SPECIAL ISSUE: MAKING A BETTER WORLD FOR CHILDREN OF INCARCERATED PARENTS

GUEST EDITOR’S INTRODUCTION

SPECIAL ISSUE: MAKING A BETTER WORLD FORCHILDREN OF INCARCERATED PARENTS

Myrna S. Raeder

The punitive sentencing regime that has branded the United States as the Country incarcerating the largest number of itsinhabitants has also imposed a terrible punishment on the children of incarcerated parents. These youth are at risk, not only forcontinuing an intergenerational cycle of crime, but also for entering the pipeline that extends from foster care, to school failure,homelessness, unemployability, poverty, and institutionalization. Even those who escape the more draconian collateral conse-quences of their parents’ incarceration face stigma and shame that may affect their development. This special issue of the FamilyCourt Review explores a myriad of issues that impact Children of Incarcerated Parents, and suggests a variety of approaches,practices and policies that will better the lives of children who should not suffer for the “sins” of their fathers and mothers. ThisIntroduction highlights many issues that affect the children of incarcerated parents, summarizes the valuable contributions ofthe authors, and also identifies publications and research sources that delve more deeply into these topics.

I was delighted when Professor Andrew Schepard, the editor of the Family Court Review, asked meto serve as the guest editor of a special issue dedicated to children of incarcerated parents (CIPs). Heand I have worked together on the American Bar Association’s Youth at Risk Commission, and he wasaware of my longstanding advocacy on behalf of women offenders and their children, which over theyears has led me to focus directly on the plight of the children as well as their incarcerated parents.1

This introduction not only allows me to highlight many issues that affect the children of incarceratedparents and summarize the valuable contribution of the authors, but also to identify publications andresearch sources that delve more deeply into the topics thereby providing a resource for those whowant more information about these subjects.

As a number of the articles in this Special Issue remind us, the United States’ increasingly punitivesentencing philosophy has resulted in an overreliance on incarceration, resulting in an incarceratedpopulation that has soared from approximately 340,000 in the early 1970s2 to nearly 2.3 milliontoday.3 Even looking at the past 20 years, the number of children with a mother in prison has more thandoubled, and the number of children with incarcerated fathers has grown more than 77%.4 Althoughthe U.S. has only about 5% of the world’s population, 25% of all prisoners are in American jails andprisons. More than one in every 100 adults, and one in every nine young African American males, isnow confined in an American jail or prison.5 As a result, the number of children whose lives have beendisrupted by parental incarceration has also grown exponentially, with estimates ranging from 1.7 to2.7 million children.6 In other words, nearly 4% of American children have an incarcerated parent,7 afigure that is undoubtedly much higher when it includes children of individuals who have beenpreviously arrested or incarcerated. Indeed, some estimates indicate as many as 10 million minorchildren have experienced parental incarceration.8 The percentage of black children who have a parentin prison dwarfs that of white children,9 fueled in large measure by the war on drugs that accounts formuch of the disproportionality of minorities in correctional settings.

Some of these children will be placed in foster care. Generally, estimates of the number of childrenin foster care who have an incarcerated parent vary widely, with different studies ranging from under

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FAMILY COURT REVIEW, Vol. 50 No. 1, January 2012 23–35© 2012 Association of Family and Conciliation Courts

10 percent to as much as 70 percent of the total foster care population.10 Even the General Account-ability Office could only describe them as “likely to number in the tens of thousands,” which is hardlya definitive identification.11 Children who experience multiple placements or living in group homesare particularly vulnerable. The results of a survey of adult female prisoners who had previously beenin foster care paint a grim picture of their youthful experiences, including much higher levels of sexualand physical abuse than found in the general population.12 Thus, the focus of several of these articleson maternal incarceration is designed to shed light on a growing problem that has intergenerationaldimensions.

Until recently, these children were mainly invisible, in part due to the stigma associated withrevealing the cause of their distress, but also because there was little reliable data about who they areand less interest in how they fared.13 Even today the existing research suffers from the difficulty thatwhen discussing CIPs, parental incarceration is not segregated from other risk factors that affect thisgroup, such as poverty, exposure to parental mental illness, domestic violence, substance abuse, orother types of parental abuse or neglect.14 This methodological defect is exacerbated by the absenceof records that adequately identify these children, whether in dependency, delinquency or criminalcourts, schools, or for purposes of governmental assistance. It is difficult to correctly assess needs andappropriate services when outcomes for these children are unknown, whether on a national, statewideor local basis.15

The United States Government Accountability Office recently undertook a major study of fostercare children with an incarcerated parent, and recommended both that the Department of Health andHuman Services improve its data collection and dissemination, and that the Department of Justicepromote collaboration between corrections and child welfare agencies.16 While some states have alsoacknowledged the lack of data to be a problem, so far little has been done to obtain the necessaryinformation, in part since the fix typically requires changes in collecting and inputting data. Thesolution may require expensive software upgrades as well as a cultural change requiring familyoriented questions to be asked by social workers, school administrators, police and correctionalofficials. In addition, concerns about privacy as well as increased stigmatization of CIPs caution thatcare must be taken when deciding what information is essential and how to best obtain it.

Professor Philip Genty, the Everett B. Birch Innovative Teaching Clinical Professor in ProfessionalResponsibility at Columbia Law School, who has long been recognized as an authority on thedifficulties facing incarcerated parents and their children17 is not afraid to raise the inconvenientquestion of whether our view of CIPs is unrealistic. He gives us a closer look at who CIPs are in hisarticle, Moving Beyond Generalizations and Stereotypes To Develop Individualized Approaches ForWorking With Families Affected By Parental Incarceration, and concludes that the “label” “children ofincarcerated parents” may in fact be too simplistic because it masks the differences that are inherentin a group whose situations vary immensely. Professor Genty addresses this topic in the context ofexamining the eight principles embodied in the widely publicized Children of Incarcerated ParentsBill of Rights18 with an eye to determining whether the uplifting goals in the Bill of Rights can beeasily applied across the range of CIPs. He suggests that we will not be able to create the best policyand services if we continue to ignore the complexities of competing narratives. For example, thechildren of incarcerated mothers are not a homogeneous group,19 let alone the larger universe ofchildren with incarcerated fathers.20

Yet, one question that is sometimes heard is if it makes sense to separate the various types of youthat risk at all, regardless of whether the risk stems from parental incarceration, immigration enforce-ment,21 foster care, delinquency, mental health, disability, bullying, truancy, academic difficulties, zerotolerance, revealing a youth’s sexual orientation or other causes. Undoubtedly, a number of childrenoverlap several categories, and there is some feeling that it is really the same kids who are at extremerisk, regardless of how they are pigeonholed. I agree that exploring the intersection of systems thatprovide services to vulnerable youth is a worthy endeavor.22 However, disaggregating the groups isimportant when ascertaining specific needs, appropriate programming, and effective policies forgroups that share overarching risk factors.23 In this regard, CIPs have been identified as a discreteclassification. For example, households headed by caregivers who have been arrested have higher

24 FAMILY COURT REVIEW

levels of substance abuse, domestic violence, and extreme poverty than other households,24 and theirchildren experience more risk factors than other children.25 Moreover, the Center for Disease Controland Prevention has defined parental incarceration as an adverse childhood experience that can lead toa multitude of health and social problems.26

The extent of their pain is demonstrated in Patricia Allard’s article, When The Cost Is Too Great:The Emotional And Psychological Impact On Children Of Incarcerating Their Parents For DrugOffences, which tugs at our heartstrings with poignant narratives from children that illustrate thedramatic impact of incarceration on their present and future lives. Ms. Allard is the Director of theCanadian HIV/AIDS Legal Network. Previously, she was a research consultant at Justice Strategies,and a former Open Society Institute Soros Justice Advocacy Fellow. Her article is based on a reportthat she recently co-authored entitled Children on the Outside: Voicing the Pain and Human Costs ofParental Incarceration,27 which should be read by everyone who works with these children and theirparents.28 While the report considers sentencing reform to be the primary way of effecting change, ithas a number of suggestions about what can be done to assist these children and equally importanthumanizes them so that policy makers can no longer dismiss CIPs as abstract ciphers or simply thecollateral damage of their parents’ criminality who cannot escape “the sins of their fathers.”

