Judge Lee Elkins of The Kings County Family Court has ruled that parents with jail sentences aren't automatically negligent.
Hanna Muhammad and Al Graham were arrested in 2006 for committing an armed robbery together. Their newborn, Alicia, was placed in foster care. Muhammad received a five-year sentence with a conditional release of May 2011. Graham's eight-year sentence has a conditional release for November 2014. These jail sentences naturally interfered with their abilities to raise Alicia.
Heartshare Human Services of Brooklyn filed a petition in August 2008 alleging that Muhammad and Graham had permanently neglected Alicia. Under Social Services Law § 384-b, a child is deemed permanently neglected if a parent fails for at least one year "to maintain contact with or plan for the future of [a child in foster care], although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship." Such a finding would terminate their parental rights toward Alicia. That means the couple would lose custody of Alicia and Alicia could be permanently adopted.
In Matter of Alicia G., Judge Elkins denied this request because special consideration must be given to the fact that both parents are incarcerated. Muhammad had participated in programs run by Heartshare Human Services. She was removed from these programs on disciplinary grounds, but the judge did not feel that this was a reason to deem her permanently negligent. Graham only suggested his sister care for Alicia, but she declined. NY courts won't terminate Graham's parental rights as long as Muhammad is found not to be negligent. As a result, Alicia will not be eligible for permanent adoption.
The moral of the story is to always prepare for your child's well-being, especially if you and your spouse intend to break the law. Going to prison is bad enough without worrying about losing custody of your child. Crime never pays, but providing for your children's future always does.