If a parent goes to prision for two years or more, when will the children be up for adoption? Or will they remain with a legal guardian and the parent is able to come back and retrieve them when cleared of sentence?

Depending on your state, the fact that the parent is in prison does not mean that the children will be put for adoption. If say for example the Father is in prison for 5 years, and the Mother is able to care for the children then there is no need for an adoption plan. If say the Father is in prison and the Mother is whereabouts unknown, and the children are placed with a relative, and the Court has granted legal guardianship to a relative then by law the children stay with the legal guardian. The only way to undo a legal guardianship is for the parent to file a petition with the Court explaining the reasons they are now fit to parent their children. The legal guardian can challenge the request however. The Court would make the final decision as to whether the children can be returned to their biological parent.

Most states are for reuniting the children with their parents - unless the parent has done something to hurt one or all of the children that would continue to pose a risk - so the parent would probably be given an opportunity to reunite.

Thank you for your reply. Let me give a little background.

My cousin in Los Angeles has 4 children that have been in the Foster system for a year and a half. The fathers of the children are both in prison for a long time and have NO interest in the children. My cousin has in the last couple of months been able to do enough of what she needed to get the children back under her supervision. She however has a looming federal court case coming up in July. I know that the children, while in her care remain in the "system" for 6 months. My cousin wants my husband and myself to have the children, but we are concerned that we could have these children for 2 or more years (while she is in prison) and then she would be able to come and reclaim them as her own. I hope that makes more sense. So my question is if my cousin "signed the children over to us" what does that mean is that Legal Guardianship or Adoption? We have become a licensed Foster care provider in SC... since learning about these children.

Well, if the Court is involved and it granted custody to the Mother, then she will still need to make the children's placement with you through the child protection agency that initially took custody of the children. Even though she is the Mother the Court has granted her custody of the children, the Court would still be involved in any decision involving the children's living situation - especially if it means that she will not be caring for them for a number of years. It would be best if she could talk to the social worker involved now so that preparations could be made if you plan on caring for the children. An interstate placement would need to be done by the social worker handling this case. The child protection agency will assess whether you as their caretaker can be paid on a monthly basis for taking care of them. Initially the placement with you would be a foster care placement. After the children are placed with you, if you decide to take them, the social worker will ask you whether you are interested in adoption or legal guardianship. I imagine you would take the legal guardianship since the Mother plans to regain custody at some time in the future.

In Los Angeles County, parents can have up to 18 months to reunite with their children, if the Court is involved. If the parent does not regain custody then the Court will seek to either place the children up for adoption - with the current caretaker if they agree or a relative that comes forward (or the children can be matched with a prospective adoptive parent). A legal guardianship means the parent will retain all of their parental rights, and the caretaker and/or relative who agrees to become the children's legal guardian will hold the same rights under the law. If the children have been returned to the Mother then the case can remain open for one year after the children are returned home.

If the Court is not involved and the Mother has sole custody, then she can provide a written affidavit giving you authorization to care for the children, obtain medical care and sign for any educational documents that may be needed. I would make sure that she include information as to your agreement for how long you will care for the children and anything else you feel is relevant. This would not be a legal guardianship and/or adoption.

Obviously this is a terrible situation for the children to be separated from their Mother. I hope something can be worked out so at least the children can stay with family.

This is a complicated situation. What about the other parent? Normally (s)he would be a key player and primary caregiver. If the other parent is also unable to care for the child for whatever reason, then (s)he should be placed under the care of a court-appointed guardian. Once a guardian is appointed, (s)he remains the legal caregiver and custodian of the child until the court changes the order. Once released from incarceration, the parent in question can always petition the court for custody of his/her child. Whether (s)he'll get it depends on a lot of factors.