How are children in foster care affected by the incarceration of a parent?

The adverse emotional and behavioral consequences of parental incarceration and parent-child separation, children in foster care and their parents face additional challenges created by child welfare law, policy and practice. The most serious of these challenges is the risk that the legal parent-child relationship will be permanently severed through legal action by a child welfare agency. The 1997 federal Adoption and Safe Families Act, requires states to file a petition to terminate parental rights on behalf of any child who has been abandoned or who has been in foster care for 15 of the most recent 22 months. The law provides exceptions to this requirement in the following cases: 1) at the option of the state, the child is being cared for by a relative, 2) the state has documented a compelling reason for determining that termination of parental rights would not be in the child’s best interest, or 3) the state has not provided the child’s family with services that the state deems necessary for the safe return of the child to his or her home.

      Although the Adoption and Safe Families Act does not explicitly require a termination of parental rights filing against incarcerated parents, the 15 of 22 months provision technically would apply in cases where reunification is delayed beyond 15 months due to a parent's incarceration, even if the parent is receiving services to facilitate reunification. Because the typical sentence for an incarcerated parent is from 80 to 100 months, most imprisoned parents of children in foster care are at risk of losing their parental rights.

      We lack the data, however, to know how ASFA actually affects the permanency outcomes for children in foster care whose parent is incarcerated. Some evidence suggests that the number of termination of parental rights cases that involved incarcerated parents increased following enactment of ASFA. Such cases were on the rise before ASFA enactment as well. A recent analysis of data from the Adoption and Foster Care Analysis and Reporting System examined the subset of children for whom parental incarceration was indicated as a reason for removal from home. The study found no significant difference in rates of reunification between these children and children in foster care whose parents were not incarcerated. Another study of children in the Minnesota child welfare system found that the vast majority of children who were placed in foster care from 2000 to mid-2007 due to incarceration of a parent ultimately were reunified with their parents. On the other hand, a study of mothers incarcerated in Illinois state prisons and the Cook County, Illinois, jail from 1990 to 2000 found that these mothers were one-half as likely to reunify with their children in foster care than were non-incarcerated mothers whose children were in foster care.

      Although ASFA requires a termination of parental rights filing in certain cases, it is state—not federal—law that defines legal grounds for such termination. Many state termination of parental rights laws include parental incarceration as a factor to be considered by courts in determining whether to grant a termination decree. Incarceration per se is not grounds for termination of parental rights in any state. In fact, six states expressly include this caveat in statute. Rather, states have defined a variety of conditions related to incarceration that, together with imprisonment, constitute grounds for termination. These conditions include length of confinement relative to the child’s age; failure to make provision for the child’s care; the quality of the parent-child relationship and the effect of incarceration thereon; pre-incarceration contact with and support of the child; repeated incarceration; failure to cooperate with the child welfare agency’s efforts to help with case planning and visitation; and the nature of the crime for which the parent is incarcerated. Another important distinction among state termination of parental rights statutes is that, although most states give judges some discretion in making termination decisions, others require judges to grant a decree upon proof of one or more statutory grounds.

      At least two states—California and Utah—set strict time limits on provision of reunification services. These time limits allow no exceptions, although California recently authorized courts, in limited circumstances, to extend the time limits for parents who are incarcerated, institutionalized or in residential substance abuse treatment. Nor are the time limits subject to judicial discretion. When the time allotted for reunification services expires, reunification no longer will be the child’s permanency goal, and the child welfare agency likely will move to terminate parental rights, unless an exception applies.

Children’s Contact with Incarcerated Parents

Maintaining family contact during incarceration can be beneficial to both children and their parents. It is generally thought that maintaining parent-child contact through personal visits during incarceration is important for the well-being of many children, although little empirical evidence exists on that point. Some research indicates that visiting is important in maintaining parent-child relationships and increases the likelihood of successful reunification after release.With regard to prisoners themselves, several studies found that maintenance of family ties during incarceration is linked to post-release success, defined as lower rates of recidivism and fewer parole violations.

