“The Family Separation Crisis That No One Knows About” How Our Flawed Legal and Prison Systems Work to Keep Incarcerated Parents from Their Children

Abstract

Incarcerated parents are at an increased risk of their parental rights being terminated due to the Adoption and Safe Families Act (ASFA) of 1997. The ASFA was passed with the intention of limiting the number of children trapped in the U.S. foster care system and is commonly known for shifting efforts from reunification to adoption.101 This act results in a swift and sudden termination of parental rights (TPR). The negative impact of this law on incarcerated parents is evident considering that in the years following the passage of the ASFA, the rate of TPR for incarcerated parents has increased by 250%.102 This piece aims to identify aspects of the ASFA which threaten incarcerated parents' ability to be reunited with their children after their prison sentence, along with elements of the prison system that prevent incarcerated parents from abiding by the regulations of the ASFA and maintaining contact with their children. The most detrimental aspect of the ASFA is the 15 of 22 Provision, which requires the state to file for termination of parental rights when a child has been in foster care for a consecutive 15 of the past 22 months.103 This regulation guarantees the TPR for any parent with a prison sentence longer than a year and a half during which a child is sent to foster care, resulting in the permanent severance of the parent-child relationship. In addition, strict timeline requirements of the ASFA relating to the child’s placements and hearings to discuss these placements make it challenging for incarcerated parents to fight for reunification. This issue is compounded by failures of the prison system, which prevent incarcerated parents from participating in their child’s placement process. Most proposed solutions suggest a full repeal of the ASFA, while others argue that a major reform of the ASFA is sufficient. The states of New York, Washington, and Colorado have already initiated this reform by creating exceptions to the 15 of 22 Provision, along with including other considerations and accommodations for incarcerated parents.104 The findings explored in this paper clearly indicate that incarcerated parents are at a disadvantage when trying to reunite with their children. Their parental rights are terminated at an unjust rate due to the strict requirements of the ASFA: a law that fails to acknowledge the circumstances of incarcerated parents and instead strips their parental rights away