June 01, 2011

Foster Care and Permanence

Council of State Governments Justice Center

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

The following material is drawn from an action plan designed to raise awareness of the needs of children of incarcerated parents and inform policies and practices. The action plan was developed by the Council of State Governments Justice Center, with support from the Annie E. Casey Foundation and the Open Society Institute.

The Problem

Nearly 30,000 children, or approximately six percent of all children entering foster care, entered the system due to parental incarceration in 2003.1 These children need support and services to address their needs.

  • Approximately 11 percent of women in prison and two percent of men in prison report having children in a foster home or institution.2
  • Approximately one-quarter of all children in foster care are living with relatives.3
  • About 70 percent of children leave the system to be reunited with their families or placed with relatives.4
  • Lengthy stays in foster care and frequent moves are associated with poor outcomes for children, including school failure, teen pregnancy, homelessness, and unemployment.5
  • Child welfare experts agree that children in foster care need permanency quickly.
  • When parental reunification is not possible, state agencies must act to secure a safe and permanent home.6

Foster care placement and parental incarceration present additional challenges for permanency, stability, and the well-being of the child.

  • While reunification is the goal for the majority of children in foster care, there is some evidence that children of incarcerated parents in foster care are less likely to be reunited with their parents than other children in foster care.7
  • For incarcerated mothers, research indicates that in most cases the mother’s incarceration was not the initial reason the child was placed in foster care,8 indicating the complex issues that must be considered to provide safety and stability for the child. In a study of mothers who were incarcerated in Illinois State prisons and the Cook County Jail in Chicago from 1990 to 2000, in 75 percent of the cases the child was placed in foster care prior to his or her mother’s first incarceration.9
  • The subset of children of incarcerated parents who are placed in foster care as a result of parental substance abuse, mental illness, or child maltreatment, particularly those who are placed with non-relative foster parents, are more likely to receive multiple placements.10
  • Children of incarcerated parents are four times more likely than other children to remain in foster care until they “age out” of the system.11

When termination of parental rights occurs and other options for permanent placement are not available, adoption is a tool to achieve permanence.

  • Nationwide there are many thousands of children in the foster care system waiting for permanent families.12
  • Some of the requirements of the 1997 federal Adoption and Safe Families Act (ASFA), in particular the timeline specified for termination of parental rights, would appear to affect parents in prison and jail and their children, though there are minimal data to determine the extent. Since the enactment of ASFA, many states have amended their termination of parental rights (TPR) statutes to include parental incarceration as a factor courts must consider in whether to terminate parental rights.13
  • There is some evidence that termination of parental rights for incarcerated mothers and fathers has increased since ASFA was passed.14 This is of particular concern given that the number of children with a mother in prison has increased significantly over the last decade.15
  • ASFA, however, allows for considerable state flexibility regarding the TPR requirement. The statute provides exceptions to the TPR requirement when children are in the care of relatives, the child welfare agency documents a compelling reason why filing for TPR is not in the child’s best interest, or the agency has not provided the child’s family with services deemed necessary for reunification. There is room within the ASFA framework for child welfare agencies to plan for reunification of a child with his or her incarcerated parent upon release, should that be in the child’s best interest, provided that the child maintains a relationship with the parent through regular visits and other contacts.16

Many states have enacted laws to improve reunification services and clarify termination of parental rights guidelines that affect children of incarcerated parents.

  • New York state law requires child welfare agencies to make “diligent efforts” to encourage contact between a child and an incarcerated parent at risk of losing parental rights.17
  • California law requires a court to order reasonable reunification services for an incarcerated parent and his or her child if in the best interest of the child. Services that corrections or other state agencies may be required to provide so that incarcerated parents can maintain contact include telephone calls, transportation services, and assistance to extended family members or foster parents.18
  • Colorado law provides an additional exception to the termination of parental rights if a child was in foster care 15 of the past 22 months so that it does not apply when a child’s stay in foster care is beyond the control of the parent, such as incarceration.19
  • A number of states, including Massachusetts, Nebraska, and New Mexico, have established that a parent’s incarceration, in and of itself, is not sufficient grounds for TPR.20


1. Analyze the impact of ASFA on children of incarcerated parents who are in foster care.

2. Provide a more detailed definition of ASFA’s “reasonable efforts” requirement.

3. Conduct outreach to child welfare agencies and caseworkers to educate them on the exceptions to the 15-out-of-22 months TPR filing requirement.

4. Clarify that incarceration alone is not grounds for termination of parental rights, does not diminish the requirement for reasonable efforts to reunify a child with his or her parent on release from prison or jail, and does not negate the requirement for reasonable parent-child visitation while the child is in foster care.21

5. Implement policies and establish procedures for limiting the disruption and trauma that children of incarcerated parents in foster care may experience, especially for children with multiple placements, based on individualized reviews of each family’s case history. Such policies may address:

  • placement of siblings together, when appropriate;
  • placement with relatives and/or near the child’s home, when appropriate;stable school enrollment regardless of changes in foster placement;
  • regular parent-child visitation, when not detrimental to the child;
  • contact with other family members;
  • preservation of relationships with friends and important adults in the child’s life.

