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“The Family Separation Crisis That No One Knows
About”99 How Our Flawed Legal and Prison Systems Work

to Keep Incarcerated Parents from Their Children
Jenna Blocher100

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

103 “Adoption and Safe Families Act of 1997," H.R.867, 105th Congress
(1997-1998), 1997.

102 Nicholson, Emily. “Racing against the ASFA Clock: How Incarcerated
Parents Lose More than Freedom.” Duquesne Law Review 45, no. 5 (2006):
89.

101 Whitt-Woosley, and Sprang, “When Rights Collide,” 2014, 113.
100 Brandeis University Undergraduate, Class of 2024.

99 Hager and Flagg, “How Incarcerated Parents Are Losing Their Children
Forever,” 2018.

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Brandeis University Law Journal Fall 2022, Volume 10, Issue 1

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.

I. Introduction

From 2006 to 2019, the parental rights of 32,000
incarcerated parents were terminated.105 Termination of
parental rights (TPR) is a court order which ends the
parent-child relationship. A parent legally becomes a stranger
to their child, and in turn, the parent has no right to raise, speak

105 Durkin, Lopez, and Roberts, “Rep. Incarcerated Parents and Termination
of Parental Rights in Connecticut: Recommendations for Reform.”

104 Hager and Flagg, “How Incarcerated Parents Are Losing Their Children
Forever,” 2018.

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to, or visit their child. The parent is even removed from the
child’s birth certificate.106 This ruling, also known as the “civil
death penalty,”107 is administered on a very infrequent basis due
to its impact and finality. Once parental rights have been
terminated, it is nearly impossible to have them reinstated. It
has been found that incarcerated parents are disproportionately
impacted by the laws that govern TPR due to factors that are
beyond their control. The Adoption and Safe Families Act of
1997, which is a federal law, moves courts to recognize
incarceration as child abandonment with the child-welfare goal
of adoption rather than reunification. In the years since the
passage of the ASFA the rate of termination of parental rights
amongst incarcerated parents has increased by 250%.108 Loving
and fit parents are losing their children forever due to a
merciless law that fails to recognize and accommodate the
barriers faced by incarcerated parents in parenthood, which
ranges from ability to participate in placement hearings to
visitation with their child. Along with various other flawed
aspects of the prison and legislative system, puts incarcerated
parents at a perpetual disadvantage and is the cause of
disproportionate and unjust termination of the parental rights of
incarcerated parents.

II. The ASFA

The ASFA of 1997 promotes the goal of prioritizing
child safety and is the largest reform of child welfare
legislation in the past 20 years.109 Due to the nationwide crisis

109 Notkin, and Weber, “Rep. Intentions and Results: A Look Back at the
Adoption and Safe Families Act,” 2021, 5.

108 Nicholson, “Racing against the ASFA Clock,” 2006, 85.

107   Kasio, “Family Law Self-Help Center - Overview of Termination of
Parental Rights.”

106 Child Welfare Information Gateway, and Children's Bureau, “Grounds
for Involuntary Termination of Parental Rights,” 2021.

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of an overwhelmed foster care system, President Bill Clinton
passed the ASFA in response to children spending years in
foster care with no hopes of adoption. The act created a shift in
priority from reunification with the biological family to
permanent adoption placements.110 To execute this goal, the
ASFA requires states to file a TPR petition, to make the child
eligible for adoption after being in foster care for 15 of the
most recent 22 months. This is known as the 15 of 22
Provision.111 The only exceptions to this rule are if:

(1) the child is being cared for by a fit and willing
relative, (2) the state agency has documented a
compelling reason why parental rights should not be
terminated or (3) the state agency has not provided the
family with the services necessary to achieve safe
reunification.112

The 15 of 22 Provision undoubtedly poses the greatest
threat to incarcerated parents and their ability to regain custody
of their child. The 15 of 22 Provision, interpreted in the context
of incarcerated individuals, means that any prison sentence
over 15 months results in TPR. This is especially concerning in
a time when prison sentences are becoming longer and longer
as a result of new minimum sentencing guidelines. On average,
incarcerated parents spend 6.5 years in state prison and 8.5
years in federal prison.113

While the 15 of 22 Provision is undoubtedly the biggest
change brought about by the ASFA, the law also nullified
previous mandates. Under the ASFA, the once universal
Reasonable Efforts mandate, which requires states to make all
reasonable efforts to reunify a child with their biological
family, is no longer absolute. Now, reasonable efforts are no

113 Nicholson, “Racing against the ASFA Clock,” 2006, 88.
112 Nicholson, “Racing against the ASFA Clock,” 2006, 85.

111 “Adoption and Safe Families Act of 1997," H.R.867, 105th Congress
(1997-1998), 1997.

