Five years ago, LaDonna Hopkins was caught stealing clothes from a store in Rock Island County, Illinois. She wasn’t stealing them to wear, but to sell on the street. Still in the grips of what would be an 11-year battle with crack cocaine, Hopkins had assessed her options, and theft seemed the lesser evil.
“When you’re in addiction, there’s only three things you can do,” she told Rewire. “You can rob somebody, or you can prostitute, or you can steal.”
After she was caught, Hopkins was sentenced to five years in Dwight state prison. She was pregnant at the time. She eventually served five months inside, and an additional two-and-a-half years in a women’s treatment center. The penalty may seem severe for a non-violent crime spurred by drug dependency, but for Hopkins the true punishment was not the prison term, but rather the permanent loss of her parental rights to her daughter.
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“When I gave birth, I was allowed to spend 48 hours with my daughter in the hospital, and then I was shipped back to prison,” she told Rewire. “She’s four now and I haven’t gotten any closer to getting her back, and I’ve been going to court for three-and-a-half years.”
Hopkins says she wanted to transfer to a prison unit that would have allowed her to keep her child, while also undergoing drug treatment, but she was denied access to the program. Because Hopkins wasn’t able to look after her daughter, a family member was awarded permanent custody—a decision Hopkins has been fighting for the past four years.
Since she was released from prison in mid-2010, Hopkins has completed her associate’s degree, and is pursuing her bachelor’s in applied behavioral science. She has lobbied the Illinois state legislature and spoken at public events, all while raising a 1-year-old daughter as a single mom in an apartment in southwest Chicago. Despite these successes, she says she remains mired in a maze of state laws that are designed to protect children, but lack flexibility for parents who have been incarcerated.
Once parental rights are severed, they are all but impossible to restore, meaning that parents who were incarcerated for minor crimes can be left suffering the consequences for a lifetime, no matter how radically they transform their lives.
“It’s hard for me to wrap my head around being sober and giving my child up,” Hopkins said.
As part of our Women, Incarcerated series, Rewire interviewed women who, like Hopkins, lost parental rights after being incarcerated for minor, non-violent crimes. Thousands of incarcerated women risk losing parental rights each year due to a combination of state and federal laws that are intended to protect children and speed up the adoption process. This risk is more pronounced for women of color.
Philip Genty, a professor at Columbia Law School who is a leading national authority on incarcerated parents, says it has become common for incarcerated mothers to face losing their parental rights.
“It is a very rare situation where a woman prisoner with a child in foster care has not been confronted with this,” he said.
Experts say there is an urgent need for a review of these laws to increase flexibility, and to move away from a rigid, one-size-fits-all approach.
“Whenever you’re talking about child welfare, having something that has these very rigid timelines, that doesn’t take individual circumstances into consideration, is a problem,” said Genty. “In some cases, staying with a parent may not be perfect, but it’s a better situation than anyone else has for the child, so why would you want to deprive the child of this relationship in his or her life?”
A Federal Law With Unintended Consequences
The question of what to do for families in crisis has long plagued government officials, researchers, and community workers in the United States. The foster care system has been an imperfect back-up for struggling parents, and particularly for women, who are more likely to be a sole parent than men.
In the mid-1990s, hundreds of thousands of children were languishing in state foster care systems across the country, while at the same time potential adoptive parents were growing impatient at long waits.
In 1997, Congress passed the Adoption and Safe Families Act (ASFA), with the goal of speeding up the processes that kept children in the system for so long.
The new law set strict time limits on how long a child could stay in foster care before the state had to terminate a parent’s rights, and make the child eligible for adoption. If a child was in foster care for 15 out of 22 months, the federal law required states to terminate parental rights or face the loss of generous federal funding for their programs.
The law requires parents to demonstrate an intention to reunify with their children in order to avoid losing parental rights. Experts say this has had unintended consequences for incarcerated parents, many of whom have found it virtually impossible to satisfy the act’s definition of “reunification,” which focuses on demonstrating continued contact with their children.
To be sure, some mothers are ill prepared or unable to care for their children at the time they are incarcerated; battling their own trauma and addiction, many struggle to care for themselves, let alone children. And a small percentage have committed serious or violent offenses, and may deserve to be confined, legal and family sciences experts on parental incarceration said in interviews with Rewire. The vast majority of people at risk of losing their parental rights, though, are serving time for minor, non-violent crimes, experts said.
