FCC hears how high cost of calls can end parental rights

David Carliner Award Finalist Barbara Graves-Poller tells the FCC that New York prison phonecall price gouging routinely causes people to lose their parental rights.

by Peter Wagner, July 24, 2014

One of the highlights of the American Constitution Society Conference in Washington DC was quite serendipitous. I was at the conference to accept the David Carliner Public Interest Award, and I had the opportunity to have an amazing dinner with David Carliner’s family and the finalist for the award, Barbara Graves-Poller. Barbara mentioned her travel plans for the next day, and I recognized that on my way to a family event I’d be driving directly past the same New York City airport she needed to get to. I offered her a ride, and we had a long conversation about the intersections between our work that led to three collaborations. First I’m excited to announce that Barbara joined the Prison Policy Initiative advisory board. Secondly I’d like to share how Barbara’s work in family law provided powerful support to our work on regulating the prison phone industry. (Stay tuned for collaboration #3.)

Barbara is a supervising attorney at MFY Legal Services in New York City, where she specializes in providing legal representation to “kinship caregivers”, i.e., “grandparents and other relatives caring for children whose biological parents are unavailable due to incarceration, illness, death or other causes.” In so many cases in our poorest communities, incarceration is what rips families apart.

Now, I’ve been working to bring fairness to the prison and jail telephone industry for a long time, but what Barbara said next still shocked me: In New York, high phone costs can cost incarcerated parents their parental rights.

Barbara sent a three page letter to the Federal Communications Commission, alerting them to this important additional reason why further reductions in the unnecessary cost of calling home from prison or jail is necessary. The whole letter is a must read, but check out this excerpt first:

I. Inmates’ Relatives Often Serve as Informal “Kinship Caregivers” for Children and Cannot Bear the Expense of Uncapped Collect Calls

…

Taken together, the poverty and lack of social supports that define the kinship caregiver community make unreasonably high telephone bills particularly burdensome. As a consequence, low-income family members may be discouraged from taking in children with incarcerated parents, thus resulting in an increase in the foster care population, or restrict communications between children and their parents in prison.

II. Inmates Who Cannot Communicate with their Children or the Children’s Caregivers Routinely Lose their Parental Rights

Under New York Domestic Relations Law S 111(2), a parent who fails to visit or communicate with his or her child or designated caregiver for six months is deemed to have forfeited his or her parental rights. See In re Annette B., 828 N.E.2d 661 (N.Y. 2005). Incarcerated parents are not exempted from this rule and bear the burden of convincing a judge that they were unable to communicate with their children or provide financial assistance while in prison. Furthermore, nothing in the Domestic Relations Law requires foster care agencies to facilitate communications between incarcerated parents and their children. Indeed, many foster care agencies currently do not accept collect calls. Foster parents have discretion to accept collect calls but are not required to incur such expenses as a condition of caregiving.

Accordingly, inmates with children in the foster care system and kinship care arrangements risk losing their parental rights if they or their children’s caregivers cannot afford to pay for telephone communications. Time and again, New York courts terminate parental rights of currently and recently incarcerated parents because of the parent’s failure to communicate within the statutory period set forth in the Domestic Relations Law. In In re Yamilette MG., 986 N.Y.S.20 485, 487 (N.Y. App. Div. 2014), for example, the appellate court made clear that a father’s “incarceration did not absolve him of the responsibility to provide financial support for the child, according to his means, and to maintain regular contact with the child or the petitioner.” It made no inquiry into the father’s ability to afford calls while incarcerated, nor did it require proof that the foster care agency helped to facilitate communications between the father and child….

Thank you, Barbara, for sharing your experience with the FCC, and thank you Carliner Family and the American Constitution Society for making this connection.

And stay tuned for what the FCC does next.