Vermont Bar Journal
Spring 2008 - #11.
ASFA at 15/22 Months for Incarcerated Parents
THE VERMONT BAR JOURNAL #173, Volume 34, No. 4 SPRING 2008
ASFA at 15/22 Months for Incarcerated Parentsby Maryann Zavez, Esq.In the March, 2002, Vermont Bar Journal I wrote an article regarding the federal Adoption and Safe Families Act (ASFA)(fn1) and the "compelling reasons" exception to the 15/22 month time frame under ASFA for filing termination of parental rights petitions. That article was written five years after ASFA was enacted in 1997. Now a decade later, and after spending more than a year talking to women inmates at the Southeast State Correctional Facility (SESCF) about legal issues affecting their children, I think it is an opportune time to reflect again on ASFA and its implementation, this time thinking of the time frames in light of the issues they raise for incarcerated parents.
Over the past two decades, the number of incarcerated individuals in prison in this country has climbed exponentially. Based on year-end 1999 statistics compiled by the Bureau of Justice, between 1991 and 1999 the prison population in this country grew by 62 percent to over one million inmates in state and federal prisons.(fn2) Of these inmates, an estimated 721,500 were parents to almost one and one-half million minor children.(fn3) Among female inmates in state prisons, two-thirds are mothers of minor children.(fn4) Statistics compiled in 2005 show that the number of women in prison has increased at almost double the rate for men since 1985, a 404 percent increase.(fn5) Estimates are that 10 percent of the children of female inmates live in foster care or under the auspices of an agency.(fn6) According to a 2005 Agency of Human Services report, the number of women incarcerated in Vermont grew from 15 in 1985 to over 160 in 2005.(fn7) Estimates are that the average daily count of incarcerated women in Vermont will exceed three hundred within the next six years.(fn8)
Many of the incarcerated women nationally, and on a state-wide level, are in prison for drug-related offenses. From 1986-1996, though drug use among women actually declined, the number of women incarcerated in state facilities for drug offenses rose dramatically-- 888 percent compared to an increase of 129 percent for non-drug offenses.(fn9) Nationally, in 1996 more than one-third of female prisoners were serving time for drug-related offenses.(fn10)
The Child Welfare League of America (CWLA) recently published an important report that attempts to answer the question of what impact ASFA has had on the termination of parental rights (TPR) of incarcerated parents. The authors conducted an exhaustive review of case law and statutes and analyzed surveys completed by judges, attorneys, and child welfare professionals. They concluded that ASFA has had a major impact on the number of terminations of incarcerated parents. The report found, based on a review of case law, that in 18 percent of cases there was a clear connection between incarceration and termination.(fn11) More significant were the overall numbers of TPR petitions brought post-ASFA when a parent was incarcerated. For the time period 19922002 the number of TPR proceedings per year increased from 113 to 394.(fn12)
According to the report, as of 2005 thirty-six states expressly included the fact of a parent's incarceration as a factor in the "grounds" section of their respective termination statutes.(fn13) Twenty-five of these states use the length of the sentence as a determining factor in whether a parent's incarceration may be a ground for termination.(fn14) These range from a low of one year in Utah (sentence for felony conviction such that child will be deprived of "normal home for more than one year") to an incarceration period of five or more years in Iowa.(fn15) Louisiana uses a five-year time frame, and in addition, creates a presumption that a parent with a minimum sentence of five years is unable to care for a child for an "extended period of time."(fn16) Some states view the length of incarceration through the lens of a child's age. In Tennessee, one ground for termination is when a parent "has been confined in a correctional or detention facility of any type . . . under a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court."(fn17)
In other states, although incarceration can be a ground for termination, the length of sentence is not defined or determinative. Delaware's TPR statute provides that a parent must be found unable to plan for a child's needs due to "extended or repeated incarceration."(fn18) Sometimes the ground requires direct consideration of the impact of certain periods of incarceration on the parent-child relationship. In Mississippi, a ground may be the "extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the . . . parent's prolonged imprisonment."(fn19) For some states the "ground" is actually an "abandonment" ground. In Tennessee, the abandonment ground for TPR with respect to an incarcerated parent asks, in part, whether the parent has engaged in conduct prior to the incarceration that shows a "wanton disregard for the welfare of the child".(fn20)
Since ASFA was enacted seventeen states have modified their statutes, some in order to specifically address how the ASFA time frames should be considered in situations where a parent is incarcerated. Colorado added an exception to 15/22 month filings whereby TPR may not be filed at this juncture if the child's stay in foster care is due to "circumstances beyond the control of the parent such as incarceration of the parent for a reasonable period of time . . . "(fn21) The Colorado Supreme Court has found, however, that this exception does not preclude courts from considering the time the child has been in foster care and the overall best interests of the child-- rather, this exception "merely makes the duration of foster care a discretionary factor in the fitness inquiry."(fn22)
A few states added language expressly precluding incarceration as the sole basis for bringing a termination proceeding at the 15/22 month juncture. In Nebraska, the statutory section at issue provides that a TPR petition may not be brought at the 15/22 month mark if the sole factual basis is either incarceration or the inability of the parent(s) to afford health care.(fn23) New Mexico provides that a petition may not be brought if the sole factual basis is a parent's incarceration.(fn24) By contrast, Texas (post-ASFA) modified its statute to add an incarceration ground, specifically incarceration which would result in two or more years of a parent's inability to parent.(fn25) Illinois's modified statute allows for termination if a parent is incarcerated at the time the termination petition is filed and, among other factors, the parent will not be able to discharge parental responsibilities for a time period greater than two years due to the incarceration.(fn26)
Florida added an independent ground to its termination statute that allows for termination if a parent is expected to be incarcerated for a substantial portion of the time before the child reaches the age of eighteen.(fn27) In B.C. v. Dept. of Children & Families, the Florida Supreme Court addressed how to count this time period, finding that trial courts should determine the percentage of time a parent is expected to be incarcerated during the child's remaining minority from the date the termination petition is filed (as opposed to looking at the total length of a parent's sentence and asking whether the sentence is a substantial portion of the child's life to date).(fn28) The B.C. court additionally held that 28.6 percent of the child's remaining minority in that case was not a substantial portion of the child's life and the termination was thus...