Ironically, today, it is mothers, not only fathers, whose children are affected, again largely inresponse to the war on drugs. Many of these female offenders become entangled in drug conspiraciesby the fathers of their children.29 Another significant reason for their increasingly long sentences isoften referred to as the “feminization of poverty;” women whose economic marginalization results intheir engaging in prostitution or committing theft crimes, sometimes to feed and house their children,who then receive enhanced penalties as repeat offenders.30 Although female prisoners are a burgeon-ing population, they still are less than 8% of individuals in custody.31 Yet the impact of maternalincarceration is often a double whammy, since the fathers of these children are also more likely to beimprisoned,32 except in those rare instances when sentencing takes the impact of children intoaccount.33 Not only will some children be dislodged from their homes, but they may also lose theirsole or primary caregiver when their mothers are incarcerated. While the overwhelming majority ofchildren with incarcerated fathers reside with their mothers, the same is not true for children ofincarcerated mothers, most of whom do not reside with their fathers.34 In fact, one study comparingrisk to children from incarcerated mothers and fathers found that mothers were 2.5 times more likelythan fathers to report that their own adult children were incarcerated, and that generally the risk of pooroutcomes intensified with maternal incarceration.35

While the lengthier a parental incarceration, the more likely it is to severely impact children, itshould not be overlooked that the impact of incarceration begins for many youths with parental arrest.It is estimated that children are present in about 20% of arrests of their parents, which by itself can bea traumatic experience, particularly when law enforcement is not subject to any protocol about howto treat them.36 Today, a number of initiatives exist aimed at keeping children safe when their parentsare arrested,37 but there is little uniformity in practice even in those states which are attempting tomitigate the potentially devastating effects of witnessing a parental arrest. Similarly, it can be just astraumatic for a young child to be left at home with a babysitter or in some form of childcare when noresponsible parent returns when expected,38 currently a distinct possibility since nationally more than40% of state female prisoners with children reported living with them in single parent households.39

Yet information about children of arrestees and their whereabouts is not automatically requested. Evenwhen requested, arrested parents may fear that revealing their children will expose them to stateintervention, leading parents to devise ad hoc and often unstable short term arrangements to house andcare for their children. Such parental concerns are not irrational since arrest appears to be a generalpredictor of Dependency Court involvement in that one third of national maltreatment complaintsregarding children in in-home settings were made against caregivers who had been previouslyarrested.40 However, unless the arrested parent has made stable arrangements for the child, an arrestcan lead to short term chaos in a child’s life.

If an arrest results in a parent’s prolonged incarceration, difficulties concerning children mount. Achild need not wind up in foster care if dependency proceedings have not previously been instituted

Raeder/MAKING A BETTER WORLD FOR CHILDREN OF INCARCERATED PARENTS 25

and other arrangements can be made. This is equally true of an infant born to an incarcerated mother.However, the lack of a support network, particularly for single mothers living in poverty, may hindertheir ability to achieve viable alternative placements, particularly when siblings are involved. Simplethings like placing a child in school or obtaining medical treatment without a parental signature canbecome a nightmare if the laws or policies in a jurisdiction have not provided easy solutions, such ascreating acceptable forms and permitting unnotarized signatures to be sufficient for such purposes.

If, as is more typical, a child is already in foster care due to maternal substance abuse41 or placedthere due to parental incarceration, the timelines for termination of parental rights under the Adoptionsand Safe Families Act wreak havoc with reunification.42 As I have observed repeatedly over the past20 years, most recently in 2006:

Unnecessary prison terms also destroy the ability to maintain family ties that are essential to ensuringfamily reunification and avoiding termination of parental rights under the Adoption and Safe Families Act(ASFA). ASFA’s timelines can result in even an eighteen-month prison sentence being a death penalty forparental rights, sentencing mothers to a lifetime without their children. Termination proceedings aremandated if a child spends fifteen out of twenty-two months in foster care, unless the child is in the careof a relative, the family has not been provided with reunification services, or a compelling reason exists asto why it is not in the best interest of the child to terminate the parental relationship. In the five years afterASFA was adopted, reported cases concerning termination of parental rights increased approximately250%.43

Newborns pose particularly difficult policy choices due to the acknowledged need for attachmentby infants and young children in order to develop normally.44 While this has led some to advocate forquick adoptions of newborns born to incarcerated women,45 the article by Mary W. Byrne, StoneFoundation and Elise Fish Professor of Health Care for the Underserved at Columbia UniversitySchool of Nursing and her co-authors entitled Maternal Separations During the Reentry Years for 100Infants Raised in a Prison Nursery demonstrates that secure attachment can occur in prison.46 This isa significant finding, since those of us who advocate on behalf of women offenders and their childrenare often met with claims that they are bad mothers and that their children are better off without them,particularly if the child is an infant. Now, when better solutions are not feasible, Professor Byrne’sresearch establishes that prison nurseries provide an alternative that can support family reunificationand ensure appropriate parenting training. Unlike earlier periods, today relatively few states haveprison nurseries, and budget constraints have sidelined nurseries expected to be built in California andfor federal prisoners.

No one suggests that drug-addicted mothers have no negative impact on their children. However,it would be better to sentence such mothers to supervised probation, or confine them with their infantsin community correctional settings where they can receive treatment and learn appropriate parentingskills. The United States is one of only a handful of countries that separate mothers from their youngchildren. In fact, the Bangkok Rules for Treatment of Women Prisoners, recently adopted by consen-sus by the United Nations General Assembly, have a number of provisions concerning children. Theyinclude the possibility of a reasonable suspension of a mother’s detention, taking into account the bestinterests of her children; favor noncustodial sentences for pregnant women and women with depen-dent children where possible and appropriate; treat caretaking responsibilities favorably for purposesof granting early parole; and provide guidance for situations in which children remain with theirincarcerated mothers.47

Even without rigid timelines dictated by ASFA, equally destabilizing for some children is the factthat termination of parental rights can be predicated on effects that can be traced directly to impris-onment. Professor Genty reviews the various types of statutes that govern the termination of parentalrights, and discusses their underlying assumptions in his previously mentioned article Moving BeyondGeneralizations And Stereotypes To Develop Individualized Approaches For Working With FamiliesAffected By Parental Incarceration. While incarceration per se is not a reason justifying terminationin most states,48 it is a factor in a majority of states.49 In addition, courts often cite such reasons to


terminate as “child in foster care most of her life, parental failure to contact or support child for aperiod of over six months, parent incapable of performing parental duties, parent’s progress stagnated,abandonment, or parent failed to rehabilitate.”50