      The Bureau of Justice Statistics study examined the types and frequency of contacts between prison inmates of minor children and the children of these inmates, including their adult children. The study found that almost 79 percent of state inmate parents had some kind of contact with at least one of their children since admission. Thirty-nine percent of fathers and 56 percent of mothers in state prison reported at least weekly contact with a child, in the form of letters, telephone calls or visits. Relatively few inmates reported regular personal visits from at least one of their children, however. In state prison, only 12.3 percent of fathers and 14.6 percent of mothers reported personal visits from a child at least once a month. Fifty-nine percent of fathers and 58 percent of mothers had no personal visits from any of their children.

Barriers to more frequent contact, particularly personal visits, include the following.

• Corrections policy In theory, corrections officials encourage visiting and maintenance of family ties. In 
  practice, however, prison rules to ensure safety and security often impede such visits. As Creasey Finney Hairston notes, “correctional institutions commonly require children’s custodial parents to escort them on visits, require child visitors to produce birth certificates listing the prisoner as the biological parent, and house prisoners in locations hundreds or thousands of miles from their homes—all policies that create obstacles for healthy parent-child relationships.” Prisons also commonly charge excessive fees for telephone calls to subsidize their operations, so incarcerated parents cannot afford to maintain regular contact with their  children.

• Child-unfriendly facilities The prison environment can be frightening and traumatic for children, both in the attitudes and behavior of prison staff and the physical setting. Visits can include long waits; body frisks; rude treatment; and hot, dirty and crowded visiting rooms with no activities for children.These conditions do not encourage frequent visits between incarcerated parents and their children.

• Parent-caregiver relationships One of the most important factors that affect whether and how often a child has contact with an incarcerated parent is the relationship between the parent and the children’s current caregiver. For various reasons, a caregiver-be it the other parent or a relative-may have a strained relationship with the incarcerated parent or may have severed all ties with him or her. The caregiver may feel that further contact with the imprisoned parent could harm the child and therefore might prevent or discourage such contact.

• Child welfare policy and practice For reasons that will be discussed more fully in the next section, placement of a child in foster care poses unique barriers to visitation with incarcerated parents. In the context of federal and state policies that discourage reunification when a child has been in foster care for an extended period, caseworkers have little incentive to arrange visits and work to preserve parent-child relationships.

The Child’s Current Caregiver

Children who live in stable households with nurturing caregivers during their parents’ incarceration are likely to fare better than children who experience family instability as a result of a parent’s confinement Foster care, in particular, carries with it the risk of multiple placement changes and loss of connection to school, community, friends, siblings and extended family. 

      The vast majority (84 percent) of parents incarcerated in state prisons reported to the Bureau of Justice Statistics that at least one of their children was in the care of the other parent. Fifteen percent identified as caregivers the grandparents, 6 percent other relatives and 3 percent reported that at least one child was in a foster home, agency or institution.Responses of mothers and fathers in state prison differed on this survey question. Eighty-eight percent of fathers identified the child’s other parent as the current caregiver, compared to 37 percent of mothers. Sixty-eight percent of mothers, on the other hand, identified a grandparent or other relative as a child’s current caregiver, compared to 17.5 percent of fathers. Finally, mothers were five times more likely than fathers to report that a child was in foster care (11 percent vs. 2 percent, respectively).

      Notwithstanding the Bureau of Justice Statistics survey, accurate estimates are not available of the number of children in foster care who have an incarcerated parent. Although the report tells us how many inmates identified a given type of caregiver, it does not tell us how many children are in each type of care giving arrangement. Thus, we do not know how many children are represented by the 3 percent of inmates who reported that a child was in foster care. Further, the survey makes no attempt to distinguish between relative caregivers who are foster parents and those who provide care outside the formal child welfare system. Other data sources are equally problematic, producing widely varying estimates of this population of children in care.