s birth

makes you a notice father, but not necessarily a consent father. You can become a consent father by maintaining

substantial and continuous contact with your child.

254

. N.Y. Dom. Rel. Law § 111-a(2)(h) (McKinney 2010).

1030 A JAILHOUSE LAWYER’S MANUAL Ch. 33

Note that these categories include persons who are listed on the child’s birth certificate and persons who

have been found to be “legal fathers” by the court. Therefore, even if you are the legal father or the father on

the birth certificate, your consent may not be required before your child is adopted, unless you meet the

additional requirements listed above for consent fathers. Your status as a notice father or consent father is

not permanent. You can move from the notice category to the consent category by maintaining substantial

and continuous contact with your child. Likewise, if you stop maintaining contact with your child, the court

will consider you a notice father, even if at one point you may have qualified as a consent father.

If you have had minimal to no contact with your child and you do not fall under any of the above

categories (married, notice, consent, or legal father), you have no rights or duties with regard to your child.

The court need not notify you or ask for your consent before placing your child up for adoption.

G. Getting to Court

Parents have a right to attend all court proceedings involving the foster care and adoption of their child.

For parents who are prisoners, you will have to arrange to be brought to court. You should request

permission to attend such proceedings from your correctional facility as far in advance of the court date as

possible. You should also contact your caseworker and tell him or her you wish to attend. You have to write

to the judge well in advance of the hearing date and explain why your presence at the hearing is essential

and request that the judge order the Department of Corrections and Community Supervision to produce you

in court. See Appendix A of this Chapter for a sample letter asking the judge to order you to be produced for

the hearing.

H. The Right to Counsel

Even though the U.S. Supreme Court has held that there is no constitutional guarantee of a right to a

lawyer in proceedings for termination of parental rights or foster care, New York state law guarantees this

right.

255

In most other states, the right to a lawyer in such proceedings has been granted either by the state

constitution or by state law. Usually, if you cannot afford to hire your own attorney, the court will appoint

what in New York is called an “18-b attorney” when you get to court.

256

You can also try to contact a legal

services organization for help, but attorneys at these organizations are generally unavailable for these

kinds of cases. See Appendix B of this Chapter, as well as Appendix IV of the JLM, for a list of legal

service organizations.

I. Conclusion

If you are incarcerated and have a child, it is important for you to know the options you have in order to

maintain your relationship with your child. First, you should decide whether you want your child in private

placement (with a family or friend) or in foster care. There are different benefits and drawbacks for each

situation, so it is important to weigh all of your options. To have the best opportunity possible to retain

custody of your child when you are outside of prison, you should maintain contact with your child and with

your caseworker. You should also keep records of all of the contact you have with both your child and

caseworker in case you need to prove your efforts. You should also maintain contact with your child’s

custodian and keep records of all contact.

255

. N.Y. Fam. Ct. Act § 262 (McKinney 2008). Please note that the Family Court Act is contained in the Judiciary

Court Acts volume of McKinney’s.

256

. “18-b” refers to a free attorney assigned by the court under Article 18-b of the County Law. N.Y. County Law

§ 722 (McKinney 2004).

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1031

Appendix A

SAMPLE REQUEST FOR AN ORDER TO PRODUCE

This is a sample form. DO NOT TEAR IT OUT OF THE

JLM

. Instead, you may copy the form by

handwriting or on a typewriter, filling in and editing the language to fit your circumstances.

Date:________, 20__

ATTENTION: Court Clerk

Family Court

State of New York

County of [Name of County]

[Street Address]

[City or Town], New York, [Zip Code]

RE: [Child’s Name], [Child’s Birth Date]

Dear Sir or Madam:

I respectfully request to be present for the hearing that is to be held on the [##] day of [month], 20[##},

for my child/children, [Name of Children]. I am presently incarcerated at [name of facility], located at the

below address. Please submit an “Order to Produce” upon this institution, so that I may be available for this

pending hearing.

I am also requesting that the court assign an attorney to represent me in the above proceeding and that

all court proceedings be adjourned until I am able to be physically present.