6. Ensure that incarcerated parents understand and have the opportunity to participate meaningfully in dependency proceedings involving their children in foster care and are provided legal representation that is competent and consistent.

7. Develop recommendations that address voluntary (not directed by CPS) family preservation services for families affected by incarceration.

Reprinted with permission from Children of Incarcerated Parents: An Action Plan for Federal Policymakers, published by the Council of State Governments, . View the full action plan at: www.justicecenter.csg.org

The Adoption and Safe Families Act

The 1997 federal Adoption and Safe Families Act (ASFA) was enacted to ensure that children did not remain in the foster care system for an extended period of time. ASFA is intended to move foster children more quickly to permanency by, among other things, shortening judicial timeframes, requiring proceedings to terminate parental rights in certain cases, and clarifying the requirement in federal law for reasonable efforts to avoid out-of-home placement.

ASFA requires states, with certain exceptions, to file a petition to terminate parental rights on behalf of a child who has been in foster care for 15 of the most recent 22 months or who has been determined by a court to be an abandoned infant.

The law provides exceptions to this requirement in the following cases: 1) the child is being cared for by a relative, 2) the state finds that termination of parental rights would not be in the child’s best interest, or 3) the state has not provided appropriate services for the safe return of the child to his or her home.


1 Allard, Patricia E. and Lynn D. Lu. Rebuilding Families, Reclaiming Lives. : for Justice, 2006.

2 Glaze, Lauren E. and Laura M. Maruschak. Parents in Prison and Their Minor Children. , : Department of Justice, Bureau of Justice Statistics, 2008. <www.ojp.usdoj.gov/bjs/pub/pdf/pptmc.pdf>

3  Department of Health and Human Services, Administration for Children and Families. Adoption and Foster Care Analysis and Reporting System (AFCARS) Preliminary FY 2006 Estimates as of January 2008. <www.acf.hhs.gov/programs/cb/stats_research/afcars/tar/report14.htm>

4  Department of Health and Human Services. The AFCARS Report: Preliminary FY 2006 Estimates as of January 2008, 2008. The Problem

5 Christian, Steve and Lisa Eikman. to Call Home: Adoption and Guardianship for Children in Foster Care. : National Conference of State Legislatures, 2000.

6  Department of Health and Human Services, Administration for Children and Families. Case Planning for Families Involved With Child Welfare Agencies. <www.childwelfare.gov/systemwide/laws_policies/statutes/caseplanning.cfm>; Also see The Federal Foster Care Program, Title IV-E guidelines, available at www.acf.hhs.gov/programs/cb/programs_fund/state_tribal/fostercare.htm.

7 Moses, Marilyn C. “Correlating Incarcerated Mothers, Foster Care, and Mother-Child Reunification.” Corrections Today 68(6), 2006, 98–100. <www.ncjrs.gov/pdffiles1/nij/216276.pdf>

8 National Institute of Justice. “Intersections of Prisons and Child Welfare: Findings from Using Administrative Data. October 2006–December 2006.” NIJ Today, October 2006, 98-100.

9 Moses, 2006.

10 Phillips, Susan D. et al. “Disentangling the Risks: Parent Criminal Justice Involvement and Children’s Exposure to Family Risks.” Criminology and Public Policy 5, 2006, 677–702.

11 Moses, 2006.

12 National Foster Care Coalition, “Facts about Children in Foster Care.” <http://nationalfostercare.org/facts/index.php>

13 Christian, Steve. Children of Incarcerated Parents. : National Conference of State Legislatures, 2009. <www.ncsl.org/documents/cyf/childrenofincarcerated parents.pdf>

14 Lee, Arlene, Philip M. Genty and Mimi Laver. The Impact of the Adoption and Safe Families Act on Children of Incarcerated Parents. , : Child Welfare League of , 2005.

15 Glaze and Maruschak, 2008. Since 1991, the number of children with a mother in prison has more than doubled, up 131 percent.

16 Christian, 2009.

17 N.Y. Social Services Law, Art. 6, Tit. 1
§ 384-b.

18  Welf. & Inst. Code §361.5.

19  Rev. Stat. §19-3-604.

20 Mass. Gen. Laws Ann. ch. 210, §3; Mo. Rev. Stat. § 211.447; Neb. Rev. Stat. §43-292.02; N.H. Rev. Stat. Ann. §170-C:5; N.M. Stat. Ann. §32A-4-28; Stat. Tit. 10, §7006-1.1.

21 Christian, 2009.