burdens the biological parents and simultaneously puts the children at risk of being cast into the system of child welfare. This happens with the greatest frequency to children of color.33
There are a number of reasons why an incarcerated mother has an increased chance of losing permanent custody once the state places her children in the foster care system. First, the state may have specific laws aimed at terminating the rights of parents who “voluntarily abandon their children.” These laws do not adequately differentiate between physical abandonment in the traditional sense and involuntary “abandonment” as a result of incarceration. Second, despite language in many state statutes that mandates efforts toward reunifying families, incarcerated mothers rarely reap the benefits of such services. Child welfare workers and foster parents are often reluctant to facilitate visitation between children and incarcerated parents because they believe parental contact is harmful to the children, or they blame the parents for the children’s problems. Third, foster care is the first step in most jurisdictions toward a permanent termination of parental rights. “Twenty-five states have ‘termination of parental rights’ or adoptive statutes specifically for incarcerated parents, which makes the permanent loss of a child a stark reality.”34 Although the language of most statutes indicates that a state cannot terminate a parent’s right to custody of her child solely on the basis of incarceration, this prohibition tends to be honored in the breach. Some states have demonstrated a willingness to speed up termination proceedings in situations involving an incarcerated parent.
Of course, certain offenses might themselves render the offenders unfit parents. A conviction for extreme acts of domestic violence against the child or the other parent, for example, might provide sufficient grounds for terminating parental rights. But in most cases, both incarcerated parents and children have an interest in preserving their bond. In Santosky v. Kramer, the U.S. Supreme Court acknowledged this, finding that parents’ liberty interest in maintaining a relationship with their children applies equally to incarcerated mothers and fathers. The Court reasoned,
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family life.35
The Court further explained that, to terminate a parental right, courts should adhere to a standard of proof requiring a showing of “clear and convincing” evidence that the parent is unfit. In choosing this standard of proof, the Court may have been concerned about the conscious and unconscious influence of cultural or class bias in these decisions. The parents most likely to be subject to removal of their children and termination of all parental rights are often the poor, the uneducated, or members of minority groups. So, the Court may have intended the heightened standard to serve as a check against such biases.
However, the standard of proof may not be up to this considerable task. As indicated earlier, many of the women serving prison terms have been incarcerated after drug convictions. Drug dependency among this population has often contributed to involvement in the criminal justice system. Rather than seeing drug usage as a medical or public health problem, American society tends to regard it as a criminal problem. And Americans tend to reserve their most severe criticism for female drug users.36 They label drug-dependent women as, at best, neglectful parents and, at worst, abusive. While drug dependency can lead to both neglect and abuse, it does not inexorably lead to such problems. However, the perception that drug usage and abuse go hand in hand may influence decision makers in custody cases. So, many incarcerated mothers lose custody of their children for unstated assumptions that may have little bearing on whether they are actually capable or can become capable parents.
In addition to establishing the standard of proof, the Supreme Court has also broadened the factors that courts should assess in determining whether a parent is to be stripped of her parental rights. The Court directed lower courts to consider the nature of the relationship between parent and child as well as the degree to which the incarcerated parent has benefited from rehabilitation in prison. However, because many state statutes and an abundance of cases allow physical separation to serve as grounds for termination, the incarcerated mother often cannot overcome this burden since separation is likely during the period of incarceration. Although incarceration typically cannot be the sole reason for terminating parental rights, it is still more likely that a court will find that an imprisoned parent, as opposed to the average parent, meets the statutory criteria leading to the termination of her rights.
A better option is for the court to examine parenting and reentry as two sides of the same coin. Parents and parental rights as a legal matter should be viewed in light of the reentry plan for the parent. Parenting classes, treatment regimens for the parent, and educational and vocational training should all be a part of the equation when courts are determining the status of parental rights. This is, of course, assuming that the crime for which the parent is in custody is not a crime committed against the child. In that circumstance, one might use a different equation.
Adoption is another concern for incarcerated mothers. This scenario typically arises when the father has custody of the child and marries or remarries. It is common for the new spouse to adopt the child. In addition, a foster parent may wish to adopt the child currently within her custody. All states have statutes outlining the procedures and circumstances of the type of adoption that can take place without the consent of one parent. Furthermore, the 1981 Federal Adoption Assistance and Child Welfare Act allows a child to be adopted by a foster parent if the child does not live with his or her mother for a year. As is the case with termination of parental rights proceedings, adoption will completely sever the relationship between the incarcerated mother and her child. Many critics of this adoption policy argue that because the law so heavily emphasizes adoption, adequate resources are not directed to support services for biological families who want to maintain their parental rights. Therefore, “these families are not given a sufficient opportunity to be reunified.”37
If the mother manages to retain parental rights during her incarceration, her first priority upon release is likely to be the fight for custody of her children. Given the obstacles, the fight can be overwhelming. In making the custody determination, family courts will consider whether the mother is able to provide financial support and housing for children upon release. Because vocational and educational training in women’s prisons tends to be severely limited, women ex-offenders often lack the marketable skills that might enable them to obtain the sort of employment that a court would be likely to approve. Then, federal welfare laws reduce their access to benefits that might provide transitional support as they seek employment. Complicating all of this is the fact that adoption laws have begun to reduce the amount of time that parents have to reunite with their children before permanently losing custody.38 One year after Congress passed the welfare reform law, it enacted the Adoption and Safe Families Act of 1997 (ASFA).39 This act allows states to begin termination of parental rights if a child has been in foster care fifteen of the last twenty-two months. So women ex-offenders find themselves in a race against time to overcome significant obstacles as they attempt to regain custody of their children.
To the extent that government and the courts are serious about easing the burden of women exiting jail and prison, dispensation must be made for custodial parents reentering communities, looking for work, and attempting to provide for their children. The added burden of simultaneously trying to reestablish themselves after incarceration and having to fight for custody significantly hampers reentry and imposes incredible stresses on the parent.
D. Welfare
In addition to restrictions on housing, some formerly incarcerated individuals are barred from receiving federal and state welfare benefits. These are especially devastating