[If applicable: I have not been informed of the date that my child/children will be appearing before your

court. Would you kindly notify me of the date and enter this into the record as a Notice of Appearance and

request to be produced?]

NOTIFY: [Warden’s Name]

[Your Name and Address]

Sworn to me on the [##] day of [month] of 20[##].

Name of Parent (Print): ___________

NYSID #:___________

Signature of Parent: ___________

Notary Public Signature: __________

1032 A JAILHOUSE LAWYER’S MANUAL Ch. 33

APPENDIX B

SERVICES FOR INCARCERATED PARENTS

Edwin Gould Services for Children and Families

Incarcerated Mothers Program

1968 2

Avenue, 2

Floor

New York, NY 10029

Phone: (646) 315-7600

www.egscf.org/services/preventive/incarcerated-

mothers/

Area Served: New York City

The purpose of this organization is to prevent

placement of children in foster care. This

organization provides counseling for mothers

incarcerated in New York City or New York State,

makes monthly visits to your children, and

encourages visits between mothers and children.

To be eligible for these services, your child or

children must be under 18 years old and must not

already be in foster care.

Women in Prison Project

Correctional Association of New York

2090 Adam Clayton Powell Blvd., Suite 200

New York, NY 10027

Phone: (212) 254-5700

www.correctionalassociation.org/pp/about-women-

in-prison-project

Area Served: New York State

Legal Action Center

225 Varick Street, Fourth Floor

New York, NY 10014

Phone: (212) 243-1313

Toll-free: (800) 223-4044

www.lac.org

Area Served: New York State

Provides legal information for people with

criminal records.

Administration for Children’s Services (“ACS”)

Office of Advocacy

Parents’ and Children’s Rights Ombudsman

150 William Street, First Floor

New York, NY 10038

Collect Call Number for Incarcerated Parents:

(212) 619-1309

Phone: (212) 676-9421

You can contact this branch of ACS if your child is

in foster care in New York City and your child’s

foster care agency is refusing to bring your child

to visit you in prison.

The Osborne Association, “Family Resource

Center” and “Family Works”

175 Remsen Street, Eighth Floor

Brooklyn, NY 11201

Toll-Free Hotline: (800) 344-3314

Phone: (718) 637-6560

www.osborneny.org

Area Served: New York State

The Family Resource Center runs a toll free

hotline and a support group. Family Works

manages a parent education program for

incarcerated fathers and a children’s center in the

visiting areas at Sing Sing, Woodbourne, and

Shawangunk Correctional Facilities.

Hour Children

13-07 37

Avenue

Long Island City, NY 11101

Phone: (718) 433-4724

www.hourchildren.org

Area Served: New York State

Provides five community residential programs for

female ex-offenders and their children. Provides

parent education, enhanced visiting, and

transportation assistance for women incarcerated

in two New York State prisons.

Women’s Prison Association

110 Second Avenue

New York, NY 10003

Phone: (646) 292-7740

www.wpaonline.org

Area served: New York City

Provides comprehensive services to incarcerated

and formerly incarcerated women. Services

include parent education, self-help support group,

information, referrals, case management,

mentoring, group activities, gifts for children,

nursery family reunification support, family

therapy, community residential services, and legal

services and information.

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1033

The following organizations provide free legal services. Contact them if you need to take some action for

your child and you cannot afford a lawyer. For a more extensive list of legal services organizations

throughout New York State, turn to Appendix IV of the JLM.

Legal Services for New York City

40 Worth Street, Suite 606

Phone: (646) 442-3600

Prisoners’ Legal Services of NY (PLSNY)

Please note that the PLSNY does not accept phone

calls from prisoners or their families.

Ithaca Office

102 Prospect Street Ithaca, NY 14850

Prisons Served: Auburn, Butler, Camp Georgetown,

Monterey Shock, Camp Pharsalia, Cape Vincent,

Cayuga, Elmira, Five Points, Southport, Watertown,

Willard.