The children of female inmates are disproportionately impacted by ASFA due to the prevalence ofsingle incarcerated mothers, whose children have a five times greater probability of being in fostercare than children of male inmates.51 Indeed, the relatively low percentage of CIPs reported in fostercare is viewed by many as an artifice caused by self reporting of parents who do not understand howthe dependency system works in relation to what is called kinship care, the placement of children withrelatives. While such placements are generally viewed as ensuring better outcomes for children, andin some cases lead to guardianships or adoptions by family members, not all relatives can afford tocare for family members due to restrictions in some jurisdictions on the extent of funding that they canreceive.52 Thus, many children are still placed with strangers or in congregate care. Data from theFragile Families Study indicates that a child with an incarcerated father is 4 times more likely to facefoster system contact than other children, and 5 times more likely if the mother is incarcerated.53

Another study determined that one of the most significant factors in the doubling of foster carecaseloads from 1985 to 2000 was increased female incarceration.54

Yet terminating parental rights does not assure that a child will be adopted, only that severing tieswith their biological relatives will cut the children off from interacting with any members of theirextended families, and often increase the difficulty of seeing their siblings. Many older children placedin foster care linger in the system until they age out, which is not surprising since statistics indicatethat 110,000 foster children currently await adoption.55 Anecdotally, upon aging out some childrenattempt to connect with the families from whom they have been severed, leading to suggestions thatterminations should be reversible.56

Interesting, in 2010, California enacted S.B. 1266 to permit nonviolent female inmates, pregnantinmates, and male primary caregivers to be released to home, or to authorized residential drugtreatment or transitional care facilities so long as they are monitored by a global position system (gps)and have less than two years left to serve on their sentence. Called the Alternative Custody Program(ACP),57 it operates as a de facto alternative to general sentencing reform, which has generatedintractable political resistance. Instead, ACP is a correctional initiative that does not require resen-tencing. The California Department of Corrections and Rehabilitation prescribes the regulations forthe program and selects the eligible participants who are given credit as if they are serving theirsentence in state prison. In addition, the women are eligible to receive day-for-day earned releasecredits if they complete an approved rehabilitative program while participating in ACP. The programpermits inmates to seek and retain employment in the community, attend psychological counselingsessions, educational or vocational training classes, participate in life-skills or parenting training, andutilize substance-abuse treatment services. While eligibility is not defeated if children are in thedependency system, the reality that this program is an unfunded mandate, which makes it likely thatsome eligible women will not be able to successfully reunite with their children in the community.California is also expected to release large numbers of nonviolent offenders in the next two years toend overcrowding that the United States Supreme Court has deemed unconstitutional.58 Again, whilethis appears to encourage reunification, answers about funding and resources for released prisoners arenot apparent.

Judge Downing’s timely article, Barriers to Reunification for Incarcerated Parents: A JudicialPerspective, details the lessons learned from the Incarcerated Parents Work Group in Los AngelesDependency Court, the largest Dependency Court in the United States. The group was convened withJudge Downing as its chair to respond to recently enacted legislation in California that attempts tofacilitate reunification efforts for incarcerated parents by allowing discretionary extension of thetimeframe during which services may be provided based on mandatory consideration of the circum-stances of incarcerated or institutionalized parents. Judge Downing highlights the importance ofhaving all of the stakeholders at the table, public as well as private, to work out such problems as thelogistics of transporting prisoners to hearings, arranging for visiting or telephoning children, andobtaining services that are necessary for parents to meet their reunification plans. The group also


developed three judicial trainings, and the judges visited a nearby women’s prison to see itsvisiting facilities and learn more about its programming for mothers who must successfully completetheir reunifications plans in order to keep their children. One of the group members was instrumentalin suggesting legislation authorizing a pilot project for videoconferenced Dependency Court hearingsso that incarcerated parents could participate without the threat of losing their work or housingassignments in prison due to lengthy absences caused by transportation delays to attend hearingsin person.

Several other states have also extended ASFA deadlines for incarcerated parents and created theirown initiatives to assist these children,59 and Professor Genty discusses New York’s significant effortsin his article. Ultimately, the benefit of such collaborations by stakeholders is to address the three mainchallenges to preventing termination of parental rights: regular contact with a child in foster care, fullparticipation in dependency proceedings, and access to reunification services.60 In addition, thecooperation between the numerous systemic players who must interact to ensure the best interests ofthe children that is fostered by the working group can have a positive impact on the entire institutionalculture. Private service providers and faith based organizations should also be at the table because thelikelihood of successful reunification is often dependent on community resources. For example,several organizations provide transportation to prisons that are distant from the urban areas in whichthe families of prisoners reside.61

While much of the literature focuses on incarcerated parents, rather than their children, this ischanging, in part driven by numbers that portend an uncertain future for too many children to beignored. The risk of continuing a cycle of intergenerational crime is widely reported, althoughempirical support for the claim that CIPs are six times more likely to offend appears lacking.62 Yet,their heightened vulnerability can be seen in a number of empirical studies. For example, of allchildren arrested between the ages of nine and twelve in Sacramento, 45% had an incarceratedparent.63 Another study identified a 60% rate of teenage pregnancy of female children of incarceratedmothers and a 40% delinquency rate for teenage sons.64 In the short term, CIPs face a decline inhousehold income as well as an increased likelihood of poverty. They are also more likely than otherchildren to exhibit antisocial and mental health problems, including post traumatic stress disorder,although any link to parental imprisonment is currently unclear.65

Stigma, humiliation, and shame are common responses to parental incarceration, which is likelywhy some children are lied to about the whereabouts of their absent parent. However, this does notlessen their feelings of abandonment, and often such charades are not sustainable. Indeed, someresources provide guidance about how to answer questions children are likely to ask.66 Boys often reactto parental incarceration by acting out, which can explain their significantly higher expulsion ratesfrom school,67 as well as their increased vulnerability to becoming a delinquent. At each age CIPs facedifferent developmental disadvantages.68

The bleakest picture of the intergenerational pipeline to adult incarceration begins for somechildren, who are disproportionately minorities, when they enter foster care due to their parent’ssubstance abuse or incarceration. It continues when they become status offenders because theybecome truant or run away from home or placements, sometimes because of physical and sexualabuse. The next step is delinquency, when they live on the streets and engage in prostitution, theft,substance abuse, or commit other crimes, sometimes anecdotally courting arrest in a vain attempt tobe like or with their incarcerated parents. Their homelessness becomes entrenched when they age outof foster care. Ultimately, many are incarcerated, institutionalized or dependent on governmental aidas adults because along the way they never obtained the educational or employment tools or mentalhealth services necessary to become productive citizens. This is an untenable result for children whoselives were radically thrown off course by circumstances outside of their control. They deserve ourattention, not simply to lessen the increased likelihood of intergenerational crime, but to provide themwith the tools to reach their potential, particularly when the state has stepped in ostensibly to protectthem. This is also an excellent time to rethink resources for transitioning youth who have incarceratedparents since the Fostering Connections to Success Act provides states with a window to reshape theirpolicies to reach 18 to 21 year olds.69


No one would suggest that every child of an incarcerated parent in the foster care system will enterinto a life of crime or face homelessness or poverty. Moreover, large numbers of CIPs will not enterthe dependency system at all because they already reside in a stable family environment. However, wemust find a way to assist and mentor the CIPs in foster care in a culturally sensitive manner, as wellas to provide targeted services to those children for whom the consequences of parental incarcerationmay not be as grave, but will still impact their lives.70 Even so, care must be taken to deliver suchservices without stigmatizing the children even further by identifying them at school and in thecommunity as having an incarcerated parent, and/or being in the foster care system. Indeed, onetroubling study found that one source of stigma at school may be from teachers who have lowerexpectations of CIPs than other children.71

