“can my parental rights be terminated while I am in prison?”

Criminal Lawyers Buffalo NY

Criminal Defense Attorney Buffalo NY

If you are incarcerated for six months or more, it is very important to maintain communication with your children or else a court could rule that you abandoned your children which could lead to the termination of parental rights.

In one New York Case, In re Ulysses, the father had argued that the six month statutory abandonment period could not include the two months during which he had been confined to the county jail. The Appellate Division held the father was presumed to have been able to communicate with his child and the agency during his incarceration. The Court of Appeals affirmed.

Other cases have held that even an incarcerated parent who is illiterate is able to communicate with his/her child and the agency. In another case, In re Stella B, the Family Court denied an incarcerated father’s motion to dismiss an abandonment proceeding. The father argued his incarceration had rendered him unable to visit and communicate. The court found the father had not made all possible efforts to communicate with his child and the agency, even though the agency had refused to provide him with visitation at the prison, and his illiteracy had prevented him from writing letters. The court stated that the father had had access to other forms of communication. It is not clear from the court’s opinion, however, what other forms of communication were open to the father. The court held that the issue would be addressed at the fact-finding hearing.

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In yet another New York case, in In re Starr L.B., the father argued that he was unable to visit and communicate with his child. Specifically, he contended he was functionally illiterate and therefore unable to write to his child or the agency; financially unable to purchase or send gifts; and unable to telephone his child, because he did not know the foster parents’ telephone number.

In this case, the father also argued he maintained indirect contact with his child through the paternal grandparents. Although the father had not had any direct contact with the agency or his child, the paternal grandparents had visited with the child regularly and had given the child gifts. The grandparents had also, at the father’s request, asked the agency to provide the father with visits. The agency had told the grandparents that the father would have to contact the agency himself to make this request, but the father had not done so.

In the end, the court rejected both arguments.  With respect to the argument that the father had been unable to communicate with the agency and his child, the court noted that the father had not made any contact in more than three years. The court also noted that the father had managed to make regular phone calls to the paternal grandparents during the time in which he claimed to have been unable to maintain telephone contact with the agency. The court found that the father could have, while in prison, telephoned the agency since he knew the telephone number of the agency and had the name of his previous caseworker. He could also have made a direct request to the agency for visitation. In addition, he had appeared in Family Court in a proceeding concerning his child, and he could have taken the opportunity then to talk to the agency caseworker, ask about his child and arrange for visitation, but he had not done so. The court also noted that even if he were illiterate, he could have asked the grandparents, the prison chaplain, or his prison counselor to help him write letters. Finally, the court found that even if he were indigent, in three and one-half years he could have come up with the money at least to send a birthday card to the child through the prison mail.

With respect to the argument that the father had satisfied his duty to communicate with the child and the agency by indirect contact through the paternal grandparents, the court found that the grandparents had not been acting as the father’s agent, because they had not been acting at his behest. The grandparents had been acting out of their own love and concern for the child. The court noted that the father had never taken any affirmative steps, by, e.g. purchasing gifts for the grandparents to send to the child.


Finally, even where a parent communicates with his/her child while in prison, the parent may be found to have abandoned the child on the basis of post-incarceration conduct. In In re Vunk, the court held that the father had abandoned his daughter where, for seven months following his release from jail, the father had made no contact with his daughter other than to send her Thanksgiving and Christmas cards. The father had maintained regular contact with his daughter while he was in jail. The court suggested that the finding of abandonment would not have been warranted had the father at least written to his daughter or telephoned the child care agency to inquire about his daughter following his release from jail.

Clearly, the law is quite complicated. Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

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