Albany Office

41 State Street, Suite M112

Albany, NY, 12207

Phone: (518) 438-8046

Prisons Served: Arthurkill, Bayview, Beacon,

Bedford Hills, Mt. McGregor, Summit Shock,

CNYPC, Coxsackie, Downstate, Eastern, Edgecombe,

Fishkill, Fulton, Great Meadow, Greene,

Greenhaven, Hale Creek, Hudson, Lincoln, Marcy,

Midstate, Mid-Orange, Mohawk, Oneida, Otisville,

Queensboro, Shawangunk, Sing Sing, Sullivan,

Taconic, Ulster, Wallkill, Walsh, Washington,

Woodbourne.

Buffalo Office

237 Main Street, Suite 1535

Buffalo, NY 14203

Phone: (716) 854-1007

Prisons Served: Albion, Attica, Buffalo, Collins,

Gowanda, Groveland, Lakeview, Livingston,

Orleans, Rochester, Wende, Wyoming.

Plattsburgh Office

121 Bridge Street, Suite 202

Plattsburgh, NY 12901

Phone: (518) 561-3088

Prisons served: Adirondack, Altona, Bare Hill, Camp

Gabriels, Chateaugay, Clinton, Franklin,

Gouverneur, Lyon Mountain, Moriah Shock,

Ogdensburg, Riverview, Upstate.

