What are the challenges to children and parents associated with discharge from prison?

The effects of parental incarceration on children do not end with a parent’s discharge from prison. Approximately 650,000 people are released from state and federal prisons annually, and a much larger number are released

from local jails. Many parents who are discharged from prisons intend to reunite with their minor children, but may not anticipate the difficulties associated with doing so. Former inmates face immense challenges, both

internal and external, to build productive lives for themselves, including finding jobs, housing and health care and avoiding further involvement with the criminal justice system. Many grapple with paying off debts that have accumulated during imprisonment, including child support arrangement's, criminal fines, court and legal fees, and restitution. These challenges have been extensively documented and discussed elsewhere.

      Re-entry can be even more daunting for women with children than for men. Compared to male former inmates, women are more likely to be dealing with the psychological effects of past trauma and abuse and are more likely to have abused drugs, alcohol or both at the time of imprisonment. At the same time, reunification with children is likely to be a more important part of re-entry for women than it is for men.

      Prisoner re-entry also can be challenging and stressful for children. Children grow, change and often form relationships with new parental figures during a parent’s incarceration. These parental figures—and perhaps other family members—often are reluctant to allow a child to re-establish a relationship with a parent upon release. Such family conflicts can destabilize already fragile families and leave children confused and torn. More important, the return of a violent offender can increase the risk that a child will be subjected or exposed to domestic violence.

How to prevent the termination of parental rights, incarcerated parents face three challenges.

First, regular contact, preferably visitation, with a child in foster care is critical. Unless termination of parental rights is clearly in the child’s best interest, a court will be less likely to terminate the rights of a parent who can demonstrate ongoing positive contact with a child and involvement in his or her life. In California, for example, the statutory list of circumstances that constitute exceptions to termination includes that, “the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”

      Ironically, though contact and visitation are most important for incarcerated parents whose children are in foster care, some evidence suggests that such children are the least likely to visit their parents in prison. That is because visits must be authorized and arranged by child welfare caseworkers who carry high caseloads and who may be inclined to “abandon” the prospect of reunification with an imprisoned parent.

      Second, incarcerated parents who want to avoid termination of parental rights should participate to the fullest extent possible in their children’s dependency proceedings, including case planning, hearings and court orders. Parents, however, are often dependent upon caseworkers for information and guidance to navigate the dependency process. Unfortunately, some studies have found that caseworkers rarely communicate with parents in prison, inform them of hearings or involve them in case planning.

      Third, incarcerated parents need access to reunification services, such as substance abuse treatment, mental health services and parenting classes. In the BJS study, more than half of parents in state prison (55 percent of fathers and 74 percent of mothers) reported a mental health problem and more than two-thirds (67 percent of fathers and 70 percent of mothers) reported substance dependence or abuse. Only four in 10 of these parents, however, reported receiving treatment for substance abuse since admission, and only one-third received treatment for mental health problems.

      In short, unique policy and practice issues can adversely affect children in foster care and their incarcerated parents. State policymakers, however, have options to mitigate the potentially harmful consequences of these policies and practices. The options are discussed later in this paper.

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.