As noted earlier, the reaction of teenage girls to parental incarceration, while often different thanthat of teenage boys, includes increased likelihood of pregnancy, which can be equally serious andlife changing. Dee Ann Newell takes a nuanced look at Risk and Protective Factors for SecondaryGirls of Incarcerated Parents in her article, which relies not only on social science research, butalso on her own observations in programs and surveys she has administered. Ms. Newell is theExecutive Director of Arkansas Voices for the Children Left Behind and a Senior Justice Fellow ofthe Open Society Institute (OSI) of the Soros Foundation of New York who is the Coordinator ofthe National OSI Policy Partnership for Children of Incarcerated Parents, a 14-State AdvocacyProject. Identifying the responses of these teenage girls is key to developing programming andmentoring opportunities that emphasize their strength. To date, relatively little attention has beengiven to teenage girls in foster care who are CIPs who become pregnant and give birth to children.Their children should not be subjected to Dependency Court jurisdiction and arrangementsshould be made for the mother and child to be placed together when there are no other signs thatthe teenage mother will abuse or neglect her infant. However, such placements can be difficult tofind, and the likelihood of the child being removed from a teenage mother is greater if she has beenadjudicated delinquent and is herself in custody, though again that does not require the child tobe placed in foster care if the teenager can make alternative stable arrangements. Providingappropriate placements is critical to ending the cycle of intergeneration foster care in suchcircumstances.

A number of recent reports and other publications focus on how to benefit CIPs, and organi-zations and publications are making them more visible.72 Passage of the Second Chance Act hasprovided some funding that encourage innovative thinking about best practices and mentoring andcomprehensive recommendations have been directed to federal policy makers,73 but given thebudget crisis future funding is in is doubt. Dr. Denise Johnston’s article, Services for Children ofIncarcerated Parents, provides a comprehensive discussion of many of the most innovative pro-grams that currently exist to further family reunification and details the elements that are necessaryto successful programs. Unfortunately, as she notes, budget cuts in California have decimated manyof these programs, despite their success. Dr. Johnston, a medical doctor, is the Director of theCenter for Children of Incarcerated Parents, a nationally recognized organization providing servicesto CIPs, and she was recently selected as a Los Angeles County Reunification Hero. Many of theprograms she discusses promote best practices for child visitation, which is difficult when womenare housed far from their families. Even when logistical problems caused by distance and expensecan be overcome, prison requirements of who must accompany a child may hinder visits. When achild is in foster care, visiting can be even more problematic. In addition, some Dependency Courtjudges may not order visits for young children fearing such visits will frighten or otherwise disturbthem. Judicial training on these issues is important as is scheduling a visit for judges to any nearbyprison so they can see the visiting area, some of which may have been specifically designed to bechild friendly.74

A practical problem is that it is unclear whether prisoners currently have any constitutionallyrecognized right to contact visits with their children,75 let alone to child friendly visiting areas,overnight visitations or close geographic proximity to their children.76 As Judge Posner suggestedin Froehlich v. Wisconsin Department of Corrections, concerning the out of state transfer of a


female prisoner whose children sued claiming cruel and unusual punishment, while housing her instate is not constitutionally imposed on prison officials, “it may be a moral duty.”77 Without con-nection during imprisonment, it is also foolhardy to assume that families will easily reunite whenparents return from prison.78 Ironically, providing better visiting access for mothers may be easierthan designing them for fathers because of the much larger number of male prisoners. Dr. Johnstondiscusses programs for fathers as well as mothers, reminding us that the vast majority of childrentouched by parental incarceration have an absent father. In fact, in California the initial response byincarcerated fathers to a posted prison inquiry asking if they would like to be more involved withtheir children in Dependency Court was so great that prison administrators recognized that they didnot have the resources to implement such a program.79

Encouraging parents to remain engaged with their families is a particular problem for men who findthemselves with substantial child support obligations. Judge Milton Lee of the D.C. Superior Courthas written a thought provoking article, Fatherhood in the Child Support System: An InnovativeApproach to an Old Problem, that speaks to the problem of what many call “deadbeat dads,” andshows how the system can affect change that is in the best interests of their children. In other words,it is time to question how placing substantial financial burdens on men with low incomes,80 whoseincarceration prevents them from earning a living wage while imprisoned and then hinders theiremployment when they are released, encourages fathers to stay in contact with their families.81

Policies should be in place to ensure that fathers as well as mothers are able stay in contact withtheir children and reunify with their families on release.82 In this regard, we must also resolvepolicy conflicts that discourage unmarried fathers who are juveniles from forming bonds with theirchildren.83

One of the Student Notes, by Erin McGrath, Reentry Courts: Providing a Second Chance forIncarcerated Mothers and Their Children, raises a topic that fits directly into the theme of this SpecialIssue. Re-entry Courts are now being considered in a number of jurisdictions as ways to both monitorand provide resources to individuals who might otherwise be likely to recidivate. While some questionwhether such courts set up women to fail by requiring them to jump through too many hoops to keeptheir freedom, ultimately reentry courts can make valuable contributions if they are designed to takeinto account that women may suffer relapses, and provide services and incentives that promote theirstrengths rather than concentrating primarily on exposing their weaknesses. Most women withchildren do want to reunite, but some mothers must work to resolve their own issues before they arelikely to succeed on their reunification plans.

In 2010, the American Bar Association focused a number of issues affecting CIPs. ABA Resolution102E addresses ways to strengthen parental bonds. This resolution highlights visitation, meaningfulparticipation in dependency proceedings, clarifies that incarceration should not be an independentground for parental termination, and encourages information gathering.84 In addition, ABA Resolution102F addresses the need for legal services for prisoners on family law issues.85 For example, a fewstates do not even automatically provide lawyers for indigent parents facing termination,86 and othersdo not provide an attorney until termination proceedings are instituted, which is often too far into theprocess to ensure successful reunification. Separate representation of children in Dependency Courteven when provided can raise issues about whether the lawyer acts in the best interest of child asopposed to a client directed model that responds to the wishes of the child.87 At its August 2011 annualmeeting, the ABA adopted A Model Act Governing the Representation of Children in Abuse, Neglect,and Dependency Cases,88 which would require that a client directed lawyer be appointed for a childin addition to any best interest lawyer.89 Other provisions of the Model Act are intended to improve thequality of legal representation for children and youth in abuse and neglect cases by setting clearqualifications and performance guidelines.

As you can tell, working for better policies and practices concerning children and their incarceratedparents is complicated. In individual cases, the results can range from extremely rewarding for allinvolved, to disastrous. Hopefully, this special issue will serve as resource for judges, lawyers, police,social workers, correctional officials and service providers, as well as a reminder that best practicescan make a positive difference in children’s lives.