And for those parents, it can be difficult to demonstrate continued contact from behind a prison wall.
Many state prisons are located in remote areas, far from the urban hubs where families of incarcerated parents often live. For example, it can take four hours to travel from New York City to the facilities that are located upstate. That kind of travel assumes money, access to transportation, and an adult companion for children—factors that are beyond the reach of many incarcerated parents.
“Visits are incredibly difficult at most facilities,” Columbia Law School’s Philip Genty said, calling most prison visiting centers an “afterthought.”
It’s challenging to determine how many incarcerated people have permanently lost their parental rights as a result of the ASFA. The majority of states and the federal system still do not routinely ask people whether they are parents of minor children during sentencing, experts told Rewire. This means both that there’s little information available about how many parents are locked up, and also that most jails and prisons fail to make sure incarcerated parents have real opportunities to maintain ties with their children.
Additionally, each state has its own foster care laws, and these laws are interpreted differently by county courts, which are often charged with determining whether and when to terminate a parent’s rights. To look at the national scope of the problem, one needs to examine the criminal justice system and the child welfare system at the county, state, and federal levels.
Nevertheless, some data is beginning to emerge, and it makes clear that the law has had disastrous results for many families, especially for poor people and people of color, whose communities are grossly over-represented in jails and prisons.
In New York, for example, one in seven children of incarcerated mothers will land in foster care, according to a 2013 New York State Division of Criminal Justice Services study based on a survey of 895 incarcerated people.
The report also found evidence of much more severe family disruption for the children of incarcerated mothers. Nearly 60 percent of children whose mothers were incarcerated were living with a grandparent, another relative, or in foster care; that applied to only 16 percent of kids whose fathers were incarcerated.
And women were far more likely than men to have their parental rights severed, the study found. Strikingly, 17 percent of mothers in the 2013 survey reported that their parental rights had already been terminated, whereas 10 percent of fathers had lost their parental rights.
The report concluded that New York should act to address “the differential impact that children with incarcerated mothers experience,” but the Division of Criminal Justice Services, which conducted the survey, could not tell Rewire what, if any, progress has been made.
Another study, by Charlene Wear Simmons and Emily Danker-Feldman, examined a decade of San Francisco’s child welfare adoption files from 1997 to 2007, and found that 15 to 20 percent of children in foster care in San Francisco have been affected by parental incarceration.
“It was very hard to read through the files. They’re just heartbreaking,” Simmons told Rewire.
The study determined that poor women and women of color were much more likely to be stripped of their rights to their children as a result of incarceration: Though Black adults comprise less than 7 percent of San Francisco’s population, nearly 60 percent of mothers who had their rights terminated in 2007 were Black.
“When you look at who is in the prison system, these are generally poor women, minority women,” said Simmons. “There’s a huge correlation between maternal incarceration, drug abuse, and termination of parental rights.”
It is difficult to determine how New York and San Francisco compare to other jursidictions, or to the federal prison system, due to a lack of data.
According to a recent report by the federal Administration for Children and Families, of the 402,000 children in foster care in 2013, nearly 60,000 were waiting to be adopted after the rights of all living parents had been terminated that year.
A spokesperson for the Administration for Children and Families was unable to tell Rewire how many of those children’s parents were incarcerated at the time that their parental rights were terminated.
A 2003 paper found significant increases in the number of children whose parents were incarcerated while their rights were terminated during the late 1990s, at the peak of the war on drugs and following the introduction of the ASFA.
Although some experts told us that legislators were simply not thinking about incarcerated parents when they drafted the ASFA, Amy Fettig of the American Civil Liberties Union put it more bluntly.
“Quite frankly, it was a wholesale attack on the moms, and to be very honest, a wholesale attack on Black women.”
“They Said There Was No Hope for Me”
Pamela C., a Colorado resident who asked Rewire not to use her last name in order to protect her children’s privacy, saw firsthand how the law punished her, instead of helping her to seek rehabilitation. (Rewire has independently verified her account with colleagues, and other publicly available materials.)
Pamela’s story began shortly after the Adoption and Safe Families Act became law in 1997. In late November of that year, her husband died of a heart attack on the kitchen floor shortly after his 40th birthday, leaving Pamela to look after her son and daughter, who were 7 and 4 at the time.
