Friday, Sep 5, 2008
Meanwhile, as a result of the drug war, women have become the fastest-growing segment of the prison population. The number of women in state and federal prisons has increased fivefold in the last three decades, to 84,400 at the end of 1998, and the tide shows no sign of slowing, much less turning. Eighty percent of incarcerated women are mothers, and because most women prisoners are single mothers, their children are particularly vulnerable in their absence.
Across the country, those who work with incarcerated women say they have seen a particularly steep increase in terminations of parental rights among prisoners -- an increase which, as stepped-up enforcement of ASFA collides with the ever-larger numbers of women pouring into prison, many expect will turn into a flood.
Philip Genty, clinical professor of law and director of the Prisoners and Families Clinic at Columbia University Law School, sees more than 150 prisoners a year in New York-area facilities (where he and his students lead family law workshops) and has written widely on termination of parental rights. Prisoners facing termination proceedings were once the exception, says Genty; now, among those whose children are in foster care, they have become the rule.
"It is a very rare situation where a woman prisoner with a child in foster care has not been confronted with this," Genty says.
The reason for this lies in simple arithmetic: Long sentences for drug offenses leave many prisoners doing stints for even minor infractions that exceed ASFA's six- and 15-month time limits. In New York, 91 percent of women convicted of felonies, including low-level nonviolent crimes, will serve at least 18 months -- three months more than the longest ASFA time limit. Social services departments, Genty explains, "feel that ASFA puts pressure on them to move children out of the system quickly even when they think there may be a decent relationship between parent and child. They don't have the ability to wait for the parent to get out of prison."
Marilyn Montenegro, prison project coordinator of the California chapter of the National Association of Social Workers, says many social workers are themselves "very frustrated" by the constraints under which they are forced to operate. Most social workers, says Montenegro, believe that ongoing contact with biological parents is "almost always in the best interests of the child," but the law does not create a means to facilitate that contact if parental rights must be terminated by a particular date. "They [social workers] say, 'My hands are tied. There's nothing I can do,'" says Montenegro.
The laws passed to implement ASFA vary from state to state. New York passed a relatively mild version last February that did not change any of the grounds for termination of rights but did, as required, incorporate the new federal timetables. According to Genty, at least half the remaining states now have legislation on the books that makes specific reference to incarceration as a factor in or grounds for termination; in these states, it is safe to assume that the number of prisoners who lose their parental rights would be even higher than in New York.
Illinois, for example, has passed a particularly harsh ASFA law, adding several new grounds for termination that specifically target incarcerated parents. Under a "three strikes"-style provision of the Illinois law, any parent with a child in foster care who has three felonies with one in the past year (including possession, writing a bad check or shoplifting, if they are charged as felonies) is presumed "unfit" and is subject to termination proceedings. The same goes for parents who will be incarcerated for the next two years, or who have already been locked up repeatedly. The result, says Joanne Archibald, advocacy director for Chicago Legal Aid to Incarcerated Mothers, is that "more and more women are losing their kids."
Attorney Lynn Vogelstein, currently a fellow at the Institute for Children, Families and the Law at New York University's School of Law, worked until recently with South Brooklyn Legal Services, which represents former prisoners in family court. Among New York's incarcerated mothers, she says, the typical scenario involves a woman who hits the 15-month time limit while behind bars and find her rights terminated on the grounds of "permanent neglect and abandonment," defined under New York law as having had no contact with the child during the past six months.
Sometimes, says Vogelstein, women whose children are in foster care do not inform the caseworker when they are arrested because they believe to do so would make their situation worse. They don't realize that their silence can be construed as "abandonment." Other women, Vogelstein says, find their rights terminated for "failure to plan" for the child's future needs, despite the fact, she notes, "that it's very hard from jail to plan for the return of your child."
The result, says Genty, is that "the mood in prison is one of despair. Essentially, what incarcerated parents are being told is that no matter what they do, how hard they work at overcoming the issues that put their children in foster care and brought them to prison, they cannot avoid having their parental rights terminated."
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