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In the past decade, the number of female prisoners in New York state and city jails has risen dramatically. Currently, there are 1,890 women incarcerated in New York State prisons, and an additional 1,626 women confined in New York City jails. Approximately seventy- two percent of the women in state prisons are parents, and, according to one informal study, nearly sixty percent of the women in city prisons are single parents with minor children. While some of these women can make formal or informal child care arrangements with relatives or close friends, many others must turn to state-regulated foster care.

An incarcerated mother whose children are in foster care must maintain contact with her children if she wants to retain her parental rights while in prison and to regain her custody rights upon leaving prison. She faces many unique legal and personal challenges, however, if she wishes to maintain such contact. An incarcerated mother must attempt to care for her children and at the same time negotiate a large social services bureaucracy ruled by a maze of foster care laws. If she is not able to meet these challenges, she will lose her parental rights through a permanent "termination of parental rights proceeding." If the state terminates the incarcerated mother's parental rights, her children will be adopted without her consent, and her relationship with her children will be permanently severed.

Recognizing the unique predicament of incarcerated parents with children in foster care, the New York Legislature amended section 384-b of the New York Social Services Law in 1983. These amendments made it more difficult for the state to terminate incarcerated mothers' parental rights. Despite this reform, however, two problems persist. First, incarcerated mothers lack effective access to court proceedings involving their children. Second, the 1983 amendments misallocate parental duties with respect to planning the child's future and visitation: the amendments allow incarcerated mothers to maintain their parental rights only if they fulfill a strict duty to cooperate with social service agencies in planning for their children's futures and in visiting with their children, but the amendments do not require agencies and prisons to provide the mother with the adequate planning resources and visitation that will enable her to meet this duty.

This Article examines the parental rights of incarcerated mothers under New York's foster care and termination of parental rights laws. Part II describes the foster care system in New York and details the grounds for a termination of parental rights proceeding. Part II also discusses the parental rights of incarcerated mothers that existed in New York prior to the 1983 amendments, and analyzes the effects of that legislation on these rights. Part III addresses the two problems that persist despite New York's legislative reforms. After examining these problems, Part IV proposes several legislative solutions, which include: (1) improving incarcerated parents' access to court proceedings; and (2) requiring social services agencies and prison officials to provide the services necessary to maintain and strengthen the parents' parental relationships. This Article concludes that, while New York has enacted legislation that recognizes the special needs of incarcerated parents whose children are in foster care, further legislation is necessary to address the problems that remain unresolved.


Civil Rights and Discrimination | Criminal Law | Family Law | Law | Social Welfare Law


This article was initially published in Volume 17 of the Fordham Urban Law Journal and is republished with permission.