Pamela’s grief compounded an undiagnosed mental health condition, and her drug use escalated. In early December, police arrived at the house. Pamela says they’d been told that she was dealing heroin, and while they never charged her with that offense, they did find a small quantity of the drug in her late husband’s dresser drawer. That’s when they took Pamela’s kids.
“After they took my kids, I lost my mind,” she said. “I was mad. I was not compliant. And so the caseworkers and I had absolutely the worst relationship you could imagine, because I thought they were playing a game that I shouldn’t have to play, because my kids were fine until all this happened.”
She was charged with possession of a small quantity of methamphetamine, but because of an earlier felony conviction arising from a serious car crash in the 1980s, she was sentenced to six years of confinement with an additional mandatory three years of parole.
Before going to prison, Pamela had been informed by social services that, because her children were in foster care, she would lose her parental rights to them unless she satisfied the requirements of the federal law. Like many incarcerated parents, Pamela found those requirements virtually impossible to satisfy.
“They wouldn’t let us talk to each other,” Pamela said. She says she received only one letter from her children each year, and despite writing multiple letters, she says she later learned that her children were not receiving them.
After 18 months in prison, Pamela received notice of a court hearing about the termination of her parental rights. She says she was not allowed to attend.
Two weeks later, another letter informed her that she no longer had any legal relationship to her children. They would be adopted.
“There were never any incidents of abuse,” Pamela said. “They just took my kids because there was no place for them to go. They said there was no hope for me, for rehabilitation.”
That decision ignited a 14-year struggle to regain her relationship with her son and daughter, which Pamela ultimately won. She completed multiple treatment stages and parenting courses, and is now working in an advocacy position at a Colorado nonprofit. She lives with both her children, who are coping with the mental and physical trauma of years in the foster system.
In other words, Pamela has rehabilitated herself, and now works to reform corrections systems that corrode families like hers.
“I didn’t need to go to prison,” she said. “What I needed was to get help. I needed to go to treatment.”
It’s a refrain that is far too common to researchers who have studied the collision of the criminal justice and child welfare systems.
“No one’s helping the mothers,” said Charlene Wear Simmons, the San Francisco-based researcher. “The system has given up on them. The sad thing of course is that many of them go on to have more children and they lose those children too. From a system’s perspective, it doesn’t make sense.”
On a Small Scale, States Make Promising Reforms
In the past few years, several states—some looking to save money in the wake of the Great Recession—have increased funding for community-based programs, drug courts, and prison nurseries, which are substantially cheaper than confinement.
New York, for instance, has shuttered correctional facilities, and initiated programs that divert people, especially mothers, from incarceration.
One such project is Justice Home, which is run by the Women’s Prison Association, a nonprofit organization based in Brooklyn, and the Administration for Children’s Services.
Justice Home launched last summer. It’s an intensive program intended to prevent the removal of children to foster care by working with mothers who are facing a minimum of six months of incarceration for a felony charge.
Alexandra Villano, director of strategic initiatives for the Women’s Prison Association, said the program grew out of years of experience running residential alternatives to incarceration.
“We decided to go in that direction because there was increased understanding that the point at which moms were more likely to enter the criminal justice system was when their kids were removed from their care,” she told Rewire.
Each program is tailored to the individual woman, and might include one-on-one or group services such as anger management training, housing support, therapy, or substance abuse treatment. Even with these intensive services, the Justice Home program costs on average less than $20,000 per participant each year, compared to the $129,000 it typically costs to send a woman to jail and her children to foster care, not to mention the incidental social, physical, and psychological costs, Villano said.
The program has worked with 43 women so far, and has discovered that, even at this early stage, the risk of committing another crime declined by 45 percent for its participants.
Similar projects have been developed in other jurisdictions, and a collection of states—New York, Washington, and California—have in recent years passed laws to loosen ASFA’s rigid timelines, which particularly hurt incarcerated mothers.
Joyce Arditti, professor of human development at Virginia Tech who specializes in families and incarceration, says incarcerated parents who lose custody of their children as a result of committing minor, non-violent offenses are suffering a violation of their human rights.
“It is a human rights issue because parenthood is an inalienable right,” Arditti said in an interview with Rewire. Not all parents are competent, and some deserve to be incarcerated, she said. But the problem in the United States is that the combination of mass incarceration and inflexible foster laws leads to an extraordinary, disproportionate punishment that overwhelmingly affects poor and minority women.
“It’s a form of punishment … that they are forcibly separated from their children and precluded from participating in family life in a meaningful way,” Arditti said.