1034 A JAILHOUSE LAWYER’S MANUAL Ch. 33

REGIONAL OCFS OFFICES

WEBSITE: HTTP://WWW.OCFS.STATE.NY.US/MAIN/REGIONALOFFICES_MAIN.ASP

ALBANY REGIONAL OFFICE

52 Washington Street, 115 South Building

Rensselaer, NY 12144-2796

Phone: (518) 486-7078

Counties served: Albany, Clinton, Columbia,

Delaware, Essex, Franklin, Fulton, Greene,

Hamilton, Montgomery, Otsego, Rensselaer,

Saratoga, Schenectady, Schoharie, Warren,

Washington

BUFFALO REGIONAL OFFICE

Ellicott Square Building

295 Main Street, Room 545

Buffalo, NY 14203

Phone: (716) 847-3828

Counties served: Allegany, Cattaraugus,

Chautauqua, Erie, Genesee, Niagara, Orleans,

Wyoming

LONG ISLAND REGIONAL OFFICE

Courthouse Corporate Center

320 Carelton Avenue, Suite 4000

Central Islip, NY 11722

Phone: (631) 342-7100

Counties served: Nassau, Suffolk

NEW YORK CITY REGIONAL OFFICE

80 Maiden Lane, 24th Floor

New York, NY 10038

Phone: (212) 383-1788

Counties served: 5 Boroughs of New York City –

Manhattan, Brooklyn, Bronx, Staten Island,

Queens

ROCHESTER REGIONAL OFFICE

259 Monroe Avenue, Room 307

Rochester, NY 14607

Phone: (585) 238-8531

Counties served: Chemung, Livingston, Monroe,

Ontario, Schuyler, Seneca, Steuben, Wayne, Yates

SPRING VALLEY REGIONAL OFFICE

11 Perlman Drive, Pascack Plaza

Spring Valley, NY 10977

Phone: (845) 708-2498

Counties served: Dutchess, Orange, Putnam,

Rockland, Sullivan, Ulster, Westchester

SYRACUSE REGIONAL OFFICE

The Atrium

100 S. Salina Street, Suite 350

Syracuse, NY 13202

Phone: (315) 423-1202

Counties served: Broome, Cayuga, Chenango,

Cortland, Herkimer, Jefferson, Lewis, Madison,

Oneida, Onondaga, Oswego, St. Lawrence, Tioga,

Tompkins

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1035

CONTACT INFORMATION FOR COUNTY DEPARTMENTS OF SOCIAL SERVICES

Website: HTTP://WWW.OCFS.STATE.NY.US/MAIN/LOCALDSS.ASP

Albany County DSS

162 Washington Avenue

Albany, NY 12210

Phone: (518) 447-7300

Albany County Department for Children,

Youth & Families

112 State Street, Room 300

Albany, NY 12207

Phone: (518) 447-7324

Allegany County DSS

County Office Building

7 Court Street

Belmont, NY 14813-1077

Phone: (585) 268-9622

Broome County DSS

Thomas P. Hoke Human Services Center

36-42 Main Street

Binghamton, NY 13905-3199

Phone: (607) 778-8850

Cattaraugus County DSS

One Leo Moss Drive, Suite 6010

Olean, NY 14760-1158

Phone: (716) 373-8065

Cayuga County DSS

County Office Building

160 Genesee Street, 2

Floor

Auburn, NY 13021-3433

Phone: (315) 253-1204

Chautauqua County DSS

Hall R. Clothier Building

7 North Erie Street

Mayville, NY 14757

Phone: (716) 753-4421

Chemung County DSS

Human Resource Center

425 Pennsylvania Avenue

P.O. Box 588

Elmira, NY 14902

Phone: (607) 737-5309

Chenango County DSS

5 Court Street, P.O. Box 590

Norwich, NY 13815

Phone: (607) 337-1500

Toll Free: (877) 337-1501

Clinton County DSS

13 Durkee Street

Plattsburgh, NY 12901-2911

Phone: (518) 565-3222

Columbia County DSS

25 Railroad Avenue

P.O. Box 458

Hudson, NY 12534

Phone: (518) 828-9411

Cortland County DSS

County Office Building

60 Central Avenue

Cortland, NY 13045-5590

Phone: (607) 753-5248

Delaware County DSS

111 Main Street, P.O. Box 469

Delhi, NY 13753

Phone: (607) 832-5300

Dutchess County DSS

60 Market Street

Poughkeepsie, NY 12601-3299

Phone: (845) 486-3000

Erie County DSS

Services for Children, Families, and Adults

Rath County Office Building

95 Franklin Street, 8

Floor

1036 A JAILHOUSE LAWYER’S MANUAL Ch. 33

Buffalo, NY 14202-3959

Phone: (716) 858-8000

Essex County DSS

7551 Court Street

P.O. Box 217

Elizabethtown, NY 12932

Phone: (518) 873-3441

Franklin County DSS

355 West Main Street

Malone, NY 12953

Phone: (518) 481-1808

Fulton County DSS

4 Daisy Lane

P.O. Box 549

Johnstown, NY 12095

Phone: (518) 736-5600

Genesee County DSS

5130 East Main Street, Suite #3

Batavia, NY 14020-3397

Phone: (585) 344-2580

Greene County DSS

411 Main Street, P.O. Box 528

Catskill, NY 12414-1716

Phone: (518) 719-3700

Toll-Free: (877) 794-9268

Hamilton County DSS

White Birch Lane

P.O. Box 725

Indian Lake, NY 12842-0725

Phone: (518) 648-6131

Herkimer County DSS

301 North Washington Street, Suite 2110

Herkimer, NY 13350

Phone: (315) 867-1291

Jefferson County DSS

Human Services Building

250 Arsenal Street

Watertown, NY 13601

Phone: (315) 782-9030

Lewis County DSS

5274 Outer Stowe Street

P.O. Box 193

Lowville, NY 13367

Phone: (315) 376-5400

Livingston County DSS

1 Murray Hill Drive

Mt. Morris, NY 14510-1699

Phone: (585) 243-7300

Madison County DSS

Madison County Complex, Building 1

133 North Court Street

P.O. Box 637

Wampsville, NY 13163

Phone: (315) 366-2211

Monroe County DSS

111 Westfall Road

Rochester, NY 14620-4686

Phone: (585) 753-6298

Montgomery County DSS

County Office Building

P.O. Box 745

Fonda, NY 12068

Phone: (518) 853-4646

Nassau County DSS

60 Charles Lindbergh Blvd.

Uniondale, NY 11553-3656

Phone: (516) 227-8519

New York City DSS (merged with the

Human Resources Administration)