110 Whitt-Woosley, and Sprang, “When Rights Collide,” 2014, 113.

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longer required if that parent’s rights have been previously
terminated, including under the 15 of 22 rule. This rule
specifically targets previously incarcerated parents that had
their parental rights terminated under the 15 of 22 rule. If they
have a second child placed into foster care due to an additional
incarceration sentence or other factors, it is almost guaranteed
that their parental rights will be once again terminated since the
state is not required to make reunification efforts. This
consequential termination would take place only 30 days after
any additional children are removed from the home.114

According to Emily Nicholson, a writer for Duquesne Law
Review, the “ASFA carries the potential to ‘punish’
incarcerated parents… by allowing the state to terminate their
rights with respect to subsequent children based only on the
tenuous factors that led to the original termination, i.e., the
passage of time and the complications involved in parenting
from prison.”115 Nicholson’s argument highlights the
underlying problems of the ASFA’s restrictions, specifically the
negative impact of the 15 of 22 Provision and the lack of the
Reasonable Efforts mandate. These two provisions not only
permanently separate parents from their children while
incarcerated, but also have long-lasting effects that can harm
the parent’s legal and physical relationship with their other
children after being released.

III. Expediting the Process: The Hearing Provisions of

the ASFA

In addition to the previous two provisions, the ASFA
also established timeframe provisions to speed up the adoption
process. One provision states that a written case plan for the

115 Nicholson, “Racing against the ASFA Clock,” 2006, 91.
114 Nicholson, “Racing against the ASFA Clock,” 2006, 91.

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child’s future care must be submitted 60 days after the child’s
removal from the home during the initial disposition hearing, in
which a case plan is created for the child. Additionally, the
subsequent permanency hearing, a hearing to establish the
child’s future status, must take place within 18 months of the
child’s placement in foster care.116 Another provision of the
ASFA stipulates that any permanency hearing that does not
resolve with reunification or another permanent placement
must conclude with a court order to initiate proceedings to
terminate parental rights.117 The ASFA provisions are intended
to appeal to the legal aspect of the foster care and adoption
process and to expedite the process so that children spend less
time in foster care. However, the process is expedited to such a
strict extent that incarcerated parents must race against time to
avoid losing their children forever.

The strict provisions of the ASFA permanency hearings
create a standard that is nearly impossible for incarcerated
parents to meet and serve. This presents another barrier
between incarcerated parents and their children. Once a child
enters the foster care system a disposition hearing takes place
during which a case plan is created for the child. These case
plans detail specific services that will be provided to the child,
conditions of visitation, child support requirements and, most
importantly, the responsibilities and requirements the parent
must fulfill to achieve reunification. Twelve months after this
initial disposition hearing, a permanency hearing takes place in
which the final and permanent status of the child is decided.118

The permanency hearing provision, which requires parental
rights to be terminated if the permanency hearing does not

118 Halperin and Harris, “Parental Rights of Incarcerated Mothers with
Children in Foster Care,” 2004, 341.

117 Halperin and Harris, “Parental Rights of Incarcerated Mothers with
Children in Foster Care,” 2004, 341.

116 “Child Welfare: Implementation of the Adoption and Safe Families Act
(P.L. 105-89),” 2004.

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resole with reunification or a permanent placement, creates an
insurmountable barrier for parents fighting for reunification. 119

It is nearly impossible for incarcerated parents to attend these
hearings and fight for reunification or fulfill the responsibilities
required to warrant reunification. An incarcerated parent’s
attendance at a hearing is dependent on them receiving
notification of said hearing, receiving permission from the
prison to leave the grounds and attend the hearing, and being
able to organize transportation.120

IV. Barriers Faced by Incarcerated Parents

Incarcerated parents’ inescapable dependence upon the
prison system to be notified of their children’s legal
proceedings has resulted in concerning outcomes. A study by
Adela Beckerman, a professor in the Department of Social
Work at Florida International University, showed that 28% of
mothers in New York State Prisons with children in foster care
were not notified of their upcoming court hearings, and over
50% of these women did not know how to organize
transportation to these hearings. Furthermore, 49% did not
receive any letters from their child’s caseworker, and 68% did
not receive a single phone call from their child’s caseworker.121