NOTES

1. My previous articles on these topics include Gender-Related Issues in a Post-Booker Federal Guidelines World, 37MCGEORGE L. REV. 691 (2006) (hereinafter Gender-Related Issues); A Primer on Gender-Related Issues That Affect FemaleOffenders, 20 CRIM. JUST. 4 (2005); Gendered Implications of Sentencing and Correctional Practices, in GENDERED JUSTICE:ADDRESSING FEMALE OFFENDERS (Barbara Bloom ed., Carolina Academic Press, 2003); Remember the Family: Seven MythsAbout Single Parenting Departures, 13 FED. SENT’G REP. 251 (2001); Creating Correctional Alternatives for NonviolentWomen Offenders and their Children, 44 ST. LOUIS UNIVERSITY L.J. 377 (2000); Severing Family Ties: The Plight of NonviolentWomen Offenders and Their Children, 11 STAN. L. & POL’Y REV. 133 (1999) (with Leslie Acoca); The Forgotten Offender:Effects of Federal Sentencing Policy on Women and Their Children, 8 FED. SENT’G REP. 157 (1995); Gender Issues Raised bythe Sentencing Guidelines, 8 CRIM. JUST. 20 (1993); Gender and Sentencing: Single Moms, Battered Women and OtherSex-Based Anomalies in the Gender-Free World of the Federal Sentencing Guidelines, 20 PEPP. L. REV. 905 (1993); cf. ReviewEssay: Hope’s Boy: A Memoir, 4 CALIFORNIA LEGAL HISTORY J. 533 (2009) (discussing California Foster care system);Appendix-Legal Considerations With Regard to Women Offenders, in BARBARA BLOOM, ET AL., GENDER-RESPONSIVE STRAT-EGIES: RESEARCH, PRACTICE, AND GUIDING PRINCIPLES FOR WOMEN OFFENDERS (National Institute of Corrections, 2003).

2. See JUSTICE POLICY INSTITUTE, The Punishing Decade: Prison and Jail Estimates at the Millennium (May 2000),available at http://www.justicepolicy.org/images/upload/00-05_rep_punishingdecade_ac.pdf.

3. Lauren Glaze, Bureau of Justice Statistics, U.S. Department of Justice, Correctional Populations in the United States2009, at table 1 (December 21, 2010, NCJ 231681), available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2316.

4. Lauren E. Glaze & Laura M. Maruschak, U.S. Department of Justice, Bureau of Justice Statistics, Parents in Prison andTheir Minor Children 2 (NCJ 222984, 2008) (hereinafter Parents in Prison), available at www.ojp.usdoj.gov/bjs/pub/pdf/pptmc.pdf.

5. Pew Center on the States, One in 100: Behind Bars in America 2008, available at http://www.pewcenteronthestates.org/uploadedFiles/One%20in%20100.pdf.

6. Compare Parents in Prison, supra note 4 (estimated from 2007 jail and prison statistics) with The Pew Charitable Trusts,Collateral Costs: Incarceration’s Effect on Economic Mobility 18 (2010) (hereinafter Collateral Costs), available at http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/Economic_Mobility/Collateral%20Costs%20FINAL.pdf (2.7million estimated from census data as well as prison and jail statistics).

7. Collateral Costs, supra note 6, at 18.8. See Denise Johnston, Services for Children of Incarcerated Parents, infra.9. Parents in Prison, supra note 4, at table 2 (6.7% of black children versus. 9% of white children; note this estimate

excludes most individuals who are jailed).10. Creasie Finney Hairston, Kinship Care When Parents Are Incarcerated: What We Know, What We Can Do 8 (Annie E.

Casey Foundation May 2009), available at http://www.aecf.org/~/media/Pubs/Topics/Child%20Welfare%20Permanence/Foster%20Care/KinshipCareWhenParentsAreIncarceratedWhatWeKn/10147801_Kinship_Paper06a%203.pdf.

11. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-11-863, CHILD WELFARE, MORE INFORMATION AND COLLABORATION

COULD PROMOTE TIES BETWEEN FOSTER CARE CHILDREN AND THEIR INCARCERATED PARENTS Highlights (September 2011)(hereinafter GAO Report).

12. Caroline Wolf Harlow, Bureau of Just. Statistics, Prior Abuse Reported by Inmates and Probationers 2 (1999), availableat http://www.ojp.usdoj.gov/bjs/pub/pdf/parip.pdf (eighty-seven percent of female prisoners who spent their childhood in fostercare or institutions reported being physically or sexually abused).

13. See generally NELL BERNSTEIN, ALL ALONE IN THE WORLD: CHILDREN OF THE INCARCERATED (2005).14. Steve Christian, National Conference of State Legislatures, Children of Incarcerated Parents 1 (March 2009), available

at http://www.ncsl.org/documents/cyf/childrenofincarceratedparents.pdf.15. See, e.g., Diana Brazzell, Urban Institute Justice Policy Center, Using Local Data to Explore the Experiences and Needs

of Children of Incarcerated Parents 1 (May, 2008) (discussing location of data and challenges involved in analyzing data).16. GAO Report, supra note 11, Highlights.17. See, e.g., Philip M. Genty, Procedural Due Process Rights of Incarcerated Parents in Termination of Parental Rights

Proceedings: A Fifty-State Analysis, 30 J. FAM. L. 757 (1992).18. CHILDREN OF INCARCERATED PARENTS BILL OF RIGHTS, available at http://www.fcnetwork.org/billofrights.pdf. The

principles are: 1. I have the right to be kept safe and informed at the time of my parent’s arrest. 2. I have the right to be heardwhen decisions are made about me. 3. I have the right to be considered when decisions are made about my parent. 4. I have theright to be well cared for in my parent’s absence. 5. I have the right to speak with, see and touch my parent. 6. I have the rightto support as I struggle with my parent’s incarceration. 7. I have the right not to be judged, blamed or labeled because of myparent’s incarceration. 8. I have the right to a lifelong relationship with my parent.

19. See, e.g., Susan D. Phillips, et al., Differences Among Children Whose Mothers Have Been in Contact with the CriminalJustice System, 17 WOMEN & CRIMINAL JUSTICE 43, 47 (No. 2/3 2006).

20. See, e.g., Tanya Krupat, Elizabeth Gaynes, & Yali Lincroft, A Call to Action: Safeguarding New York’s Children ofIncarcerated Parents 13 (2011), available at http://www.osborneny.org/NYCIP/ACalltoActionNYCIP.Osborne2011.pdf.

21. This overview does not specifically address immigration detainees, whose incarceration and ultimate deportation raisesmany additional issues that negatively affect both their undocumented and citizen children. See, e.g., Wendy Cervantes & Yali


Lincroft, The Impact of Immigration Enforcement on Child Welfare (March 2010), available at http://www.firstfocus.net/sites/default/files/r.2010-4.7.cervantes.pdf.

22. For example, I am a member of an ABA Criminal Justice Section Committee chaired by Judge Ernestine Gray that iscurrently engaged in drafting Juvenile Justice Standards that will address the intersection of juvenile justice with other serviceproviders, such as foster care, schools and mental health.

23. See Nancy G. La Vigne, et al., Urban Institute Justice Policy Center, Broken Bonds: Understanding and Addressing theNeeds of Children with Incarcerated Parents 12 (Feb. 2008), available at http://www.urban.org/UploadedPDF/411616_incarcerated_parents.pdf.

24. Susan D. Phillips & Alan J. Dettlaff, More than Parents in Prison: The Broader Overlap Between the Criminal Justiceand Child Welfare Systems, 3 J. PUBLIC CHILD WELFARE 3, 17 (2009).

25. See e.g., Susan D. Phillips & James P. Gleeson, What We Know Now That We Didn’t Know Then About the CriminalJustice System’s Involvement in Families with whom Child Welfare Agencies have Contact: Findings from a Landmark NationalStudy, (Center for Social Policy and Research, University of Illinois at Chicago, July 2007), available at http://www.fcnetwork.org/reading/what_we_know_now.pdf; Jessica Nickel, Crystal Garland, & Leah Kane, Children of IncarceratedParents: An Action Plan for Federal Policymakers 1 (New York: Council of State Governments Justice Center, 2009), availableat http://www.reentrypolicy.org/jc_publications/federa_action_plan_/Children_Incarcerated_Parents_v8.pdf.

