Caught in the middle: Children of incarcerated parents and the intersection of harsh sentencing and child welfare policies

By | February 5, 2013

When a mother goes to jail, the impact on her family can be devastating. Most moms are the primary caretakers for their children at the time of their arrest, and the sudden absence of a mother leaves a void in a child’s life that is almost impossible to fill. In most cases, relatives step forward to care for and support the child, and while we know that parental incarceration places children at unique risk for low self-esteem and behavior problems, with family support and ongoing contact with their moms, many of these children do well and even thrive.

But for the approximately one in ten children who do not have a relative able to care for them when their mother goes to jail, the only option is foster care. While many children in foster care are fortunate to have the support and stability of a loving foster home, they face the most serious of consequences: the permanent loss of their relationship with their incarcerated mother through termination of parental rights. These children are subject to the mandates of the federal Adoption and Safe Families Act (ASFA), which requires, with few exceptions, that the child welfare agency seek termination of parental rights after the child has been in foster care for 15 of the past 22 months. This means that for most parents who have children in foster care and sentences longer than 15 months, termination of parental rights is a strong likelihood, if not an inevitability. The reality is that despite a mother’s strong commitment to caring for her child and a loving parent-child bond, a child in foster care may forever lose her relationship with her incarcerated mother due solely to the passage of time.

As an attorney representing incarcerated parents in the child welfare system, I have seen first hand how this requirement can devastate families. For example, I was appointed to represent Angela after DHS had filed to terminate her parental rights. Angela’s toddler son Matthew was removed from her care due to her struggle with drug addiction. The removal of her son was a wake-up call, and Angela immediately devoted herself to getting clean and rebuilding her relationship with her son. After nearly a year of diligent efforts, reunification was only weeks away when Angela was incarcerated on drug charges. Angela, proud of her year of sobriety and all of her efforts, maintained her innocence. And indeed, seven months after her arrest, her charges were dismissed. But by then it was too late— more than fifteen months had passed since Matthew entered foster care and DHS had filed to terminate Angela’s parental rights, a move that would permanently cut off not only Angela’s contact with Matthew, but also her right to even know where he was or how he was doing.

Angela is only one of the many mothers caught between our war on drugs and shifting child welfare policy. When ASFA was enacted in 1997, the United States was undergoing a rapid expansion in its use of incarceration, and the average length of prison sentences was also increasing. From 1972 to 2011, the state prison population increased more than 700%,and currently the United States incarcerates a greater percentage of our population than any other country in the world.  Mothers, most of whom are nonviolent offenders, now represent one of the fastest-growing demographics in prison: from 1990 to 2007, the number of mothers in federal and state prison increased 122% while the increase for fathers during the same period was 76%.While the number of prisoners has increased, so has the average sentence length: offenders released in 2009 served an average 36% longer jail sentence than offenders released in 1990.

Now mothers who might have previously been diverted to treatment or community corrections are instead going to jail, and at the same time those mothers are increasingly facing sentences incompatible with ASFA timelines. The result is not surprising. While data collection on children of incarcerated parents in foster care is sorely lacking, one study estimated that the first 5 years after ASFA was enacted saw a 250% increase in the termination of parental rights for incarcerated parents.

It cannot be the case that the best interests of children are always served by the loss of all connection to their mother whenever a mother’s sentence (or even, as with Angela, time spent in jail awaiting trial) exceeds fifteen months. Yet strict adherence to ASFA timelines can and does result in the permanent destruction of a loving mother-child relationship despite the mother’s best efforts from jail. Several states have begun to recognize ASFA’s harsh impact on children of incarcerated parents and have amended their laws to ensure that termination of parental rights is pursued only when it is truly in the best interest of the child.  For example, New York’s Chapter 113 of 2010 offers an exception to the 15 month termination of parental rights filing requirement when the parent is incarcerated and makes efforts to maintain a meaningful parent-child relationship, so long as TPR is not otherwise in the child’s best interest.

Last year, the Pennsylvania Joint State Government Commission issued a ground-breaking report on children of incarcerated parents, and specifically recognized the challenge that the ASFA timeline poses to children of incarcerated parents in foster care. The report recommended that Pennsylvania adopt legislation to ease the burden of the strict 15 month timeline in cases when it is in the best interest of the child, and also to clarify that incarceration alone is not a basis to terminate parental rights.

As a Stoneleigh Foundation Fellow, I was honored to serve on the advisory committee to the Joint State Government Commission and join professionals from corrections, child welfare, and the courts in bringing much-needed attention to the special needs of children of incarcerated parents in foster care. The proposed legislation that resulted from this work,if enacted, would ensure that every foster child of an incarcerated parent gets the thoughtful and individualized planning to which she is entitled: planning that does not sentence a child to a life without her mother based solely on the passage of time.