These statistics demonstrate that incarcerated parents are often
not aware of ASFA hearings and are therefore unable to attend
the hearings to defend their parental rights. Incarcerated
parents cannot be expected to attend hearings that they
oftentimes have no knowledge of. They are completely
dependent on an overburdened caseworker, who will not

121 Beckerman, "Mothers in Prison," 1994, 9-14.

120 Halperin and Harris, “Parental Rights of Incarcerated Mothers with
Children in Foster Care,” 2004, 341.

119 Halperin and Harris, “Parental Rights of Incarcerated Mothers with
Children in Foster Care,” 2004, 341.

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prioritize reunification of parent and child in a means that is
sufficient to reconcile these families.

While the ASFA does not directly prohibit incarcerated
parents from attending the hearings, the law fails to make
accommodations for incarcerated parents. In order to prevent
parental rights from being terminated, parents must utilize
disposition hearings to negotiate what changes they will make
in order to be reunified with their child before the permanency
hearing. However, many incarcerated parents cannot overcome
the barriers preventing them from attending the hearings,
leaving them helpless as their children are taken from them. In
the chapter of the ASFA titled “Court Processes,” no mention
is made of incarcerated parents or the accommodations that
should be created to help them attend these hearings or visit
with their children. This lack of accommodations is an
incredible oversight in light of the fact that 40% of foster care
children have a parent who has experienced incarceration.122

Currently, 30,000 children in the United States foster care
system were removed from their home due to the incarceration
of their parent.123 In addition, the ASFA was created years after
the publication of Adela Beckerman’s 1994 study which
highlighted the extent of incarcerated mothers failing to receive
notification of these hearings or being unable to attend these
hearings. It is evident that the legislators who wrote the ASFA
overlooked various sets of data that would have proven that
incarcerated parents need specific accommodations during the
hearing process.

There are multiple barriers prohibiting incarcerated
parents from carrying out court-ordered activities, such as
being able to visit and maintain a relationship with their child.

123 Americanbar.org, Council of State Governments Justice Center, “Foster
Care and Permanence,” 2011.

122 Child Welfare Information Gateway, and Children's Bureau, “Child
Welfare Practice With Families Affected by Parental Incarceration,” 2021,
4.

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During disposition hearings, judges may order that the parent
spend a certain amount of visitation time with their child before
the permanency hearing. Child welfare legislation has also
made it clear that reunification is dependent on regular contact
between the parent and child.124 However, this poses an
insurmountable barrier for parents who are incarcerated during
the 12 months between disposition and permanency hearings.
Incarcerated parents are at a disadvantage when trying to
maintain contact or visitation with their children because they
are at the discretion of others when it comes to seeing their
children.125 The occurrence of visits depends on who is caring
for the child, if they are willing or able to provide
transportation to the prison and cooperate with prison visitation
periods, and whether that person is comfortable putting
themselves or the child in a prison environment.126 Considering
that visiting a prison can be an uncomfortable experience,
caregivers are often reluctant to organize and chaperone these
visits.127 Additionally, considering that 84% of parents in
federal prisons are incarcerated more than 100 miles away
from their home, travel distance makes visitation incredibly
difficult.128 Visits become harder if the child does not have a
caregiver and is currently living with a foster family.
Consequently, the visits then become dependent on an
overburdened caseworker. According to Cindy Seymour, an
attorney at Child Welfare League of America, caseworkers
often face bureaucratic obstacles when trying to organize visits
between incarcerated parents and their children. These include

128 Halter, “Parental Prisoners,” 2018, 562.

127 La Vigne, Davies, and Brazzell, “Rep. Broken Bonds: Understanding and
Addressing the Needs of Children with Incarcerated Parents,” 2008, 5.

126 Halperin and Harris, “Parental Rights of Incarcerated Mothers with
Children in Foster Care,” 2004, 342.

125 Beckerman, “Women in Prison,” 1991, 178.

124 Halperin and Harris, “Parental Rights of Incarcerated Mothers with
Children in Foster Care,” 2004, 342.

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“inadequate information about prison visiting procedures,
difficulties in scheduling visits, the long travel time to make
the visits, uncomfortable or humiliating visiting procedures, the
resistance of caregivers, and their concern about children's
reactions to the visit.”129 These barriers have a direct impact on
the level of contact between parents and children. Over 50% of
incarcerated parents do not receive one visit from their child
during their time in prison, 40% of mothers do not receive
weekly contact from their children, and 60% of fathers report
no weekly contact from their children.130