26. See Center for Disease Control and Prevention, ADVERSE CHILDHOOD EXPERIENCES STUDY, available at http://www.cdc.gov/ace/prevalence.htm#ACED; see also, Susan D. Phillips et al., Disentangling the Risks: Parent Criminal JusticeInvolvement and Children’s Exposure to Family Risks, 5 CRIMINOLOGY & PUBLIC POLICY 677 (2006) (parental criminal justiceinvolvement has independent significance beyond interrelated parental risks).

27. Patricia Allard & Judy Greene, Justice Strategies, Children on the Outside: Voicing the Pain and Human Costs ofParental Incarceration (January 2011), available at http://www.justicestrategies.org/publications/2011/children-outside-voicing-pain-and-human-costs-parental-incarceration.

28. Ms. Allard is also the co-author with Lynn D. Lu, of a report entitled Rebuilding Families, Reclaiming Lives: StateObligations to Children in Foster Care and their Incarcerated Parents (2006), published by the Brennan Center for Justice atNYU School of Law, which argued that “reasonable” reunification efforts must include a reasonable time period to benefit fromservices offered to families.

29. See generally Gender-Related Issues, supra note 1.30. See, e.g., Stephen J. Schulhofer, The Feminist Challenge in Criminal Law, 143 U.PA.L.REV. 2151, 2185 (1995).31. See Heather C. West, et al., Bureau of Justice Statistics, Prisoners in 2009, at 2, available at http://www.bjs.gov/content/

pub/pdf/p09.pdf.32. See, e.g., Susan D. Phillips, et al., Differences Among Children Whose Mothers Have Been in Contract with the Criminal

Justice System, 17 WOMEN & CRIMINAL JUSTICE 43, 56 (No. 2/3 2006).33. See Mary Flood, Lea Fastow Expresses Regret At Sentencing, HOUSTON CHRONICLE, May 7, 2004 (discussing staggered

sentence of mother and father regarding their Enron convictions), available at http://www.chron.com/business/energy/article/Lea-Fastow-expresses-regret-at-sentencing-1965001.php.

34. Parents in Prison, supra note 4, at table 8. The report explains that “[m]others and fathers in state prison provideddifferent responses about their children’s current caregivers. Eighty eight percent of fathers reported that at least one of theirchildren was in the care of the child’s mother, compared to 37% of mothers who reported the father as the child’s currentcaregiver. Mothers in state prison most commonly identified the child’s grandmother (42%) as the current caregiver. Nearly aquarter (23%) identified other relatives as the current caregivers of their children.” Id. at 5.

35. Danielle H. Dallaire, Incarcerated Mothers and Fathers: A Comparison of Risks for Children and Families, 56 FAMILY

RELATIONS 440, 449 (2007).36. See Clare M. Nolan, Cal. Research Bureau, Children of Arrested Parents, Strategies to Improve Their Safety and

Well-Being (July 2003), available at www.library.ca.gov/crb/03/11/03-011.pdf.37. See, e.g., GAO Report, supra note 11, at 20–30; Ginny Puddefoot & Lisa K. Foster, California Research Bureau, Keeping

Children Safe When Their Parents Are Arrested: Local Approaches That Work (July 2007), available at http://www.library.ca.gov/crb/07/07-006.pdf; see also Form 1. Parental Appointment of Your Child’s Caregiver (form is part of flyerexplaining various short- and long-term options for placing children on arrest), NYS PERMANENT JUDICIAL COMMISSION ON

JUSTICE FOR CHILDREN available at http://www.nycourts.gov/ip/justiceforchildren/incarceratedparents.shtml.38. See, e.g., Charlene Wear Simmons, Cal. Res. Bureau, California Law and the Children of Prisoners 1, 6 (Feb. 2003),

available at www.library.ca.gov/crb/03/03/03-003.pdf.39. Parents in Prison, supra note 4, at 5.40. Susan D. Phillips & Alan J. Dettlaff, supra note 24, at 9.41. It would be incorrect to assume that incarceration always precipitates entry into foster care, since maternal substance

abuse may result in foster placement occurring before incarceration. In fact, for some women, it is a child’s placement in fostercare that precipitates the downward criminal spiral. See Miriam Ehrensaft, et al., Vera Institute of Justice, Patterns Of CriminalConviction And Incarceration Among Mothers Of Children In Foster Care In New York City 26 (Dec. 2003). However, 64.2percent of mothers lived with their children in the month prior to arrest or immediately before incarceration. See Parents inPrison, supra note 4, at 4–5

42. See, e.g., ARLENE E. LEE ET AL., CHILD WELFARE LEAGUE OF AM., THE IMPACT OF THE ADOPTION AND SAFE

FAMILIES ACT ON CHILDREN OF INCARCERATED PARENTS (2005); Raquel Ellis, et al., The Timing Of Termination Of Parental


Rights: A Balancing Act For Children’s Best Interests, CHILD TRENDS (Sept. 2009), available at http://www.childtrends.org/Files/Child_Trends-2009_09_09_RB_LegalOrphans.pdf; Stephanie Sherry, Note, When Jail Fails: Amending the ASFA toReduce its Negative Impact on Children of Incarcerated Parents, 48 FAM. CT. REV. 380 (2010).

43. Gender-Related Issues, supra note 1, at 700 (internal citations deleted).44. Joseph S. Jackson & Lauren G. Fasig, The Parentless Child’s Right To A Permanent Family 46 WAKE FOREST L. REV.

1 15–30 (2011); see generally Julie Poehlmann, Representations of Attachment Relationships in Children of IncarceratedMothers, 76 CHILD DEVELOPMENT 679 (2005).

45. See, e.g., James G. Dwyer, The Child Protection Pretense: States’ Continued Consignment of Newborn Babies to UnfitParents, 93 MINN. L. REV. 407, 408–09 (2008).

46. See also M.W. Byrne, Maternal And Child Outcomes Of A Prison Nursery Program: Key Findings, available athttp://www.cumc.columbia.edu/dept/nursing/byrne/prison_nursery.html.

47. See, e.g., Rules 2.2, 58, 63, and 64, available at http://www.un.org/en/ecosoc/docs/2010/res%202010-16.pdf.48. See generally Philip M. Genty, Damage to Family Relationships as a Collateral Consequence of Parental Incarceration,

30 FORDHAM URB. L.J. 1671(2003).49. See Lee, supra note 42, at 11.50. Gender-Related Issues, supra note 1, at 700 (internal citations deleted).51. See Parents in Prison, supra note 4, at 5; see also Jenni Vainik, Note, The Reproductive and Parental Rights of

Incarcerated Mothers, 46 FAM. CT. REV. 670 (2008).52. Some states like California have what is called Kin-GAP program. See CALIFORNIA DEPARTMENT OF SOCIAL

SERVICES, http://www.childsworld.ca.gov/PG1354.htm (explaining the Kin-GAP program). The Fostering Connections toSuccess Act provides for additional kinship guardianship assistance for states that opt into its programs.

53. Parental Incarceration and Child Wellbeing in Fragile Families, Fragile Families Research Brief No. 42, at 2 (April2008), available at http://www.f2f.ca.gov/res/pdf/ParentalIncarceration.pdf.

54. Christopher A. Swann, & Michelle Sheran Sylvester, The Foster Care Crisis: What Caused Caseloads to Grow?43 DEMOGRAPHY 309 (No. 2, May 2006).

55. See Trends in Foster Care and Adoption–FY 2002-FY 2009, U.S. Department Health & Hum. Services, available athttp://www.acf.hhs.gov/programs/cb/stats_ research/afcars/trends.htm.