180 Water Street, 25

Floor

New York, NY 10038

Phone: (718) 557-1399

NYC Administration for Children's

Services

150 William Street, 18th Floor

New York, NY 10038-0900

Phone: (212) 341-0901

Niagara County DSS

20 East Avenue

P.O. Box 506

Lockport, NY 14095-0506

Phone: (716) 439-7600

Ch. 33 RIGHTS OF INCARCERATED PARENTS 1037

Oneida County DSS

County Office Building

800 Park Avenue

Utica, NY 13501-2981

Phone: (315) 798-5700

Onondaga County DSS

John H. Mulroy Civic Center, 12

Floor

421 Montgomery Street

Syracuse, NY 13202-2923

Phone: (315) 435-2985

Ontario County DSS

3010 County Complex Drive

Canandaigua, NY 14424-1296

Phone: (585) 396-4060

Toll-free: (877) 814-6907

Orange County DSS

11 Quarry Road, Box Z

Goshen, NY 10924-0678

Phone: (845) 291-4000

Orleans County DSS

14016 Route 31 West

Albion, NY 14411-9365

Phone: (585) 589-7000

Oswego County DSS

100 Spring Street

P.O. Box 1320

Mexico, NY 13114

Phone: (315) 963-5000

Otsego County DSS

County Office Building

197 Main Street

Cooperstown, NY 13326-1196

Phone: (607) 547-4355

Putnam County DSS

110 Old Route 6

Carmel, NY 10512

Phone: (845) 808-1500-2110

Rensselaer County DSS

127 Bloomingrove Drive

Troy, NY 12180-8403

Phone: (518) 833-6000

Rockland County DSS

Robert L. Yeager Health Center

Building L, Sanatorium Road

Pomona, NY 10970

Phone: (845) 364-2000

St. Lawrence County DSS

Harold B. Smith Country Office Building

Judson Street

Canton, NY 13617

Phone: (315) 379-2111

Saratoga County DSS

152 West High Street

Ballston Spa, NY 12020

Phone: (518) 884-4140

Schenectady County DSS

797 Broadway

Schenectady, NY 12305

Phone: (518) 388-4470

Schoharie County DSS

County Office Building

P.O. Box 687

Schoharie, NY 12157

Phone: (518) 295-8334

Schuyler County DSS

323 Owego Street, Unit 3

Montour Falls, NY 14865

Phone: (607) 535-8303

Seneca County DSS

1 DiPronio Drive

P.O. Box 690

Waterloo, NY 13165-0690

Phone: (315) 539-1800

Steuben County DSS

3 East Pulteney Square

Bath, NY 14810

Phone: (607) 776-7611

Suffolk County DSS

Mary Gordon Building

3085 Veterans Memorial Highway

Ronkonkama, NY 11779

Phone: (631) 854-9935

1038 A JAILHOUSE LAWYER’S MANUAL Ch. 33

Sullivan County DSS

16 Community Lane

P.O. Box 231

Liberty, NY 12754

Phone: (845) 292-0100

Tioga County DSS

1062 State Route 38

P.O. Box 240

Owego, NY 13827

Phone: (607) 687-8300

Tompkins County DSS

Human Services Building

320 West State Street

Ithaca, NY. 14850

Phone: (607) 274-5252

Ulster County DSS

1061 Development Court

Kingston, NY 12401-1959

Phone: (845) 334-5000

Warren County DSS

Warren County Municipal Center

1340 State Route 9

Lake George, NY 12845-9803

Phone: (518) 761-6300

Washington County DSS

Municipal Center, Building B

383 Broadway

Fort Edward, NY 12828

Phone: (518) 746-2300

Wayne County DSS

77 Water Street

P.O. Box 10

Lyons, NY 14489-0010

Phone: (315) 946-4881

Westchester County DSS

10 County Center Road, 2nd Floor

White Plains, NY 10607

Phone: (914) 995-5477, (914) 995-6521,

(914) 995-6522

Wyoming County DSS

466 North Main Street

Warsaw, NY 14569-1080

Phone: (716) 786-8900

Yates County DSS

County Office Building

417 Liberty Street, Suite 2122

Penn Yan, NY 14527-1118

Phone: (315) 536-5183