Adding to the already serious difficulties created by the
ASFA, incarcerated parents are deprived of access to programs
that would aid in their reunification with their children,
including treatment or rehabilitation programs. If an
incarcerated parent is able to attend the disposition hearing, the
judge may order that the parent partake in required programs to
increase their fitness as a parent. This is a common occurrence,
due to the fact that 24% of incarcerated mothers have a history
of alcohol dependence and 23% have been diagnosed with a
mental disorder.131 However, the fulfillment of this requirement
is dependent on the facilities at their prison. Ronnie Halperin, a
researcher at Purchase College, notes that, “unlike other
mothers with children in foster care, who may be able to
comply with their children's case plans by attending job
training, drug treatment programs, or parenting classes, those
who are incarcerated can exert little control over their
participation in these programs.”132 While most Departments of
Correctional Services report that they do have parenting classes

132 Halperin and Harris, “Parental Rights of Incarcerated Mothers with
Children in Foster Care,” 2004, 344.

131 Halperin and Harris, “Parental Rights of Incarcerated Mothers with
Children in Foster Care,” 2004, 343.

130 La Vigne, Davies, and Brazzell, “Rep. Broken Bonds: Understanding and
Addressing the Needs of Children with Incarcerated Parents,” 2008, 5.

129 Seymour, "Children with Parents in Prison," 1998, 469.

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offered for inmates at their facilities, these programs are
incredibly small-scale and underfunded. Most inmates who
wish to participate are turned away due to the lack of staff
available to lead the classes since the majority of these classes
are volunteer led.133

V. The Impact of the ASFA on Children with

Incarcerated Parents

While this lack of treatment and contact negatively
impacts the incarcerated parents’ chances of retaining their
parental rights, the child is also negatively affected. Evidence
has shown that contact between a child and their incarcerated
parent benefits the child in various ways, while a lack of
contact negatively influences their behavior and emotions.134 A
2004 study found that more contact such as phone calls, letters,
or physical visits between a child and their incarcerated mother
specifically resulted in fewer suspensions from school and
lower rates of school dropout compared to students who are not
able to retain contact.135 Researchers Danielle Dallaire, Laura
Wilson, and Anne Ciccone conducted a study in 2010 of 30
teachers who taught students of incarcerated parents, which
focused on the behavior of these children in relation to contact
with their parents.136 The results of the study state, “The
teachers also made several positive comments about mail
correspondence between incarcerated parents and children…

136 Poehlmann, et al, “Children's contact with their incarcerated parents,”
2010, 575-98.

135 Trice AD, “The effects of maternal incarceration on adolescent children,”
2004, 19:27–35.

134 Poehlmann, et al, “Children's contact with their incarcerated parents,”
2010, 575-98.

133 Halperin and Harris, “Parental Rights of Incarcerated Mothers with
Children in Foster Care,” 2004, 344.

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one teacher mentioned that a child in her class often sent her
incarcerated mother pictures and letters… when the mother
wrote back, the child had something tangible to hold on to or
refer to when she felt sad or was missing her mother.”137 The
study also found that children reported fewer feelings of
anxiety and depression when they had more contact with their
incarcerated parent.138 It is clear that children benefit from
contact with their incarcerated parents, therefore a change in
the system that permits children living with a caregiver or in
foster care to have more access to visitation with their parents
is necessary.

VI. Unfair Biases Against Incarcerated Parents

It might be argued that incarcerated parents should not
have a relationship with their children. Kate Barry, a family
law attorney at Greater Boston Legal Services, has extensive
experience in the field of child placement hearings and
commonly represents clients who are victims of domestic
violence. In court, the topic of the couple’s children often
arises. According to Barry, “I have never had a case where the
judge has even allowed visitation between an incarcerated
parent and their child, which is usually due to the violent nature
of their crimes. If a husband is found guilty of sexually and
physically assaulting his wife, the judge is not going to let him
near the child. Even if it’s supervised visits in prison.”139 When
I asked Barry if she thought this lack of visitation was fair, she
explained that these abusers are often so violent that she does
not personally believe that they should have any contact with

139 Interview with Kate Barry.

138 Poehlmann, et al, “Children's contact with their incarcerated parents,”
2010, 575-98.

137 Dallaire DH, “Teachers’ experiences with and expectations of children
with incarcerated parents,” 2010, 31:281–290.

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their children, even after they are released from prison.140 This
inevitably brings forth the argument that incarcerated parents
should be separated from their children.