56. See, e.g., Lashanda Taylor, Resurrecting Parents of Legal Orphans: Un-Terminating Parental Rights, 17 VA. J. SOC.POL’Y & L. 318 (2010).

57. The legislation amends California Penal Code sections 1170.05 and 4532.58. See Brown v. Plata, 131 S. Ct. 1910 (2011).59. See, e.g., Krupat, supra note 20.60. See Christian, supra note 14, at 6.61. See, e.g., FOREVERFAMILY IN ATLANTA, http://www.foreverfam.org/families.php; GET ON THE BUS IN CALIFORNIA,

http://www.getonthebus.us/.62. See Hairston, supra note 10, at 24.63. See Simmons, supra note 38, at 7.64. Jackie Crawford, Alternative Sentencing Necessary for Female Inmates With Children, CORRECTIONS TODAY, June,

2003, available at http:// www.aca.org/publications/ctarchivespdf/june03/commentary_june.pdf.65. Joseph Murray, et al., Effects of Parental Imprisonment on Child Antisocial Behavior and Mental Health: A Systematic

Review, CAMPBELL SYSTEMATIC REVIEWS 6 (2009:4) available at https://www.ncjrs.gov/pdffiles1/nij/grants/229378.pdf; seealso Julie Poehlmann, Children of Incarcerated Mothers and Fathers, 24 WIS. J.L. GENDER & SOC’Y 331, 339 (2009).

66. See, e.g., Montana Alliance of Families Touched by Incarceration, Family Members Behind Bars, Difficult QuestionsChildren Ask . . . And Answers That Might Help, available at http://www.f2f.ca.gov/res/pdf/FamilyMembersBehindBars.pdf.

67. See Collateral Costs, supra note 6, at 21.68. See, Jeremy Travis, et al., Urban Institute Justice Policy Center, Families Left Behind: The Hidden Costs Of Incarcera-

tion And Reentry, Table 1, at 3 (2005), available at http://www.urban.org/uploadedpdf/310882_families_left_behind.pdf.69. See, e.g., Recommendations in Executive Summary, Charting a Better Future for Transitioning Foster Youth 7–14

(2011), available at http://www.americanbar.org/content/dam/aba/publications/center_on_children_and_the_law/youth_at_risk/transitioning_foster_youth_executive_summary.authcheckdam.pdf.

70. Funding for the 2002 Mentoring Children of Prisoners program has apparently fallen victim to the budget crisis. SeeGAO Report supra note 11, at 35.

71. See American Bar Association Commission on Youth at Risk, Children of Incarcerated Parents Involved with the ChildWelfare System: ABA Information to Guide Law and Policy Reform (Oct 2010); Danielle H. Dallaire, et al., Teachers’ Experienceswith and Expectations of Children with Incarcerated Parents, 31 J. APPLIED DEVELOPMENTAL PSYCHOLOGY 281, 285–87 (2010).

72. In addition to the other sources mentioned in this overview, see Stacy Bouchet,TheAnnie E. Casey Foundation, ChildrenAndFamilies With Incarcerated Parents: Exploring Development In The Field And Opportunities For Growth (2008), available athttp://www.aecf.org/~/media/Pubs/Topics/Child%20Welfare%20Permanence/Permanence/ChildrenandFamilieswithIncarceratedParentsExp/Children%20and%20families%20with%20incarcerated%20parents.pdf; CHILDREN OF INCARCERATED PARENTS

(Katherine Gabel & Denise Johnston, eds. 1995); The Annie E. Casey Foundation, When a Parent is Incarcerated: A Primer forSocial Workers (2011); CHILDREN OF INCARCERATED PARENTS: A HANDBOOK FOR RESEARCHERS AND PRACTITIONERS

(J. Mark Eddy and Julie Poehlmann, eds. 2010); CHILDREN OF INCARCERATED PARENTS, THEORETICAL, DEVELOPMENTAL


AND CLINICAL ISSUES (Yvette R. Harris, et al., eds. 2010); Children’s Bureau, United States Department of Health andHuman Services, Recent Materials on Working with Incarcerated Parents 2010-present (Child Welfare Information Gateway,July, 2011), available at http://fosteryouthalliance.org/wp-content/uploads/2011/08/Working-with-incarcerated-parents-CWIG-Bibliography.pdf; Christopher J. Mumola, Bureau of Justice Stat., U.S. Dep’t of Justice, Special Report: Incarcerated Parents andTheir Children 4 (2000), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/iptc.pdf; National Resource Center for In HomeServices, Services for Pregnant and Parenting Youth In or Exiting Substitute Care: Annotated Bibliography, available athttp://nrcinhome.socialwork.uiowa.edu/documents/PregnantandParentingTeenResourceList.pdf; National Resource Center onChildren and Families of the Incarcerated at Family and Corrections Network (NRCCFI), available at www.fcnetwork.org;Timothy Ross, et al., Vera Inst. of Justice, Hard Data on Hard Times: An Empirical Analysis of Maternal Incarceration, FosterCare, and Visitation 1–2 (2004), available at http://www.vera.org/publication_pdf/245_461.pdf; The Sentencing Project,Incarcerated Parents and Their Children, Trends 1991–2007 (Feb. 2009), available at http://www.sentencingproject.org/doc/publications/publications/inc_incarceratedparents.pdf; University of Minnesota Center for Advanced Studies in Child WelfareCW360o: Children of Incarcerated Parents (Spring 2008) (includes numerous short articles and a bibliography), available athttp://academy.extensiondlc.net/file.php/1/resources/CIP-CW360.pdf; Charlene Wear Simmons, Cal. Research Bureau, Chil-dren of Incarcerated Parents, CRB Note Vol. 7, No. 2 (2000), available at http://www.library.ca.gov/crb/00/notes/v7n2.pdf.

73. See An Action Plan for Federal Policy makers, supra note 25.74. For example, judicial training by the LA Dependency Court Incarcerated Parents Work Group included child develop-

ment issues, discussion of the reasons supporting visiting, biases against pregnant and parenting delinquent girls and presen-tation of available service as well as the legal and logistical mechanics of how prisoners get to and from Dependency Court. Thewarden of California Institute for Women (CIW), which is located about an hour from the Dependency Court has attended manyof its meetings and scheduled a visit by the Dependency Court judges to see CIW’s child visiting area.

75. See Overton v. Bazzetta, 539 U.S. 126, 131–132 (2003) (affirming prison’s right to eliminate non-contact visits by anyminor nieces and nephews and children as to whom parental rights had been terminated; Court did not address if prisoners hada right to either contact or non-contact visits with children to whom they still retained parental rights).

76. See, e.g. Gender-Related Issues, supra note 1, at 745–47; see generally Jade S. Laughlin et al., Incarcerated Mothersand Child Visitation: A Law, Social Science, and Policy Perspective, 19 CRIM. JUST. POL’Y REV. 215 (2008), cf. SarahAbramowicz, Rethinking Parental Incarceration, 82 U. COLO. L. REV. 795 (2011); Chesa Boudin, Children of IncarceratedParents: The Child’s Constitutional Right to the Family Relationship, 101 J. CRIM. LAW AND CRIMINOLOGY 77 (2011).

77. Froehlich v. State of Wisc. Dept. of Corrections,196 F.3d 800, 802 (7th Cir. 1999).78. Creasie Finney Hairston, Focus on Children with Incarcerated Parents: An Overview of the Research Literature 26 (The

Annie E. Casey Foundation, 2007), available at http://www.aecf.org/KnowledgeCenter/Publications.aspx?pubguid={F48C4DF8-BBD9-4915-85D7-53EAFC941189}.

79. The request originated from prison administrators participating in the LA Dependency Court Work Group whoinformally reported to the group about the response. The California Department of Corrections and Rehabilitation has workedclosely with the Work Group on a number of issues involving logistics, visiting and telephone access to prisoners by children.While transportation issues and programming would appear more difficult to resolve, telephone access issues have provedsurprisingly incapable of easy resolution.

80. While currently considered as primarily a male problem, women can also be subject to child support orders whileimprisoned.

81. See Ann Cammett, Deadbeats, Deadbrokes, and Prisoners, 18 GEO. J. ON POVERTY L & POL’Y 127, 168 (Spring 2011)(discussing “counterproductive effect of creating uncollectible debt for parents, and driving them into the undergroundeconomy and away from their families” as not being in the best interest of their children); see also Pearson, Building Debt WhileDoing Time: Child Support and Incarceration, 43 JUDGES JOURNAL 5 (2004).

82. See, e.g., The National Evaluation of the Responsible Fatherhood, Marriage, and Family Strengthening Grants forIncarcerated and Re-Entering Fathers and their Partners Strengthening the Couple and Family Relationships of Fathers BehindBars: The Promise and Perils of Corrections-Based Programming, (ASPE Research Brief, U.S. Department of Health andHuman Services, Aug. 2009), available at http://aspe.hhs.gov/hsp/08/MFS-IP/Corrections-Based/rb.shtml (concluding suc-cessful return to families is complicated).

83. See generally ANNE M. NURSE, FATHERHOOD ARRESTED: PARENTING FROM WITHIN THE JUVENILE JUSTICE SYSTEM

(2002).84. I participated in the group that drafted these policies, which was chaired by Jane Aiken, a Professor at Georgetown Law

School. ABA Resolution 102E with its accompanying report is available at http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_policy_midyear2010_102e.authcheckdam.pdf. The text of theresolution follows:

RESOLVED, That the American Bar Association urges federal, state, territorial, and local governments to ensure thatjudicial, administrative, legislative, and executive authorities expand, as appropriate in light of security and safetyconcerns, initiatives that facilitate contact and communication between parents in correctional custody and theirchildren in the free community. Such initiatives should:(a) to the extent practicable, assign prisoners to a facility located within a reasonable distance from the prisoner’s familyor usual residence;(b) encourage and support no cost or low cost public transportation between urban centers and prisons for families ofprisoners;


(c) revise visitation rules, including those related to hours and attire to facilitate extended contact visits between parentsand their minor children, and assure that information is made available to parents regarding opportunities to visit withtheir children;(d) modify visitation areas to accommodate visits by young children;(e) provide reasonable opportunities for inmates to call and write their minor children at no cost or at the lowest possible rates;(f) seek to reduce barriers that limit opportunities for children in foster care to visit their incarcerated parent, and makeavailable services to help address the trauma that these children face resulting from parental incarceration;(g) adopt or expand programs on parenting and parenting skills available to incarcerated prisoners with minor children, andprovide their family members with services designed to strengthen familial relationships and child safety, permanency, andwell being outcomes;(h) provide the opportunity for incarcerated parents to participate meaningfully in dependency-related court proceedingsinvolving their children and ensure competent and consistent legal counsel to aid them in these cases;102EFURTHER RESOLVED, That the American Bar Association urges states, territories, and the federal government to adoptpolicies and procedures, to the extent consistent with security, safety, and privacy concerns, that require child welfareagencies to track the incarceration status of the parents of children in foster care, and that facilitate communication betweenthe child welfare system and the corrections system regarding the incarceration status of the parents, the location of theparents’ correctional facilities, and subsequent transfers of the parents to other correctional facilities.FURTHER RESOLVED,That theAmerican BarAssociation urges federal, state, territorial and local governments to clarifythat incarceration alone should not be grounds for judicial termination of parental rights, nor does incarceration negate childwelfare agency requirements to provide reasonable efforts that may aid in facilitating safe, successful, and appropriateparent–child reunification; andFURTHER RESOLVED,That theAmerican BarAssociation urges federal, state, territorial and local governments to explorethe use of innovative means of providing opportunities for parent/child contact and communication, including but not limitedto intergovernmental contracts, and alternatives to incarceration such as privately operated residential facilities.

85. The text and Report supporting Resolution 102F, which follows is available at http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_policy_midyear2010_102f.authcheckdam.pdf:RESOLVED, That the American Bar Association urges bars, bar associations, and law schools to consider and expand, asappropriate, initiatives that assist criminal defendants and prisoners in avoiding undue consequences of arrest and convictionon their custodial and parental rights. Such initiatives should include:

(a) training criminal defense counsel to: 1) ascertain whether their clients have minor children and if so, to ascertain thelocation of the children; and, 2) to advise clients with minor children as to the consequences of arrest and conviction ontheir custodial and parental rights and on how to obtain further assistance in avoiding those consequences;(b) developing models for training lawyers about the collateral effects of arrest and conviction on their parenting rightsthat can be distributed to bar associations; and(c) establishing programs to provide criminal defendants and prisoners with no cost or low cost legal assistance onfamily law issues, including the avoidance of foster care through kinship care and guardianship arrangements.FURTHER RESOLVED, That the American Bar Association urges Congress to eliminate restrictions that prohibitrecipients of Legal Services Corporation funds from providing legal assistance to prisoners on family law issues.

86. Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981), rejected any bright line requirement that a state must providea parent with an attorney in termination proceedings, instead positing a case by case balancing test. Most states provide anattorney for the court appearance. In re “A” Children, 193 P.3d 1228 (Hawaii App. 2008), noted it was one of only five statesthat still follow a discretionary approach.

87. See, e.g., Michael J. Dale & Louis M. Reidenberg Providing Attorneys For Children In Dependency And Termination OfParental Rights Proceedings In Florida: The Issue Updated, 35 NOVA L. REV. 305 (2011); Andrea Khoury, Why a Lawyer? TheImportance of Client-Directed Legal Representation for Youth, 48 FAM. CT. REV. 277 (2010), Aditi D. Kothekar, Note,Refocusing the Lens of Child Advocacy Reform on the Child, 86 WASH. U. L. REV. 481 (2008).

88. A Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Cases, available athttp://apps.americanbar.org/litigation/committees/childrights/docs/aba_model_act_2011.pdf.

89. Id. at Section 3.

Myrna Raeder is a professor at Southwestern Law School, in California where she was the 2008–2009 Justice MarshallF. McComb Professor and the 2002–2003 Paul E. Treusch Professor. She was also the first female professor to receivethe school’s then-highest award when she was selected as the 1990–1991 Irwin R. Buchalter Professor of Law. In 2002,the ABA Commission on Women in the Profession selected her as a recipient of its Margaret Brent Women Lawyers ofAchievement Award. Professor Raeder is a member of American Law Institute, a past chair of the ABA Criminal JusticeSection and of the Women in Legal Education and Evidence Sections of the Association of American Law Schools. Inaddition, she is a past president of the National Association of Women Lawyers. Professor Raeder is a prolific authorand a longtime advocate on behalf of women offenders and their children. She is currently a member of the ABA’sCommission on Domestic Violence. She was a member of the ABA Youth at Risk Commission and currently is a memberof its Advisory Board. She has also sat on the board of the Center of Children of Incarcerated Parents and is a memberof L.A. Dependency Court’s Incarcerated Parents Working Group.


Documents

SPECIAL ISSUE: MAKING A BETTER WORLD FOR CHILDREN OF INCARCERATED PARENTS