This argument, which is surprisingly common, is based
on the fact that incarcerated or previously incarcerated parents
are not only a danger to their children but a negative influence.
However, there are already safeguards in the law to protect
children from unfit parents. Massachusetts Bill H.1629 titled
An Act Relative to the Best Interest of the Child, states that,
“the best interests of the child shall be the standard for court
determinations as to whether a child should be removed from a
home, temporarily or permanently, wherein the child has been
abused or neglected,”141 While it is undeniable that it may not
always be in the best interest of the child to remain in the
custody of their incarcerated parent, this should not lead to the
punishment of all incarcerated parents. Parental relations
should be evaluated on a case-to-case basis; the law should not
work to keep incarcerated parents away from their children in
all circumstances.

VII. Reform of the ASFA

The ASFA has been negatively impacting parents for
the past 24 years, but growing criticisms have led many to
advocate for change. Solutions have been proposed to combat
the negative effects of the ASFA, with the most common
recommendation being to repeal the ASFA entirely. Many
organizations have been founded on the premise of repealing
the act, such as Repeal ASFA.142 While Repeal ASFA sees the
only solution as a full repeal of the law, other advocates are
fighting for ASFA reform.

142 Repeal ASFA.

141 “An Act Relative To the Best Interests of Children,” Bill H. 1629, 192nd
Court, 2021.

140 Interview with Kate Barry.

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The states of New York and Washington have been
trailblazers in ASFA reform, with New York passing the ASFA
Expanded Discretion Bill of 2010, also known as the
Incarcerated Parents Bill. According to the New York State
Senate, the bill “amends New York’s child welfare law to
reflect the special circumstances of criminal justice involved
families”143 and “grants foster care agencies discretion to delay
filing termination of parental rights papers when a parent’s
incarceration or participation in a residential drug treatment
program is a significant factor in why the child has been in
foster care for 15 of the last 22 months.”144 As a result of this
bill, judges across the state of New York are required to
consider the impact of parental incarceration before pursuing
termination of parental rights.145

In 2013, Washington took influence from the New York
law and passed the Children of Incarcerated Parents bill, which
established similar provisions but targeted even more failures
of the system. The bill added flexibility to the 15 of 22
Provision and established that, by law, incarcerated parents
must be notified of their court hearings and have opportunities
for visitation with their children.146 The bill states,

If the parent is incarcerated, the [permanency] plan
must address how the parent will participate in the case
conference and permanency planning meetings and,
where possible, must include treatment that reflects the
resources available at the facility where the parent is
confined. The plan must provide for visitation

146 “An Act Relating to the Rights of Parents Who Are Incarcerated,” SHB
1284, 63rd Legislature. (Wash. 2013).

145 Hager and Flagg, “How Incarcerated Parents Are Losing Their Children
Forever,” 2018.

144 Montgomery, “Support Senator Montgomery's ‘Incarcerated Parents’
Bill,” 2009.

143 Montgomery, “Support Senator Montgomery's ‘Incarcerated Parents’
Bill,” 2009.

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opportunities, unless visitation is not in the best
interests of the child.147

On a smaller scale, Colorado has amended the ASFA to make
incarceration an exception to the 15 of 22 Provision, stating
that a TPR petition does not need to be filed within the
15-month timeline if the “child has been in foster care ... due to
circumstances beyond the control of the parent such as
incarceration of the parent for a reasonable period of time.”148

Other states must take influence from New York, Washington,
and Colorado to amend the ASFA in a way that protects the
parental rights of incarcerated parents.

VIII. Conclusion

While the ASFA was well-intentioned, it inadvertently
puts incarcerated parents at an extreme disadvantage when
trying to retain relationships with their children. With
extremely strict hearing requirements and inflexible timelines,
incarcerated parents are unable to play an active role in their
children's custody proceedings. In the eyes of the law,
incarcerated parents are abandoning their children, which
constitutes unfitness and a reason to terminate parental rights.
To further protect the relationships between fit incarcerated
parents and their children, amendments must be made to the
ASFA to create accommodations for incarcerated parents.
Exceptions for circumstances that are out of the parent’s
control must be implemented, as well as further reform of the
ASFA, to ensure that fit and deserving parents are not punished
by this neglectful law.

148 CO Rev Stat § 19-3-604 (2016).

147 “An Act Relating to the Rights of Parents Who Are Incarcerated,” SHB
1284, 63rd Legislature. (Wash. 2013).

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Interviews

Attorney Michael Day

Attorney Kate Barry

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